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https://www.courtlistener.com/api/rest/v3/opinions/2585114/ | 187 P.3d 219 (2008)
344 Or. 558
HARRIS
v.
JOURDAN.
No. (S055932).
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/2585134/ | 187 P.3d 219 (2008)
344 Or. 558
STATE
v.
WYANT.
No. (S055716).
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/1918147/ | 28 Wis. 2d 102 (1965)
CITY OF PLYMOUTH, Appellant,
v.
ELSNER, Respondent.
Supreme Court of Wisconsin.
June 3, 1965.
June 25, 1965.
*104 For the appellant there were briefs by P. G. Anderson, city attorney, attorney, and Honeck, Mantyh & Arndt of Milwaukee, special counsel, and oral argument by Stewart G. Honeck.
*105 For the respondent there was a brief by Walter & Hopp and Alexander Hopp, all of Sheboygan, and oral argument by Alexander Hopp.
CURRIE, C. J.
The brief of appellant city states the question involved on this appeal to be:
"Is a levy of assessments by the City of Plymouth upon residential and commercial properties at the rate of fifty (50) cents and one (1) dollar per month, respectively, for the purpose of financing the purchase, lease and maintenance of industrial sites and for which sec. 66.52 Stats. authorizes the City to contract indebtedness outside of its constitutional debt limitation unconstitutional as not conforming to the rule of uniform taxation prescribed by sec. 1, art. VIII of the Wisconsin constitution?"
This phrasing of the issue presupposes that the tax imposed by the ordinance is a property tax and not an excise tax. We entertain some doubt as to whether such tax may not be properly classified as an excise tax on the theory that it is levied on a particular transaction, i.e., the payment of bills of the municipal electric utility for the purpose of raising city revenue.[1]
We find it unnecessary to determine whether the tax imposed by the ordinance is an excise tax or a general property tax. If it is an excise tax, it is invalid for the reason that the legislature has not conferred upon Wisconsin cities the power to levy excise taxes of the type here attempted to be levied. If it is a property tax, it violates the uniformity *106 clause contained in sec. 1, art. VIII, Wisconsin constitution, which provides: "The rule of taxation shall be uniform. . . ."
Power of Cities to Levy Excise Tax to be Added to Public Utility Charges.
The constitutional authority of cities only extends to local affairs and does not cover matters of statewide concern. Van Gilder v. Madison (1936), 222 Wis. 58, 267 N.W. 25, 268 N.W. 108; Logan v. Two Rivers (1936), 222 Wis. 89, 267 N.W. 36. For a discussion of the test of statewide concern as opposed to local affairs, see opinion on rehearing, Muench v. Public Service Comm. (1952), 261 Wis. 492, 515c-515g, 53 N. W. (2d) 514, 55 N. W. (2d) 40. This court declared in State ex rel. Thomson v. Giessel (1953), 265 Wis. 207, 213, 60 N. W. (2d) 763, "The legislature has plenary power over the whole subject of taxation." Such plenary power must be based on presupposition of statewide concern.
Appellant city has cited no constitutional or statutory provision which authorizes a city to levy an excise tax to be added to the amounts payable for charges imposed for a public-utility service such as electricity. 16 McQuillin, Mun. Corp. (3d ed.), pp. 19-21, sec. 44.05, states:
"And since the authority to levy taxes is an extraordinary one, it should never be left to implication unless it be a necessary implication. The grant relied upon should be evidence and unmistakable, and, if there is a doubt as to the existence of the power, such doubt will be resolved against the municipality and in favor of the taxpayer."
Wisconsin recognizes the general rule of construction that a tax cannot be imposed without clear and express language for that purpose, and where ambiguity and doubt exist, it must be resolved in favor of the person upon whom it is sought to impose the tax. Wadhams Oil Co. v. State (1933), 210 Wis. 448, 459, 245 N.W. 646, 246 N.W. 687.
*107 The home-rule amendment found in sec. 3, art. XI of the Wisconsin constitution, is only applicable to matters of local affairs of cities and villages and would not encompass the levying of an excise tax to be added to public utility bills.
We have no hesitancy in holding that appellant city was without any constitutional or statutory authority to levy the instant tax if it be deemed an excise tax.
Uniformity Requirement if Tax is Classified As a Property Tax.
In Barnes v. West Allis (1957), 275 Wis. 31, 37, 81 N. W. (2d) 75, this court declared:
"Under sec. 1, art. VIII, constitution of Wisconsin, where a property tax is levied, there can be no classification which interferes with substantial uniformity of rate based upon value."
Other cases which have interpreted the uniformity clause, as applied to a property tax, to require practical equality based on value are: State ex rel. Baker Mfg. Co. v. Evansville (1952), 261 Wis. 599, 609, 53 N. W. (2d) 795; Chicago & N. W. R. Co. v. State (1906), 128 Wis. 553, 608, 108 N.W. 557; and Knowlton v. Rock County (1859), 9 Wis. 378, 449 (*410, *420).
The tax imposed by the instant ordinance violates the constitutional requirement of uniformity because all residence properties having electrical service meters are taxed 50 cents per month regardless of value. A residential property having an assessed value of $5,000 is required to pay the same tax as one having an assessed value of $20,000. This same disregard of value occurs with respect to the tax imposed on commercial properties having electrical service meters.
The instant tax also violates the uniformity requirement by taxing commercial properties at a higher rate than residential *108 properties. That this is so is clear from this statement by Mr. Justice MARSHALL in Chicago & N. W. R. Co. v. State, supra, at pages 603, 604:
"For the direct method of taxing property, taxation on property so called, as to the rule of uniformity, there can be but one constitutional class. All not included therein must be absolutely exempt from such taxation. All within such class must be taxed on a basis of equality so far as practicable."
See also Knowlton v. Rock County, supra.
The appellant city does not challenge the correctness of the determination of the trial court that the instant tax violates the uniformity requirement of sec. 1, art. VIII, Wisconsin constitution, if such tax is held to be a direct property tax. Rather it seeks to avoid this result by contending that this tax is not a general property tax but a special assessment. If it is a special assessment, the uniformity requirement is inapplicable. Williams v. Madison (1962), 15 Wis. (2d) 430, 443, 113 N. W. (2d) 395; Milwaukee v. Taylor (1938), 229 Wis. 338, 340, 282 N.W. 448; Weeks v. Milwaukee (1860), 10 Wis. 186, 204 (*242, *261). Thus the crucial question is whether the tax imposed by the ordinance is a special assessment.
A special assessment differs from a general tax in that it is imposed to pay for an improvement which benefits specific property within the political division imposing it. De Pere v. Public Service Comm. (1954), 266 Wis. 319, 327, 63 N. W. (2d) 764. See also Yates v. Milwaukee (1896), 92 Wis. 352, 356, 357, 66 N.W. 248; Hale v. Kenosha (1872), 29 Wis. 599, 605; 14 McQuillin, Mun. Corp. (3d ed.), pp. 14, 15, sec. 38.01. The instant tax was levied to provide funds with which to acquire industrial sites to be leased or sold to industries. While industrial sites may constitute public improvements, they do not benefit specific property in the *109 city to a tangible extent which permits the levying of a special assessment measured in terms of the benefit conferred. Such sites confer no more tangible benefits to specific property than would a school or municipal swimming pool.
In Duncan Development Corp. v. Crestview Sanitary Dist. (1964), 22 Wis. (2d) 258, 264, 265, 125 N. W. (2d) 617, it was held that an improvement to the water system of a sanitary district which benefited all the property of the district, but to varying degrees, could be financed through special assessments levied on all the property of the district. However, the benefits conferred by such an improvement to all property in the district were tangible enough to support a special assessment.
In view of the foregoing we conclude that, if the tax imposed by the instant ordinance is a property tax, it is a general tax and not a special assessment.
By the Court.Judgment affirmed.
NOTES
[1] For various definitions of excise taxes see Abney v. Campbell (5th Cir. 1953), 206 Fed. (2d) 836, 840; State ex rel. Missouri Portland Cement Co. v. Smith (1936), 338 Mo. 409, 413, 90 S. W. (2d) 405; De Land v. Florida Public Service Co. (1935), 119 Fla. 804, 813, 161 So. 735; Flynn, Welch & Yates v. State Tax Comm. (1934), 38 N. M. 131, 136, 28 Pac. (2d) 889; 84 C. J. S., Taxation, sec. 121, p. 245; 30 Am. Jur., Internal Revenue, sec. 3, p. 112; 1 Cooley, Taxation (4th ed.), sec. 46, pp. 131-135. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574860/ | 743 N.W.2d 442 (2007)
2007 WI App 253
TEN MILE INVESTMENTS, LLC, Jeffrey M. Hennekens and Timothy J. Burns, Plaintiffs-Respondents-Cross-Appellants,
v.
Berton D. SHERMAN, Defendant,
Cynthia Siciliano, Defendant-Third-Party Plaintiff-Appellant-Cross-Respondent,[]
v.
Leonard G. Nauman, Third-Party Defendant-Respondent-Cross-Appellant.
No. 2006AP353.
Court of Appeals of Wisconsin.
Submitted on Briefs November 7, 2006.
Opinion Filed November 29, 2007.
*443 On behalf of the defendant-third-party plaintiff-appellant-cross-respondent, the cause was submitted on the briefs of J. Drew Ryberg, Michael J. Happe and Kathryn E. Wahl of Ryberg & Happe, S.C., Eau Claire.
On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of Craig S. Hunter of Northland Law, Duluth, Minnesota.
Before HIGGINBOTHAM, P.J., DYKMAN and LUNDSTEN, JJ.
¶ 1 HIGGINBOTHAM, P.J.
On July 1, 2005, a new version of WIS. STAT. § 802.05 (2005-06)[1] became effective. That statute authorizes sanctions for certain conduct during litigation. Ten Mile Investments, LLC sued Cynthia Siciliano seeking specific performance for her refusal to close on a real estate transaction between the parties. Siciliano counterclaimed also seeking specific performance, alleging Ten Mile and its chief manager, Leonard G. Nauman, made certain representations central to the transaction. Siciliano prevailed on the merits and moved for sanctions. The trial court, after finding joint and several liability on the part of Ten Mile Investments and its investors, Jeffrey M. Hennekens and Timothy J. Burns (collectively "Ten Mile") and Nauman, sanctioned Nauman only, pursuant to § 802.05. Siciliano appeals the court's supplemental judgment and asserts that the court should have imposed sanctions against all four respondents, and awarded a higher amount. Ten Mile argues that the court erroneously entered sanctions against Nauman because Siciliano failed to comply with the "safe-harbor" provision of *444 § 802.05.[2]
¶ 2 The issues in this appeal are: (1) whether the new WIS. STAT. § 802.05 should be applied retroactively on the facts of this case; (2) whether a motion for sanctions that is filed after judgment complies with the new statute's "safe-harbor" provision, which allows recipients of a motion to alter their potentially sanctionable conduct and avoid sanctions; and (3) whether Siciliano substantially complied with that provision by warning Ten Mile and Nauman earlier that their conduct may be sanctionable.
¶ 3 We conclude, based on the facts of this case, that WIS. STAT. § 802.05 retroactively applies, that a postjudgment motion for sanctions does not comply with the safe-harbor provision, and that a warning, as opposed to a motion for sanctions, is not sufficient to trigger the sanctions of § 802.05. We therefore reverse the supplemental judgment on fees and costs.
I. BACKGROUND
¶ 4 Only the procedural history of this case is needed for this opinion. On the alignment of the parties, it is sufficient to say that after the filing of a complaint, counterclaim, and third-party complaint, Cynthia Siciliano stood in opposition to Ten Mile Investments, LLC, Timothy Burns, Jeffrey Hennekens, and Leonard Nauman. Siciliano prevailed over all of them on the substance of the litigation, and then later moved pursuant to WIS. STAT. §§ 802.05, 802.08(5) and 814.025 (2003-04) for a finding that these four parties had filed and pursued a frivolous claim. The court decided the motion with a supplemental judgment on costs that awarded a sanction of $17,098 against Nauman, but otherwise denied the motion. Siciliano appeals only that supplemental judgment. The other four parties appear together in this court as respondents, and also have cross-appealed from the supplemental judgment.
II. RETROACTIVITY OF WIS. STAT. § 802.05
¶ 5 The first issue we address is whether WIS. STAT. § 802.05 applies retroactively to this case. At issue in this case is the safe-harbor provision contained in § 802.05(3)(a)1. The safe-harbor provision is a feature of the newly enacted § 802.05. By Supreme Court Order 03-06, effective July 1, 2005, the court repealed WIS. STAT. RULES 802.05 and 814.025 (2003-04), the statutes governing sanctions for initiating and/or maintaining frivolous actions, and recreated WIS. STAT. RULE 802.05. See Trinity Petroleum, Inc. v. Scott Oil Co., 2007 WI 88, ¶ 3, 302 Wis. 2d 299, 735 N.W.2d 1. The new rule requires the party seeking sanctions to first serve the motion on the potentially sanctionable party, who then has twenty-one days to withdraw or appropriately correct the claimed violation. Section 802.05(3)(a)1.[3] The movant cannot *445 file a motion for sanctions unless that time period has expired without a withdrawal or correction. Id.
¶ 6 In Trinity Petroleum, the supreme court held that new WIS. STAT. § 802.05 is a procedural statute that is presumed retroactive. Trinity Petroleum, 302 Wis. 2d 299, ¶¶ 7, 51, 735 N.W.2d 1. However, the supreme court held that retroactivity of the statute must be decided on a case-by-case basis, and may not be retroactive if such application "diminishes a contract, disturbs vested rights, or imposes an unreasonable burden on the party charged with complying with the new rule's requirements." Id., ¶¶ 7, 52-53. The only issue presented here is whether retroactive application of § 802.05 would impose an unreasonable burden on Siciliano.
¶ 7 The histories of Trinity Petroleum and this case are similar, and Siciliano makes arguments similar to those described, but not decided, by the supreme court in Trinity Petroleum. See id., ¶¶ 85-88. In both cases, the lawsuit was commenced before the effective date of new WIS. STAT. § 802.05, judgment was rendered on the merits after the effective date, and the sanctions motion was filed after the judgment. See id., ¶¶ 12-17. However, we also see a key difference. In Trinity Petroleum, the movant had only five days to file a sanctions motion between the effective date of § 802.05 and the court's oral decision on the merits. Id., ¶¶ 15-16. Here, Siciliano had approximately eleven weeks between the effective date and the trial date at which the court made its oral decision.
¶ 8 Siciliano moved for sanctions pursuant to WIS. STAT. §§ 802.05, 802.08(5) and 814.025 (2003-04) and alleged that Ten Mile engaged in frivolous conduct, both in commencing and maintaining this action. She argues that retroactive application of § 802.05 would impose an unreasonable burden because: (1) she complied with the rule in effect at the time of the offending conduct and she cannot now comply with the safe-harbor provision; (2) Ten Mile would receive a "free pass" on allegedly improper conduct; and (3) she would be deprived of the ability to recover for the injury she suffered as a result of that conduct. Specifically, Siciliano asserts that the offending conduct that gave rise to her frivolous claim occurred before the effective date of the new rule and therefore it was appropriate for her to move for sanctions under the rule in effect at that time. She explains that compliance with the new § 802.05 is impossible and therefore imposing the safe harbor provision on her imposes an unreasonable burden.
¶ 9 Ten Mile argues that retroactive application of new WIS. STAT. § 802.05 would not cause an unreasonable burden on Siciliano because she had ample opportunity to comply with the statute, but failed to do so.[4] Ten Mile points out that Siciliano, *446 through her counsel, was aware that the new statute would be in effect on July 1, 2005, but did nothing to comply with the statute's procedural requirements before judgment was entered on September 22, 2005. It also points out that Siciliano filed an amended answer on August 7, 2005, to its amended complaint, filed on July 18, 2005, and did not assert that the amended complaint was frivolous or was made in bad faith. We agree with Ten Mile.
¶ 10 It is true that this action was commenced on January 18, 2005, long before the July 1, 2005 effective date of new WIS. STAT. § 802.05, raising the possibility that Siciliano properly proceeded under the old sanction rules. However, the frivolous conduct Siciliano alleges entitles her to recover fees and costs under § 802.05 and WIS. STAT. § 814.025 are for Ten Mile commencing and maintaining a frivolous lawsuit. While this action was indeed commenced before the new statute's effective date, it was also being maintained during the eleven weeks after that date. In addition, Ten Mile points out that it filed an amended complaint on July 18, 2005, to which Siciliano answered on August 7, 2005, both actions occurring after the statute's effective date. Essentially, by the filing of an amended complaint and the answering of that complaint, a "new" action was commenced, effectively replacing the action commenced in January 2005. See Schuett v. Hanson, 2007 WI App 226, ¶ 13, ___ Wis.2d ___, 741 N.W.2d 292; Holman v. Family Health Plan, 227 Wis. 2d 478, ¶ 19, 596 N.W.2d 358 (1999). Considered in this light, this lawsuit was both commenced and maintained after the effective date of new § 802.05. In any event, at no time did Siciliano assert in any fashion that the amended complaint was frivolous until filing her motion seeking sanctions for frivolousness after judgment on the merits was entered in September 2005. Siciliano does not explain why she could not comply with the new statute's safe-harbor provisions after the statute's effective date.
¶ 11 In regard to Siciliano's assertions that retroactive application of WIS. STAT. § 802.05 would impose an unreasonable burden because Ten Mile would receive a "free pass" and that she would be deprived of her ability to recover costs and fees incurred in defending against the frivolous lawsuit, we view these burdens as flowing from her own failure to comply with the new statute's procedural requirements during the eleven-week period. In other words, the burdens Siciliano contends she will suffer if the statute is retroactively applied were avoidable by simply complying with the procedural requirements of § 802.05. She should have been aware of the new statute and had ample opportunity to comply with it. See Mosing v. Hagen, 33 Wis. 2d 636, 642, 148 N.W.2d 93 (1967). We also observe that the arguments Siciliano advances here would always be made when the statute is retroactively applied to deny costs and fees. Accepting her arguments would result in nullifying the supreme court's Trinity Petroleum decision and defeat retroactive application of the statute in instances when application is warranted. We fail to see how the burdens Siciliano complains of can be a basis for defeating retroactive application of § 802.05.
¶ 12 In summary, we conclude that the new WIS. STAT. § 802.05 applies retroactively *447 to this case. We further conclude that Siciliano has not demonstrated that retroactive application of the new statute would impose an unreasonable burden on her. Siciliano had ample opportunity to comply with the statute's procedural requirements long before her trial and she has failed to adequately explain why she failed to do so.
III. POSTJUDGMENT MOTION FOR SANCTIONS
¶ 13 We next consider whether a postjudgment motion for sanctions complies with the safe-harbor provision. This requires a review of our decision in Trinity Petroleum, Inc. v. Scott Oil Co., 2006 WI App 219, 296 Wis. 2d 666, 724 N.W.2d 259, and the supreme court's decision in the same case, Trinity Petroleum, 302 Wis. 2d 299, 735 N.W.2d 1. In 2006, we held that a postjudgment sanctions motion does not comply with the safe-harbor provision, and that new WIS. STAT. § 802.05 is a procedural statute that is to be applied retroactively without exception. Trinity Petroleum, 296 Wis. 2d 666, ¶¶ 16-25, 724 N.W.2d 259. The supreme court granted review of that decision and held that new § 802.05 is a procedural statute that is presumed retroactive, but may not be applied retroactively in certain situations. Trinity Petroleum, 302 Wis. 2d 299, ¶ 7, 735 N.W.2d 1. The court did not decide whether the statute was retroactive in that case, but instead remanded for findings and conclusions on that point. Id., ¶ 92.
¶ 14 The supreme court's Trinity Petroleum opinion did not expressly address our conclusion that a postjudgment sanctions motion does not comply with the safe-harbor provision. It is important to emphasize that this issue and the retroactivity issue addressed by the supreme court are separate. The question about postjudgment sanctions motions is one that can arise even in cases presenting no retroactivity issue. In other words, even when all events of a suit occur after the effective date of WIS. STAT. § 802.05, a party might still file a postjudgment sanctions motion, thus raising the question of compliance with the safe-harbor provision.
¶ 15 After release of the supreme court's Trinity Petroleum decision, we ordered supplemental briefs in this case. One issue we ordered the parties to address is whether our holding in Trinity Petroleum as to postjudgment sanctions motions remains precedential after the supreme court's opinion. Siciliano concedes that it does. We have previously stated that holdings not specifically reversed on appeal generally retain their precedential value, although we have also expressed some concern about applying that principle in certain situations. See Spencer v. Brown County, 215 Wis. 2d 641, 650-51, 573 N.W.2d 222 (Ct.App.1997); State v. Byrge, 225 Wis. 2d 702, 717-18 n. 7, 594 N.W.2d 388 (Ct.App.1999), aff'd by State v. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477; and State v. Jones, 2002 WI App 196, ¶ 40, 257 Wis. 2d 319, 651 N.W.2d 305.
¶ 16 In this case, however, we see no reason not to apply the general principle. The supreme court did not reverse our earlier holding, and did not reach as far as that step of the analysis because it remanded for further proceedings on retroactivity. Accordingly, we conclude that our Trinity Petroleum opinion retains its precedential value in holding that a postjudgment sanctions motion does not comply with the safe-harbor provision. See Trinity Petroleum, 296 Wis. 2d 666, ¶¶ 26-35, 724 N.W.2d 259. Applying that holding to the instant case, there is no dispute that Siciliano did not file her sanctions motion until after judgment was entered. Therefore, under our holding in Trinity *448 Petroleum, we conclude that her postjudgment sanctions motion does not comply with the safe-harbor provision.
IV. EFFECT OF EARLIER WARNINGS BY SICILIANO
¶ 17 Siciliano argues that she complied with the substance of the safe-harbor provision by putting Ten Mile on notice throughout the litigation that she believed their position was sanctionable. Because of those warnings, she argues, the safe-harbor provision's function of giving the recipient notice and a chance to correct has been satisfied. We disagree.
¶ 18 As we wrote in Trinity Petroleum: "Warnings are not motions." Trinity Petroleum, 296 Wis. 2d 666, ¶ 33, 724 N.W.2d 259. Relying on a federal case applying the analogous federal rule, we concluded that it would "`wrench both the language and the purpose of the [safe-harbor] amendment to the Rule to permit an informal warning to substitute for service of a motion.'" Id. (quoting Barber v. Miller, 146 F.3d 707, 710 (9th Cir.1998)). This is another conclusion from our Trinity Petroleum opinion that was not addressed or reversed by the supreme court. Therefore, for the reasons stated above regarding postjudgment sanctions motions, see Trinity Petroleum, 296 Wis. 2d 666, ¶¶ 15-16, 724 N.W.2d 259, we conclude that this holding retains its precedential value. We therefore conclude that Siciliano's warnings did not comply with the safe-harbor provision.[5]
¶ 19 In summary, we conclude that new WIS. STAT. § 802.05 applies retroactively to Siciliano's motion for sanctions. Because that motion did not comply with the safe-harbor provision, we conclude that the circuit court erred in awarding Siciliano sanctions under the statute. Accordingly, we reverse the supplemental judgment on costs.
Judgment reversed; cross-appeal dismissed.
NOTES
[] Petition for review filed.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Ten Mile cross-appeals and argues that the circuit court should have awarded them attorney fees for their opposition to Siciliano's sanctions motion, due to her motion's noncompliance with the safe-harbor provision. The new WIS. STAT. § 802.05 provides in part: "If warranted, the court may award to the party prevailing on the motion reasonable expenses and attorney fees incurred in presenting or opposing the motion." WIS. STAT. § 802.05(3)(a)1. Whether to award reasonable expenses and attorney fees under this section is left to the court's discretion. Ten Mile does not present a fully developed argument explaining why we should reverse the court's exercise of its discretion. We therefore do not consider this argument. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct.App.1992) (We generally do not consider arguments inadequately developed.).
[3] WISCONSIN STAT. § 802.05(3)(a)1. provides:
A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate sub. (2). The motion shall be served as provided in s. 801.14, but shall not be filed with or presented to the court unless, within 21 days after service of the motion or such other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion reasonable expenses and attorney fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.
[4] Procedurally, this argument, to be properly reviewed, should have been made by Nauman in a cross-appeal because he is seeking to modify the judgment Siciliano is appealing from, by vacating the sanctions against him. See WIS. STAT. RULE 809.10(2)(b) (a respondent seeking modification of the judgment appealed from shall file a notice of cross-appeal). However, the other three parties can properly present this argument as respondents, because they are seeking merely affirmance of a judgment that denied sanctions as to them. See B & D Contractors, Inc. v. Arwin Window Sys., Inc., 2006 WI App 123, ¶ 4 n. 3, 294 Wis. 2d 378, 718 N.W.2d 256 (a party that prevails in the trial court need not file a cross-appeal to preserve for review an alternative ground to affirm).
[5] Siciliano argues that, if we hold that her sanctions motions must be denied for noncompliance with the safe-harbor provision, we should order sanctions on our own initiative, or remand for the circuit court to consider the same. In addition to sanctions by motion, the new statute allows the circuit court to impose sanctions "[o]n its own initiative." WIS. STAT. § 802.05(3)(a)2. On its face, this provision does not require the court to give a safe-harbor notice or warning before imposing sanctions and we do not act on our own initiative when we are asked to do so. We conclude that Siciliano has not adequately briefed this issue, and we decline to address it further. See Pettit, 171 Wis.2d at 647, 492 N.W.2d 633. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574878/ | 253 S.W.2d 824 (1953)
OLIVER L. TAETZ, Inc.
v.
GROFF et al.
No. 42894.
Supreme Court of Missouri, Division No. 2.
January 9, 1953.
*826 Jerome A. Gross, W. R. Gilbert, St. Louis, for appellants Groff. Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, of counsel.
Theodore P. Hukriede, Washington, Frank W. Jenny, Union, for Louis B. Eckelkamp, Inc.
Oliver F. Erbs, St. Louis, for J. D. Shepard, d/b/a J. D. Shepard Radio & Electrical Service.
Leo F. Laughren, St. Louis, Virginia B. Hukriede, Pacific, for Oliver L. Taetz, Inc.
TIPTON, Judge.
This is an equitable mechanic's lien suit brought by the respondent, Oliver L. Taetz, Inc., a corporation, in the circuit court of Franklin County, to recover a judgment against the appellants Ursula Groff and Spencer Groff (hereinafter referred to as Groff), and Louis B. Eckelkamp, Inc., a corporation (hereinafter referred to as Eckelkamp), for the balance due respondent for the construction of a building located at the junction of highways 50, 66 and 100, to have the judgment declared and adjudged to be a mechanic's lien upon the building, improvements and the land, and to have the lien declared a priority over a deed of trust held by the Bank of Washington. J. D. Shepard, doing business as J. D. Shepard Radio and Electrical Service, was a subcontractor who did the electrical installations. He was joined as a defendant and he filed a cross bill.
The trial court appointed Hon. Walter Wehrle as referee to try the issues except as to the issue of cancelling a lease on the property which was granted to Eckelkamp by Groff for a term of years. As to that issue a separate trial and judgment were ordered. In the main, the court approved the referee's report and rendered a judgment in favor of respondent and against Groff and Eckelkamp in the sum of $80,740.17, with a lien against the property and leasehold described in respondent's petition for $79,878.10. The lien was declared superior to the deed of trust held by the Bank of Washington which secured a note executed by Groff for $30,000, except for the sum of $8,000 that paid a prior deed of trust. Eckelkamp was given a judgment for $700 on his cross-claim against respondent. The Bank of Washington was *827 given a judgment on its cross-claim against respondent in the sum of $55,265.21 and J. D. Shepard was given a judgment against respondent in the sum of $2,027.26. These sums were to be paid out of respondent's judgment and a lien was rendered in favor of respondent and against Groff and Eckelkamp. Both have appealed.
There was formerly a building that was used as a restaurant and filling station on the tract of land in question but it was destroyed by fire in February, 1948. On April 29, 1948, respondent entered into a written contract with the appellants to erect a new building on this site suitable for a restaurant and other related businesses. The contract provided that the building was to be built in accordance with plans which were to be drawn by George F. Hayden, architect. This contract also contained the following provisions:
"6. The Parties of the Second Part shall pay the Party of the First Part for the performance of the work under this agreement as follows: On the 8th and 23rd day of each month the Party of the First Part shall prepare a statement showing the amount paid out by the Party of the First Part for all labor incorporated in the work hereunder during the preceding period, and within three (3) days thereafter, the Parties of the Second Part shall pay to the Party of the First Part the amount of such statement, plus an amount equal to eight per cent (8%) of the amount of such statement to cover social security costs, workmen's compensation and liability insurance incidental to the performance of the work under this agreement.
"7. In addition to the aforementioned sum so paid for labor and at the same time the Parties of the Second Part shall pay to the Party of the First Part the amount of all statements for all materials and sub-contracts furnished or ordered by Party of the First Part, Parties of the Second Part or their agents or representatives, and on the 8th and 23rd of each month as aforesaid, the Party of the First Part shall add to the statement submitted to the Parties of the Second Part the value of all materials and subcontracts incorporated into the work during the preceding period and the Parties of the Second Part shall pay to the Party of the First Part a sum of ten (10) per cent on the aggregate of the value of said material, labor and sub-contracts as a profit; and in addition thereto the Parties of the Second Part shall pay to the Party of the First Part the sum equal to four (4) per cent on the aggregate value of said labor and material and sub-contracts as an overhead expense."
On the date the contract was executed, the respondent began the construction of the building. At that time there was in existence only a pencil sketch of the building and it was estimated that it would cost approximately $65,000. However, after the plans were drawn by architect Hayden it was estimated the building would cost between $160,000 and $180,000.
As the work progressed the respondent submitted its statements for the cost of labor and the value of the building materials and supplies, plus the percentages provided for in the construction contract to appellants twice a month. These statements were paid until October 8, 1948. At that time Oliver Taetz discussed the nonpayment of the statements with the appellants and then learned that the Groffs were the owners in fee of the land, and that on April 8, 1948, they had leased this land to Eckelkamp. He then found out that there was a disagreement between Groff and Eckelkamp about the lease and for that reason respondent had not been paid. Taetz was requested to furnish him with a segregation statement of certain items of labor and materials used in the construction from the beginning of the work to that time. Eckelkamp agreed to pay $50 for this clerical work. About the same time, respondent was requested to show on the statements presented to appellants the items ordered by Eckelkamp and the items ordered by Groff. Apparently this was requested for the purpose of keeping an account between Eckelkamp and Groff. After this request, respondent's statements *828 were all made out to the "New Diamonds Account." If the items shown were ordered by Eckelkamp, his name was also shown on the statement. The statements that showed items not ordered by Eckelkamp bore the name of "New Diamonds Account" and the name of Groff. It was not explained to Taetz why appellants wanted the statements made out in this manner. Respondent borrowed approximately $55,000 from the Bank of Washington to complete the building.
Respondent sublet the brick work in connection with the construction of the new Diamonds building to Thomas R. Pratt, a brick contractor from Farmington, Missouri, and the electrical work to J. D. Shepard, doing business as J. D. Shepard Radio and Electrical Services.
To shorten the record before the referee, it was stipulated by the parties to this action that the items of this account about which Oliver Taetz testified would be considered as if he had testified that they were used in the construction of the building, and the amount charged would be treated as if he had testified that the charge was reasonable. During the course of this opinion we will observe this stipulation and will not state that there is evidence that the various materials and labor were used in the construction, and will assume that there is evidence that the charge was reasonable.
Other necessary facts will be stated in the course of the opinion.
At the outset the respondent concedes that it struck from its statement in the petition the 10% and 4% charges on electrical equipment returned to J. D. Shepard, amounting to $282.47. However, this sum was inadvertently included in the judgment. Of course, the judgment must be reduced by that sum.
It is our duty on this appeal to review and consider de novo both the law and the evidence before us, even though the trial court approved the report of the referee with a few minor exceptions. Baerveldt & Honig Construction Co. v. Dye Candy Co., Inc., 357 Mo. 1072, 212 S.W.2d 65.
The respondent contends that the building contract itself was abandoned by appellants shortly after respondent started the construction. This contention is based on the fact that there were many changes and additions to the building during the course of construction, increasing the cost tremendously. It is true that the building that was completed was quite different from the one discussed at the time the construction contract was executed. At that time it was estimated the cost of the building would be from $50,000 to $65,000, but after the plans had been drawn by the architect the cost of the building was estimated to be $160,000 to $180,000. However, it must be remembered that respondent did not agree to build this building for a firm price but on a percentage of its cost. In other words, the more the labor and materials cost, the more money respondent would get for constructing this building. This construction contract contemplated that there would be changes made. Paragraph 11 of the contract provides:
"11. The Parties of the Second Part [appellants] may, without invalidating this agreement, order extra work or make changes by adding to the work; it being understood however that contract percentages as to payments shall be the same as those provided for in Paragraphs Six (6) and Seven (7) hereof."
The respondent was not prejudiced by the changes; in fact, his percentage of profit was increased because of the changes made in the plans. Moreover, Taetz testified that he completed the construction of the building. Under these facts, we hold the construction contract was not abandoned by the appellants.
The cases of Baerveldt & Honig Construction Co. v. Dye Candy Co., Inc., supra, Fuhler v. Gohman & Levine Const. Co., Mo.Sup., 142 S.W.2d 482, Johnston v. Star Bucket Pump Company, 274 Mo. 414, 202 S.W. 1143, and Muench v. South Side National Bank, Mo.Sup., 251 S.W.2d1, hold that if the owner prevents the contractor from completing his contract, then the contractor can recover in quantum *829 meruit for the reasonable value of labor, materials and contractor's service in the erection of the building, and is not limited to the price stated in the contract.
"But where, as here, an express contract has been fully performed on plaintiff's part, and nothing remains to be done under it but the payment of money by defendant, which is nothing more than the law would imply, plaintiff may declare specially on the contract, or generally in indebitatus assumpsit as for the quantum meruit, at his election. The plaintiff does not repudiate the contract nor seek to avoid it in indebitatus assumpsit as for the quantum meruit, but offers the contract in evidence and his proof of compliance with it to sustain his case. The agreed price, if there is an agreed price, becomes prima facie evidence of the reasonable value of the service. But plaintiff may not recover more than the agreed price. Stollings v. Sappington, 8 Mo. 118; Perles & Stone v. Childs Co., 340 Mo. 1125, 104 S.W.2d 361; American Surety Co. v. Fruin-Bambrick Const. Co., 182 Mo. App. 667, 166 S.W. 333; 5 C.J. 1386, 1387, 1388." Fuldner v. Isaac T. Cook Co., Mo.App., 127 S.W.2d 726, loc. cit. 731. See, also, C. H. Robinson Co. v. Frissell, Mo.App., 132 S.W.2d 1049.
It is clear from the cases just cited that respondent may recover in quantum meruit for its services, notwithstanding there is a contract fixing the price to be paid for the services, but recovery may not exceed the contract price. There is no doubt that the present action is one in quantum meruit; in fact, there is no contention otherwise.
Both appellants contend that they were overcharged on the heating and plumbing items. Respondent carried in stock many items of plumbing which he obtained at wholesale because he was a licensed plumber. Respondent added 35% to the wholesale price of the plumbing and heating items, and thereafter 10% and 4% as provided by the construction contract. It is true that Taetz and another witness testified that a 35% increase over the wholesale price was reasonable, but we have just held that he could not recover any amount in excess of that which the construction contract provided. Appellants contend that under the contract respondent could add only 10% and 4% above what it cost him.
Respondent contends that the construction contract permits it to charge the reasonable value instead of the cost of the items. When the contract as a whole is construed, especially paragraphs 6 and 7, we conclude that respondent is entitled to add only 10% and 4% to the price it paid for the plumbing and heating items. In paragraph 6, we find "the Party of the First Part shall prepare a statement showing the amount paid out by the Party of the First Part for all labor incorporated in the work." In paragraph 7, the following language is used, "the Parties of the Second Part shall pay to the Party of the First Part a sum of ten (10) per cent on the aggregate of the value of said material, labor and sub-contracts as a profit." It seems to us this contract limits respondent's profits to 10% of the cost of material, labor and sub-contracts. To hold otherwise, respondent would receive two profits. We therefore hold that the plumbing and heating items should be reduced by the 35% charge above the wholesale price, and then the 10% and 4% should be added to the total amount of the heating and plumbing price that respondent paid for these items.
There was added to each hour paid the plumbing foreman 20 cents above his hourly rate of pay. To each hour the second plumber worked was added 15 cents in addition to his hourly rate of pay, and 10 cents was added to each hour the third plumber worked in addition to his regular hourly pay. But these amounts were not paid to these employees. They were retained by respondent for the use of trucks that were equipped with large tools and other equipment used to do heavy plumbing. There was testimony that these charges were reasonable but there was nothing in the construction contract that provided for such charges. These trucks were a part of the equipment of the contractor, and in the absence of an agreement to pay for the same these charges are not proper as it is *830 the duty of the contractor to "furnish all the tools and necessary appliances for the work contracted to be done." Shaw v. G. B. Beaumont Company, 88 N.J.Eq. 333, 102 A. 151, 153, 2 A.L.R. 122. Therefore, these items should be deducted from the labor costs. Then the 10% and 4% should be added to the total labor items for plumbing and heating that remains after these deductions are made.
The appellants contend that the following item charged on the account, "Final payment on account Thos. R. Pratt, Bricklaying Contractor..... $4,917.48," is insufficient to sustain either a personal judgment or a lien.
The account which the mechanic's lien law contemplates is such as fairly apprises the owner and the public of the nature and amount of the demand asserted as a lien. In determining if it does fairly apprise the owner and the public of the nature and amount demanded, the lien account must be considered as a whole. Mitchell Planing Mill Co. v. Allison, 138 Mo. 50, 40 S.W. 118, 60 Am. St. Rep. 544; Leach v. Bopp, 223 Mo.App. 254, 12 S.W.2d 512.
When this item is examined in connection with the entire lien account filed, it would be concluded that Thos. R. Pratt had a contract to do the brick work necessary for the construction, that other items showing the price of brick and the amount paid for labor in connection with the brick work was paid by respondent to this subcontractor, and that there was a balance of $4,917.48 due the subcontractor. We hold that this item would fairly apprise the owners and the public what was contained in it. It is not subject to the criticism of appellants that it is a "lumping item."
Appellants contend the items showing that the bricklayers were paid $3 a day for board and room are not subject to a lien. The evidence shows that there is a union regulation that bricklayers who work as far away from home as these bricklayers did must be furnished their board and room. As we view this contention, we think that under the facts before us their board and room is as much a part of their daily pay as the cash these bricklayers received for their day's work.
This exact question was before the Iowa Supreme Court in the case of Crane Co. v. Westerman, 232 Iowa 1394, 8 N.W.2d 412. That court held that inasmuch as the board and room was part of the contract of employment that it was a lienable item. We hold this assignment is without merit.
It is true respondent failed to introduce in evidence the written contract with Pratt for the brick work. There was no objection that this oral testimony was not the best evidence. We cannot see where there could be drawn any unfavorable inference because the written contract was not introduced in evidence. Moreover, the written contract was only collaterally involved in this action and it was not necessary to introduce it in evidence. 20 Am.Jur. 367, sec. 406.
Appellant Groff contends that the item designated, "Work, materials and labor in installing cement coping as per contract," amounting to $539.60, should not have been allowed as it was defective, and the court erred in allowing that item. Groff did file a motion to make certain items in the complaint more definite and certain, but this item was not mentioned in that motion. It is fair to assume that both appellants were satisfied with this allegation and that the allegation fairly apprised them of the nature and extent of the work and the kind of materials entering into these items. This is especially true when this item is considered with the lien statement as a whole. We think this item is a "substantial compliance with all the requirements of the statute, according to its reasonable intent." Hanenkamp v. Hagedorn, Mo.App., 110 S.W.2d 826, loc. cit. 829.
Appellant Groff contends that the trial court erred in permitting recovery of a balance of $4,558.29 of the separate account of respondent for items furnished appellant Eckelkamp. The record does not support such contention. As previously stated, in October, 1948, Eckelkamp requested Taetz to furnish him with a segregation of certain items from the beginning *831 of the work to that time, and agreed to pay $50 for the clerical work. (Of course, this $50 is a personal debt of Eckelkamp.) We have already shown how the items after that date were to be designated. Both Groff and Eckelkamp received a statement at each statement period named in the construction contract. Evidently, the appellants wanted these items separated because of some understanding between them. It may have been because of the lease agreement. Taetz testified that at this time he learned for the first time that Eckelkamp had only a lease on this ground. There is nothing in the construction contract that would indicate any agreement that all appellants were not the owners of the fee. All appellants contracted for the construction of the building. In fact, in their briefs the Groffs admit that they and Eckelkamp were jointly erecting the building. It is not contended that the items represented by the $4,558.29 did not go into the building.
We hold that appellants Groff and Eckelkamp are jointly liable for all material and labor items that were used in the building they were jointly errecting. Berkshire Lumber Co. v. J. S. Chick Inv. Co., 170 Mo.App. 1, 155 S.W. 904.
For the reasons just stated, the balance due J. D. Shepard, the electrical subcontractor, of $2,027.26 is justly owed by both Groff and Eckelkamp. However, the trial court erred in allowing a credit of 10% on some electrical items that Shepard had not installed and were usable, and for which he gave credit on the account. The allowance of the amount of $433.08, which was a charge of 8% of the labor charge by Shepard of $5,413.50 for social security tax, compensation and liability insurance, under paragraph 6 of the construction contract, is improper because Shepard testified that he did not charge respondent with social security tax and that he did not carry any compensation or liability insurance. We do not think there is substantial evidence that this item was paid by respondent and it should not have been allowed.
As we read the record, there are certain electrical items that were not completely installed, for example, electrical controls for the heating system, but we are of the opinion the trial court properly included these and other similar items for the reason Shepard was prevented from completing their installation by the appellants on September 15, 1949.
Appellant Eckelkamp contends that a charge of $282.96 for fuel oil used to heat the building so that the plaster would not freeze before it dried and thereby be damaged or destroyed was not properly a lienable item. In order to maintain a lien for materials furnished, it is not necessary in all cases that such materials should actually have gone into the structure and form a part thereof. It is sufficient that their use was necessary, and they were, in fact, used or consumed in the building. Rapauno Chem. Co. v. Greenfield & N. Ry. Co., 59 Mo.App. 6. See, also, Hydraulic Press Brick Co. v. Green, 177 Mo.App. 308, 164 S.W. 250.
We therefore hold this item for heating oil was properly a lienable item. For the same reason there are other small items that were necessary for use in the construction that we will not enumerate, for example, brushes and steel wool, that the trial court properly allowed as lienable. However, gravel that was used by Eckelkamp across the highway was not a proper charge in this account.
Appellant Eckelkamp contends that the account shows that one Crane Company Fitzgibbon steel boiler for oil, D.M. 61, was charged twice. This charge was made prior to the time the statements showed who ordered the particular work done. Groff did not believe that two boilers were needed and refused to let the second one be installed. The account was then credited as paid and charged to Eckelkamp only. It is true that about this time Eckelkamp paid $2,500 to respondent but that sum was credited on the running account and not for this particular item. That is evidently what the trial court found. We defer to its ruling.
The agreed price is prima facie evidence of the reasonable value of the materials and labor rendered. Fuldner v. Cook, supra. Therefore, we think the trial court properly allowed respondent 10% as profit and 4% as overhead expense.
*832 It follows that the judgment should be reversed and remanded with directions to enter a new judgment in conformity with this opinion.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575085/ | 308 S.W.3d 81 (2010)
John Carroll TAYLOR, Appellant,
v.
Patricia SPECK, Appellee.
No. 04-09-00278-CV.
Court of Appeals of Texas, San Antonio.
January 6, 2010.
*83 Lawrence L. Garcia, Lawrence L. Garcia & Associates, P.C., San Antonio, TX, for Appellant.
Karen L. Marvel, Law Offices of Sinkin & Barretto, P.L.L.C., San Antonio, TX, for Appellee.
Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, MARIALYN BARNARD, Justice.
OPINION
Opinion by: MARIALYN BARNARD, Justice.
This is an appeal from a trial court's order awarding a cumulative judgment for child support arrearages. Appellant John Carroll Taylor contends (1) the trial court lacked jurisdiction because the Court of Domestic Relations No. 2 in Dallas County had continuing, exclusive jurisdiction, (2) recovery was barred by the statute of limitations set forth in section 157.005(b) of the Family Code and the dormancy provisions in sections 34.001 and 31.006 of the Civil Practice and Remedies Code, and (3) the award of attorney's fees was improper.
BACKGROUND
John Carroll Taylor and Patricia Speck[1] divorced in 1967 pursuant to a final judgment signed by the judge of the Court of Domestic Relations No. 2 of Dallas County, Texas. In addition to granting Speck's request for divorce, the trial court also ordered Taylor to pay child support for the benefit of the couple's minor childrena *84 boy born in 1962, and a girl born in 1963. Taylor was ordered to pay child support to Speck in the amount of $30.00 per week, beginning October 27, 1967, and continuing until the youngest child turned eighteen.
In 2004, Speck filed a "Motion for Cumulative Judgment of Child Support Arrears and Petition for Suspension of Licenses for Failure to Pay Child Support" in the 302nd Judicial District Court of Dallas County, Texas. In the motion Speck claimed Taylor failed to pay child support as ordered in the 1967 divorce decree, and she sought a judgment for arrearages and attorney's fees. In 2008, Speck filed a motion to transfer, asking the 302nd Judicial District Court to transfer the case to Bexar County "[f]or the convenience of the parties and witnesses and in the interest of justice," but more specifically because Taylor, who resided in Bexar County, was unable "to travel to Dallas County because of his health." She stated in the motion that all parties had agreed to the transfer. The trial court signed an agreed order transferring the entire matter to Bexar County and ordering the Bexar County district clerk to file and docket the case, and the Dallas County district clerk to transmit the entire file to Bexar County. The agreed order was signed by the attorneys for Speck and Taylor as "Agreed and Approved, as to Form and Substance."
After the transfer, a bench trial was held in the 407th Judicial District Court of Bexar County. After hearing evidence, the trial court entered a cumulative money judgment in favor of Speck in the amount of $237,248.96 for child support arrearages and interest. The judgment also awarded (1) $7,024.00 in attorney's fees, payable to Speck's attorneys, (2) appellate attorney's fees in the event of an unsuccessful appeal by Taylor, and (3) $6,000 in attorney's fees, payable to Speck's attorneys in the event Taylor filed a bankruptcy petition and the attorneys were required to collect child support through the bankruptcy process. Taylor filed a motion for new trial, which was denied, and then a notice of appeal.
DISCUSSION
Jurisdiction
Taylor contends the 407th Judicial District Court lacked jurisdiction to render a judgment. Citing only section 157.001(d) of the Texas Family Code, he argues "[o]nly the Court of Domestic Relations No. 2 of Dallas County, Texas had jurisdiction to render a judgment for cumulative arrears," and the agreed transfer order did not vest the 407th Judicial District Court with jurisdiction because it was signed by the 302nd Judicial District Court of Dallas County, which did not have jurisdiction. See TEX. FAM.CODE ANN. § 157.001(d) (Vernon 2008) (stating that motion for enforcement shall be filed in court of continuing, exclusive jurisdiction). In other words, Taylor argues that only the Court of Domestic Relations No. 2 of Dallas County had any authority to act in this matter. Taylor is incorrect.
Subject matter jurisdiction concerns the kinds of controversies a court has the authority to resolve as determined by the constitution, jurisdictional statutes, and the pleadings. See CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1995); Davis v. Zoning Bd. of Adjustment, 865 S.W.2d 941, 942 (Tex.1993). It is essential to the authority of a court to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000) (citing Tex. Ass'n of Bus. v. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.1993)). Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004) (citing Tex. *85 Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002)).
In 1977, the Texas Legislature passed the Family District Court Act. Act of May 28, 1977, 65th Leg., R.S., ch. 859, § 4, 1977 Tex. Gen. Laws 2144, 2154, repealed by Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 26, 1985 Tex. Gen. Laws 1720, 2048. The Act "substitutes district courts of general jurisdiction, to be called family district courts, for the existing domestic relations and special juvenile courts." Id. § 1.02(a). In other words, the Act replaced domestic relations courts with family district courts, which had the same general jurisdiction as other district courts, but had primary responsibility for cases involving family law matters. Id. § 1.03(a), (b). The 302nd Judicial District Court, also known as the Family District Court for the 302nd Judicial District, was created by the Act to replace the Court of Domestic Relations No. 2. Id. § 2.03; see also TEX. GOV'T CODE ANN. §§ 24.601, 24.610 (Vernon 2004) (describing jurisdiction of family district courts; describing jurisdiction of 302nd Judicial District Court as Dallas County). When a family district court is created, "all cases pending in the replaced court are transferred to the family district court which replaces it." Act of May 28, 1977, § 3.03(1). Accordingly, the parties' divorce action in this case was automatically transferred to the 302nd Judicial District Court upon its creation, giving that court jurisdiction of the matter. See id. Because the 302nd Judicial District Court had jurisdiction over this matter, it had jurisdiction to transfer the case to Bexar County, and therefore Taylor's contention is without merit. See id. § 2.03; see also TEX. GOV'T CODE ANN. §§ 24.601, 24.610.
If we interpret Taylor's first issue to somehow include, beyond the jurisdictional issue, a challenge to the actual transfer to Bexar County we hold the transfer itself was a proper discretionary act by the 302nd Judicial District Court of Dallas County. Section 155.202(b) of the Texas Family Code, entitled "Discretionary Transfer," states that "[f]or the convenience of the parties and witnesses and in the interest of justice, the court, on the timely motion of a party, may transfer the proceeding to a proper court in another county in the state." TEX. FAM.CODE ANN. § 155.202(b) (Vernon 2008). Speck's motion to transfer tracks the language of the statute, and Taylor's attorney agreed to the transfer.[2] The transfer was, therefore, proper. See id. Accordingly, we overrule Taylor's first issue.
Statute of Limitations/Dormancy
Section 157.005(b) of the Texas Family Code
In his second issue, Taylor first argues Speck's effort to collect past-due child support and obtain a cumulative money judgment was barred by the limitations provision in section 157.005(b) of the Family Code. However, Taylor concedes that if Speck's "amended" motion for cumulative judgment initiated a new action and there was a valid transfer of the case to Bexar County, then the limitations provision in the current version of section 157.005(b) of the Family Code "may have been unavailable." The current version of section 157.005(b) of the Family Code states:
The court retains jurisdiction to confirm the total amount of child support arrearages and render a cumulative money judgment for past-due child support ... if a motion for enforcement requesting a *86 cumulative money judgment is filed not later than the 10th anniversary after the date:
(1) the child becomes an adult; or
(2) on which the child support obligation terminates under the child support order or by operation of law.
TEX. FAM.CODE ANN. § 157.005(b) (Vernon 2008). Taylor recognizes the current version of section 157.005(b) applies only to enforcement proceedings commenced on or after the effective date of the current version of section 157.005(b), and no such limitations period existed under the version of the Family Code in existence at the time Speck filed her "amended" motion for cumulative judgment. See Act of May 20, 1999, 76th Leg., R.S., ch. 556, 1999 Tex. Gen. Laws 3058, 3062, amended by Act of May 29, 2005, 79th Leg., R.S., ch. 916, 2005 Tex. Gen. Laws 3148, 3156 (current version at TEX. FAM.CODE ANN. § 157.005(b) (Vernon 2008)). Having determined the Dallas County court had jurisdiction to transfer the action to Bexar County, thereby vesting the 407th Judicial District Court with jurisdiction, we must determine whether Speck's "amended" motion for cumulative judgment initiated a new action before June 18, 2005, the effective date of the current version of section 157.005(b).
Speck filed her original motion for cumulative judgment on March 23, 2004. The matter was dismissed for want of prosecution on May 6, 2004. The order stated the matter was being dismissed because the "cause was reached on the Docket, the case was called by the Court and there was no response." On April 5, 2005, before the current version of section 157.005(b) became effective, Speck filed a document entitled "Amended Motion for Cumulative Judgment of Child Support Arrears and Petition for Suspension of Licenses for Failure to Pay Child Support." The only difference between this motion and the original is the total amount of judgment sought, i.e., the "amended" motion includes arrearages through the end of March as opposed to the end of February. Though it was entitled an "amended" motion, at the time it was filed there was not a pending motion to amend. Given this and the substance of the motion, we interpret this "amended" motion as an original motion filed to reinstitute Speck's claim for arrearages. See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (holding courts look to substance of pleading to determine its nature, not merely at title); TEX.R. CIV. P. 71 (stating that when party has mistakenly designated any pleading, court shall treat it as if it had been properly designated); see also Johnson v. State Farm Lloyds, 204 S.W.3d 897, 899 n. 1 (Tex.App.-Dallas 2006), aff'd, 290 S.W.3d 886 (Tex.2009) (construing motion entitled "Motion to Compel Appraisal" as motion for summary judgment because in body of motion movant stated she was seeking summary judgment); In re A.M.K., No. 14-03-01208-CV, 2005 WL 3005636, at *5 (Tex.App.-Houston [14th Dist.] Nov. 10, 2005, pet. denied) (mem. op.) (construing motion entitled "Motion to Modify" as request for enforcement of arrearages). This interpretation is further supported by the fact that when she filed the "amended" motion, Speck obtained service of process on Taylor. Taylor appeared in the reinstituted matter by filing a plea in abatement on May 26, 2005, asserting the case should be transferred to Bexar County.
Moreover, if we construe the motion as an amendment to the original motion, somehow surviving the dismissal for want of prosecution, it would date back to the filing of the original, which was March 23, 2004. Thus, it too would have been filed before the effective date of the current version of section 157.005(b).
*87 Based on the foregoing, we hold the limitations provision found in section 157.005(b) of the Family Code is inapplicable to this case. Accordingly, Speck's claim for arrearages was not barred under this provision.
Sections 31.006 and 34.001 of the Texas Civil Practice and Remedies Code
As an alternative to his limitations argument based on section 157.005(b) of the Family Code, Taylor contends Speck was barred by the dormancy provisions in sections 34.001 and 31.006 of the Civil Practice and Remedies Code. Section 34.001 provides that if a writ of execution is not issued within ten years after the rendition of a judgment, the judgment is dormant and cannot be executed upon unless revived. TEX. CIV. PRAC. & REM.CODE ANN. § 34.001(a) (Vernon Supp.2009). A judgment can be revived if a writ of scire facias or an action of debt is brought no later than two years after the judgment becomes dormant. Id. § 31.006 (Vernon 2008). However, in 2009, the Texas Legislature amended section 34.001 to provide that it did not apply to child support judgments under the Family Code. Id. § 34.001(c). Moreover, the Legislature specifically provided that the amendment applied "to each judgment for child support under the Family Code, regardless of the date on which the judgment was rendered." See Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3272, amended by Act of May 21, 2009, 81st Leg., R.S., ch. 767, 2009 Tex. Sess. Law Serv.1935, 1945, 1947 (current version at TEX. CIV. PRAC. & REM.CODE ANN. § 34.001 (Vernon Supp.2009)). Accordingly, the dormancy and revival restrictions in the Civil Practice and Remedies Code do not apply in this case.
Moreover, Taylor's argument lacks merit for two additional reasons. First, he did not plead dormancy. Dormancy is an affirmative defense that must be raised in the pleadings. See Cadle v. Jenkins, 266 S.W.3d 4, 7 (Tex.App.-Dallas 2008, no pet.); TEX.R. CIV. P. 94. Second, this court has held, prior to its amendment, that sections 34.001 and 31.006 did not apply in a situation nearly identical to that presented here. See In re J.M.R., No. 04-03-00284-CV, 2004 WL 1292284, at *1-*2 (Tex.App.-San Antonio Jun. 23, 2004, no pet.). Accordingly, we overrule Taylor's second issue in its entirety.
Attorney's Fees
Finally, Taylor contends the trial court erred in awarding attorney's fees "in general and specifically a judgment for $6,000.00 in attorney fees" in the event he filed a bankruptcy petition.
As for the general award of attorney's fees, which amounted to $7,025.00 in trial attorney's fees, plus contingent appellate fees, Taylor argues there is no statutory authority for an award of attorney's fees based on an effort to obtain a cumulative money judgment for child support arrearages. Taylor is incorrect. Attorney's fees are not only permitted, but are mandated by section 157.167 of the Family Code when a respondent has failed to make child support payments:
If the court finds that the respondent has failed to make child support payments, the court shall order the respondent to pay the movant's reasonable attorney's fees and all court costs in addition to the arrearages. Fees and costs ... may be enforced by any means available for the enforcement of child support orders, including contempt.
TEX. FAM.CODE ANN. § 157.167 (Vernon 2008) (emphasis added). Here, Speck sought to enforce a prior child support order by way of a motion for cumulative *88 judgment as provided in section 157.263, and the court's order found Taylor failed to make child support payments. See id. §§ 157.167, 157.263. Therefore, the trial court was required to award Speck reasonable attorney's fees.
Taylor argues attorney's fees are permitted only under rule 308a of the Texas Rules of Civil Procedure[3] only "when a claim is for violation of a court order for the payment of child support." His contention is without merit. Rule 308a applies only when the trial court appoints an attorney to "determine whether there is reason to believe that the court order has been violated." TEX.R. CIV. P. 308a. Here, no attorney was appointed to represent Taylor, Speck, or the adult children.
With regard to the trial court's award of attorney's fees relating to bankruptcy, the trial court ordered:
In the event of the filing of a petition for bankruptcy by John Carroll Taylor an additional judgment of $6,000.00 for attorney's fees is granted in favor or [Speck's attorney's] for the collection of child support.
Taylor's only argument with regard to these fees is that the award "is an attempt to preempt the power and jurisdiction of the Federal Bankruptcy Court." In support of this argument, Taylor cites Sw. Motor Transp. Co. v. Valley Weathermakers, Inc., 427 S.W.2d 597 (Tex.1968). This case, however, is inapplicable. In Sw. Motor Transp., the supreme court was asked to decide whether a cause of action was governed by state law, which would allow a recovery of attorney's fees, or by federal law, which would not. 427 S.W.2d at 599. The supreme court held federal law controlled, and therefore attorney's fees were not recoverable. Id. at 603-04.
Here, there is no question that Speck's suit to recover child support arrearages is governed by the Texas Family Code, which specifically allows recovery of attorney's fees when a court finds that a respondent has failed to make child support payments. See TEX. FAM.CODE ANN. § 157.167. Moreover, the trial court's decision to award conditional attorney's fees for collection of the past due child support in the event of a bankruptcy does not preempt or otherwise intrude upon the jurisdiction of the trial court. Rather, such an award is akin to the conditional award of attorney's fees in the event of success on appeal, or in the event of a successful defense on appeal. See Jones v. American Airlines, Inc., 131 S.W.3d 261, 271 (Tex.App.-Fort Worth 2004, no pet.) (holding that it is well-settled that where attorney's fees are recoverable, any award of attorney's fees may include appellate attorney's fees as long as they are properly conditioned); Villasenor v. Villasenor, 911 S.W.2d 411, 420 (Tex.App.-San Antonio 1995, no writ) (recognizing award of appellate attorney's fee appropriate when conditioned upon successful appeal). Given that the trial court is mandated to award attorney's fees by section 157.167, and a conditional award of post-judgment attorney's fees is recognized in Texas, we see no error in the trial court's award of additional attorney's fees in the event of a bankruptcy filing by Taylor. Accordingly, we overrule Taylor's third issue.
CONCLUSION
Based on the foregoing, we affirm the trial court's judgment.
NOTES
[1] At the time of the divorce, Patricia Speck was known as Patricia Lee Blankenship Taylor.
[2] Taylor not only agreed to the transfer, he filed a plea in abatement in which he asked that the case be dismissed because of the agreement of the parties to have the action heard in Bexar County.
[3] In his brief, Taylor refers to Rule 208a. We assume this reference was a typographical error because Rule 208a was repealed effective April 1, 1984. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454887/ | 480 S.W.2d 955 (1972)
ARKANSAS STATE HIGHWAY COMMISSION, Appellant,
v.
Helen B. DALRYMPLE, Appellee.
No. 5-5845.
Supreme Court of Arkansas.
June 5, 1972.
*956 Thomas B. Keys and James N. Dowell, Little Rock, for appellant.
Tompkins, McKenzie & McRae, Prescott, for appellee.
BYRD, Justice.
For reversal of a judgment upon a jury verdict in this eminent domain action, appellant Arkansas State Highway Commission contends that the trial court erred in refusing to strike veniremen Easterling and Rowe for cause and in refusing to permit dirt sales by appellee Helen B. Dalrymple to a highway construction contractor to be offset as special benefits. We find no error.
Appellant's challenge to venireman Easterling was made because the voir dire examination showed that he had an opinion of real estate values in the area and because he knew one of the prospective witnesses. The challenge to venireman Rowe was on the basis that he also knew one of the prospective witnesses. After the challenges were overruled, the panel was completed and each side, pursuant to Ark.Stat.Ann. Sec. 39-229 (Repl.1962), struck three names. Appellant struck the names of Easterling, Rowe and one other but made no showing that he would have struck the name of any other juror if he had had a peremptory challenge left. Under such circumstances we hold that appellant has shown no prejudice. See Roark Transportation, Inc. v. West, 188 Ark. 941, 68 S.W.2d 1000 (1934), and Collins v. State, 102 Ark. 180, 143 S.W. 1075 (1912). It has been suggested that perhaps Ark. State Highway Commission v. Young, 241 Ark. 765, 419 S.W.2d 120 (1967), states a contrary rule. We do not so interpret the decision which cited as authority Collins v. State, supra, where the rule was recognized. As was pointed out in Mabry v. State, 50 Ark. 492, 8 S.W. 823 (1888), the right of peremptory challenges is conferred as a means to reject jurorsnot to select jurors, and until such time as a party is forced to take an objectionable juror without the privilege of exercising a peremptory challenge, he has shown no prejudice. Green v. State, 223 Ark. 761, 270 S.W.2d 895 (1954). Here, as in the Roark Transportation case, appellant does not contend that any of the jurors who served were disqualified. Consequently appellant has shown no prejudicial error.
*957 There is no merit in appellant's contention that it was entitled to offset fill dirt sales to a highway construction contractor as a special benefit. In Arkansas State Highway Commission v. Davis, 245 Ark. 813, 434 S.W.2d 605 (1968), we denied a similar contention. In doing so we pointed out that before a benefit could be offset, it must be a benefit accruing to the property from the completed highway, i. e., a benefit from the improvement.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/846854/ | Order Michigan Supreme Court
Lansing, Michigan
February 27, 2006 Clifford W. Taylor,
Chief Justice
129044 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
DANIEL SCOTT, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 129044
COA: 251559
Oakland CC: 2003-046603-NI
FARMERS INSURANCE EXCHANGE,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the May 26, 2005
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
February 27, 2006 _________________________________________
p0221 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574830/ | 308 S.W.3d 720 (2010)
COMMONWEALTH of Kentucky, Appellant,
v.
Tina RHODES, Appellee.
No. 2009-CA-000336-DG.
Court of Appeals of Kentucky.
April 2, 2010.
Jack Conway, Attorney General, John Hayne, Assistant Attorney General, Frankfort, KY, for appellant.
John Cornett, Georgetown, KY, for appellee.
Before LAMBERT and STUMBO, *721 Judges; WHITE,[1] Senior Judge.
OPINION
LAMBERT, Judge.
Tina Rhodes was arrested and charged with driving under the influence. On October 27, 2008, the Fayette District Court ruled that Rhodes' conduct on the night of her arrest amounted to a refusal to submit to an intoxilyzer examination. Subsequently, the Fayette Circuit Court reversed the District Court's ruling and held that Rhodes' conduct did not amount to a refusal to submit to the exam. After careful review, we agree with the Fayette Circuit Court and affirm.
On September 13, 2008, Rhodes' vehicle was stopped by Officer Felinski. After determining that there was probable cause to believe that Rhodes was driving under the influence (DUI) of alcohol, Officer Felinski placed her under arrest. While Officer Felinski was trying to place Rhodes in the back of the police cruiser, she became combative, saying she did not want to wear the seat belt, etc. At one point, another officer, Officer Bradley, had to intervene in order to assist Officer Felinski in placing Rhodes in the back of the police cruiser. She was then transported to the Fayette County Detention Center.
Officer Felinski escorted Rhodes into the intoxilyzer room with Officer Bradley following closely behind. Once inside the intoxilyzer room, Rhodes "started getting belligerent again, stating `I'm not going to be in here with him. You don't have to make me be in here with him.'" Rhodes broke loose from Officer Felinski's hands and went out into the officer's work area. Officers Felinski and Bradley then made an attempt to escort Rhodes back into the intoxilyzer room. According to the officers, Rhodes was refusing to walk and was placing all her weight on the officer's hands. Once inside the intoxilyzer room, the officers tried to place Rhodes in a chair, but she was continuing to be combative. At this point, a third officer had to come in to help restrain Rhodes.
Officer Felinski testified that it was impossible for him to complete a reading of the implied consent warning to Rhodes despite trying on multiple occasions. He further testified that he "felt" like Rhodes would refuse to submit to the intoxilyzer testing, although he never made such a request.
On October 27, 2008, the Fayette District Court conducted a refusal hearing and ruled that Rhodes refused to submit to an intoxilyzer exam. Rhodes appealed this ruling to the Fayette Circuit Court, arguing that she was not read the implied consent form in its entirety and therefore was never specifically asked to submit to the intoxilyzer exam. Rhodes argued that there cannot be a refusal to submit to an intoxilyzer exam if there is not a request to submit to such exam.
On January 23, 2009, the Fayette Circuit Court issued its opinion reversing the decision of the district court and ruling that Rhodes did not refuse to submit to the exam because no request was made by the officers to conduct such an exam. This appeal now follows.
On appeal, the Commonwealth argues that despite the language of KRS 189A.105(2)(a), the officers acted appropriately given the circumstances and correctly determined that Rhodes refused to take the intoxilyzer exam. Essentially, the Commonwealth asks this Court to make an *722 exception for officers being required to read the implied consent warning to arrestees when they are unruly or belligerent. Because the statutory language is abundantly clear that police officers must read the implied consent to arrestees, we affirm the ruling of the Fayette Circuit Court.
KRS 189A.105(2)(a) states:
At the time a breath, blood, or urine test is requested, the person shall be informed:
1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010 and will result in revocation of his driver's license, and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests, and that if the person refuses to submit to the tests he will be unable to obtain a hardship license; and
2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that if the results of the test are 0.18 or above and the person is subsequently convicted of violating KRS 189A.010(1), then he will be subject to a sentence that is twice as long as the mandatory minimum jail sentence imposed if the results are less than 0.18; and
3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.
(Emphasis added). Further, KRS 189A.105(3) states:
During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person's attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.
As set forth in the above provisions, the implied consent warning is an integral part of the DUI statutes. It informs defendants of important rights and duties that are involved in such cases, as well as the consequences of their particular actions. The legislature has recognized the importance of the implied consent warning by the use of the mandatory language "shall." While reading the implied consent warning to the defendant is mandatory, there is no statutory requirement that the defendants understand or acknowledge the reading of the implied consent warning. The statute merely requires that the officer read the implied consent warning.
The Commonwealth asks this Court to substitute the legislature's mandatory language with its own permissive language. We decline to do so in light of the clear language utilized in the statute that this warning shall be read to all arrestees *723 or defendants. "[T]he courts have a duty to accord statutory language its literal meaning unless to do so would lead to an absurd or wholly unreasonable result." Holbrook v. Kentucky Unemployment Ins. Com'n, 290 S.W.3d 81, 86 (Ky.App.2009) (quoting Kentucky Unemployment Ins. Com'n v. Jones, 809 S.W.2d 715, 716 (Ky. App.1991)).
A review of the evidence in this case indicates that although Rhodes was belligerent, the officers could have still read the warning to her. Nothing requires that Rhodes listen to the warning, instead only that the officers read it to her. Only once the warning is read can Rhodes then be deemed to have impliedly or explicitly refused. See Cook v. Commonwealth, 129 S.W.3d 351, 360 (Ky.2004) ("In order for there to be a refusal, there must first be a specific request that the person take the test, not just an inquiry whether the person would like to take it.") (Internal citation omitted).
In defending the decision not to read the implied consent warning to Rhodes, Officer Felinski stated that given Rhodes' conduct, he feared for his safety and that of the other officers. While we certainly sympathize with the officers and understand that their safety is of utmost importance, Rhodes was in handcuffs with three officers present, and we do not see how reading a warning to a handcuffed defendant would put the officers at any further risk. The officer's argument that they could not have read the implied consent warning to Rhodes, who was handcuffed, is without merit.
Based on the foregoing, we affirm the January 23, 2009, order of the Fayette Circuit Court reversing the Fayette District Court's ruling that Rhodes refused to submit to the intoxilyzer exam. Given that Rhodes was never presented with the implied consent warning, she simply could not have refused to submit to the exam.
ALL CONCUR.
NOTES
[1] Senior Judge Edwin White sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1574912/ | 253 S.W.2d 816 (1953)
COY et al.
v.
SEARS, ROEBUCK & CO.
No. 43003.
Supreme Court of Missouri, Division No. 2.
January 9, 1953.
*817 Lathrop, Woodson, Righter, Blackwell & Parker, Winston H. Woodson, William M. Stapleton, Kansas City, for appellant.
Robert A. Schroeder, Laurence R. Smith, Ben W. Swofford, Kansas City, Maurice Pope, St. Joseph (Swofford, Schroeder & Shankland, Kansas City, of counsel), for respondents.
BARRETT, Commissioner.
Richard Coy was fatally injured on Friday, April 2, 1948, about 10:45 p. m., when his automobile, traveling south on Sixth Street in St. Joseph, collided with a freight train. Richard was employed by Sears, Roebuck and Company, and upon the theory that he was an "employee" at the time of his fatal injury his dependent wife and minor daughter instituted this claim for the death benefits provided by the Workmen's Compensation Law. V.A. M.S. § 287.010 et seq. The Industrial Commission has found that he was an "employee" at the time and has made an award of $12,508. The decisive question before the Industrial Commission and upon this appeal is whether he was an "employee" at the time of his fatal injury. Sears, Roebuck contends that he was not subject to its control at the time, that it had no right to control and did not exercise control over him and, therefore, he was not an "employee." If he was an employee the appellant does not question that the fatal accident arose out of and in the course of his employment. Coy's death occurred prior to the effective date of the amendment of 1947, Laws Mo. 1947, Vol. II, p. 438, and it is claimed, in the second place, if he were an employee that his annual earnings exceeded the sum of $3600 and for that reason he was excluded as an employee from the provisions of the law. 1939 Mo.R.S., Sec. 3695, V.A. M.S. § 287.020. The ultimate question upon this appeal is whether the Commission's findings that he was an employee and that his average annual earnings did not exceed the sum of $3600 is supported by competent and substantial evidence upon the whole record. Thacker v. Massman Const. Co., Mo.Sup., 247 S.W.2d 623; Heisey v. Tide Water Oil Co., Mo.App., 92 S.W.2d 922.
Richard was employed by Sears, Roebuck and Company in September 1945 as a receiving clerk. In 1947 he was transferred to the position of "inside salesman" of hardware, sporting goods and automobile accessories. On the 1st day of March 1948 he was promoted to the position of "inside and outside salesman" of electrical appliances. Under his latter appointment his sales territory of Sears' appliances was anywhere in St. Joseph. He was paid a commission of five per cent on all sales *818 except mail order sales, for which he received a commission of two and one half per cent, and against which commissions he was allowed a drawing account of $45 per week. The regular working hours of Sears' employees were from 8:30 to 5:30 daily, six days a week, not including Sundays, and it is the specific claim of Sears that Coy's services and employment fell into two categories, those he was required to perform from 8:30 to 5:30 and "those sales which he was permitted to make after store hours on his own initiative 'if he wanted to.'" It is said that a different relationship or status existed and that he was not an employee when he was soliciting and attempting to make sales after store hours, under whatever circumstances he chose, on his own initiative.
On April 2nd, 1948, he worked in the store until 5:30. His wife met him at that time and, after doing some shopping, they ate dinner at the "Bucket Shop" and arrived home at 7 o'clock. About 8 o'clock Richard left home with his order book and catalogue, after asking his wife to go with him. About 10:15 he called and informed her of his destination. The day before he had talked to a bartender, Leroy Frank Clark, about purchasing a washing machine and on April 2nd called and made an appointment to see him at his place of business, the B & M Bar, 2301 Sixth Street, that evening. Ten or fifteen minutes after calling his wife he was traveling south on Sixth Street, north of and on the route to the B & M Bar, when his automobile collided with the train. His Sears order book was found in his pocket, and there were other Sears' supplies in his automobile.
Generally, in determining whether a person is an employee within the meaning of the compensation law, the courts have said that the relationship of master and servant must exist, and the test of the existence of the relationship is the right to control the means and manner of the service as distinguished from controlling the ultimate results of the service. Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; McQuerrey v. Smith St. John Mfg. Co., 240 Mo.App. 720, 216 S.W.2d 534. But every case has been decided on its particular facts, and while the element of control is of the greatest significance in determining the existence of the required relationship, the fact of control standing alone is not conclusive. Garcia v. Vix Ice Cream Co., Mo.App., 147 S.W.2d 141, 143. The compensation law does not employ the terms "master" and "servant" and it would probably be more accurate to say that the broader status or relationship connoted by "employer" and "employee" must obtain between the parties. V.A.M.S. Secs. 287.020, 287.030, 287.040. There is some analogy, as the appellant urges, in the negligence cases in which the employer's liability to third persons is dependent upon the applicability of the common law doctrines of respondeat superior and independent contractor, Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252, 116 A.L.R. 1381, but it was never contemplated that liability under the compensation law should be limited to those common law concepts, even though the relationship of employer and employee must in fact exist. "The questions of who is an employer and who is an employee, under compensation acts, do not usually depend upon commonlaw principles (although they may be considered in their construction) but depend instead upon the terms and definitions of such Acts." Loudenslager v. Gorum, 355 Mo. 181, 187, 195 S.W.2d 498, 500. Despite the analogies, the common law concepts are not sufficiently broad to encompass employments and professions now clearly within the terms and protection of the compensation laws. 1 Larson, Workmen's Compensation, Sec. 43.50, p. 632. New and different business methods and techniques change the basic facts and thus expand the implication of the fundamental terms employed in the law. Gordon v. New York Life Ins. Co., 300 N.Y. 652, 90 N.E.2d 898. There are limits, however, beyond which the provisions of the compensation law may not be stretched by interpretation, and the relationship and status of employer and employee must in fact exist. As suggested, an employee may be within the provisions of the Workmen's Compensation *819 Law part of the time, and at other times not within its protection, and ordinarily, in this connection, the relationship of employer and employee is suspended during the period the employee is off duty. 58 Am.Jur., §§ 84, 224, pp. 637, 729. However, one may be an employee of the same employer in a dual capacity, Cameron v. Pillsbury, 173 Cal. 83, 159 P. 149, and an injury sustained outside regular working hours may nevertheless be compensable in some circumstances, particularly if the employee was at the time engaged in some service for the benefit of the employer in connection with his regular duties. 58 Am.Jur., § 224; Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915, 161 A.L.R. 1454. When the control test is applied, it is the ultimate right to control and not the overt exercise of that right which is decisive. 1 Larson, Workmen's Compensation, Sec.44.
As an "inside salesman" Richard's sales were all made within the store, during the regular working hours of 8:30 to 5:30. After his promotion to "inside and outside salesman," the manager said that he was authorized to sell appliances outside the store. In his new position he was required to own an automobile and carry liability insurance. He was the only employee authorized to work and sell merchandise both inside and outside the store. While it was insisted throughout the trial that Richard's working hours were restricted to the regular hours of 8:30 to 5:30, Sears, in making its admissions before the referee, stipulated that if Richard had procured an order after regular hours or on Sunday Sears would have filled the order, but it was insisted, in the stipulation, during those hours that he was not acting for Sears but was "merely acting, so that he could, on those days, sell more merchandise and increase his earnings." On this particular point the store manager said,
"Q. Let me ask you this questionhe was permitted by your company to go out and make sales for the company after the store closed, wasn't he? A. Yes.
"Q. And if he wanted to go out and make a sale at 11:00 or 12:00 o'clock at night, there wasn't any direction or rules of your company that would have denied him that right, was there? A. That is right.
"Q. And after March 1st, 1948, your company did not put any restrictions on Mr. Coy, as to the hours he might work, did they? A. No, they did not. * * *
"Q. Now, assuming that Mr. Coy received an order given to him on a Sunday, would such an order have been refused by your company? A. Since he was an employee of the company, we would have to fulfill the contract of delivering.
"Q. And you would have done so? A. Yes.
"Q. Now another thing, when these contracts, these order blanks were executed, I notice on the top of them it says, 'Subject to the approval of the Credit Department of Sears, Roebuck and Company?' A. That is right.
"Q. In other words, when the signature was made on one of these, it then went to your Credit Department didn't it? A. Yes." Richard's wife and members of her family testified that in the thirty-three days of his new employment he worked and attempted to make sales of electrical appliances every night as well as on Sundays.
The appellant admits that Richard was permitted to make sales after store hours "if he wanted to" but insists that they were wholly dependent on his own initiative and not as an employee. It is not contended that he was an independent contractor, and it is undisputed that he had no other employment or occupation and was subject to being discharged any time. In his changed employment with Sears he was required to have an automobile and purchased the one he was using shortly before assuming his new work. He was required to carry liability insurance, and though he made no claim for it in the thirty-three day period was entitled to reimbursement for automobile expense incurred while on company business. The *820 manager readily conceded that orders obtained at night or on Sundays would have been filled. He was at liberty to sell any responsible person anywhere in the territory. While his commissions were dependent on his own initiative, his sales and orders were all subject to ultimate approval by the company and its credit department which is indicative of some degree of control. Aisenberg v. C. F. Adams Co., 95 Conn. 419, 111 A. 591. "If Baldwin had been given authority carte blanche to go out and sell cabinets at a given price and on given terms and bind his employer thereby, it might be argued with some semblance of merit that Baldwin was an independent contractor and not subject to the control of his employer except as to result. But such was not the case here; Baldwin was definitely subject to the orders and directions and control of Shaw as to every sales transaction which he promoted, and was subject to being discharged with or without cause at any time." Baldwin v. Gianladis, Mo.App., 159 S.W.2d 706, 709. Conflicting inferences might reasonably be drawn, Gordon v. New York Life Ins. Co., supra, but in all the circumstances it may not be said that the Commission's finding that Richard was an employee at the time of his fatal injury is not supported by competent and substantial evidence upon the whole record. Brown v. R. J. Brown Co., 351 Mo. 557, 172 S.W. 2d 645; Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.2d 551; Lewis v. Lowe & Campbell Athletic Goods Co., Mo. Sup., 247 S.W.2d 800; Cameron v. Pillsbury, supra.
From the date of Richard's new appointment, March 1, 1948, to and including the last day he worked, April 2, 1948, there were thirty-three calendar days. As indicated, the claimant and her witnesses testified that Richard worked every one of those days including the four Sundays. They testified to actual sales to members of her family on Sundays. Sears contended that there were but twenty-nine working days in the thirty-three day period and its evidence tended to show that he had not worked or made any sales on Sundays.
The referee and the Commission found that he worked thirty-three days. In the period he earned and was paid the total sum of $357.61. This becomes important because twenty-nine working days produce an average daily earning of $12.33, which when multiplied by 300, V.A.M.S. § 287.250 (4), produces a sum in excess of $3600, $3699. A thirty-three day working period produces a daily wage of $10.84, or when multiplied by 300 a sum less than $3600, an annual earning of $3,252. In addition to the thirty-three day period the referee deducted automobile expense of $41.25, leaving a net earning of $316.36 and a daily wage of $9.50. The Commission on review simply found that he worked the thirty-three days and made no allowance for automobile expense. The Commission, in computing the compensation rate, found that Richard had not been employed by Sears "in the same grade continuously during the year next preceding his injury" and computed his earnings under Section 287.250(4), his earnings, as the Commission found, being not otherwise determinable. That subdivision provides: "As to employees in employments in which it is the custom to operate throughout the working days of the year, the annual earnings, if not otherwise determinable, shall be regarded as three hundred times the average daily earnings in such computation".
Richard had worked as an inside and outside salesman from March 1st to April 2nd which was a different grade than his previous employment and so Sears concedes that his earnings could not be computed under subdivisions (1) and (2) of Section 287.250. Sears contends however that his earnings should have been computed under subdivision (3), "according to the annual earnings which persons of the same class in the same employment and same location (or if that be impracticable, of neighboring employments of the same kind) have earned during such period". It is also urged that if his earnings were properly computed under subdivision (4) that the Commission erred in the manner in which it made the computation under that section.
*821 The difficulty with all the appellant's arguments is that it commands the acceptance of its evidence and the rejection of the respondents' evidence. To substantiate its position that the Commission should have applied subdivision (3) rather than subdivision (4) the appellant argues that it "introduced substantial evidence of the annual earnings of persons in neighboring employments of the same kind" while "Respondents' evidence of the annual earnings of persons in neighboring employments was neither substantial nor competent." It would serve no useful purpose to analyze the evidence and demonstrate its sufficiency one way or another, as the argument indicates the evidence was conflicting. None of the employments were identical in every respect but certainly two, if not three, of the respondents' witnesses were engaged in comparable employments and these testified to a year's previous earnings of $2583 and $2600. Likewise the argument, if subdivision (4) is applicable, that the Commission erred in the manner in which it computed his earnings, compels the acceptance of its evidence that Richard did not work on Sundays and the rejection of the respondents' evidence that he did work on Sundays. As it was with whether he was an employee, conflicting inferences could be drawn, but the Commission's finding under either subdivision is supported by competent and substantial evidence upon the whole record. Werner v. Pioneer Cooperage Co., Mo.App., 155 S.W.2d 319; Hilse v. Cameron, Joyce Const. Co., Mo. App., 194 S.W.2d 760; Mossman v. Chicago & Southern Airlines, 236 Mo.App. 282, 153 S.W.2d 799; Goetz v. J. D. Carson Co., 357 Mo. 125, 206 S.W.2d 530. Richard had not worked a full year and we are not therefore concerned with what the result would be had he worked a full year, and we are not confronted here with a lack of evidence or with evidence which leaves the appropriate inferences to speculation. Metzinger v. H. A. Dailey, Inc., 358 Mo. 689, 216 S.W.2d 480; Urseth v. Encyclopedia Britannica, 343 Mo. 1083, 124 S.W.2d 1101.
The finding and award of the Industrial Commission as to both issues is supported by competent and substantial evidence upon the whole record and the judgment is therefore affirmed.
WESTHUES and BOHLING, C.C., concur.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919966/ | 91 B.R. 831 (1988)
In re Anthony F. GENOVESE and Lisa D. Genovese, Debtors.
Bankruptcy No. 3-87-02233.
United States Bankruptcy Court, E.D. Tennessee.
October 25, 1988.
Gary M. Kirk, Knoxville, Tenn., for debtors.
Maurice K. Guinn, Knoxville, Tenn., for Peter J. Galante, d/b/a Best Security Consultants.
Tate E. Carty, Knoxville, Tenn., Trustee.
*832 MEMORANDUM ON MOTION TO ALTER OR AMEND ORDER DISMISSING CHAPTER 13 CASE AND DIRECTING DISTRIBUTION OF FUNDS AND MOTION TO VACATE
RICHARD S. STAIR, Jr., Bankruptcy Judge.
The court has before it two motions filed October 5, 1988, by the debtor's former employer, Peter J. Galante, d/b/a Best Security Consultants: (1) a "Motion To Alter Or Amend Order Dismissing Chapter 13 Case And Directing Distribution Of Funds"; and (2) a "Motion To Vacate." By his first motion, Mr. Galante requests the court to alter or amend its order entered September 26, 1988, dismissing the debtors' Chapter 13 case by deleting specified language in paragraph two and all of paragraph three. By his second motion, Mr. Galante seeks an order vacating an order of the court entered September 1, 1988, as amended September 22, 1988, finding him in civil contempt for failure to comply with a wage order entered November 16, 1987.
This is a core proceeding. 28 U.S.C.A. § 157(b)(2) (West Supp.1988).
I
On September 12, 1986, the debtor, Anthony Genovese, executed a promissory note in the sum of $1,775 in favor of Peter or Roberta Galante. The note was due on or before January 12, 1987. On September 14, 1987, Anthony Genovese and his wife filed their joint petition under Chapter 13. The debtors did not schedule either Peter or Roberta Galante as a creditor.
On November 16, 1987, the court confirmed the debtors' plan providing for a seventy (70%) percent payment against allowed unsecured claims. The plan also provides for payment of a $2,490 mortgage arrearage on the debtors' residence out of the first funds received by the trustee, a $6,000 priority claim of the Internal Revenue Service, and administrative expenses. Also on November 16, 1987, the court, pursuant to 11 U.S.C.A. § 1325(c) (West Supp. 1988), entered an "Order For Deductions From Debtor's Wages" directing Best Security Consultants to pay $480 monthly of Anthony Genovese's wages directly to the Chapter 13 trustee. In compliance with the wage order, Mr. Galante made a $480 payment to the trustee on December 11, 1987. He made no further payments to the trustee.
On June 1, 1988, the Chapter 13 trustee filed a report reciting he had received a total of $1,440 toward the debtors' plan as of May 27, 1988,[1] and requested issuance of a show cause order to determine if the debtors could continue under their plan.
On July 11, 1988, the debtors filed a "Motion For Certificate Of Contempt" asserting wages were improperly withheld by Best Security Consultants. At a hearing on the contempt motion held August 31, 1988, the court found that both Anthony Genovese and Peter Galante had adopted a cavalier attitude toward the November 16, 1987 wage order; that the debtors omitted debts owed the Galantes and an individual, Mike Carroll, in their Chapter 13 statement; that Peter Galante had knowledge of his obligations under the wage order; that Peter Galante applied wages due Anthony Genovese to satisfy the balance due on the September 12, 1986 promissory note; that Mr. Genovese was in civil contempt for his failure to comply with the November 16, 1987 wage order; and that an additional $1,440 should have been paid the Chapter 13 trustee by Mr. Galante from the wages of Anthony Genovese.
Based upon its findings at the August 31, 1988 hearing, the court entered an order on September 1, 1988, finding Peter J. Galante, d/b/a Best Security Consultants, in contempt. This order further directed Mr. Galante to pay the Chapter 13 trustee $1,760, representing the $1,440 in misapplied wages plus a reasonable attorney's fee for services of the debtors' attorney relative to the contempt motion. By its September 1, 1988 order, the court directed the trustee to distribute the $1,440 in accordance with the debtors' plan. On September 22, 1988, the contempt order was *833 amended to provide that upon payment of the $1,760 by Peter Galante to the Chapter 13 trustee, the promissory note would be returned to the Galantes, and the endorsement on the note evidencing payment in full would be cancelled.
On September 19, 1988, the debtors filed a motion to dismiss their Chapter 13 case. An order was entered September 26, 1988, dismissing the case. This order further directed the trustee to disburse the balance of funds on hand, together with $1,440 of the $1,760 due from Peter Galante, in accordance with the provisions of the debtors' confirmed plan.
II
Mr. Galante relies upon Bankruptcy Code § 349(b) in support of his motions. Section 349(b) provides:
(b) Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title
(1) reinstates
(A) any proceeding or custodianship superseded under section 543 of this title;
(B) any transfer avoided under section 522, 544, 545, 547, 548, 549, or 724(a) of this title, or preserved under section 510(c)(2), 522(i)(2), or 551 of this title; and
(C) any lien voided under section 506(d) of this title;
(2) vacates any order, judgment, or transfer ordered, under section 522(i)(1), 542, 550, or 553 of this title; and
(3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title.
11 U.S.C.A. § 349(b) (West 1979).
Mr. Galante contends the court's order directing him to pay $1,760 to the Chapter 13 trustee is within the scope of 11 U.S.C.A. § 542(a) or (b) (West 1979)[2] and 11 U.S.C.A. § 549(a) (West Supp.1988).[3] The court disagrees with Mr. Galante's interpretation of § 349(b).
The legislative history accompanying § 349(b) provides:
Subsection (b) specifies that the dismissal reinstates proceedings or custodianships that were superseded by the bankruptcy case, reinstates avoided transfers, reinstates voided liens, vacates any order, judgment, or transfer ordered as a result of the avoidance of a transfer, and revests the property of the estate in the entity in which the property was vested at the commencement of the case. The court is permitted to order a different result for cause. The basic purpose of the subsection is to undo the bankruptcy case, as far as practicable, and to restore all property rights to the position in which they were found at the commencement of the case. This does not necessarily encompass undoing sales of property from the estate to a good faith purchaser. Where there is a question over the scope of the subsection, the court will make the appropriate orders to protect rights acquired in reliance on the bankruptcy case. *834 H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 338 (1977); S.Rep. No. 95-989, 95th Cong. 2d Sess. 48-49 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787 (emphasis added).
Subsection (b) of § 349 is not designed to accomplish the result sought by Mr. Galante. To permit the avoidance of obligations imposed under the September 1, 1988 order of contempt (as amended) through reliance upon subsection (b) would extend that subsection's interpretation to an unreasonable extreme. Section 349(b) does not speak of nor even hint at the result Mr. Galante seeks.
Further, the legislative history notes that "for cause" a court may mandate a result contrary to that normally reached under § 349(b). Here such cause exists. Mr. Galante disregarded the November 16, 1987 wage order entered by this court. He should not be permitted to profit from his willful disregard of this court's order. In fact, Mr. Galante, with knowledge of the debtor's Chapter 13 case, ignored the automatic stay of Bankruptcy Code § 362(a) and applied the debtor's wages in satisfaction of his own claim.[4]
The effect of the September 1, 1988 contempt order, except insofar as it provides for the payment of attorney's fees, places Mr. Galante in the identical position he would have occupied had he complied with the wage order. This court cannot countenance willful disregard of its orders.
For the reasons stated above, the "Motion To Alter Or Amend Order Dismissing Chapter 13 Case And Directing Distribution Of Funds" and "Motion To Vacate" filed October 5, 1988, by Peter J. Galante, will be denied. An appropriate order will enter.
NOTES
[1] The debtors presumably made two $480 monthly payments directly to the trustee.
[2] Section 542 provides in material part:
§ 542. Turnover of property to the estate
(a) Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.
(b) Except as provided in subsection (c) or (d) of this section, an entity that owes a debt that is property of the estate and that is matured, payable on demand, or payable on order, shall pay such debt to, or on the order of, the trustee except to the extent that such debt may be offset under section 553 of this title against a claim against the debtor.
[3] Section 549 provides in material part:
§ 549. Postpetition transactions
(a) Except as provided in subsection (b) or (c) of this section, the trustee may avoid a transfer of property of the estate
(1) that occurs after the commencement
(2)(A) that is authorized only under section 303(f) or 542(c) of this title; or
(B) that is not authorized under this title or by the court.
[4] The bar date for filing claims was February 1, 1988. Notwithstanding that Mr. and Mrs. Galante are not scheduled creditors, they had ample opportunity after receipt of the November 16, 1987 wage order to file their proof of claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918133/ | 272 So. 2d 463 (1973)
Mrs. Marion L. BRIGNAC, Individually and as Usufructuary
v.
Elliott P. BOISDORE.
No. 5115.
Court of Appeal of Louisiana, Fourth Circuit.
January 15, 1973.
Rehearing Denied February 6, 1973.
Writ Granted April 19, 1973.
*464 Bridgeman & Conway, James R. Conway, III, New Orleans, for plaintiff-appellant.
Baldwin, Haspel, Molony, Rainold & Meyer, Conrad Meyer, IV, New Orleans, for third-party plaintiff-appellant.
Chaffe, McCall, Phillips, Toler & Sarpy, Charles B. Johnson, New Orleans, for third-party defendant-appellant.
Before REGAN, BOUTALL and BAILES, JJ.
BOUTALL, Judge.
This was originally a suit by a landlord to compel his tenant to pay his monthly rental installment. The plaintiff, Mrs. Marion L. Brignac, is the owner of the premises located at 1624 Dryades Street in the City of New Orleans. By written lease dated March 28, 1966, plaintiff leased to Elliott P. Boisdore, defendant-appellant, the aforesaid premises at a monthly rental of $550.00 per month. The term of this lease commenced on April 1, 1966, and terminated on March 31, 1969. By mutual consent of the parties the term of the lease was extended until September 30, 1969.
By written contract of lease dated March 31, 1966, defendant-appellant Elliott P. Boisdore, with the consent of Mrs. Marion L. Brignac, executed a sublease of the premises to Total Community Action, Inc., (herein referred to as T.C.A.). This sublease provided for a three year term commencing on March 31, 1966, but was subsequently extended by consent of all parties for a term ending on September 30, 1969. Thus the prime lease and the sublease terminated at the same time, September 30, 1969.
The consideration for the prime lease between plaintiff and defendant was a monthly rental of $550.00 per month. The consideration for the sublease between defendant and T.C.A., Inc., was a monthly rental of $1,777.35. The rental for both leases was due and payable in advance on the first day of each calendar month.
T.C.A. refused to pay the rent due by it to defendant Boisdore for the last month of the sublease, the month of September, 1969, on the grounds that the floor of these premises was in a state of disrepair. After T.C.A. refused to pay the monthly rental due for September of 1969, defendant refused to pay the monthly rental of $550.00 owed by him to the plaintiff, said sum being due also for the last month of the lease, the month of September, 1969.
Plaintiff then filed suit on June 11, 1970, against defendant to recover September's rent plus interest, attorney's fees and costs. Defendant answered this suit, reconvening against Brignac for certain improvements made on the lease premises which plaintiff refused to return to defendant when the lease expired on September 30th, 1969. Defendant also filed a third party demand against T.C.A. for the September rent which T.C.A. had withheld as previously stated. T.C.A. answered this third party demand and reconvened against Boisdore. T.C.A. also filed a third party demand against Brignac for the costs of repairs. All matters were taken up and heard in the trial court.
*465 The trial court rendered a decision in favor of plaintiff against defendant for the amount of $550.00 plus legal interest. Additionally, the court rendered a decision in favor of Boisdore on his third party demand against T.C.A. in the amount of $1,777.35 plus legal interest. Finally, there was judgment in favor of T.C.A. on its third party demand against plaintiff, owner of the building, in the sum of $1,776.50, plus legal interest, which was the amount spent by T.C.A. to have the floor repaired.
Each of the three parties have appealed to this court. However, we note that judgment of the First City Court was rendered November 19, 1971, and T.C.A., although it filed appeal on November 16, 1971, did not file appeal bond until December 16, 1971. The appeal bond is not timely filed. C.C.P. art. 5002. We cannot consider the appeal of T.C.A. However, although we cannot grant relief thereunder, we must necessarily consider the issues involved because of the inter-relationship of the facts and the judgment rendered.
Plaintiff asserts that T.C.A. did not follow the proper notification procedure as set out in the sublease between Boisdore and T.C.A. therefore T.C.A. is solely responsible for the cost of the repairs to the floor. To facilitate our analysis of the issue we must look to the notification provisions of the sublease which states:
"In the event that Landlord shall default in any of its obligations hereunder, and such default shall continue for a period of thirty (30) days following notice thereof from Tenant, Tenant may at its option (a) cancel this lease or (b) perform such obligations, deducting the cost thereof from the installments of rent thereafter due, and may hold Landlord liable for any damages suffered by reason of such default.
"Whenever notice is called for hereunder, the same shall be sent by certified United States mail to the addresses shown above."
The evidence indicates that a certified letter of notification from T.C.A. to Boisdore was sent on August 22, 1969, and the repair work on the floor was completed by September 10, 1969. It is obvious that a full thirty day period did not elapse between proper notice of the defect and commencement of the repair work. Our law is to the effect that if the lessor refuses to make repairs required of him under LSA-C.C. arts. 2692-2695 and 2698-2700, after being called upon to do so, a tenant may perform the necessary repairs and deduct the cost of these repairs from the rent. LSA-C.C. art. 2694 states as follows:
"Art. 2694. Lessee's right to make repairs upon lessor's failure
Art. 2694. If the lessor do not make the necessary repairs in the manner required in the preceding article, the lessee may call on him to make them. If he refuse or neglect to make them, the lessee may himself cause them to be made, and deduct the price from the rent due, on proving that the repairs were indispensable, and that the price which he has paid was just and reasonable."
See also Guillot v. Morgan, 165 So. 2d 330 (La.App. 2nd Cir., 1964).
In the present situation, however, there is incorporated into the written lease a specific thirty day notice requirement. We must note that in a dispute arising under a contract of lease, the contract is considered as the law of the case. See Audrey Apartments v. Kornegay, 255 So. 2d 792 (La.App. 4th Cir., 1971); Dikert v. Ruiz, 231 So. 2d 633 (La.App. 4th Cir., 1970); Norman v. Lacroix, 148 So. 458 (La.App. 2nd Cir., 1933). Since T.C.A. did not comply with the agreed upon method of notice, it may not deduct the cost of the repair work from the rent installments. Therefore, the trial judge properly awarded judgment in favor of Boisdore and against T.C.A. for $1,777.35 plus legal interest, which was the amount of the withheld monthly rental installment. *466 We also are of the opinion that the trial court was correct in deciding in favor of plaintiff and against defendant for the amount of $550.00 plus legal interest which was the amount of the withheld installment as per the prime lease agreement. The mere fact that T.C.A. held back the monthly rent due defendant, which it had no right to do under the aforementioned terms of the contract of lease, did not give defendant the right to hold back on the monthly rental installment due plaintiff. The judgment below did not grant attorney's fees although requested. The lease agreement provides for 10% additional if the services of an attorney are necessary for collection of any amount due under the lease. We are not referred to any reason for not granting attorney's fees and we amend the judgment to add them.
Now it is necessary to decide if the judgment in favor of T.C.A. and against plaintiff in the amount of $1,776.50, which was the amount T.C.A. paid to have the floor repaired, was proper.
According to the terms of the written contract of lease between plaintiff and defendant, these repairs cannot be assessed to the plaintiff. The terms of the lease state as follows:
"Lessee is obligated not to make any additions or alterations whatever to the premises without written permission. All additions, alterations or improvements made by Lessee with or without consent of Lessor, no matter how attached (except movable trade fixtures), must remain the property of Lessor, unless otherwise stipulated herein, Lessee, however, expressly waiving all right to compensation therefor. The Lessor at his opinion, may require the building to be replaced in its original condition.
"Lessor or Agent or workmen shall have the right to enter the premises at any time for the purpose of making repairs necessary for the preservation of the property.
"Lessee assumes responsibility for the condition of the premises and Lessor will not be responsible for damage caused by leaks in the roof, by bursting of pipes by freezing or otherwise, or by any vices or defects of the leased property, or the consequences thereof, except in the case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received written notice from Lessee of such defects and the damage caused thereby. Should Lessee fail to promptly so notify Lessor, in writing of any such defects, Lessee will become responsible for any damage resulting to Lessor or other parties."
The lease goes on to state further that, "All alterations or additions to the above herein leased property shall be first submitted to the Lessor or her Agents for approval."
According to defendant's testimony, plaintiff was not given any notice whatsoever of the defective condition or of the repairs in question, therefore it is impossible for her to have given the necessary approval.
According to the notification clause previously quoted in the written contract of sub-lease between defendant and T.C.A., the option to perform the necessary repair work and deduct the cost thereof from the rental installments arises thirty days after notice of the defective condition by certified mail. As stated above, this thirty day period did not elapse between proper notice and the commencement of the repairs. Therefore, T.C.A. has no right to reimbursement from defendant for the cost of repairing the defective floor, which could be passed on to plaintiff.
To allow a lessee to have repair work done to the leased premises with no notice or without the agreed upon notice, and hold the lessor responsible for the cost of the repairs, would be a violation of the lessor's rights. The lessor would be deprived of the opportunity to determine the necessity *467 of the work, to perform the work himself or to search for the best price available.
Our jurisprudence is to the effect that a lessee cannot recover against lessors for repairs without showing he called on the lessors to make repairs and they refused. See Hartz v. Stauffer, 163 La. 382, 111 So. 794 (1927); Miami Truck & Motor Leasing Co. v. Dairyman, Inc., 263 So. 2d 110 (La.App. 1st Cir., 1972); Teekell v. Drewett, 103 So. 2d 525 (La.App. 2nd Cir., 1958).
We have also been referred to the case of Dikert v. Ruiz, 231 So. 2d 633 (La.App. 4th Cir., 1970), in which the lessee caused repair work to be done to the leased premises, and demanded that the lessor reimburse him for the cost of said repairs. That case appears to follow the established rule stated above, because there was first a determination of whether the required written notice was given.
In deciding this issue the court concluded that under the particular contract of lease under consideration, there was proper written notice, and the lessor was bound to pay the price of the repairs. Had there not been proper notice, as in the situation in the case at bar, the cost of repairs would have been assessed to the lessee.
For the foregoing reasons, it is ordered that:
The judgment in favor of plaintiff and against defendant for the amount of $550.00 plus legal interest is amended to include an additional 10% of that amount as attorney's fees, and as amended, is affirmed;
The judgment in favor of defendant and against Total Community Action in the amount of $1,777.35 plus legal interest is affirmed;
The judgment in favor of Total Community Action and against plaintiff in the sum of $1,776.50 plus legal interest is annulled and reversed;
The judgment dismissing all other demands is affirmed. Total Community Action, Inc., to bear the costs of this appeal.
Affirmed in part.
Amended in part.
Reversed in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918134/ | 993 A.2d 1077 (2010)
Ricardo JENNINGS, Appellant,
v.
UNITED STATES, Appellee.
No. 07-CF-711.
District of Columbia Court of Appeals.
Argued March 4, 2010.
Decided April 29, 2010.
*1078 O. Dean Sanderford, Public Defender Service, with whom James Klein and Corinne Beckwith, Public Defender Service, were on the brief, for appellant.
Peter S. Smith, Assistant United States Attorney, with whom Channing D. Phillips, Acting United States Attorney at the time the brief was filed, and Roy W. McLeese III, Mary B. McCord, and Douglas Klein, Assistant United States Attorneys, were on the brief, for appellee.
Before PRYOR, FERREN, and KING, Senior Judges.
PRYOR, Senior Judge:
Appellant was charged with first-degree premeditated murder while armed, possession of a firearm during a crime of violence, and possession of a prohibited weapon. D.C.Code §§ 22-2101, -4502, -4515(b), (c) (2001). After a jury trial, he was acquitted of first-degree murder but convicted of second-degree murder, as a lesser-included offense, and both weapons charges. He now appeals his conviction on the basis that it was error to instruct the jury on the lesser-included charge based on the evidence presented. We affirm.
I.
In June 2004, a group of residents in the 1500 block of Second Street, Southwest were congregating outside their apartments to socialize. Around 10:30 p.m., Ernest Jennings, appellant's uncle, knocked over a trash can near the group, spreading garbage and broken glass on the ground. He appeared to be intoxicated and refused to pick up the trash can and debris. An argument ensued between Ernest Jennings and several members of the group, who insisted he clean up the trash. Appellant was at his aunt's apartment nearby when he was called to come get his uncle. After several unsuccessful attempts, appellant convinced his uncle to get into a car and the two drove away.
At about 2:00 a.m. the next morning, a smaller group of individuals continued to socialize in lawn chairs assembled in the courtyard of an apartment building on Second Street. Kelly Hull, the sister of the man who was later killed, was about to leave with her brother, Jamal. He waited for her by his car parked in front of the apartment building. Kelly Hull walked out of the courtyard and around the side of the building into an area between the buildings to urinate. While there, she was passed by a man carrying a rifle whom she recognized as appellant based on her knowledge of him "around the neighborhood." The man told her to "get ... out of here" and continued walking until he reached a gate in the area. He then raised the gun and fired "a lot of" shots into the street beyond the building before fleeing. Police found ten shell casings scattered in a line leading from the area over a distance of eleven to forty-seven feet from the curb. All of the casings were determined to have come from the same firearm, and expert testimony at trial established that the casings would have landed about three feet from the shooter as each shot was fired.
Kelly Hull emerged from the area where she had been and saw her brother Jamal *1079 lying in the street. At trial she admitted that, on the night of the shooting, she had been drinking and that she was "addicted to PCP" but denied that either circumstance affected her ability to recognize appellant as the shooter. She also testified that she had seen Ernest Jennings leaning on a gate an hour before the shooting. The parties stipulated that Ernest Jennings was "badly beaten" by unknown individuals shortly after the shooting in a building about a block away.
At the conclusion of the trial, the defense moved for judgment of acquittal, arguing that the government had failed to establish the identity of the shooter as well as proof of premeditation and premeditation necessary for a first-degree murder conviction. The record reflects that the defense had vigorously asserted the deficiency of proof related to the identification of appellant as the person who fired the shots. The motion was denied and the government requested a second-degree murder charge as a lesser-included offense. The government suggested that the evidence could equally support the view that appellant fired the shots generally in the area of the group, evincing a conscious disregard for the extreme risk of death or serious bodily injury that could result. Notwithstanding the challenge regarding the issue of identify, the judge concluded an instruction was appropriate under a "depraved heart theory." Relying on Comber v. United States, the trial court observed that second-degree instructions were warranted in situations that included:
firing a bullet into a room occupied, as the defendant knows, by several people, starting a fire at the front door of an occupied dwelling, shooting into a moving automobile necessarily occupied by human beings, playing a game of Russian roulette with another person, [and] selling pure, i.e., undiluted heroin. It just seems to me that a rational construction of the facts in this case could fit perfectly within those categories.... [T]he government's theory is that the defendant goes back and intentionally shoots Jamal Hull. But the law allows the government as a fall back to say that he went back and intentionally fired into the block, knowing that people where there and understanding that by doing so he was creating a grave risk of death or serious bodily injury to the people who were in the line of fire.
See Comber, 584 A.2d 26, 39 n. 13 (D.C. 1990) (en banc).
The jury subsequently acquitted on the first-degree murder charge but convicted on the lesser included second-degree murder charge. He argues that the result was to unfairly encourage the jury to compromise on the lesser-included charge as its verdict.
II.
We review jury instructions on lesser-included offenses to determine if they are supported by the evidence. Shuler v. United States, 677 A.2d 1014, 1017 (D.C.1996). We have said that "[t]his requirement is a minimal one; it means any evidence ... however weak." Id. (citation and quotation marks omitted). The evidence requirement is met "where there is conflicting testimony on the factual issue" and "where the lesser included offense is fairly inferable from the evidence including a reconstruction of the events gained by accepting testimony of some or all of the witnesses even in part." Coleman v. United States, 948 A.2d 534, 551 (D.C.2008). Thus, a lesser-included offense instruction is properly given "where (1) the lesser included offense consists of some, but not every element of the greater offense; and (2) the evidence is sufficient to support the lesser charge." Id. If a jury crediting the *1080 evidence could rationally convict on the lesser-included offense, then "the court must give the instruction no matter how inclined it might be to discount that evidence." Id. However, no lesser-included offense instruction is permitted where the jury "would have to engage in an irrational or bizarre reconstruction of the facts of the case." Anderson v. United States, 490 A.2d 1127, 1130 (D.C.1985).
In the circumstances of this case, appellant contests the jury instruction which allowed the jury to convict him of second-degree murder in the alternative. Second-degree murder requires "malice aforethought," which can be satisfied in one of four ways according to Comber, 584 A.2d at 26. These include (1) actions taken with a specific intent to kill but lacking in deliberate and premeditated malice, (2) acting with the specific intent to inflict serious bodily harm, (3) actions where the defendant knew subjectively that the act "created an extreme risk of death or serious bodily injury," and (4) killings occurring in the course of a felony. Id. at 38-39.
Here, it is the third type of action, sometimes called "depraved heart" murder, that the jury had to consider in appellant's case. We have described this as a killing that results from an action evidencing "a wanton and willful disregard of an unreasonable human risk as to constitute malice aforethought even if there is not actual intent to kill or injure." Id. at 39. In the District of Columbia, we hold that depraved heart murder can only be found where the perpetrator of the act "was subjectively aware that his or her conduct created an extreme risk of death or serious bodily injury, but engaged in that conduct nonetheless." Id. (footnote omitted). This may be shown by a "gross deviation from a reasonable standard of care" or by other acts that may lead the finder of fact to determine that the "defendant was aware of a serious risk of death or serious bodily harm." Id.
Appellant contends, for a variety of reasons, that giving the lesser-included second-degree murder instruction was unfair. First, he argues that the prosecution pursued a theory of first-degree murder throughout the trial, implicitly rejecting the idea that the murder could have been other than a premeditated and deliberate act. And second, appellant argues that the instruction was prejudicial because, by allowing the jury to consider the second-degree murder charge, the court made it likely that the jury would compromise on the lesser-included charge if it could not agree on either conviction under first-degree murder or outright acquittal. At trial, in support of the premeditated murder count, the government argued that the shooter in this case had "plenty of time to think about it" and so the result "was a premeditated act of brutal murder." In defense, appellant focused on the credibility of witness Kelly Hull, questioning her ability to accurately identify the shooter based on her past history of PCP addiction and her alcohol consumption on the night of the murder. The instruction as to a lesser offense is deemed unfair, it is urged, because it increased the likelihoodin this casethat a jury would compromise its verdict and settle on the lesser offense.
Of course, each side in a criminal prosecution is entitled, respectively, to alternative theories of the case. An evidentiary restraint imposed is whether there is legally sufficient evidence to support an alternative charge offered by the government, Coleman, supra, 948 A.2d at 551, or in the instance of an alternative affirmative defense, some evidentiary showing for the alternative defense. See McNeil v. United States, 933 A.2d 354 (D.C.2007). The jury must be instructed as to the alternative purpose of the other charge or other defense. *1081 Here, the crux of the defense challenge is that the evidence was deficient regarding the locations of the people in the area, the lack of knowledge that appellant was aware of the decedent's presence when the shots were fired, and any animus underlying the shooting. However, the theory of the lesser charge does not rest on such facts; rather it is premised on a severe risk imposed by conduct that will probably cause death. Appellant asserts that the number of shots fired from the cut of the building, the type of firearm, and the elapsed time between the argument and the shooting can only support the theory that murder was premeditated, and then only if the jury believed evidence that ten shots were fired into an area where a group of people had been gathered throughout the evening to socialize. In fact, a government witness testified that immediately after the shooting stopped there were "too many people around" to see the victim at first. On these facts, a reasonable jury could have decided that the government had not sufficiently established premeditation and deliberation with respect to the shooter's intent to kill the victim, while still crediting Kelly Hull's identification of the shooter to arrive at a conviction on second-degree murder. The jury would not have to engage in a "bizarre reconstruction" of events to arrive at a conclusion described in Comber and cited by the trial court here. On the record before us the evidence was sufficient to support a finding that appellant in a residential neighborhood engaged in behavior that created an extremely high risk of harm to others, knowing that death or serious injury would probably occur. We think this case falls well within the settled principles regarding a depraved heart killing, second-degree murder.
We also consider appellant's claim that the instruction was unfairly prejudicial because it increased the likelihood that a conflicted jury would compromise on the lesser-included offense instead of continuing to deliberate between first-degree murder and acquittal. In support of this claim, appellant points to the focus of the defense at trial, which centered on the identity of the shooter. In considering this challenge, we look at the instruction given by the trial court. Here the jury was instructed on the elements of first-degree murder by the court, followed by the elements of the lesser-included second-degree murder charge. After that instruction, the jury was told the order in which it should consider the charges, specifically "consider first whether the defendant is guilty of the greater offense." And further, the court instructed "the only circumstance in which you would consider the ... lesser included offense ... is if all 12 of you have unanimously found that the defendant is not guilty of first-degree premeditated murder while armed."
We conclude the evidence presented was sufficient to support a conclusion of second-degree murder. The record shows the trial court properly instructed the jury on when it could consider the second-degree murder charge. Because we presume that the jury followed the instructions they were given, not to consider the lesser-included charge unless they had first ruled out the first-degree murder charge, appellant's contention that there was a compromise verdict is unpersuasive. Accordingly, the judgment on appeal is hereby affirmed.
So ordered.
FERREN, Senior Judge, dissenting:
Commonly, a defendant charged with first-degree premeditated murder while armed will ask for a jury instruction on second-degree murder while armed as a lesser included offense in the obvious hope, *1082 if convicted, of receiving a lighter sentence. The instruction will be given if there is any evidence, "however weak," from which the lesser offense is "fairly inferable."[1] Occasionally, however, the government particularly, as in this case, when misidentification is the principal defense-will seek the lesser-included instruction while the defendant, hopeful if not confident that his defense will prevail, resists the government's fallback instruction out of concern that it will lead to a compromise verdict of guilty on the lesser charge, rather than acquittal on the indicted charge that demands a higher level of proof. We have this second situation here.
The criteria for granting or rejecting the lesser-included instruction are the same whether the government or the defense requests it, and thus the trial court and eventually this court de novo[2] must make the same analysis of the record without regard to the parties' respective positions on it. As far as I have been able to determine, this court has never reversed a conviction when the trial court granted a government-requested lesser-included offense instruction over the defendant's objection. In my judgment, this should be the first such reversal.
The trial court perceived a reasonable possibility that the jury could find Ricardo Jennings guilty of second-degree murder on a "depraved heart" theory, meaning that the evidence supported a finding that Jennings was "subjectively aware" that his "conduct created an extreme risk of death or serious bodily injury, but engaged in that conduct nonetheless."[3] In applying this test, however, the trial court may not give the lesser-included offense instruction when, in order "to convict on the lesser offense, the jury would have to engage in an irrational or bizarre reconstruction of the facts of the case."[4] I do not believe that, on this record, the jury could have found a mere "depraved heart" murder without such irrational, if not bizarre, reconstruction.
In a colloquy with counsel, the trial court justified the second-degree murder instruction by reference to examples drawn from the LaFave & Scott treatise quoted in our en banc decision in Comber,[5] and again en bloc in the majority opinion. In my judgment, however, the evidence in this case cannot be rationally interpreted in a way that fits any such example, for two reasons: (1) the jury could not rationally discern an un premeditated intent to kill Jamal Hull, and (2) the evidence does not support a finding that others, in addition *1083 to Jamal Hull, were in the way of the killer's bullet spray with an AK-47.
No one disputes that considerable evidence supports premeditated first-degree murder, the theory on which the prosecution was tried. What I cannot find on this record is any lesser state of mind in the killer. The government argues that the evidence would permit the jury to infer that Jennings was only trying to "scare" Hull, or to infer that Jennings "formed the intent to kill only at the last possible moment and thus the murder was not premeditated or deliberated." From my reading of the record, both suggestions are pure speculation.
The government adds that the "jury reasonably could have inferred that appellant's intended victim was Ms. [Monique] Hines, or any of the `other people' with whom Ernest Jennings" appellant's uncle for whom appellant was the alleged avenger had argued "earlier in the evening." This last argument for a second-degree, "depraved heart" state of mind depends on the second category of evidence I find missing: that other persons were in range of the killer's bullets. There is no evidence that Monique Hines was in the area, or that any "other people" were in range of the armed assault. Even the trial judge indicated that he was "not clear ... whether there were other people out in the immediate area where the decedent was when he was hit," although he added that "a rational inference could be drawn that the defendant came around the corner and essentially shot into a crowd of people, not necessarily specifically intending to kill Jamal Hull and maybe not even anyone else in particular, but that he shot ... down the block of a street where there were a lot of people hanging out." The problem is, however, that there is no record evidence that others besides Hull were "hanging out" where they could have been hit by the shooter.
Let's look at the testimony in connection with government exhibit 122, an aerial diagram of the scene unchallenged by the defense and elucidated by detailed interchange at oral argument. In this aerial view, the right portion of the apartment complex looks like a rectangular horseshoe with one wide building across the top and two shorter, connected buildings down each side enclosing a large courtyard facing 2nd Street, S.W. The shooter came walking down a "cut" (a sidewalk) along the right side of the complex heading toward 2nd Street. As evidenced by shell casings that, according to expert testimony, fell within three feet of each firing, he took one shot before reaching the end of the front building, # 1520. He then began shooting rapid-fire toward the street, dropping nine more cartridges in a grassy area at the end of building 1520 in front of the sidewalk on 2nd Street. Hull lay dead in the street in front of his car at a slight angle from the end of the building toward the courtyard. From the diagram scrutinized at oral argument, it is clear that the trajectory of the bullets from the shooter to Jamal Hull could not have hit anyone in the courtyard around the corner from the shooter. So: was there probative evidence that anyone but Hull was out there in Hull's vicinity? No.
The evidence on which the government primarily relies for purposes of the second-degree murder instruction is the testimony of Keisha Brighthaupt, who had been sitting inside the courtyard in front of building 1520 talking with Jamal Hull, while other people "were just standing around" there. Hull then went to find his sister, who had left to go to the bathroom in the cut. Soon thereafter, as Brighthaupt got up and began "walking out of the court," she heard gunshots. At first she could not *1084 tell where they were coming from but then discerned that they were coming from the direction of the cut. She ran to 2nd Street and hid behind a van parked there.
Brighthaupt further testified that "after the shots stopped," she heard her sister say, "oh, my God, it's Ish [Jamal Hull]. So, that's when I came out [from behind the van] and we all I just was standing right there just looking." At first, she added, she could not see where Hull had fallen, "because it was too many people around. ... But when the police got there, I seen it." Officer Robert Baechtel, who had heard the gunfire from two or three blocks away, arrived at the murder scene within "45 seconds to a minute" and "saw a large crowd standing on the sidewalk with several individuals in the middle of the street." Naturally, people would gather at a homicide scene after a shooting. But before?
There was evidence that there had been a party in the courtyard earlier in the evening, and that a number of individuals were lingering there at around 2:00 a.m., sitting on lawn chairs in front of building 1520 when the shooting occurred.[6] The courtyard is invisible from the cut on the side of the complex where the shooter walked; and, of determinative significance, the area of the courtyard where individuals reportedly had remained was not within eyesight of the shooter. Keisha Brighthaupt's testimony put the other people, who were "standing around" before Hull left to look for his sister, well outside the line of fire. They were inside the court-yard, in front of building 1520 an area slightly behind the grassy area at the end of building 1520 where the nine shell casings were found. Even Brighthaupt herself, when beginning to leave the courtyard as she heard the shots, was not sure at first where they were coming from. As far as one can tell from the testimony and the diagram in government exhibit 122, the killer would have had to shoot around a corner to hit anyone other than Hull. It follows that none of the hypothetical situations involving more than one individual, as quoted by the trial judge from Comber[7] to illustrate a "depraved heart," are relevant here.
The two "depraved heart" hypotheticals concerning an assailant with one victim playing Russian roulette and selling undiluted heroin also are inapplicable. The trial judge, preferring the Russian roulette analogy, opined that a second-degree murder instruction would be proper "even if there's just one person in a street, and you start firing, firing an AK-47 down the street in that person's direction." That opinion presupposes an indifferent state of mind that, from my reading, nothing in the record supports.[8]
Language from one of our opinions ruling for the government in which we affirmed the denial of a defense request for a lesser-included second-degree murder instruction fits perfectly: "Here, the record reveals no dispute regarding [Jennings'] state of mind. His defense theory was misidentifiction, and thus the only issue *1085 regarding the murder[] was the identity of the assailant."[9]
Respectfully, therefore, I dissent. I cannot find the error harmless. I therefore would reverse the judgment of conviction for second-degree murder and remand for a new trial.
NOTES
[1] Coleman v. United States, 948 A.2d 534, 551 (D.C.2008) (citations and internal quotation marks omitted).
[2] See Leak v. United States, 757 A.2d 739, 740-741 (D.C.2000).
[3] Comber v. United States, 584 A.2d 26, 39 (D.C. 1990) (en banc). The trial court instructed on second-degree murder while armed as follows. The parties do not question the language.
The essential elements of the lesser included offense of second-degree murder while armed, each of which the government must prove beyond a reasonable doubt, are, first, that the defendant caused the death of the decedent, Jamal Hull; second, that at the time the defendant did so, he had the specific intent to kill or seriously injure the decedent or acted in conscious disregard of an extreme risk of death or serious bodily injury to the decedent; and, third, that at the time of the offense the defendant was armed with a firearm. Second-degree murder while armed differs from first-degree premeditated murder while armed in that it does not require premeditation, deliberation, or a specific intent to kill.
[4] Anderson v. United States, 490 A.2d 1127, 1130 (D.C.1985).
[5] Supra note 3, 584 A.2d at 39 n. 13.
[6] Government exhibit 122 showed the location of one arm chair at the edge of the sidewalk directly in front of the courtyard, far away from the front of building 1520. There was no evidence that anyone was in that chair near, or at, the time of the shooting.
[7] Supra note 5.
[8] The trial judge rejected the government's argument that "people could have been sitting [or] sleeping in their cars" on the street where Hull was killed. The judge noted that for conviction of second-degree murder "the defendant has to know that there are people in the line of fire," and added that "there's no testimony that there was anyone in any of those cars."
[9] Bright v. United States, 698 A.2d 450, 457-458 (D.C. 1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918159/ | 135 N.W.2d 120 (1965)
Charles R. JORDAN, Plaintiff-Appellant, and Appellee on Cross-Appeal,
v.
SINCLAIR REFINING COMPANY, Defendant-Appellee, and Appellant on Cross-Appeal.
No. 51616.
Supreme Court of Iowa.
May 4, 1965.
*121 Duffield, Pinegar & Tapscott, Des Moines, for plaintiff-appellant and appellee on cross-appeal.
Duncan, Jones, Hughes, Riley & Davis, Des Moines, for defendant-appellee and appellant on cross-appeal.
THOMPSON, Justice:
This case comes to us complete with motion pictures, still pictures, claims of written and oral leases, hospital records, numerous receipts pertaining to the operation of a service station, expert medical testimony, and appeals by both parties from rulings and judgments of the trial court. Upon the trial, and after denial of the defendant's motion for a peremptory verdict, the jury returned its verdict for the plaintiff in the sum of $81,342.00. The defendant thereupon filed its motion for judgment notwithstanding verdict, which was denied; and its motion for new trial, which was granted. These results were satisfactory to neither party, and we have before us the plaintiff's appeal from the award of a new trial, and the defendant's cross-appeal from the denial of its motion for directed verdict and the following motion for judgment notwithstanding. The questions involved are difficult, and no less so because of the skill with which the able counsel for the respective parties have urged their claims.
The trial court was of the opinion that the case as made before it required a jury determination of the questions of the contributory *122 negligence of the plaintiff, and of the negligence of the defendant. It is at this point the defendant thinks the court was in error. The court did, however, conclude that the verdict of the jury was so excessive in the light of the evidence of the plaintiff's injuries as to show passion and prejudice; and on that ground, and on what it thought the inherent power of the court to set aside a verdict which did not administer substantial justice, it granted a new trial. Here the plaintiff parts company with the court.
Plaintiff's petition alleges that on March 21, 1962, while he was employed by his father, Admiral (otherwise known in the record as Admairal) T. Jordan, who operated a service station in Des Moines under lease from the defendant, he was injured by being caught under an automobile upon which he was working, when a defective Joyce hydraulic lift owned by the defendant and leased to Admairal T. Jordan as part of the equipment of the station, gave way and permitted the car to settle upon him. Other pertinent facts will be stated in discussing the contentions of the respective parties.
Since it is evident that if the defendant is correct in its claim that it should have had a directed verdict, and that its motion for judgment notwithstanding should have been granted, the contentions of the plaintiff respecting error in the award of a new trial are immaterial, we shall first consider the cross-appeal. Substantially, the defendant relies upon two grounds: first that the evidence shows plaintiff was guilty of contributory negligence as a matter of law; or otherwise stated, that he failed to generate a jury question upon his freedom from such negligence; and second, that it owed the plaintiff no duty, so that there was no showing of negligence on its part.
I. We come first to the question of the plaintiff's alleged contributory negligence. It appears that Admairal T. Jordan had leased the service station from the defendant on October 23, 1961; whether by written or oral lease is the subject of a controversy which will be examined later. The plaintiff was employed by his father. He was an experienced service station worker, 36 years of age, six feet two inches tall and weighing at the time of the accident 230 pounds. Within a week or ten days after October 23, 1961, he observed the hydraulic lift, which was part of the equipment of the station leased to his father, was not operating properly. It tended to permit a car placed on it to settle slowly. The plaintiff testified that he called this to the attention of the defendant's employees, and they came out and watched the operation of the hoist. One Phillips, a Sinclair employee, said it would be all right to continue to use the hoist because he didn't think there would be any difference in the way it would act. Phillips said he would check with the Sinclair office and see who would repair it, whether it would be Sinclair or the plumber who was responsible for the repairs.
The hoist had not been repaired on March 21, 1962. On that day the plaintiff, who was at the time alone in the station, undertook a brake repair job. He raised the car "around 30 inches, maybe three feet, or maybe a little less." The hoist was equipped with a safety leg, a metal support which operated under a car when it was raised on the hoist and prevented it from falling if the hoist failed to hold. However, the work the plaintiff was doing could be done more conveniently if the automobile was not raised to the full height of the hoist, and at the height at which the plaintiff had raised it the safety device was too long to be used.
The plaintiff's work which was on the left rear wheel brake at the time, did not require him to be beneath the car; but he dropped a small spring which rolled under the car. He crawled or slid under the automobile to retrieve the spring, the hoist gave way and he was pinned under the car until his father came to the station and released him. This is the plaintiff's evidence.
It is the defendant's strong contention that this evidence shows the plaintiff *123 was guilty of contributory negligence as a matter of law. It is urged that he had a safe way of operating; that he knew of the defect in the hoist; and that he chose a dangerous means by going under the car when by raising it a short distance higher he could have used the safety device and insured his own protection. The question is not free from doubt; but we conclude that it was for the jury to say whether freedom from contributory negligence sufficiently appeared.
The defendant stresses this quotation from 38 Am.Jur., Sec. 193, page 873: "One having a choice between methods of doing an act which are equally available, who chooses the more dangerous of the methods, is ordinarily deemed negligent, in the absence of a showing of the existence of an emergency, sudden peril, or other circumstances justifying such choice. The fact that the less dangerous method takes longer and is inconvenient and attended with difficulties furnishes no excuse for knowingly encountering the peril." This the plaintiff counters by pointing out that following language of the same section, page 874, said: "However, one is not always chargeable with negligence even though he does not adopt the safest and best course to avoid injury. The law does not require a choice unerring in the light of after events; it requires such a choice as, under all the known or obvious circumstances, a reasonably prudent man might make."
We need cite no authorities for the proposition that the question of contributory negligence is ordinarily one for the jury. The cases vary so much in their facts that the great majority of them which have dealt with the point are not helpful. Nor would it be possible to analyze the many authorities cited by the contending parties on this question within the reasonable limits of this opinion. It will suffice to refer to one case relied upon by the defendant, to illustrate the difficulty of finding an exact factual authority. In Lewis v. Cratty, 231 Iowa 1355, 4 N.W.2d 259, we held a verdict should have been directed against the plaintiff. He was using a grain combine and was injured when caught in an unguarded power shaft. The operation of the shaft, and that it had no guard, was obvious and known to the plaintiff. It was clear that if he became entangled with the shaft he would be injured. In the case at bar, as plaintiff's case is made, the hoist had never before dropped or lowered suddenly. It had always been gradual. The plaintiff had at least a few inches of clearance between his body and the car when he went under it. He expected to be there only a short time; long enough, only, to retrieve the spring. He says it was only a matter of seconds, certainly no longer than a minute, before the car descended upon him. While a jury finding of failure to show freedom from contributory negligence would have substantial support in the evidence, we cannot say it so clearly appears as to make it a question of law.
II. The defendant urges that it owed no duty to repair the hoist, and so, there being no duty, there could be no negligence. Here arises a considerable contention as to whether the lease under which Admairal T. Jordan was operating the station was written or oral. The defendant cites many authorities which hold that a landlord owes no duty to repair demised premises; and that any agreement to repair after the original lease is made is without consideration. We think it unnecessary to discuss these, as the record before us appears. There was a substantial jury question as to the nature of the lease, and this was submitted by the court. The controversy at this point requires some further statement of facts for understanding.
The record shows a written lease, dated October 23, 1961, by the terms of which the defendant leased the service station to Admairal T. Jordan. This lease contains no covenant on the part of the defendant landlord to make repairs. The inference arises that this lease was what the plaintiff had in mind in drafting his petition; because he refers therein to the reserved right of the defendant to enter the demised premises for the purposes of examination and *124 inspection, and to approve or disapprove any alterations, changes, or additions to buildings and other improvements at the station. These are terms of the written lease. Admairal T. Jordan testified that he took possession under an oral lease; but he said nothing about any such reserved rights as those set out above being contained in his claimed verbal agreement.
The dispute here arises over the fact that the written lease was not signed by Admairal T. Jordan, but by his son, the plaintiff, for him. Admairal Jordan denied that he authorized this signature, and as a witness testified to an oral contract, which he said contained an agreement on the part of the defendant to keep the equipment in repair. The defendant thinks that by his pleading the plaintiff has bound himself to the written lease and its terms. But neither the plaintiff in his petition or the defendant in answer pleaded expressly whether the lease was written or oral. As shown above, there is a strong basis for thinking at the time of drafting his petition the plaintiff had the written lease in mind; but it is also possible to say that he relied upon an oral lease and merely failed in his proof on the questions of right to inspect and to approve or disapprove changes. The question has considerable significance on another branch of the case; but we are unable to say that there was not a jury question as to whether the lease was oral or written, and whether it contained an agreement on the part of the landlord to repair. If it did, a duty arose from the contract so to do, and a failure to perform might be actionable negligence. "A tort may be dependent upon, or independent of, contract. If a contract imposes a legal duty upon a person the neglect of that duty is a tort founded on contract; so that an action ex contractu for the breach of contract, or an action ex delicto for the breach of duty, may be brought at the option of the plaintiff." Matthys v. Donelson, 179 Iowa 1111, 1116, 160 N.W. 944, 946. This was quoted with approval in Kunzman v. Cherokee Silo Company, 253 Iowa 885, 891, 114 N.W.2d 534, 537, 95 A.L.R. 2d 673. The trial court told the jury the lessor would be liable for injury arising from failure to repair if he agreed to keep the property in repair. This seems sufficient on this point, except that it should be made clear to the jury that the agreement to repair should be made not later than the time of agreement upon the lease.
III. We come then to the plaintiff's appeal. The trial court, as previously noted, placed its grant of a new trial upon the two grounds of excessiveness of the verdict sufficient to show passion and prejudice, and the general power of the court to take such action if it feels justice has not been done. These points are much stressed in argument; but there are other defects pointed out in requested instructions, exceptions to the instructions given, and in the motion for a new trial, which not only sustain the ruling of the court, but require it. Since the questions of excessiveness of the verdict and the inherent power of the court are such as may not arise upon another trial, we do not determine them.
It is settled that a ruling granting a motion for new trial must be upheld if any grounds of the motion are good, even though the court does not base its decision upon them. Blackford v. Sioux City Dressed Pork, Inc., 254 Iowa 845, 850, 118 N.W.2d 559, 562; Hot Spot Detector, Inc. v. Rolfes Electronics Corp., 251 Iowa 647, 653, 102 N.W.2d 354, 360; Culbertson v. Anderson, 251 Iowa 265, 273, 274, 100 N.W.2d 633, 637, 638; State v. Eichler, 248 Iowa 1267, 1274, 1275, 83 N.W.2d 576, 580.
Obvious error appears in the court's instructions. In Instruction No. 6 the jury was told that "The evidence is undisputed that A. T. Jordan neither signed Exhibit 3 (the written lease) nor authorized anyone to subscribe his name to that instrument and these circumstances rendered Exhibit 3 voidable at his option." This was properly excepted to. Its giving was error. *125 One of the major fighting points in the case was the validity of the written lease, and whether the parties were operating under it or under the claimed oral lease. There was substantial evidence that the written lease was valid; that is, that it had been signed by A. T. Jordan through an authorized agent. Not only does the plaintiff's petition seem to rely upon the written lease, as pointed out in Division II above, but there is other evidence from which the jury might have found that it was signed by the lessee's authority. There is in evidence an exhibit dated October 23, 1961, the same date as the lease, denominated "Equipment and Materials Receipt" which purports to be signed by A. T. Jordan by C. Jordan. This acknowledged receipt of the hoist, and other equipment, and provided that the borrower should maintain said equipment in good condition and repair and pay all costs and expenses in connection therewith. This signature was also claimed by A. T. Jordan to have been unauthorized.
Also there appears in the record Exhibit 2, denominated a "Cancellation Agreement", dated May 21, 1962, signed by A. T. Jordan (as Tom Jordan, a signature he testified he sometimes used) which recites that it is mutually agreed that "the agreements described below be and the same hereby are terminated and cancelled as of the close of business on the 19th day of May, 1962". The first instrument listed below is "Station Lease, form number 1601-B, effective date 10/23/61." The written lease carries the form number "1601-B." It is therefore evident that A. T. Jordan, or Admairal Jordan, or Tom Jordan, as he variously appears, was agreeing to the cancellation of an agreement which he now contends he had never made. Yet the court told the jury it was undisputed that he had neither signed nor authorized anyone to sign this instrument for him. It is true there was also an issue of ratification of the written lease by A. T. Jordan; but the evidence above would have supported a finding of authorized signature in the first instance, as well as of possible ratification.
IV. The court at other points assumed facts to be undisputed because there was no express contradiction of testimony given by A. T. Jordan. This is not the rule. The court, and the jury, are not bound to accept testimony as true merely because it is not contradicted. The rule is thus expressed in 53 Am.Jur., Trial, Sec. 608, page 480: "A court cannot properly assume the existence of a material fact merely because there is no negative evidence on the subject, for the jury may discredit the testimony." The principle is also stated in 88 C.J.S. Trial § 210, page 466: "So, where the evidence is not of such character as to require interpretation by the trial court, it should be submitted to the jury, even though it is uncontradicted, and it is error to withdraw it from the jury; * * *." In our own case of Arnd v. Aylesworth, 145 Iowa 185, 191, 123 N.W. 1000, 1003, 29 L.R.A.,N.S., 638, we said: "Uncontradicted evidence is not sufficient to command a directed verdict where the inferences to be drawn from all the circumstances are open to different conclusions by reasonable men." It is possible that when facts appear without contradiction and their truth appears to be established beyond any fair doubt the court may so accept them. But this situation is the exception rather than the rule, when we are considering the testimony of witnesses on a point of importance in the case which is not otherwise supported. Credibility of a witness is always a question for the jury; and this is especially true when the witness has apparent interest in the case, either legal or as a friend or relative of the party whose case the testimony aids. Here A. T. Jordan was the father of the plaintiff; his testimony tended not only to aid the plaintiff, but to exonerate himself from liability such as might have existed if he had been found to have executed the written lease and the equipment receipt by an authorized agent. It was error to tell the *126 jury that certain facts testified to by A. T. Jordan were undisputed.
V. Error is alleged in the refusal of the trial court to give defendant's requested interrogatory No. 2: "Did Admairal T. Jordan either authorize the signing of the station lease dated October 23, 1961 (Exhibit 3) or ratify and approve such lease subsequent to October 23, 1961?" The requested interrogatory dealt with an important factual question in the case, and might well have been given. However, the court in fact covered the point in his general instructions, at least to the extent that it required the jury to find that the station was being operated under an oral rather than a written lease. Under such circumstances it is not error to refuse to submit a special interrogatory. Johnson v. Mutual Life Insurance Company, 253 Iowa 1218, 1230, 115 N.W.2d 825, 833; Dohse v. Market Mens Mutual Insurance Co., 253 Iowa 1186, 1193, 115 N.W.2d 844, 848.
VI. We have set forth sufficient of the record pertaining to the instructions requested, and refused, those given on the court's own motion, the exceptions taken and the questions raised by the motion for a new trial to show our conclusion that error appeared sufficient not only to support but to require the grant of a new trial. Other questions argued are not determined. They may not arise on another trial, for which it is impossible for us to lay down a controlling blueprint in this opinion.
Affirmed on both appeals.
All Justices concur, except HAYS, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575253/ | 281 F. Supp. 897 (1968)
Jerome TOTI, Richard Carpenter, Tony W. Greaves, James R. McClintock, Yvette McClintock, Francis Palmer, Michael Polignone, Jr., Sebert L. Tamplin, Fred M. Waring and Janice Lynne Scrutchfield, Plaintiffs,
v.
PLYMOUTH BUS COMPANY and Charter Coach Corp., Defendants.
No. 68 Civ. 368.
United States District Court S. D. New York.
March 28, 1968.
A. Walter Socolow, New York City, for plaintiffs.
McLaughlin, Fiscella & Biancheri, New York City, for defendants; John J. Biancheri, New York City, of counsel.
OPINION
HERLANDS, District Judge.
Defendants move, pursuant to 28 U.S.C. § 1404(a), to transfer this action to the United States District Court for the Western District of Pennsylvania *898 on the grounds that such transfer would serve the convenience of parties and witnesses and the interest of justice.
The action, seeking money damages for personal injuries, was commenced on December 22, 1967 in New York State Supreme Court. On January 26, 1968, the action was removed by defendants to the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 1441.
The present action arises out of a motor vehicle collision, which occurred on October 25, 1966 in Somerset County, Pennsylvania (part of the Western District of Pennsylvania) between defendants' bus and a tractor-trailer owned and operated by persons not parties to this litigation. Plaintiffs, who were passengers on defendants' bus, allegedly received injuries solely as a result of defendants' negligence.
Although 28 U.S.C. § 1404(a) empowers a federal district court to transfer an action upon a lesser showing of inconvenience than was required for dismissal under the doctrine of forum non conveniens, the statute does not abrogate the right of the plaintiff to select the forum. Norwood v. Kirkpatrick, 349 U.S. 29, 30-32, 75 S. Ct. 544, 99 L. Ed. 789 (1955). Unless the balance of convenience strongly favors the defendant, the plaintiff's choice of forum will not be disturbed. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947); Ford Motor Co. v. Ryan, 182 F.2d 329 (2d Cir.), cert. denied 340 U.S. 851, 71 S. Ct. 79, 95 L. Ed. 624 (1950). The movant must make a clear-cut showing that, on balance, the interests of justice would be better served and the trial would more conveniently proceed in the other judicial district. S. E. C. v. Golconda Mining Co., 246 F. Supp. 54, 56 (S.D.N.Y.1965), petition for writ of mandamus denied sub nom. Golconda Mining Corp. v. Herlands, 365 F.2d 856 (2d Cir. 1966).
Moreover, a showing of inconvenience to the defendant is not enough to justify § 1404(a) relief, where transfer would merely place the inconvenience on the plaintiff. Miracle Stretch Underwear Corp. v. Alba Hosiery Mills, 136 F. Supp. 508, 511 (D.Del.1956).
Defendants assert that the action should be transferred to the Western District of Pennsylvania because there are important witnesses, who are Pennsylvania residents, and therefore not within the subpoena power of this Court. Two of these witnesses are investigators, employed by defendants. Thus, these investigators presumably are under defendants' control and can testify in New York, if defendants so desire. Schmidt v. American Flyers Airline Corp., 260 F. Supp. 813, 814 (S.D.N.Y.1966).
The state trooper, who investigated the accident is another witness referred to in defendants' moving affidavit. However, because the state trooper was not an eye-witness to the accident, the materiality and relevancy of his testimony is somewhat attenuated. It is noteworthy that the prospective testimony of the state trooper is referred to by defendants only in general terms; there is no particularized showing of the importance of such testimony.
Defendants also regard the testimony of the physicians in the Western District of Pennsylvania, who initially examined the plaintiffs following the accident, as highly significant. On the other hand, the plaintiffs also received medical care in New York, Texas, Nevada, California, Illinois, Nebraska and Minnesota. There is no showing that it would be more convenient for the treating physicians in the above states to come to the Western District of Pennsylvania rather than to the Southern District of New York.
Moreover, none of the ten plaintiffs in this action reside in the Western District of Pennsylvania. Indeed, four of these plaintiffs are residents of the State of New York. It would be considerably inconvenient for all of the ten plaintiffs, who are also key witnesses, to be required to travel to the Western District of Pennsylvania in order to try this case.
Defendants point out that, unlike New York, Pennsylvania allows a joint tortfeasor *899 to be impleaded. From this, they argue that transfer should be granted in order that there may be an opportunity to implead the owners and drivers of the tractor-trailer, who apparently are not amenable to process in New York.
There may be a flaw in defendants' argument to the extent that it is postulated upon the implicit assumption that the law of the place of the injury (Pennsylvania) would be applicable on the issue of the liability of joint tortfeasors and their being impleaded by the defendants. When an action is transferred, pursuant to 28 U.S.C. § 1404(a), the transferee court must apply the state law (including rules concerning conflict of laws) that would have been applied had there not been a transfer of venue. Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964). The applicable New York choice of law rule is that the law of the state having the greatest interest in the particular issue will govern. Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279, 95 A.L.R. 2d 1 (1963).
In this case and upon the record now before it, the Court cannot dogmatically declare which state has the greatest concern on this particular issue. While this Court is not adjudicating this question, it may be significant to observe that New York does have a substantial interest because four of the ten plaintiffs are New Yorkers and the bus trip began and ended in New York.
Finally, defendants call attention to the fact that there is another personal injury action pending against them in the Western District of Pennsylvania by the driver of the tractor-trailer. Herman Williams v. Plymouth Bus Co., No. 67-741. In light of this circumstance, they contend that transfer should be granted in order to enable the two actions to be consolidated.
While consolidation is attractive from the standpoint of judicial administration, this feature is not strong enough to outweigh the inconvenience to plaintiffs in trying this action in the Western District of Pennsylvania.
Upon a balancing of all pertinent factors, the Court concludes that the convenience of parties and witnesses and the interest of justice are more effectively served by retaining this action in the Southern District of New York.
Defendants' motion to transfer is hereby denied. So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575262/ | 743 N.W.2d 448 (2007)
2007 WI App 233
STATE of Wisconsin, Plaintiff-Respondent
v.
Dennis M. GRALINSKI,[] Defendant-Appellant.
No. 2006AP929-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs May 1, 2007.
Opinion Filed September 5, 2007.
*451 On behalf of the defendant-appellant, the cause was submitted on the briefs of Martin E. Kohler and Craig S. Powell of Kohler & Hart, LLP, of Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Stephen W. Kleinmaier, assistant attorney general.
Before CURLEY, P.J., FINE and KESSLER, JJ.
¶ 1 CURLEY, P.J.
Dennis M. Gralinski appeals from an order denying his motion to suppress physical evidence seized during a search of his home, and statements that he made, on the basis that the statements were the fruits of the illegal search of his home. At issue is whether the affidavit supporting the search warrant provided probable cause to justify the search of Gralinski's home and computer. Gralinski argues that the affidavit did not provide probable cause to believe that evidence of child pornography would be found in his home. In addition, he argues that the information contained in the affidavit was stale due to a lapse of two and one-half years. Lastly, he argues that the good-faith exception to uphold an invalid search warrant does not apply.
¶ 2 We conclude that the warrant-issuing commissioner had a substantial basis for finding that there was probable cause to issue the warrant to search Gralinski's home for the items specified in the warrant. Furthermore, under the circumstances presented here, we disagree with Gralinski's contention that the information contained within the supporting affidavit was stale.[1] Accordingly, we affirm the trial court's order denying his motion to suppress evidence.
I. BACKGROUND.
¶ 3 The Bureau of Immigration and Customs Enforcement (ICE) is responsible for Operation Falcon, a nationwide investigation focusing on Internet child pornography *452 crimes. In February 2003, the investigation revealed that a company known as Regpay owned and operated various members-only Internet websites containing images of what appeared to be children engaging in pornographic and sexually explicit conduct with other children and with adults.
¶ 4 In June 2003, federal agents seized Regpay's customer database, which contained records for each Regpay customer who purchased access to Regpay's child pornography websites. The records contained the purchaser's name, home address, e-mail address, credit card number, names of websites to which access was purchased, and the dates of purchase.
¶ 5 Regpay's records revealed that on March 9, 2003, Gralinski's credit card was used to purchase a membership to a Regpay website that included a free membership to a second website. In addition to containing Gralinski's name, credit card number, and the name of the website that the membership was purchased for, Regpay's records contained Gralinski's e-mail address and home address. When federal agents visited the websites to which Gralinski's membership afforded access, they determined that the sites "contained extensive collections of sexually explicit photographic and video images of what appear to be real children posing and/or engaged in pornographic activities with other children."
¶ 6 On June 3, 2005, a special agent with the Wisconsin Department of Justice reviewed ICE reports regarding the contents of the websites that Gralinski had received access to by way of the membership purchase and verified that the description of the images found at the websites constituted child pornography as legally defined in Wisconsin. On September 4, 2005, the special agent reviewed records obtained by ICE with documentation verifying Gralinski's e-mail address, home address, and telephone number.
¶ 7 On September 8, 2005, the special agent submitted a fifteen-page affidavit for a search warrant for Gralinski's home. The affidavit detailed the special agent's qualifications, provided information regarding Operation Falcon, explained how computers are used for child exploitation, and summarized the facts establishing probable cause, which included the details surrounding the seizure of Regpay's customer database and the subsequent identification of Gralinski as a Regpay customer. In addition, the affidavit contained a description of the websites to which access was purchased with Gralinski's credit card.
¶ 8 The affidavit also provided the following with respect to computer usage in the context of child pornography:
10. Once an individual opens an image of child pornography on his computer or accesses such an image through the Internet, that image is saved in the computer's "cache." This allows investigators to review a history of the images opened/accessed by the user of the computer long after the image has been opened or accessed.
. . . .
15. Based on his training and experience, your affiant knows that each time an individual views an online digital image, that image, or remnants of that image, are automatically stored in the hard-drive of the computer used to view the image. Your affiant knows that a forensic examination of such a hard-drive can identify and retrieve such images, including those of child pornography, even if those images have been deleted by the computer operator.
. . . .
*453 18. Based on his training and experience, your affiant knows that individuals who are involved with child pornography are unlikely to ever voluntarily dispose of the images they possess, as those images are viewed as prized and valuable materials.
¶ 9 Based on the information contained in the special agent's affidavit, a Milwaukee county court commissioner signed the warrant authorizing the search of Gralinski's home, which was executed on September 13, 2005. At that time, investigators removed the hard drive from Gralinski's computer and discovered images from child pornographic websites.
¶ 10 On September 16, 2005, Gralinski was charged with five counts of possession of child pornography in violation of WIS. STAT. § 948.12(1m) (2003-04).[2] Gralinski moved to suppress the physical evidence seized and statements that he made. The trial court denied the motion, finding that the affidavit stated probable cause. In addition, the trial court concluded that the delay between March 2003 and September 2005 did not defeat probable cause. In light of its findings in support of probable cause, the trial court did not address the applicability of the good-faith exception.
¶ 11 We granted Gralinski's petition for interlocutory appeal, following the trial court's denial of his motion to suppress.
II. ANALYSIS.
A. Probable Cause
¶ 12 Gralinski argues that the special agent's affidavit did not demonstrate probable cause for searching his home. Specifically, he contends that "the search warrant affidavit in the present case essentially stated only a single, facially non-incriminating fact supposedly connecting Gralinski to illegal activityhis credit card number was used in an online transaction to purchase a membership to a website later found to contain images of child pornography." Gralinski argues that it was unreasonable for the trial court to infer that he conducted the credit card transaction given the significant amount of credit card fraud that exists.[3] He further argues that to get from the fact that Gralinski's credit card number was used "to a reasonable probability that Gralinski's home contained evidence of possession of child pornography in September 2005 requires the piling of inferences and near total reliance on the stated training and experience of the affiant in lieu of the requirement that a magistrate be presented with sufficient facts." We disagree with these contentions and conclude that the warrant-issuing commissioner had a substantial basis for concluding *454 that there was probable cause to issue the warrant to search Gralinski's residence.
¶ 13 In reviewing a motion to suppress, we engage in a two-step inquiry. State v. Pallone, 2000 WI 77, ¶ 27, 236 Wis. 2d 162, 613 N.W.2d 568. First, we apply a deferential standard to the trial court's findings of historical fact, and will "thus affirm the [trial] court's findings of fact, and inferences drawn from those facts, unless they are clearly erroneous. Second, we review the [trial] court's application of constitutional principles to the evidentiary facts. This second step presents a question of law that we review independently." Id.
¶ 14 WISCONSIN STAT. § 968.12(1) provides that a search warrant shall issue "if probable cause is shown." To support a determination that probable cause exists, the magistrate must be "`apprised of sufficient facts to excite an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that the objects sought will be found in the place to be searched.'" State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991) (citations and one set of quotation marks omitted). In challenging the search warrant, Gralinski bears the burden of establishing insufficient probable cause. See State v. Schaefer, 2003 WI App 164, ¶ 5, 266 Wis. 2d 719, 668 N.W.2d 760.
¶ 15 "[E]very probable cause determination must be made on a case-by-case basis, looking at the totality of the circumstances." State v. Multaler, 2002 WI 35, ¶ 34, 252 Wis. 2d 54, 643 N.W.2d 437. To determine whether probable cause exists, the test is one of common sense. State v. Ward, 2000 WI 3, ¶ 23, 231 Wis. 2d 723, 604 N.W.2d 517.
The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)). The requirement that law enforcement officers obtain a search warrant was not designed to preclude them from receiving "the support of the usual inferences that reasonable individuals may draw from evidence." Id., ¶ 28. However, inferences may be drawn only by "a neutral and detached magistrate . . . instead of a law enforcement officer who is engaged in the often competitive enterprise of ferreting out crime." Id. (citations and internal quotation marks omitted).
¶ 16 Our review of the warrant-issuing magistrate's determination of probable cause is deferential, and the magistrate's "determination will stand unless the defendant establishes that the facts are clearly insufficient to support a finding of probable cause." Higginbotham, 162 Wis.2d at 989, 471 N.W.2d 24. We take into account only the facts that were presented to the commissioner, Ward, 231 Wis. 2d 723, ¶ 26, 604 N.W.2d 517, and we recognize that "both the experience and special knowledge of police officers who are applying for search warrants are among the facts that the warrant-issuing court may consider," Multaler, 252 Wis. 2d 54, ¶ 43, 643 N.W.2d 437.
¶ 17 Gralinski relies on United States v. Weber, 923 F.2d 1338 (9th Cir. 1990), to support his argument that inferences "stacked" by the trial court and the magistrate to support the validity of the *455 search warrant "amount[ed] to shoddy constitutional masonry." In Weber, the court concluded that the warrant issued was invalid because it sought items not based on probable cause. Id. at 1343. Two years prior to when the affidavit was issued, Weber was sent advertising materials that were intercepted because they were "apparently" child pornography. Id. at 1340. As a result, Weber became the target of an investigation. Id. Approximately twenty-one months later, Weber responded to a government-generated advertisement for child pornography and ordered materials. Id. A warrant was then issued and executed shortly after a federal agent, dressed as a delivery person, delivered the materials that Weber ordered. Id. at 1341.
¶ 18 Weber did not deny that probable cause existed for the materials that he ordered in response to the government-generated advertisement. Id. at 1343. Instead, he argued that there was no probable cause to support the plethora of other materials sought in the affidavit, beyond the materials he ordered. Id. The court concluded that based on the information known to the federal agent when he prepared his affidavit, the number of inferences that would have to be drawn to support a finding of probable cause for the additional items specified in the affidavit made the search of Weber's residence unreasonable. Id. at 1345.
¶ 19 Gralinski's circumstances are different than those present in Weber, where other than the order placed by Weber at the government's solicitation, the only other fact suggesting that Weber may have had child pornography in his house on the day of the search was the advertising material that had been intercepted almost two years prior. Id. at 1345. Here, the affidavit detailed the fact that Gralinski's credit card had been used to purchase a membership that afforded him access to websites containing child pornography. In addition, the affidavit contained information relating to the special agent's experience and knowledge of individuals who are involved with child pornography and of the longevity of images viewed through the Internet to remain on a computer. See Multaler, 252 Wis. 2d 54, ¶ 43, 643 N.W.2d 437.
¶ 20 Thus, unlike in Weber, where the affidavit was not tailored to the information known about Weber, but rather described generally information "about different types of perverts who commit sex crimes against children," id., 923 F.2d at 1345, in this case, the special agent's affidavit was tailored such that it was reasonable for the commissioner to conclude that it provided a substantial basis to find probable cause. In addition, the nature of the materials constituting child pornography in Weber (photographs) compared to the Internet images involved here, make Weber inapposite. See generally United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006) (noting "that evidence that a person has visited or subscribed to websites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material").
¶ 21 Similar to the facts at issue, United States v. Gourde, 440 F.3d 1065, 1066 (9th Cir.2006) (en banc), cert. denied, ___ U.S. ___, 127 S. Ct. 578, 166 L. Ed. 2d 432 (2006) (Gourde II), arose out of an appeal from a trial court's denial of Gourde's motion to suppress images of child pornography found on his personal computer. There, federal agents discovered that Gourde had a membership to a website containing child pornography, for which he had provided his home address, date of birth, and e-mail address. Id. at 1067-68. The affidavit in support of the warrant detailed the steps taken by Gourde to become a member (i.e., submitting his home address, e-mail address, *456 credit card data, and consenting to have money deducted from his credit card every month, thus defeating any argument that Gourde became a member "by accident"). Id. at 1068, 1070. In addition, the affidavit provided facts regarding the website and the images it offered, to which Gourde had access. Id. at 1068. Furthermore, the affidavit contained background information on computers and the traits of child pornography collectors. Id.
¶ 22 In concluding that this information was sufficient to support the magistrate's decision to issue a warrant, the Gourde II court noted:
Given this triad of solid facts the site had illegal images, Gourde intended to have and wanted access to these images, and these images were almost certainly retrievable from his computer if he had ever received or downloaded them the only inference the magistrate judge needed to make to find probable cause was that there was a "fair probability" Gourde had, in fact, received or downloaded images.
Id. at 1071. The court further concluded that "[t]he details provided on the use of computers by child pornographers and the collector profile strengthen this inference. . . ." Id. at 1072. As a result, the Gourde II court refused Gourde's attempt to "elevate probable cause to a test of near certainty." Id. at 1072.
¶ 23 In his motion to suppress heard by the trial court, Gralinski relied on United States v. Gourde, 382 F.3d 1003 (9th Cir. 2004) (Gourde I), which he described as a case involving "circumstances similar to those of the present case."[4] In Gourde I, the court concluded that the affidavit failed to establish a fair probability that child pornography would be found on Gourde's computer and thus did not support a search warrant. Id. at 1013. However, now, in light of Gourde II, Gralinski attempts to distinguish his circumstances from those at issue in that case on the basis that the Gourde affidavit contained additional facts relating to the duration of Gourde's membership and based on the website's set up in Gourde, which required subscribers to pass through two pages that advertised and displayed child pornography. We are not persuaded by Gralinski's attempts to distinguish his circumstances from those found in a case that he previously relied on.
¶ 24 Here, like the court in Gourde II, we conclude that the use of a credit card issued to Gralinski to purchase a membership to websites containing child pornography, together with customer records confirming Gralinski's home address, e-mail address, and credit card information, result in the inference that there was a fair probability that Gralinski had, in fact, received or downloaded images. See id., 440 F.3d at 1071. The details provided on the use of computers by individuals involved in child pornography found in the affidavit supporting the search of Gralinski's home strengthens this inference. See id. at 1072; Ward, 231 Wis. 2d 723, ¶ 28, 604 N.W.2d 517 (noting that "`[a]lthough the finding cannot be based on the affiant's suspicions and conclusions, the magistrate may make the usual inferences reasonable persons would draw from the facts presented'") (citation omitted; alteration in Ward); see also State v. Lindgren, 2004 WI App 159, ¶¶ 18-20, 275 Wis. 2d 851, 687 *457 N.W.2d 60 (holding that affiant "placed a plausible scenario, based on facts and experience, before the court," which provided sufficient justification for a search of the home of the defendant, who took nude photographs of a minor employee at his business).
¶ 25 In reaching this conclusion, we are mindful that "[t]he test is not whether the inference drawn is the only reasonable inference. The test is whether the inference drawn is a reasonable one." See Ward, 231 Wis. 2d 723, ¶ 30, 604 N.W.2d 517 (emphasis added). Accordingly, we conclude that Gralinski cannot avoid a finding that probable cause existed based on the slight chance that someone other than himself used the credit card to access the websites and further find that the warrant-issuing magistrate's determination of probable cause was reasonable.
B. Stale Information
¶ 26 Gralinski next contends that the warrant was invalid because it was based on stale information such that no inference could be drawn that the items sought in the warrant would be located in his home two and one-half years after the membership to the Regpay website was purchased. He bases his argument on his contention that the affidavit did not demonstrate a pattern of actual and ongoing possession of child pornography by him. We disagree with Gralinski and conclude that the concept of staleness is not a bar to probable cause under the circumstances of this case.
¶ 27 In deciding whether probable cause is stale, "timeliness is not determined by a counting of the days or months between the occurrence of the facts relied upon and the issuance of the warrant." State v. Ehnert, 160 Wis. 2d 464, 469, 466 N.W.2d 237 (Ct.App.1991). Even old information can support probable cause. See Multaler, 252 Wis. 2d 54, ¶ 36, 643 N.W.2d 437 (noting the distinction between stale information and stale probable cause).
Stale probable cause, so called, is probable cause that would have justified a warrant at some earlier moment that has already passed by the time the warrant is sought.
There is not, however, any dispositive significance in the mere fact that some information offered to demonstrate probable cause may be called stale, in the sense that it concerns events that occurred well before the date of the application for the warrant. If such past fact contributes to an inference that probable cause exists at the time of the application, its age is no taint.
State v. Moley, 171 Wis. 2d 207, 213, 490 N.W.2d 764 (Ct.App.1992) (citation omitted).
¶ 28 To determine whether probable cause is sufficient where a staleness challenge is raised requires a review "of the underlying circumstances, whether the activity is of a protracted or continuous nature, the nature of the criminal activity under investigation, and the nature of what is being sought." Multaler, 252 Wis. 2d 54, ¶ 37, 643 N.W.2d 437 (citing Ehnert, 160 Wis.2d at 469-70, 466 N.W.2d 237). No single aforementioned consideration is dispositive given that, as noted above, probable cause determinations are made on a case-by-case basis, "looking at the totality of the circumstances." Id., ¶ 34.
¶ 29 In Multaler, as part of their investigation of homicides that took place twenty years prior, police obtained a warrant to search the defendant's home for evidence of those crimes. Id., ¶ 3. While executing the warrant, the police discovered computer disks containing child pornography. Id. *458 The defendant moved to suppress the disks arguing, in part, that the information in the affidavit supporting the warrant was stale because no inference could be drawn that evidence related to the murders would remain in his home twenty years after the murders occurred. Id., ¶ 10. The Multaler court disagreed that the information was stale, and to support its conclusion that the affidavit provided probable cause, emphasized the "unusual tendency of serial homicide offenders, as stated in the affidavit, to collect and retain items that constitute evidence of their crimes." Id., ¶ 40. In noting the variety of factors and circumstances to be considered in a staleness challenge, the Multaler court offered the following example: "`The observation of a halfsmoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later.'" Id., ¶ 37 (citations omitted).
¶ 30 Just as the court in Multaler found that the issue of staleness in that case depended, in part, upon the tendencies of serial killers to collect and retain items evidencing their crimes, id., ¶ 40, here, the issue of staleness depends, in part, upon the tendencies of collectors of child pornography, as detailed in the special agent's affidavit. Gralinski does not contest the special agent's description of the habits of collectors of child pornography in the affidavit supporting the search warrant. In this regard, the affidavit provided "that individuals who are involved with child pornography are unlikely to ever voluntarily dispose of the images they possess, as those images are viewed as prized and valuable materials." Given the specific factual information obtained when Regpay's customer databases were seized that Gralinski's credit card had been used to purchase a membership to sites containing child pornography, it was reasonable for the magistrate to infer that Gralinski downloaded visual child pornography from the websites to his computer.[5]
¶ 31 Because possession of child pornography on one's computer differs from possession of other contraband in the sense that the images remain even after they have been deleted, and, given the proclivity of pedophiles to retain this kind of information, as set forth in the affidavit supporting the request for the search warrant, there was a fair probability that Gralinski's computer had these images on it at the time the search warrant was issued and executed. See Ward, 231 Wis. 2d 723, ¶ 23, 604 N.W.2d 517. The affidavit explains that "[o]nce an individual opens an image of child pornography on his computer *459 or accesses such an image through the Internet, that image is saved in the computer's `cache.'" The affidavit further states "that each time an individual views an online digital image, that image, or remnants of that image, are automatically stored in the hard-drive of the computer used to view the image . . . even if those images have been deleted by the computer operator." Thus, at the time the warrant issued and was executed, the probable cause to search Gralinski's residence was not stale.[6]
¶ 32 Gralinski offers one non-controlling case to support his contention that "the failure to demonstrate his actual and ongoing possession [of child pornography] renders the 30-month-old information stale." See United States v. Greathouse, 297 F. Supp. 2d 1264, 1272-73 (D.Or.2003). Wisconsin caselaw, however, does not require such a showing. To the contrary, "whether the activity is of a protracted or continuous nature" is but one consideration to be taken into account in reviewing the totality of the circumstances. Multaler, 252 Wis. 2d 54, ¶¶ 34, 37, 643 N.W.2d 437. Moreover, there is no requirement that an affidavit conclusively demonstrate actual possession, as Gralinski argues; rather, the requirement is only that there be "`an honest belief in a reasonable mind that the objects sought are linked with the commission of a crime, and that the objects sought will be found in the place to be searched.'" Higginbotham, 162 Wis.2d at 989, 471 N.W.2d 24 (citation omitted).
¶ 33 Considering all of the information in the affidavit and our deferential review of the magistrate's determination, we are satisfied that staleness is not a bar to probable cause. Accordingly, we affirm the trial court's denial of Gralinski's suppression motion.[7]
Order affirmed.
NOTES
[] Petition for Review filed.
[1] We are aware of a recent unpublished case, State v. Park, No.2006AP1139-CR, 2007 WI App 216, 739 N.W.2d 490, 2007 WL 2238667, unpublished slip op. (2007), dealing with a search warrant of a computer for child pornography. The dispositive issue in Park requiring a remand was not raised in this case.
[2] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.
[3] Gralinski offers no evidence to support that he has been a victim of credit card fraud. Nevertheless, to bolster his argument regarding the surge of identity theft crimes, Gralinski cites Will v. Hallock, 546 U.S. 345, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006), as an example of the danger of issuing a warrant under circumstances he contends are similar to those at issue here. There, information about Hallock's credit card was stolen and used to pay a subscription fee to a website containing child pornography. Id. at 347-48, 126 S. Ct. 952. Federal agents obtained a warrant to search the Hallocks' residence, and in seizing the Hallocks' computer equipment, damaged the disk drives to the extent that all of the stored data was lost, forcing the Hallocks out of business. Id. The issue before the United States Supreme Court in Hallock involved the Federal Tort Claims Act, not whether probable cause existed to search the Hallocks' residence, and as such, it provides no guidance on the issue presented to this court. Furthermore, unlike in Hallock, here, no evidence has been offered that would lead us to conclude that information about Gralinski's credit card was stolen.
[4] A rehearing en banc was granted on July 14, 2005, United States v. Gourde, 416 F.3d 961 (9th Cir.2005), and, as detailed above, the en banc court subsequently concluded that there was sufficient probable cause to support the issuance of a warrant to search Gourde's residence and computers, United States v. Gourde, 440 F.3d 1065, 1066 (9th Cir.2006) (Gourde II).
[5] Gralinski argues that the affidavit "fails to lay a foundation sufficient to classify [him] as a collector, pedophile or any other person with a propensity to hoard child pornography." We note that the affidavit provides: "Your affiant believes Gralinski has demonstrated an interest in [child pornography] by meticulously providing detailed personal information, including his name, address, e-mail address, telephone number and credit card number to websites trafficking in child pornography." This statement, along with the entirety of the facts contained in the affidavit and the reasonable inferences that can be drawn from them, lead us to conclude that there was a sufficient foundation to justify the warrant-issuing magistrate's decision to issue a search warrant. See State v. Schaefer, 2003 WI App 164, ¶ 17, 266 Wis. 2d 719, 668 N.W.2d 760 (noting that the defendant's approach would have the court focus on individual parts of the affidavit at issue as opposed to having the court view the statements in their entirety allowing reasonable inferences to be drawn); see generally State v. Higginbotham, 162 Wis. 2d 978, 991, 471 N.W.2d 24 (1991) (we defer to the warrant-issuing magistrate because "`[r]easonable minds frequently may differ on the question of whether a particular affidavit establishes probable cause'") (citation omitted; alteration in Higginbotham.).
[6] Gralinski argues that even if evidence can be retrieved from a computer in perpetuity, the staleness inquiry is still relevant to probable cause. He contends that the trial court erred in its finding that computers are repositories of potential evidence such that the information they contain is essentially timeless because such a finding abrogates the staleness doctrine in all child pornography cases. As evidenced by our analysis above, we agree that the staleness inquiry remains relevant to a probable cause determination despite the fact that the evidence at issue is found in a computer. We disagree, however, that viewing a computer as a repository of potential evidence will have the wide-scale effect of abrogating the staleness doctrine in all child pornography cases. Computers are frequently involved in effectuating numerous other crimes, and yet, computer storage and retention has not abrogated the staleness doctrine in other contexts. Consequently, we see no reason why computer storage would have such an effect in the context of child pornography. In light of the fact that a probable cause determination is made on a case-by-case basis looking at the totality of the circumstances, State v. Multaler, 2002 WI 35, ¶¶ 34, 37, 252 Wis. 2d 54, 643 N.W.2d 437, we anticipate that there will be situations where the facts are such that probable cause cannot be established even where downloaded images of child pornography are involved.
[7] Because we find the search warrant was supported by probable cause, we do not reach Gralinski's last argument that the good-faith exception to uphold an invalid search as articulated in United States v. Leon, 468 U.S. 897, 920-23, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), should not apply. See also Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (unnecessary to decide non-dispositive issues). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575469/ | 308 S.W.3d 252 (2010)
JOPLIN WORKSHOPS, INC., Plaintiff-Appellant,
v.
JASPER COUNTY SHELTERED FACILITIES BOARD, Defendant-Respondent, and
Jasper County Sheltered Facilities Association, et al., Third-Party Defendants.
No. SD 29753.
Missouri Court of Appeals, Southern District, Division Two.
April 12, 2010.
Bruce A. Copeland and Jeremy K. Brown, Copeland & Brown, Joplin, MO, for Appellant.
Chuck D. Brown, Warten, Fisher, Lee & Brown, L.L.C., Joplin, MO, for Respondent.
Plaintiff Joplin Workshops, Inc. ("Workshop") appeals the trial court's summary judgment in favor of Defendant Jasper County Sheltered Facilities Board ("Board") on Workshop's petition seeking declaratory, injunctive, and extraordinary writ relief. We reverse.
Factual and Procedural Background
Workshop filed a three-count petition against Board seeking a declaratory judgment "determining that all tax revenues collected" by Board "shall be distributed, spent and/or allocated solely as the voters of Jasper County have authorized," an injunction "enjoining [Board] from distributing, *253 spending and/or allocating any of the tax revenues . . . in any manner other than as the voters of Jasper County have authorized," and the issuance of "a writ of prohibition commanding [Board] from distributing, spending and/or allocating any of the tax revenues . . . in any manner other than as the voters of Jasper County have authorized." Workshop alleged that, when the Jasper County voters established Board and an accompanying tax levy in 1976, the ballot language approved by the voters and the then-authorizing statutes, sections 205.968 to 205.972, RSMo Cum. Supp.1975, allowed Board to expend such tax funds only for the purpose of establishing and maintaining a sheltered workshop or residence facility. Workshop further alleged that Board had "budgeted for and distributed and continues to budget for and distribute such Jasper County tax funds to non-qualifying organizations, entities, individuals and/or programs which are and/or were not sheltered workshops and/or residence facilities." Admitting that section 205.968 had been subsequently amended to expand the purpose to include "related services," Workshop further alleged that, nevertheless, such expanded purpose did not apply to Board because the voters of Jasper County had never voted to grant such expanded authority to Board as statutorily required.
Board filed a motion for summary judgment. The uncontroverted material facts before the trial court in deciding this motion were: Workshop is a sheltered workshop as defined by section 178.900; Board is a political subdivision; on November 2, 1976, the voters of Jasper County approved the question, "Shall Jasper County establish and maintain a sheltered workshop and residence facility for handicapped persons for which the County shall levy a tax of 10¢ per each $100.00 assessed valuation therefore?"; Board was created with the adoption and passage of this ballot question; and since December 23, 1999, Board "has expended tax revenue . . . by funding group homes, residential facilities, and related services for the benefits of the developmentally disabled citizens of Jasper County."
The trial court sustained Board's motion for summary judgment finding that "[t]his Court is of [the] opinion that the law for this type of situation is governed by the case of Vocational Services v. The [Developmental] Disability Board, 5 S.W.3d 625 (Mo.App. W.D.1999)." Accordingly, the trial court entered judgment that Board "may expend funds for `related services' as defined in the Vocational Services case as well as for sheltered workshops and residential facilities." Workshop's timely appeal followed.
Standard of Review
Appellate review of the grant of summary judgment is de novo. The Court reviews the record in the light most favorable to the party against whom summary judgment was entered. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law.
Kinnaman-Carson v. Westport Ins. Corp., 283 S.W.3d 761, 764-65 (Mo. banc 2009) (internal citations and quotations omitted).
Discussion
Workshop asserts four points on appeal, but we find that its first point is dispositive.[1] In that point, Workshop contends *254 the trial court erred in granting summary judgment in favor of Board based upon Vocational Servs., Inc. v. The Developmental Disabilities Res. Bd., 5 S.W.3d 625 (Mo.App.1999), because
the [Vocational Servs., Inc.] opinion did not address nor decide the issue presented to the trial court in that the [Vocational Servs., Inc.] opinion merely defined the term "related services" as such term is used in the SB40[[2]] legislation without ever considering, questioning or rendering an opinion as to whether expenditures for "related services" were authorized without a corresponding vote of the people.
We agree.
The plaintiff in Vocational Servs., Inc., referred to therein as "VSI," brought an action for declaratory judgment and injunctive relief against the Clay County SB40 board, referred to therein as "DDRB." Id. at 628. VSI requested
the court to declare public tax funds collected pursuant to Section 205.968-205.968[sic] can be spent, granted or contracted solely for the benefit of sheltered workshops or residential facilities, or for services directly related to the running of sheltered workshops and residential facilities. It also requested the court to declare that, of those receiving funds from the DDRB, only it and CCI meet this definition of a sheltered workshop, residence facility, or related service provider, and to enter an order enjoining all other expenditures of tax funds by the DDRB as unlawful.
Id. Various other entities were joined in the litigation, and they, along with VSI and DDRB, asserted competing positions on the interpretation of "related services" and the extent of DDRB's authority to fund them. Id. The trial court
rejected both VSI's claim that only a sheltered workshop or residential facility qualify for the funds, and the DDRB and Lighthouse's claim that any services related to the care or employment of the handicapped qualify for the funds. The court concluded that sheltered workshops, residential facilities, and related services for the care or employment of *255 the handicapped include, "acts or commodities which are connected or associated with vocational training, vocational teaching, vocational activities, vocational workshop and/or residential facilities."
Id.
Both DDRB and VSI appealed the trial court's judgment to the Western District of this Court, the former asserting that the trial court too narrowly interpreted the meaning of the phrase "related services," and the latter claiming that the trial court's interpretation of that phrase was too broad. Id. at 629-30. Finding that the term was not defined in any Missouri statute, the Western District spent the entire analytical portion of its opinion defining it, ultimately agreeing with the trial court's definition and affirming its judgment. Id. at 629-32.
Nowhere in Vocational Servs., Inc., did the Western District address or discuss the interplay between the ballot language approved by the voters in Clay County and the provisions of section 205.968 as related to DDRB's authority in the first instance to expend tax levy funds for related services. This is because VSI never challenged DDRB's authority to pay for related services, but rather, implicitly conceding such authority, only challenged some of DDRB's expenditures as being beyond the scope of related services as that term was used in the statute.
Here, Workshop is challenging Board's authority to expend any tax levy funds for related services because such authority was not granted by the voters of Jasper County, an action which Workshop claims is required by the statute. Because this issue was not addressed in any manner in Vocational Servs., Inc., it is not authoritative or dispositive in this case, and the trial court erred in granting summary judgment based upon it. Board's arguments that Vocational Servs., Inc., "goes beyond merely defining `related services'" are contradicted by the opinion in that case and are without any merit. Workshop's first point is granted.
Decision
The trial court's judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
RAHMEYER, J., and BATES, J., concur.
NOTES
[1] Rule 74.04(c)(1) provides, in relevant part, that "[a] motion for summary judgment shall summarily state the legal basis for the motion." Board's motion for summary judgment did not state any legal basis, summarily or otherwise. "Generally, failure to comply with Rule 74.04(c)(1) warrants a trial court's denial of a summary judgment motion and warrants an appellate court's reversal of the grant of summary judgment." Premier Golf Missouri, LLC v. Staley Land Co., LLC, 282 S.W.3d 866, 872 (Mo.App.2009) (quoting Gillespie v. Estate of McPherson, 159 S.W.3d 466, 470 (Mo.App.2005)). Non-compliance is not a matter subject to waiver by a party and may be raised sua sponte by an appellate court. Hanna v. Darr, 154 S.W.3d 2, 5 (Mo.App. 2004) (citing Miller v. Ernst & Young, 892 S.W.2d 387, 389 (Mo.App. 1995)). Nevertheless, "[i]f the issues and the documents in support of those motions are clear to the litigants, the trial court, and the appellate court, the failure to comply with Rule 74.04 does not per se preclude the granting of summary judgment nor the affirming of such a judgment. In short, the trial court and the appellate court are vested with discretion." Sotirescu v. Sotirescu, 52 S.W.3d 1, 7 (Mo. App.2001) (internal citations omitted). As demonstrated by its judgment, the only issue clear to the trial court was the application of Vocational Servs., Inc. Thus, we exercise our discretion to review that legal basis for the trial court's grant of summary judgment, but no other.
All references to rules in this opinion are to Missouri Court Rules (2009).
[2] In 1969, the Missouri Legislature enacted Senate Bill 40, which was codified into sections 205.968-205.972, RSMo.1969. Thereafter, these sections, even though amended from time to time by other bills, have been commonly referred to as "SB40 legislation," and the boards established in accordance with the provisions in these sections have been commonly referred to as "SB40 boards." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/731041/ | 102 F.3d 425
36 Fed. R. Serv. 3d 934, 96 Cal. Daily Op. Serv. 8928,96 Daily Journal D.A.R. 14,965
ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Plaintiff-Appellee,v.CALIFORNIA STATE BOARD OF EQUALIZATION, Defendant-Appellant,AndContra Costa County; Fresno County; Kern County; KingsCounty; Los Angeles County; Madera County; AlamedaCounty; Merced County; Tulare County; Orange County;Riverside County; San Bernardino County; San Diego County;San Francisco City and County; San Joaquin County;Stanislaus County, Defendants.
No. 95-15999.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 11, 1996.Decided Dec. 11, 1996.
Marguerite C. Stricklin, Deputy Attorney General, San Francisco, CA, for defendant-appellant.
Paul J. Mooney, Phoenix, AZ, for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California, D. Lowell Jensen, District Judge, Presiding. D.C. No. CV 89-4030-DLJ.
Before GOODWIN, WALLACE and RYMER, Circuit Judges.
GOODWIN, Circuit Judge.
1
The State Board of Equalization of California (the "SBE") appeals a judgment enjoining the SBE from collecting taxes on certain Non-Unitary Railroad Property Eligible for 4-R Act Relief ("NURPEFAR") of the Atchison, Topeka & Santa Fe Railway Company ("Santa Fe"). The SBE also appeals the district court's order to refund monies already paid by Santa Fe on this property. We dismiss for lack of jurisdiction.
I. Background
2
Santa Fe challenged the assessment and collection of ad valorem taxes against its property pursuant to sections 306(l )(a) and (d) of the Railroad Revitalization and Regulatory Reform Act of 1976. Pub.L.No. 94-210, 90 Stat. 31, 54-55 (1976) (codified as amended at 49 U.S.C. § 11501). The district court held a trial limited to Santa Fe's claims under section 306(l )(d) and entered a partial judgment in Santa Fe's favor on September 14, 1994. Other claims remained to be resolved, but the Judgment Order stated: "In accordance with Rule 54(b), Federal Rules of Civil Procedure, the Court hereby expressly determines that there is no just reason for delay and directs the entry of judgment as set forth herein."
3
The Partial Judgment permanently enjoined the SBE from collecting taxes on Santa Fe's NURPEFAR for 1992 and ordered the SBE to refund Santa Fe $3,003,098.00.
4
At a status conference held the same day the partial judgment was entered, September 14, 1994, counsel for the SBE informed the district court that the Partial Judgment overstated the amount of the refund. No Rule 60 motion was filed then or later. The court merely directed counsel for both sides to get together and to determine the correct amount. Apparently this unwritten direction was complied with some time early in 1995, and at another status conference, on February 15, 1995, the district court directed the SBE to submit a proposed modified partial judgment. The SBE lodged its proposal with the district court on April 21, 1995, and the district court filed its Modified Partial Judgment on April 24, 1995. No Rule 60 motion, no order correcting the error, and of course, no appeal had been filed challenging the September 14 judgment.
5
The Modified Partial Judgment incorporated the district court's Findings of Fact and Conclusions of Law entered in conjunction with the September 14, 1994 Partial Judgment and differs from the Partial Judgment only in the amount of the refund which was decreased to $856,917.00.
6
The SBE filed its notice of appeal on May 23, 1995, ostensibly appealing the Modified Partial Judgment. On June 16, 1995, Santa Fe filed in this court a motion to dismiss for lack of jurisdiction. The Ninth Circuit Commissioner denied the motion to dismiss the appeal and the matter was presented for decision. See 9th Cir. Gen. Orders § 6.3(e).II. Jurisdiction
7
This court possesses only such jurisdiction as Congress chooses to confer. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, ----, 114 S. Ct. 1673, 1675, 128 L. Ed. 2d 391 (1994); Russell v. Law Enforcement Assistance Admin., 637 F.2d 1255, 1257 (9th Cir.1980). Pursuant to 28 U.S.C. § 1291, we have jurisdiction to hear appeals from final judgments. When some claims are severable from others, the trial court may direct the entry of final judgment as to fewer than all claims "upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Fed.R.Civ.P. 54(b); see Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 797-98 (9th Cir.1991). The original Partial Judgment as to Santa Fe's claims under section 306(l )(d) was entered pursuant to Rule 54(b). Thus, this court would have had jurisdiction over a timely appeal from this judgment. The SBE did not appeal within 30 days of the original Partial Judgment, or at any time until after the district court filed a modified judgment.
III. Notice of Appeal
8
The filing of a timely notice of appeal is "mandatory and jurisdictional." See Vernon v. Heckler, 811 F.2d 1274, 1276 (9th Cir.1987) (internal quotations and citations omitted); see also Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S. Ct. 556, 560-61, 54 L. Ed. 2d 521 (1978); United States v. Robinson, 361 U.S. 220, 229, 80 S. Ct. 282, 288, 4 L. Ed. 2d 259 (1960). In a civil case, the notice of appeal must be filed within thirty days of entry of the judgment or order appealed from. Fed.R.App.P. 4(a)(1). The original Partial Judgment was entered on September 14, 1994, thus making the deadline for appeal October 14, 1994.
9
The SBE could have tolled the deadline to appeal that judgment by filing a motion under Rule 59 or Rule 60 within ten days of entry of the judgment. Fed.R.App.P. 4(a)(4). However, the SBE did not do so.
10
The SBE's reliance on oral comments about the amount of the tax refund at a status conference on September 14, 1994, did not extend the time for appeal. A motion must be made in writing "unless made during a hearing or trial." Fed.R.Civ.P. 7(b). No writing was ever filed with the court, and the "hearing or trial" exception requires that the proceeding be recorded. See Taragan v. Eli Lilly & Co., 838 F.2d 1337, 1340-41 (D.C.Cir.1988); IBM Corp. v. Edelstein, 526 F.2d 37, 47 (2d Cir.1975); Alger v. Hayes, 452 F.2d 841, 843 (8th Cir.1972). The September 14th status conference was not on the record, and thus the SBE made no timely motion to modify, alter, or amend the September judgment, and the time to appeal expired.
11
The SBE's appeal, though styled as an appeal of the Modified Partial Judgment, simply challenges the substance of the September Partial Judgment. The Modified Partial Judgment of April 24, 1995 only reduced the amount of the tax refund, a change clearly favorable to the SBE. A change favorable to the SBE "cannot possibly subject the entire original judgment to a new opportunity" for appeal. Harman v. Harper, 7 F.3d 1455, 1457 (9th Cir.1993), cert. denied, 513 U.S. 814, 115 S. Ct. 68, 130 L. Ed. 2d 24 (1994). Nor did the district court's willingness to continue to deal with the matter informally until the corrections were made extend the time to appeal. The original Partial Judgment became final when entered, see Williams v. Boeing Co., 681 F.2d 615, 616 (9th Cir.1982), and only changes that adversely affected the appellant in a material manner would reset the time for appeal. See Harman, 7 F.3d at 1457; American Fed'n of Grain Millers, Local 24 v. Cargill Inc., 15 F.3d 726, 729 (7th Cir.1994). Thus, the SBE filed its notice of appeal beyond the time limits specified in Rule 4. We must therefore dismiss this appeal for lack of jurisdiction.
12
APPEAL DISMISSED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/3033204/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1779
___________
In re: Donald Nangle, *
*
Debtor. *
------------------------------------------ *
*
Donald Nangle, *
* Appeal from the United States
Appellant, * Bankruptcy Appellate Panel
* for the Eighth Circuit.
v. *
* [UNPUBLISHED]
Leslie A. Davis, *
*
Appellee. *
___________
Submitted: December 5, 2003
Filed: December 12, 2003
___________
Before RILEY, McMILLIAN, and SMITH, Circuit Judges.
___________
PER CURIAM.
Debtor Donald Nangle (Nangle) appeals from a bankruptcy appellate panel
order concluding, alternatively, Nangle lacked standing to appeal the bankruptcy
court’s1 order approving a settlement. Upon de novo review, see Park v. Forest Serv.,
205 F.3d 1034, 1036 (8th Cir. 2000), we conclude that while Nangle had standing to
object in the bankruptcy court to the settlement agreement, see Fed. R. Bankr. P.
2002(a)(3); In re Thompson, 965 F.2d 1136, 1140 (1st Cir. 1992), he lacked standing
to appeal the bankruptcy court’s order approving the settlement, because he could not
show he has a pecuniary interest in the order, see In re Marlar, 252 B.R. 743, 748
(B.A.P. 8th Cir. 2000) (party ordinarily has no standing to appeal unless party can
show basis for arguing that challenged action caused him cognizable injury, i.e.,
party was aggrieved by order) aff’d, 267 F.3d 749 (8th Cir. 2001); Spenlinhauer v.
O’Donnell, 261 F.3d 113, 117-19 (1st Cir. 2001) (standing to appeal from bankruptcy
court order requires showing that challenged order directly and adversely affects
appellant’s pecuniary interests).
Accordingly, we affirm.
______________________________
1
The Honorable Barry S. Schermer, United States Bankruptcy Judge for the
Eastern District of Missouri.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1575046/ | 253 S.W.2d 519 (1952)
STRIBLING et al.
v.
JOLLEY et al.
No. 28510.
St. Louis Court of Appeals, Missouri.
December 16, 1952.
Rehearing Denied January 16, 1953.
*520 George P. Adams, Mexico, for plaintiffs-appellants.
Bradley & Noble, John H. Bradley, John W. Noble and Lawrence L. Bradley, Kennett, for defendants-appellants.
Roy D. Williams, Booneville, Waldo P. Edwards, Macon, Clay C. Rogers, George Schwegler, Jr., Carl E. Enggas and Walter A. Raymond, Kansas City, Rogers, Field & Gentry, Kansas City, Watson, Ess, Whittaker, Marshall & Enggas, Kansas City, of counsel, for defendants-respondents.
WOLFE, Commissioner.
This is an action for a declaratory judgment, brought by the trustees of the Audrain County Hospital. They adopted a rule excluding doctors of osteopathy from practicing in the hospital and they now seek to determine whether or not that rule is in violation of the laws of the State of Missouri. The State Medical Association, the Missouri Osteopathic Association, and the medicial and osteopathic physicians of Audrain County were joined as defendants.
The trial court held that the rule was illegal and further found that osteopathic physicians had a right under the laws of Missouri not only to use the hospital but to administer drugs and perform operative surgery with instruments.
An appeal was taken by the trustees of the hospital and the medical physicians defendants. They appealed to the Supreme Court upon the theory that a constitutional question had been raised. It was held there that no constitutional question was properly in the case, and since that court, therefore, was without jurisdiction of the appeal, the cause was transferred to this court. Stribling v. Jolley, 362 Mo. 995, 245 S.W.2d 885.
It appears from the evidence that osteopathic physicians had always been permitted to practice in and to take their patients to the public hospital in Audrain County up to the year 1940, at which time the rule excluding them from practicing in the hospital was passed by the board of trustees. Because of the rule the trustees were publicly criticised and a bond issue for increasing the hospital facilities was openly opposed. This prompted the trustees to bring the present action, to determine the legal force and effect of the statute relating to county hospitals, which is Section 205.300 RSMo 1949, V.A.M.S., and is as follows:
"1. In the management of such public hospital no discrimination shall be made against practitioners of any school of medicine recognized by the laws of Missouri, and all such legal practitioners shall have equal privileges in treating patients in said hospital.
"2. The patient shall have the absolute right to employ at his or her own expense his or her own physician, and when acting for any patient in such hospital the physician employed by such patient shall have exclusive charge of the care and treatment of such patient, and nurses therein shall as to such patient be subject to the directions of such physician; subject always to such general rules and regulations as shall be established by the board of trustees under the provisions of sections 205.160 to 205.340."
As stated, the medical physicians were joined as a class and in their answer they alleged that the osteopathic physicians were engaged in the general practice of medicine and surgery and that such practice was contrary to the law. They sought to uphold the *521 rule excluding osteopaths and asked that the court define "the scope, limit and extent of the practice of osteopathy under the laws of Missouri". The osteopathic physicians in their answer to the petition alleged that the rule passed was in violation of the laws of Missouri, and in answer to the answer of the medical physicians they stated "that they did in 1940, and have, and will, administer antidotes, narcotics, emergency palliatives, opiates, anesthetics, and antiseptics, and did at such times perform operations with instruments"; and they deny that such practice is in violation of any law.
It will be seen that the petition had only to do with the right of the osteopathic physicians to practice their profession in the Audrain County Hospital, but the medical physicians sought to extend the scope of the case by their answer, requesting of the court a decree defining and limiting the general practice of osteopathy.
Much of the evidence was devoted to the issue that the defendants thus sought to engraft upon the plaintiffs' cause. Such evidence revealed that the school of medicine known as osteopathy had its origin in Missouri with the founding of the American School of Osteopathy in 1894. The corporate constitution of that school in part provided:
"The object of this Corporation is to establish a College of Osteopathy, the design of which is to improve our present system of Surgery Obstetrics and treatment of diseases generally and place the same on a more rational and scientific basis and to impart information to the medical profession and to grant and confer such honors and degrees as are usually granted and conferred by reputable Medical Colleges, to issue diplomas in testimony of the same to all students granduating from said School under the seal of the Corporation with the signature of each member of the faculty and of the President of the College."
The college from its beginning taught as its principal precept that a perfectly adjusted body produced a plentiful supply of blood to all parts of it, and that when the body became sick or diseased it could generally be cured by manipulation that brought blood in sufficient quantity to the affected parts. In addition to an emphasis on anatomy and the manipulative therapy mentioned, the students were taught the use of drugs, obstetrics, and minor surgery.
The college enlarged upon its instruction as time passed and many of its graduates have for years unquestionably engaged in the practice of general surgery, the administration of drugs, and manipulation. At the present time nearly 21 per cent of the practicing physicians in Missouri are osteopaths, most of whom are in the rural areas where about one-third of all of the practitioners are osteopathic physicians. There are fifty-one osteopathic hospitals in the state with an estimated replacement value of $13,710,000.
The first statutory recognition of osteopathy was in 1897. At that time the statutes of Missouri, Mo.R.S.1889, Art. 1, Chap. 110, provided that the practice of medicine without a license was illegal, but the Act of 1897 excluded osteopathic physicians from the statute that regulated the practice of medicine. This exclusion has been carried down without material change to Section 337.010, RSMo 1949, V.A.M.S., which provides:
"The system, method or science of treating diseases of the human body, commonly known as osteopathy, and as taught and practiced by the American school of osteopathy of Kirksville, Missouri, is hereby declared not to be the practice of medicine and surgery within the meaning of sections 334.010 to 334.180 and not subject to the provisions of said chapter."
In 1903, Laws of 1903, p. 248, a board of osteopathic examination was set up and the law creating it is the present Section 337.020 RSMo 1949, V.A.M.S. In the various enactments of this statute there were changes in the educational requirements of the applicants for a certificate to practice, and the act now differs from the original in that the applicants are examined upon the subject of surgery, whereas in the Act of 1903 the words "minor surgery" were used. It should be noted that this law from its first enactment to the present date *522 requires the person holding a certificate to practice shall record it in the same manner as graduates from any other "school of medicine". Another statute in which osteopathy is touched upon is the Narcotic Drug Act. Sections 195.010 to 195.210 RSMo 1949, V.A.M.S. This covers the use and sale of narcotic drugs and provides that they may be used in osteopathic hospitals.
It seems apparent from the statutes mentioned that the Legislature, when it passed the Act of 1897 excluding the practice of osteopathy from the medical practice act, considered osteopathy something other than the general practice of medicine and surgery as it was then known. It is also true that osteopathy was considered a thing sui generis when the Legislature passed the act creating the Board of Osteopathic Registration and Examination. Grainger v. Still, 187 Mo. 197, 85 S.W. 1114, 70 L.R.A. 49. Yet, as appellants concede, "It is clear that the 1937 Narcotic Act assumes that osteopaths may use drugs".
All of the foregoing stated facts leave us with a situation wherein the medical and osteopathic physicians (though differing in training and under different licensing and governing statutes) practice side by side and in many cases use all of the same methods of healing except that the osteopaths place greater reliance upon manipulation as an effective therapy.
By reason of this, a very understandable confusion exists in both schools as to whether or not there are legal limits to the practice of osteopathy beyond which its practitioners may not go. This is the third time that the aid of the courts has been sought to determine the question. Previous cases, doubtlessly intended to accomplish that result, were State v. Carlstrom, 224 Mo.App. 439, 28 S.W.2d 691, and State v. Reisman, 225 Mo.App. 637, 37 S.W.2d 675. These were both prosecutions against osteopaths in which they were charged with the illegal practice of medicine by having prescribed drugs. In both cases the defendants filed a plea in abatement in which they admitted prescribing drugs and averred that they were legally authorized to do so. In both cases the State demurred to this plea. The demurrer in effect admitted the truth of the allegations in the plea in abatement and thus left no issue for trial and the charges were dismissed without any decision by the courts on what constitutes the practice of medicine or osteopathy. For reasons that are subsequently stated, their efforts to resolve the question in the instant case must be equally fruitless, for again it is not properly before the court.
The difficulty of presenting to the courts a case wherein a line may be drawn between the two schools of medicine, if one is to be drawn, arises in part from the fact that it is basically a matter for the Legislature. As stated in the case of State v. Smith, 233 Mo. 242, loc. cit. 268, 135 S.W. 465, loc. cit. 472, 33 L.R.A.,N.S., 179: "It is unnecessary to refer further to the repeated declarations of this court to the effect that the Legislature has the power to regulate in such manner as it may think proper and wise callings that are related to the public health." It is always better to seek the correction of a situation caused by confusing or conflicting statutes, in the Legislature, where the power to regulate lies, rather than in the courts which cannot change the statutes but only interpret and enforce them.
Wholly apart from that, however, is the fact that this suit was instituted to determine the validity of the rule excluding osteopaths from hospitals and the controversy between the two schools of medicine has been improperly injected into the case by their respective answers. It is in fact very doubtful that the medical physicians should have been joined in this suit, for Section 527.110 RSMo 1949, V.A.M.S., states:
"When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings."
The rule excluding osteopaths prejudiced no rights of the medical physicians. Hence there is a serious question as to whether or not they should have been joined as defendants; *523 but we need not pass upon this for if they were properly joined they stated no cause for relief in their answer.
It may certainly be said that the declaratory judgment act affords no greater scope of relief to the parties defendant than it does to the parties plaintiff. Our Supreme Court stated in State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172, loc. cit. 176:
"Plaintiff must have a legally protectable interest at stake and the question presented must be appropriate and ready for judicial decision. Borchard, Declaratory Judgments, p. 40; City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411; Odom v. Langston, 355 Mo. 115, 195 S.W.2d 466. Plaintiff's petition must present a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from a decree which is merely advisory as to the state of the law upon purely hypothetical facts. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000; Anderson, Declaratory Judgments, p. 27, 16 Am.Juris., Sec. 46."
And again it was stated in City of Camdenton v. Sho-Me Power Corp., 361 Mo. 790, 237 S.W.2d 94, loc. cit. 96:
"'* * * There must be a sufficiently complete state of facts presenting issues ripe for determination before a court may declare the law. "A mere difference of opinion or disagreement or argument on a legal question affords inadequate ground for invoking the judicial power."` Appellant also cites State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172, which holds that the petition must present a real and substantial controversy admitting of specific relief through a decree of a conclusive character."
The answer of the medical physicians stated nothing more than a disagreement with the osteopaths on a legal question, for it disclosed no "legally protectable interest at stake". Since the issues raised by it were not related to those raised by the petition, they presented nothing that may be considered in this action.
The Supreme Court, in transferring the case to us, said [245 S.W.2d 887]: "The ultimate question to be decided is: Does the rule of February 27, 1940, excluding osteopaths from practicing in the Audrain County Hospital, contravene the provisions of the above quoted statute?" The court referred to Section 205.300 RSMo 1949, V.A.M.S., which we have set out above. For the reasons we have stated, this "ultimate question" is the only one before us.
What did the Legislature mean when it said that no discrimination shall be made against practitioners of any school of medicine and then went on to say that the patient shall have the absolute right to employ his or her own physician? The trustees and medical defendants maintain that the rule excluding osteopaths is not in violation of this section because the trustees are allowed to adopt rules not inconsistent with the general law, and that osteopathy is not a school of medicine within the meaning of the statute.
We are cited to Hayman v. City of Galveston, 273 U.S. 414, 47 S.Ct. 363, 71 L.Ed. 714, wherein the Supreme Court of the United States disagreed with the contention of an osteopathic physician in Texas, who was asserting a constitutional right to practice in a municipal hospital. No statute such as the one we have under consideration was involved in that case. The same is true of the case of Newton v. Board of Commissioners of Weld County, Colo., 86 Colo. 446, 282 P. 1068, 1070, also cited. This case was decided upon the authority of Hayman v. City of Galveston, supra, and the court said, "In all substantial particulars the case in hand is like the Hayman case." We are therefore without authority in support of the contention raised.
One of the meanings of the word "school" is: "The standards, doctrines, or principles relating to a profession or occupation in a given locality; the standards or theories relating to the pathology, etiology, *524 or treatment of human ailments". 78 C.J.S., School, p. 590.
Webster's New International Dictionary, Merriam's Second Edition, gives as a definition of medicine: "a. The science and art dealing with the prevention, cure, or alleviation of disease, b. In a narrower sense, that part of the science and art of restoring and preserving health which is the province of the physician as distinguished from the surgeon and obstetrician." The meaning therefore of the words "school of medicine" does not, as contended, limit the practice in public hospitals to those who administer drugs, for, if that were true, a practitioner of any school who confined his practice to surgery could not use the institutions.
Our courts have used the phrase "school of medicine" in referring to osteopathy. Grainger v. Still, 187 Mo. 197, 85 S.W. 1114; Cazzell v. Schofield, 319 Mo. 1169, 8 S.W.2d 580; Mann v. Grim-Smith Hospital and Clinic, 347 Mo. 348, 147 S.W.2d 606. Thus it seems that the words are generally so used and understood. Nor can this common use of the words be altered by the act excluding osteopaths from the medical practice act. That was discussed in Atkinson v. American School of Osteopathy, 240 Mo. 338,144 S.W. 816, 821, wherein the court said:
"It is true that section 8537 provides that osteopathy is `not to be the practice of medicine and surgery within the meaning of article 1 of this chapter, and not subject to the provisions of said article'; but the purpose so expressed is simply to segregate this particular system from those for the regulation of which article 1 was enacted."
From this it seems obvious that the Legislature, in prohibiting the boards of county hospitals from discriminating against any school of medicine, used language that included osteopathic physicians.
The matter need not, however, rest upon that alone, for it will be noted that there is a further provision in the second paragraph of the statute providing that the patient in the hospital has the absolute right to the "physician" of his choice. There is no qualification as to the school of medicine to which the physician may belong and the Legislature has considered and called doctors of osteopathy "physicians" in the act regulating their practice. Sections 337.020, 337.040 and 337.070 RSMo 1949, V.A.M.S.
The decree appealed from held that the rule adopted by the trustees was discriminatory and also held that osteopathic physicians and surgeons were practitioners of a school of medicine, within the meaning of the statute, and entitled to practice in public hospitals, subject to reasonable rules and regulations of the board of trustees. To this extent the decree was proper, but it then broadly set out what the court held to be the practice of osteopathy under the law. As we have stated at some length, the question of what an osteopath may do and the limits, if any, to his profession were not properly brought before the court and it was error for the learned trial judge to embrace a determination of those questions within the decree. By this; of course, we do not mean that we agree or disagree with the holdings of that portion of the decree, but simply that the questions were not pressent for the court to act upon.
It is, therefore, the recommendation of the Commissioner that the decree be affirmed in part and reversed in part, and that we affirm and adopt the first three paragraphs of the decree of the trial court and adjudge and declare the law to be as follows:
1. The rule adopted by the plaintiff Board of Trustees of the Audrain County Hospital dated February 27, 1940 excluding doctors of osteopathy from practicing in the Audrain County Hospital is illegal, unreasonable, discriminatory, void and of no force and effect.
2. Osteopathic physicians and surgeons are practitioners of a school of medicine and are physicians and surgeons within the meaning of the Missouri statutes regulating their practice rights.
3. Osteopathic physicians and surgeons are entitled to take their patients to the Audrain County Hospital for treatment, subject to reasonable rules and regulations *525 promulgated by the Board of Trustees of this Hospital.
PER CURIAM.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed in part and reversed in part, and the cause is remanded with directions to enter a decree in accordance with the recommendations of the Commissioner.
BENNICK, P. J., and ANDERSON and LA DRIERE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575050/ | 253 S.W.2d 325 (1952)
TEXAS REAL ESTATE COMMISSION
v.
BENTLEY.
No. 10090.
Court of Civil Appeals of Texas, Austin.
November 19, 1952.
Rehearing Denied December 10, 1952.
*326 Price Daniel, Atty. Gen., and William S. Lott and J. Milton Richardson, Asst. Attys. Gen., for appellant.
Fritz, Goldberg & Alexander and Edward C. Fritz, all of Dallas, for appellee.
ARCHER, Chief Justice.
This is an appeal by the Texas Real Estate Commission in a suit instituted in the 134th Judicial District Court, Dallas County, Texas, by William V. Bentley, Jr., Plaintiff v. Texas Real Estate Commission, Defendant. In the action before the District Court, plaintiff Bentley sought to have set aside an order of the Texas Real Estate Commission revoking the real estate dealer's license of William V. Bentley, Jr.
The appeal before this Court is based on four points.
First Point.
The court erred in ordering the burden of proof placed upon the defendant below, Texas Real Estate Commission, and in ordering the said defendant to proceed with a showing of the facts upon which their action was based.
Second Point.
There is no evidence to support the finding of the jury in response to special issue number one and the judgment based thereon to the effect that William V. Bentley, Jr., has accounted for money coming into his possession which belonged to Mrs. Ringer.
Third Point.
The finding of the jury in response to special issue number one and the judgment based thereon is against the overwhelming weight of the evidence.
Fourth Point.
The court erred in submitting special issues numbers 2, 3, and 4, which allowed the jury to substitute its findings for those of the Commission.
*327 At the close of the testimony, after all parties had closed and before the court's charge had been read to the jury, the defendant filed its motion for instructed verdict and set out its grounds therefor, which motion was duly presented to the court at the proper time and was overruled by the court.
In the suit filed by appellee to set aside an order of the Board revoking the real estate dealer's license for failing to properly account for monies coming into appellee's possession as such dealer, alleging that the action of the Board was arbitrary and capricious and unconstitutional, and further alleged that he had good reason for failure to account for the money.
The trial court placed the burden on appellant, defendant below, to show by a preponderance of the evidence that just cause existed for the revocation of the appellee's license and held that the substantial evidence rule would not apply.
The appellee contends that he was entitled to keep the money, which the Commission claimed he had failed to account for, or if not entitled to keep it a third party who benefitted therefrom was responsible for returning it, or that even if he was responsible for returning it, he had a reasonable time within which to account for said money, or that in any event his actions were not sufficient grounds for the harsh remedy of revocation of his license.
Article 6573a, V.A.C.S., Sec. 11, provides, in part, that the Commission may, upon its own motion, and shall, upon the verified complaint in writing of any person, investigate the actions of any real estate salesman, etc.and may suspend or revokeany license at any timewhere the real estate salesman, etc., is guilty of: Subdivision (5) "Failure within a reasonable time to account for or to remit any moneys coming into his possession which belong to others".
Section 12 of the Act provides for notice and hearing.
Section 15(a) provides for a remedy of persons aggrieved by decision of the Commission, and provides for the filing of a suit in the District Court, for trial de nova, upon its merits, and further providing that the substantial evidence rule shall not be used.
Upon trial of the case Bentley admitted that he received the $2,500 from Mrs. Ringer and that he had not returned such sum.
The fact that Mr. Bentley issued his check for the sum and subsequently stopped payment is an admission that he owed the money to the Ringers and they were entitled to a refund of the earnest money, as a matter of law, after Bentley and the Ringers cancelled their contract and Bentley delivered to the Ringers the $2,500 check which was not honored.
It follows that since Bentley had not accounted to the Ringers for the earnest money at the time of the trial he was guilty of violating Subdivision (5) of Section 11 of Article 6573a, V.A.C.S., and the trial court should have sustained the motion.
In the case of Bentley v. Ringer, Tex. Civ.App., 248 S.W.2d 952, 954, the Court said:
"Under such undisputed facts, when Bentley and the Ringers cancelled their contract, and Bentley returned the $2,500 deposit made by the Ringers, by delivering to the Ringers the $2,500 check sued on, the purchase contract was by such agreement and transaction rescinded as between them; and thereafter the Ringers were not necessary nor proper parties to Bentley's separate claim against the third party owners, either on the count for specific performance against the owners; or the count for the return of Bentley's $1,250 deposit thereunder. Bentley having voluntarily released the Ringers from their contract with him by returning to them their $2,500 deposit on such contract, he, as a matter of law, had no joint cause of action against the Ringers and the owners, who undisputedly had no dealings with each other, contractual or otherwise. Points 1 and 2 are overruled.
"* * * Bentley was unable to perform such contract with the Ringers and they were entitled to the return of their deposit, and such deposit had been, by the delivery of the check sued *328 on by the Ringers, voluntarily returned to the Ringers. If the owners were responsible for the respective contracts not being completed, they may be liable to Bentley. Such liability, however, would not excuse Bentley from furnishing title to the Ringers. When he failed to so deliver title to the Ringers, they were entitled to the return of their deposit. Under the record here they were in no position to enforce the possible remedy of specific performance since Bentley did not own the property. When Bentley returned the deposit by the check, he, as a matter of law, acknowledged his inability to perform and terminated the contract. * * *"
Since Bentley could not make performance of the contract to the Ringers he could not retain the money received under the contract and it was Bentley's legal duty and obligation to return the money to the Ringers and to account therefor, which means pay them back their money. Martin v. Bell-Woods Co., Tex.Civ.App., 57 S.W. 2d 271.
There was a delay of nine months in attempting to account for the money which is an unreasonable time.
In 64 Corpus Juris 366, Trial, Sec. 357i, it is stated:
"* * * What is a reasonable time is ordinarily a question for the jury, although it may be a mixed question of law and fact; but where the facts are undisputed, admitted, or clearly proved, and different inferences cannot be drawn therefrom, the question of reasonable time is one of law for the trial court."
That the appellee has not accounted for the money is without dispute, inasmuch as to "account for" means to pay to the one entitled thereto monies coming into his possession which belong to others. 1 C.J.S., Account, § 49, p. 576; Hale County, Texas v. American Indemnity Co., 5 Cir., 63 F.2d 275.
The appellant testified that he had closed his real estate office and was trying to establish himself with some other occupation, that he was licensed as an insurance agent, and was at the time of the trial a life insurance salesman.
We believe that it was error for the court to submit the issues to the jury, but should have sustained defendant's (appellant's) motion for an instructed verdict.
The judgment of the trial court is reversed and judgment here rendered that plaintiff, appellee herein, take nothing.
Reversed and rendered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/663901/ | 17 F.3d 394
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.Edward C. JENKINS, Petitioner-Appellant,v.Robert G. BORG; James Gomez, Director, Department ofCorrections, Respondents-Appellees.
No. 93-16082.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 7, 1994.*Decided Feb. 11, 1994.
Before: SCHROEDER, CANBY, and WIGGINS, Circuit Judges.
1
MEMORANDUM**
2
Edward Charles Jenkins, a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus. Jenkins claims that he was subjected to consecutive sentences that were not authorized by state law, and thus that he was denied due process of law. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253, and review de novo. Thomas v. Lewis, 945 F.2d 1119, 1122 (9th Cir.1991). We affirm.
3
Jenkins was convicted for forcible sodomy and forcible oral copulation, in violation of Cal.Penal Code Secs. 286(c) and 288a(c). These statutes require that the acts in question be committed by force or accompanied by the fear of immediate and unlawful bodily injury. The jury returned a general verdict against Jenkins. Jenkins was sentenced pursuant to Cal.Penal Code Sec. 667.6(d), which provides that full consecutive terms may be imposed for a listed group of offenses, including the offenses for which Jenkins was convicted, if they are committed by force or the threat of great bodily harm.
4
The standard required for imposition of consecutive sentences under Cal.Penal Code Sec. 667.6(d) is higher than that required for conviction pursuant to the statutes under which Jenkins was convicted. See People v. Reyes, 153 Cal.App.3d 803, 812 (1984); Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir.1992), cert. denied, 114 S.Ct. 240 (1993). Thus, in order to authorize the imposition of consecutive sentences, the jury's verdict must comply with the specific language of section 667.6(d). See Reyes, 153 Cal.App.3d at 811-12. Here, however, the jury was not instructed in the language of section 667.6(d) and returned only a general verdict of guilt. Accordingly, the trial court committed error by failing to instruct the jury to make the specific findings required by section 667.6(d). See id. at 812-13; Hunter, 982 F.2d at 348-49.
5
However, this error is subject to a harmless error analysis. See Hunter, 982 F.2d at 348. We must therefore determine whether the error had a substantial and injurious effect or influence in determining the jury's verdict. See Brecht v. Abrahamson, 113 S.Ct. 1710, 1722 (1993). In this case, the conviction must stand if " 'it is clear from the evidence and jury findings that the jury could only have found the offenses were committed by force or fear of great bodily harm.' " Hunter, 982 F.2d at 349 (quoting People v. Ramirez, 236 Cal.Rptr. 404, 424 (1987)).
6
We agree with the district court that "the testimony given at trial clearly indicated that the offenses were committed by the use of force rather than by 'threat of harm.' " Both of Jenkins's victims testified that they were forcibly sodomized and made to orally copulate Jenkins.1 In these circumstances, the jury could only have found that the offenses were committed by force. See Hunter, 982 F.2d at 349. Accordingly, the trial court's error in instructing the jury did not have a substantial and injurious effect on the verdict. See Brecht, 113 S.Ct. at 1722.
7
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
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
Although one victim stated that he initially touched Jenkins's penis out of fear for his safety, he went on to say that the acts of sodomy and oral copulation were committed against his will by sheer physical force | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/733797/ | 105 F.3d 659
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Gerald A. BOLAND, Plaintiff-Appellant,v.NATIONAL CITY BANK, CLEVELAND, a Member of National CityCorporation, Defendant-Appellee.
No. 95-4219.
United States Court of Appeals, Sixth Circuit.
Dec. 31, 1996.
Before: CONTIE, SUHRHEINRICH, and MOORE, Circuit Judges
PER CURIAM.
1
Gerald A. Boland appeals the summary judgment dismissal of his ERISA, age discrimination and breach of contract action brought against his former employer, National City Bank. We affirm.
I.
2
Defendant-appellee National City Bank ("NCB") hired plaintiff-appellant Gerald A. Boland ("Boland") as a bank teller in 1961. Following numerous promotions, NCB named Boland a regional manager in 1977, and a vice president in 1982. In 1986, Boland was named the vice president of NCB's residential real estate loan department. The residential real estate loan department processed NCB's residential mortgage loan applications and serviced NCB's residential mortgage loan portfolio.
3
In 1990, Boland was replaced by Richard Smith, a senior vice president at Buckeye Federal Savings and Loan before it was acquired by NCB. NCB told Boland that the change was needed because NCB was relocating its real estate loan servicing operations to Dayton, Ohio, and Smith had more experience generating mortgages through "outside loan originators." Boland was named the inside production manager. Though NCB reduced Boland's "salary grade level," his salary did not change.
4
In 1991, Lisa Marshall was named manager of outside sales. That same year, NCB eliminated Boland's position. Boland subsequently worked under Marshall as an inside mortgage loan officer. Once again, NCB reduced Boland's "salary grade level" but did not reduce his salary.
5
Later that year, NCB eliminated Boland's position and named him the loan originator in Lake County, Ohio, a position offering a reduced salary augmented by commissions. NCB offered to gradually reduce Boland's salary over a nine-month period to ease his transition to commission income. Fearing that he would not earn as much money as he previously earned, Boland quit on November 12, 1991. Shortly thereafter, NCB named Tony Brundage the Community Reinvestment Act loan originator for the city of Cleveland.1
6
On February 1, 1993, Boland filed this ERISA, age discrimination and breach of contract action against NCB. NCB moved for summary judgment on March 16, 1994. On October 19, 1995, the district court granted NCB's motion for summary judgment. Boland filed his timely notice of appeal on November 7, 1995.
II.
The ERISA Claim
7
Boland asserts that NCB violated the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., by terminating his employment to prevent him from receiving his full pension benefits. In response, NCB asserts that Boland voluntarily resigned. Alternatively, NCB asserts that it did not eliminate Boland's position with the intent to interfere with his pension rights.
8
Under ERISA, "[i]t shall be unlawful for any person to discharge ... or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan ..., or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1140. Section 1140 was enacted to prevent "unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights." West v. Butler, 621 F.2d 240, 245 (6th Cir.1980).
9
Even if we were to find that Boland was constructively discharged by NCB, the district court properly concluded that NCB's non-discriminatory reasons for terminating Boland were not pretextual. Simply stated, Boland failed to come forward with any evidence indicating that "interference with pension benefits was a motivating factor in the employer's actions." Humphreys v. Bellaire Corp., 966 F.2d 1037, 1043 (6th Cir.1992). He thus failed to meet his summary judgment burden. Accordingly, we reject Boland's first assignment of error.
The Breach of Contract Claim
10
Boland alleges breach of contract and promissory estoppel claims based upon statements made by an NCB officer. Specifically, Boland asserts that NCB's Chief Executive Officer, David Daberko, told employees during a speech at an annual recognition dinner honoring employees with twenty-five or more years of service that NCB could not survive without them, and that they would always have jobs at NCB. In response, NCB asserts that David Daberko and NCB did not promise Boland continued employment.
11
In light of the unequivocal disclaimer in NCB's employee handbook ("employment is not guaranteed for any particular length of time") and the fact that David Daberko's alleged statements do not promise Boland continued employment in a particular position at the bank, we reject Boland's second assignment of error.
The Age Discrimination Claim
12
Boland alleges that NCB violated Ohio Revised Code § 4101.17 by terminating him because of his age. In response, NCB asserts that Boland failed to satisfy two of the four requirements under that section in that he was not constructively discharged and was not replaced by a younger person.
13
The relevant Ohio statute provides: "No employer shall ... discharge without just cause any employee aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job...." Ohio Rev.Code § 4101.17(A).2 To prove constructive discharge, Boland must demonstrate that NCB made his working conditions " 'so difficult or unpleasant that a reasonable person in [his] shoes would have felt compelled to resign.' " Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir.1982) (citation omitted).
14
Though Boland asserts that a reasonable person would not have accepted the Lake County loan originator position, he presented no admissible evidence to the district court to support his claim. In fact, Boland's bald assertion that he would have earned less in the new position is simply conjecture. Moreover, Boland does not allege intolerable working conditions or harassment, and the record does not support his claim that he was replaced by a younger person. Accordingly, we reject Boland's third assignment of error.
15
We therefore AFFIRM the summary judgment dismissal of Boland's action.
1
The Community Reinvestment Act provides loans to lower income and minority borrowers
2
On October 29, 1995, Ohio Rev.Code § 4101.17 was renumbered Ohio Rev.Code § 4112.14 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1918200/ | 993 A.2d 607 (2010)
Sherry Miles St. Claire DRAKE, Appellant
v.
James McNAIR, et al., Appellees.
No. 07-CV-445.
District of Columbia Court of Appeals.
Argued July 16, 2008.
Decided April 29, 2010.
*610 Donald M. Temple, Washington, DC, for appellant.
Eric P. Gotting, with whom Thomas M. Buchanan, Washington, DC, was on the brief, for appellee James McNair.
Leonard L. McCants entered an appearance for appellees Necia Drake and Tyrone Thompson.
Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and TERRY, Senior Judge.
TERRY, Senior Judge:
Appellant, Sherry Miles St. Claire Drake, appeals from the trial court's order dismissing her fraud and negligent misrepresentation claims against appellees, James McNair, Tyrone Thompson, and Necia Drake, each of whom has served or currently serves as personal representative and/or trustee for the estate and trusts of Sherry Drake's deceased husband, Carthur Drake. Sherry Drake's claims arise from the purchase of a piece of property on behalf of Carthur Drake shortly before his death. Mrs. Drake contends that the purchase of the property by a fictitious company and the subsequent transfer of ownership of the property to a company that is a beneficiary of Mr. Drake's trusts improperly converted an estate asset into a trust asset, thereby depriving her of her spousal interest in Mr. Drake's estate.
The trial court granted appellees' motion to dismiss, holding that Sherry Drake was on notice of any potentially fraudulent conduct and that her claims were therefore barred by the relevant statute of limitations. The court also held that a prior Settlement Agreement between Sherry Drake and appellees, which contained both an incorporation clause and a release clause, foreclosed her claims. Finally, the court held that the doctrine of res judicata, based on prior proceedings before the Probate Division, barred at least some of the claims. Sherry Drake argues on appeal (1) that the trial court made factual findings based on matters outside the complaint, thereby requiring the court to treat appellees' motion to dismiss under Super. Ct. Civ. R. 12(b)(6) as a motion for summary judgment under Super. Ct. Civ. R. 56, which would give her an opportunity to conduct additional discovery; (2) that her claims were not barred by the statute of limitations; (3) that her claims were not *611 barred by the Settlement Agreement; and (4) that her claims were not barred by res judicata. We reject the first three arguments. Since our decision on those three points necessarily resolves the entire case, we affirm the judgment without reaching the fourth.
I[1]
At the time the Drakes were married in 1993, Mr. Drake had three daughters from previous relationships: Alvitra Drake, Leaph Drake, and Necia Drake. Mr. Drake died on July 29, 1995, of complications from acquired immune deficiency syndrome (AIDS), a disease which he had previously transmitted to Mrs. Drake. Although estranged, Mr. and Mrs. Drake remained legally married until Mr. Drake's death. At the time of his death, Mr. Drake owed significant amounts of money to the Internal Revenue Service (IRS).
A. Mr. Drake's Will and Trusts
On July 21, 1995, just a few days before his death, Mr. Drake executed a Last Will and Testament and created two trusts: the Carthur L.M. Drake Trust and the Carthur L.M. Drake 1995 Family Trust (collectively, "the Drake Trusts"). In his will Mr. Drake bequeathed $250,000 to Mrs. Drake, but he did not name her as a trustee or a beneficiary of either trust. Instead he named his sister, Azalea Royster, and his attorney, James McNair, as co-trustees of both trusts, as well as co-personal representatives of his estate. Mr. McNair renounced and waived his rights to serve as co-personal representative of the estate on October 5, 1995. Ms. Royster chose to remain as personal representative of the estate but resigned as co-trustee of the trusts. Necia Drake currently serves as a successor co-trustee of the trusts; Tyrone Thompson, Necia Drake's husband, serves as the other successor co-trustee.
B. The Q Street Property
On June 29, 1995, Mr. Drake instructed Mr. Thompson to purchase a piece of property located at 1204 Q Street, N.W. ("the Q Street property"), at a foreclosure sale. Thompson was the Chief Executive Officer of various businesses previously owned by Mr. Drake and designated as assets of the Drake Trusts, including Designmark Building Services, Inc., Designmark Food Services, Inc., and Designmark Development Corporation (collectively "Designmark"). Mr. Thompson purchased the Q Street property on behalf of a fictitious company named Taurus Investments Company ("Taurus")[2] and paid $155,000 for it with a cashier's check issued by Crestar Bank on behalf of Taurus; however, the purchase money for the cashier's check was provided by Designmark. On July 28, the day before Mr. Drake's death, the relevant parties executed a Substitute Trustee's Deed which stated that Taurus had purchased the Q Street property. The Substitute Trustee's Deed was recorded at the office of the District of Columbia Recorder of Deeds on August 24, 1995.
On August 18, about three weeks after Mr. Drake's death, Mr. Thompson was advised by Daniel Hodin, Designmark's attorney, a member of the law firm of Ginsburg, Feldman, and Bress, that the Substitute Trustee's Deed was invalid. Mr. Hodin informed Mr. McNair that without a change in title from Taurus to Designmark, *612 the Q Street property could not be sold to satisfy Mr. Drake's outstanding IRS liabilities. He recommended to Mr. McNair that certain steps be taken to correct the deed. Richard Wise, counsel to the Substitute Trustee, required an affidavit from Mr. Thompson to effectuate the change in the deed. Hodin and Wise discussed the affidavit, and McNair spoke with Thompson about what it should say and later reviewed a draft of the affidavit. Mr. Thompson executed the affidavit ("Thompson Affidavit") on November 3.
A Confirmatory Substitute Trustee's Deed was then executed on November 20, 1995, to change the title of the Q Street property from Taurus to Designmark. This deed stated that (1) the original Substitute Trustee's Deed mistakenly named Taurus as the purchaser of the property, (2) Taurus was not incorporated or registered under the laws of any state or the District of Columbia, and (3) Designmark provided the purchase money for the Q Street property. The Confirmatory Substitute Trustee's Deed was recorded at the office of the Recorder of Deeds on January 16, 1996. Designmark later sold the Q Street Property for approximately $126,000, but the IRS attached the proceeds of the sale to satisfy some of Mr. Drake's business-related tax liabilities.
On August 21, 1995, three months before the Confirmatory Substitute Trustee's Deed was executed, Ms. Royster and Mr. McNair, in their capacities as co-trustees and co-personal representatives, wrote to Smith Barney, an asset management firm handling the Q Street property account. In their letter Royster and McNair agreed to indemnify Smith Barney against any and all claims or liabilities resulting from the retitling of its Taurus Investments account to a Drake Trusts account. On August 28, a week later, approximately $202,000 was transferred from Taurus to the Drake Trusts account.
C. Probate Proceedings
On November 20, 1995, a petition for probate of Mr. Drake's estate was filed in the Probate Division of the District of Columbia Superior Court. Mr. Drake's will was admitted to probate on December 5, 1995. The probate court valued the estate at $53,000 and found that the estate was insolvent because its debts exceeded its assets.
On April 29, 1996, Mrs. Drake filed suit in the Probate Division against Ms. Royster and Mr. McNair, challenging the validity of Mr. Drake's will and trust documents. In her complaint as later amended,[3] she alleged (1) that Mr. Drake lacked the requisite testamentary and mental competency to execute the will and create the trusts, (2) that Mr. McNair had exerted undue influence on Mr. Drake, and (3) that her statutory right of spousal election was circumvented by the creation of the Drake Trusts and the transfer of estate assets to those trusts.[4] During discovery, Mrs. Drake deposed Mr. McNair. In his deposition Mr. McNair said that Designmark had purchased the Q Street property at the foreclosure sale, denied any involvement in the foreclosure, and stated that Mr. Hodin was involved only in pre-death matters for Mr. Drake.
On April 8, 1998, the parties in the probate litigation entered into a Settlement *613 Agreement, which provided that Mrs. Drake would receive $450,000 and the title to a piece of property located at 1336 W Street, N.W.[5] The payment of all but $75,000 of that amount was conditioned on the resolution of significant IRS claims against the estate and the trusts. Since that date Mrs. Drake has received $75,000 but has not received any of the remaining $375,000 because of Mr. Drake's outstanding IRS liabilities.
D. Proceedings before the Special Master
On March 25, 2003, the Probate Division removed Ms. Royster as personal representative of Mr. Drake's estate and appointed a Special Master to investigate certain allegations about her handling of the estate. Three months later, on June 25, the Special Master issued a Preliminary Report to the probate court, in the course of which he invited interested parties to state their objections to the inventory and statements of account previously filed by Ms. Royster. Mrs. Drake filed exceptions to the Special Master's Preliminary Report on July 24, asserting that numerous marital assets had been wrongfully diverted into the trusts. On May 10, 2004, the Special Master issued a Final Report and Recommendation, concluding that Mrs. Drake could not substantiate her claims of any impropriety on the part of Ms. Royster and that the Settlement Agreement barred Mrs. Drake from asserting claims against either the estate or Ms. Royster. The Special Master also approved Ms. Royster's statements of account.
Mrs. Drake filed an objection to the Special Master's Final Report, stating that after reviewing various court records and other documents, she was "convinced that the [Q Street] property may have been illegally converted from an estate asset to a Trust asset, that it may have been illegally sold, and that the proceeds from that sale may have been fraudulently converted to Trust and/or possibly personal assets." Mrs. Drake asserted that because Taurus was not incorporated, Mr. Drake purchased the Q Street property in his individual capacity and that the property should therefore be considered an estate asset. According to Mrs. Drake, "Designmark sought surreptitiously to place itself in the position of Taurus," and "someone yet known [sic][6] was able to manipulate apparent estate property into the Trust." Mrs. Drake asked the Special Master to order Mr. McNair to produce any documents related to Taurus's purchase and Designmark's sale of the Q Street property, and in addition to disclose his personal involvement in preparation of the Confirmatory Substitute Trustee's Deed.
Despite Mrs. Drake's objections, the probate court, in a brief order, approved the Special Master's Final Report on July 9, 2004.
E. The Instant Civil Action
According to her brief, Mrs. Drake allegedly became concerned "in late 2003... about the purported ongoing negotiations" with the IRS over Mr. Drake's outstanding debts. On July 30, 2004, Mr. McNair, in a letter, provided Mrs. Drake for the first time with a copy of the Thompson Affidavit. Mrs. Drake now claims that the Thompson Affidavit revealed fraudulent activity of which she had not been previously aware because (1) Mr. *614 Thompson failed to disclose to the Substitute Trustee that Taurus was the actual purchaser of the Q Street property; (2) Mr. Thompson made a deposit on the Q Street property in the name of Taurus; and (3) the check that paid for the balance owed on the property on July 27, 1995, was issued by Taurus. In July 2004 Mr. McNair also provided Mrs. Drake, allegedly for the first time, with copies of the checks submitted for payment on the Q Street property, one of which named Taurus as the purchaser of the property.[7]
On May 26, 2005, Mrs. Drake filed this civil action against Mr. McNair and Mr. Thompson alleging fraud in the inducement, fraudulent conversion, fraudulent misrepresentation, negligent misrepresentation, breach of contract, breach of good faith and fair dealing, breach of fiduciary duty, and civil conspiracy. Mrs. Drake filed an Amended Complaint on July 13[8] and a Second Amendment Complaint on August 28.[9] Underlying each of Mrs. Drake's claims was the assertion that appellees wrongfully diverted proceeds from the Q Street property, an estate asset, to the Drake Trusts, thereby depriving her of her spousal interest in her late husband's estate. Specifically, Mrs. Drake claimed that Mr. McNair gave disingenuous responses in his answers to her interrogatories during the earlier probate proceedings, that he falsely stated under oath that Designmark had acquired the Q Street property during the foreclosure sale, and that Mr. Thompson had stated in his affidavit that he bid on the Q Street property "at the auction on behalf of Designmark."
Thereafter Mrs. Drake moved for summary judgment, whereupon appellees moved to dismiss her Second Amended Complaint on the grounds that it was barred by the applicable statute of limitations, by provisions of the Settlement Agreement, and by the doctrine of res judicata. Appellees then filed a Motion for Sanctions, arguing that Mrs. Drake's Second Amended Complaint and her claims regarding the Q Street property either lacked a factual basis or were not warranted by existing law. Mrs. Drake responded by filing a Third Amended Complaint, adding a claim for fraudulent circumvention of her distributive share of property interests as a surviving spouse.[10]
In due course the trial court issued a 32-page order granting appellees' motion to dismiss. The court concluded that, by the end of 1996, Mrs. Drake was on inquiry notice that she had an interest in the transfer of the Q Street property. The court noted that in November 1995 the Substitute Deed transferring title from Taurus to Designmark had been executed and recorded, that by April 1996 the property had been sold and the proceeds delivered as income to the Drake Trusts, and *615 that the relevant land records were available to the public. The court also ruled that Mrs. Drake's claims were barred by the incorporation and release clauses in the Settlement Agreement (see notes 22 and 23, infra), as well as the doctrine of res judicata.[11]
Mrs. Drake filed a motion for reconsideration, which the trial court denied. This appeal followed.
II
As we said earlier, Mrs. Drake argues on appeal (1) that the trial court made factual findings based on matters outside of the complaint, thereby requiring the court to treat appellees' Super. Ct. Civ. R. 12(b)(6) motion as a motion for summary judgment under Super. Ct. Civ. R. 56 and provide her an opportunity to conduct additional discovery; (2) that her claims are not barred by the statute of limitations; (3) that her claims are not barred by the Settlement Agreement; and (4) that her claims are not barred by res judicata.[12] We shall address the first three arguments in turn. Since we conclude that the trial court committed no error by proceeding under Rule 12 rather than Rule 56, and that either the statute of limitations or the Settlement Agreement, or both, barred all of Mrs. Drake's claims, we affirm the judgment without reaching her res judicata argument.
A. The Rule 12(b)(6) Motion
Mrs. Drake contends that the trial court made factual findings based on matters outside the pleadings, which required the court to treat appellees' Rule 12(b)(6) motion to dismiss as a motion for summary judgment under Rule 56. She was therefore entitled, she maintains, to an opportunity to conduct meaningful discovery to ascertain the true value of Mr. Drake's estate and to determine whether the Q Street property and proceeds from its sale should have been included as estate assets. See Super. Ct. Civ. R. 56(f) (court may order additional discovery when a party opposes a motion for summary judgment).
"Because a motion to dismiss a complaint under Rule 12(b)(6) presents questions of law, our standard of review is... de novo." In re Estate of Curseen, 890 A.2d 191, 193 (D.C.2006) (citations and internal quotation marks omitted). Rule 12(b) states in part:
If, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in *616 Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. [Emphasis added.]
It is well established, however, that despite this language, a trial court may consider public documents without converting a motion to dismiss under Rule 12(b)(6) to a motion for summary judgment under Rule 56. See Smith v. Public Defender Service, 686 A.2d 210, 212 (D.C.1996) (holding that "a number of opinions and orders [in other cases], as well as a brief and a transcript," were not "matters outside the pleading" within the meaning of Rule 12(b), and citing cases to the same effect involving other types of "public records").
We hold, for two reasons, that the trial court's reliance on facts set forth in public land records did not transform appellee's Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment. First, Mrs. Drake herself made several references to the contents of the deeds throughout her pleadings and amended pleadings.[13] In Oparaugo v. Watts, 884 A.2d 63 (D.C.2005), we held that "when `a document is referred to in the complaint and is central to plaintiff's claim ... the defendant may present an authentic copy [of that document] to the court without converting the motion to one for summary judgment." Id. at 76 n. 10 (citing Greenberg v. Life Insurance Co. of Va., 177 F.3d 507, 514 (6th Cir.1999)). Second, this court has held that reference to matters in public records, which include recorded deeds, will not convert a Rule 12(b)(6) motion to dismiss into a Rule 56 motion. Smith, 686 A.2d at 212 (holding that matters of public record are not treated as matters outside the pleadings) (citing Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir.1986)); see Wise v. Glickman, 257 F.Supp.2d 123, 130 n. 5 (D.D.C.2003) (court is "allowed to take judicial notice of matters in the general public record, including records and reports of administrative bodies and records of prior litigation, without triggering the conversion requirement"). Moreover, the court relied on these public land records merely to conclude that if Mrs. Drake "had ... conducted any reasonable inquiry into the purchase and subsequent sale of the Q Street property, she would have gained actual knowledge well before June 2004."
We hold, therefore, that the trial court did not err in considering the Substitute Trustee's Deed, conveying title in the Q Street property, and the Confirmatory Substitute Trustee's Deed, transferring that title from Taurus to Designmark, because Mrs. Drake made reference to those deeds in her pleadings and because the deeds are, in any event, public records.[14]See In re Estate of Barfield, 736 A.2d 991, 995 n. 8 (D.C.1999) ("the trial court is entitled to take judicial notice of matters of public record" when considering a motion to dismiss under Rule 12(b)(6)). The court was under no obligation to treat the motion to dismiss as a motion for summary judgment or to allow Mrs. Drake to conduct *617 additional discovery.[15]
B. The Statute of Limitations
Mrs. Drake argues that the trial court erred when it granted appellees' motion to dismiss on the ground that she was on inquiry notice of the purchase and subsequent sale of the Q Street property prior to June 2004. The court noted that publicly available land records the Substitute Trustee's Deed and the Confirmatory Substitute Trustee's Deed revealed the transfer of the Q Street property from Taurus to Designmark. The court also pointed out that Mrs. Drake had an interest in, and reasons to inquire about, the Q Street property well before June 2004. Mrs. Drake contends, however, that the "undisclosed and unmentioned Thompson Affidavit" is the only document that could have placed her on constructive notice of the alleged fraud, and asserts in addition that Mr. McNair's "disingenuous, misleading and arguably false responses ... lulled [her] into a state of ignorance until July 30, 2004."
The statutory limitation period governing Mrs. Drake's fraud and misrepresentation claims is three years. See D.C.Code § 12-301(7), (8) (2001). A statute of limitations begins to run when a plaintiff has either actual or inquiry notice of (1) the existence of the alleged injury, (2) its cause in fact, and (3) some evidence of wrongdoing. Diamond v. Davis, 680 A.2d 364, 379-380 (D.C.1996). "The critical question in assessing the existence ... of inquiry notice is whether the plaintiff exercised reasonable diligence under the circumstances in acting or failing to act on whatever information was available to him." Ray v. Queen, 747 A.2d 1137, 1141-1142 (D.C.2000). "What constitutes acting reasonably under the circumstances ... is a `highly factual analysis,'" In re Estate of Delaney, 819 A.2d 968, 982 (D.C.2003) (citation omitted), which takes into account "the conduct and misrepresentations of the defendant ... and the reasonableness of the plaintiff's reliance on the defendant's conduct and misrepresentations." Diamond, 680 A.2d at 372. It is true that "in a fraud case, the statute of limitations will not begin running until the date the fraud is discovered, or reasonably should have been [discovered]." Kropinski v. World Plan Executive Council US, 272 U.S.App. D.C. 17, 24, 853 F.2d 948, 955 (1988) (citations omitted). Nevertheless, a party with immediate suspicions of wrongdoing has an "obligation to move promptly and with reasonable diligence to inquire further into the matter." Estate of Delaney, 819 A.2d at 982. "The discovery rule does not ... give the plaintiff carte blanche to defer legal action indefinitely if she knows or should know that she may have suffered injury and that the defendant may have caused her harm." Hendel v. World Plan Executive Council, 705 A.2d 656, 661 (D.C.1997); accord, Colbert v. Georgetown University, 641 A.2d 469, 473 (D.C.1994) (en banc). Moreover, it is well *618 established that "general knowledge that [the defendant's conduct] was wrongful," rather than knowledge of the "precise legal remedies for [that wrongful conduct]," is the focus of this discovery rule. East v. Graphic Arts Industry Joint Pension Trust, 718 A.2d 153, 157 (D.C.1998) (emphasis in original).
"[A] plaintiff guilty of ordinary negligence in not earlier discovering a cause of action may not avoid the bar of the statute of limitations merely because a fraud or fraudulent concealment is involved." Diamond, 680 A.2d at 375-376 (citations omitted); see also Robinson v. Orem, 91 U.S.App. D.C. 96, 97, 198 F.2d 86, 87 (1952) (purchaser barred by statute of limitations from filing an action for fraud and misrepresentation against a seller of land, when the purchaser had constructive notice of public records containing precise metes and bounds of the property more than three years before he filed suit, and when both the contract of sale of land and the deed precisely identified the property by lot and square number); District-Florida Corp. v. Penny, 62 App. D.C. 268, 269, 66 F.2d 794, 795 (1933) (holding that "information contained in the abstract [of title] was available to the plaintiff before the receipt of the abstract, and more than three years [the limitation period] before the filing of the suit, for it was all contained in the land records ... and consequently [was] all within the constructive notice of the purchaser").
1. Public Land Records
Appellees argue, and we agree, that the Thompson Affidavit merely reiterated facts already available in the public land records. That affidavit states that Mr. Thompson made a bid for the Q Street property on behalf of Designmark when it was sold at auction on June 29, 1995. After his bid was accepted, Thompson paid for the property with Designmark funds but told the auctioneer that he was an agent of Taurus, a fictitious entity and alter ego of Designmark.[16] Mr. Thompson then received a deed conveying the Q Street property to Taurus. Later, however, when he consulted with the law firm of Ginsburg, Feldman, and Bress, counsel to Designmark, he was advised that the deed was invalid. Mr. Thompson then instructed Daniel Hodin, an attorney from Ginsburg, Feldman, and Bress, where Mr. McNair was a partner, to return the deed to the auctioneer and request a valid deed conveying the Q Street property to Designmark. That was done.[17]
The Substitute Trustee's Deed and the Confirmatory Substitute Trustee's Deed revealed all of the facts necessary to support Mrs. Drake's claim of fraud.[18] These two deeds showed that Taurus, a fictitious entity, had originally purchased the Q Street property and that the property thereafter had been conveyed to Designmark, *619 which Mrs. Drake already knew was a beneficiary of the Drake Trusts. Mrs. Drake was therefore on inquiry notice that the Q Street property might have been transferred from an estate asset (assuming that the non-existent Taurus was not acting as the alter ego of Designmark) to a trust asset. In addition, the Confirmatory Trustee's Deed revealed Mr. Hodin's involvement in the transfer of the Q Street property. The Thompson Affidavit contained no additional information, beyond that contained in the two deeds, that would have supported Mrs. Drake's claims of fraud.
The only document that potentially contained additional pertinent information was the letter from Ms. Royster and Mr. McNair to Smith Barney, in which they, as personal representatives of Mr. Drake's estate, agreed to indemnify Smith Barney for any liability resulting from the retitling of the Q Street property. Mrs. Drake now argues that this letter supports her assertion that Taurus was a distinct legal entity because it had an account with Smith Barney, and thus that Taurus was not acting as the alter ego of Designmark when it purchased the Q Street property, but rather as an agent of Mr. Drake. Although the Royster-McNair letter did contain information unavailable in either the public land records or Mr. McNair's 1997 deposition, we find it significant that Mrs. Drake did not even become aware of the letter until August 7, 2007 (according to her reply brief), more than two years after she filed this suit in May 2005. The conclusion is inescapable that ample information from other sources prompted her to file this suit, and that the Royster-McNair letter has no bearing on this appeal.
2. Mr. McNair's 1997 Deposition
Despite the existence and availability of public land records revealing the facts underlying Mrs. Drake's fraud claims, Mrs. Drake asserts in her brief that Mr. McNair's "misleading" responses during his 1997 deposition, as well as the undisclosed and unmentioned Thompson Affidavit, which we have already discussed, "lulled her into a state of ignorance until July 30, 2004." Specifically, she contends that Mr. McNair affirmatively concealed the alleged fraud by providing three misleading answers to questions posed during that deposition: (1) that Designmark purchased the Q Street property, (2) that he (McNair) played no role in the purchase of the property, and (3) that Mr. Hodin worked only on pre-death matters for Mr. Drake. We conclude that Mrs. Drake could not reasonably have relied on these alleged misrepresentations and, therefore, that she failed to allege facts sufficient to toll the statute of limitations.
"It is well established that affirmative acts employed by a party to fraudulently conceal either the existence of a claim or facts forming the basis of a cause of action toll the running of limitations periods." Estate of Chappelle v. Sanders, 442 A.2d 157, 158 (D.C.1982) (citations omitted); accord, William J. Davis, Inc. v. Young, 412 A.2d 1187, 1192 (D.C.1980) ("[t]he defendant's affirmative efforts to divert or prevent discovery of the original fraud give a continuing character to the original act which deprives it of statute of limitations protection until discovery"). A mere failure to disclose pertinent information, however, is not sufficient to toll the statute of limitations unless there has been some affirmative act of concealment. "It has consistently been the law in the District of Columbia that fraudulent concealment requires `something of an affirmative nature designed to prevent discovery of [a] cause of action.'" Cevenini v. Archbishop of Washington, 707 A.2d 768, 773-774 (D.C.1998) (quoting Young, 412 A.2d at 1191-1192).
*620 These and similar cases, read together, have established a requirement of due diligence and imposed it on a plaintiff who seeks to take advantage of the discovery rule. "Thus ... a plaintiff guilty of ordinary negligence in not earlier discovering a cause of action may not avoid the bar of the statute of limitations merely because a fraud or fraudulent concealment is involved.... [T]he presence of a fraudulent misrepresentation does not excuse the injured party from acting reasonably to protect her interests." Diamond, 680 A.2d at 375-376 (citations omitted). However, "[i]n evaluating the reasonableness of the plaintiff's diligence, cases from this jurisdiction have long taken into account the confidential or fiducial relationship between the plaintiff and defendant." Id. at 376. "[I]n a close, confidential relationship, the degree of reasonable reliance is likely to be much greater and the reasonable diligence on the part of the plaintiff much less than would exist where the parties had been in an adversary relationship." Id. at 378; see also Firestone v. Firestone, 316 U.S.App. D.C. 152, 156, 76 F.3d 1205, 1209 (1996) (failure to disclose information may be sufficient to establish fraudulent concealment when one party has a fiduciary obligation to the other party). We must therefore examine the record to determine, first, whether Mrs. Drake exercised sufficient diligence to avoid the bar of the statute of limitations and, second, whether she and Mr. McNair were in a fiduciary relationship that would excuse, or at least reduce the significance of, any lack of diligence on her part.
According to Mrs. Drake's brief, "[a]t no time did McNair disclose his role in the preparation or supervision of Thompson's October 26, 1995 affidavit or that he subsequently became involved in changing the name on the deed to indicate that Designmark had purchased the property at the foreclosure." We conclude that Mr. McNair's responses during his deposition, although they may have been potentially misleading, were not technically incorrect. For example, when asked, "Who purchased the [Q Street property] in the foreclosure?", Mr. McNair responded, "Designmark Development Corporation." While it is true that Taurus and not Designmark purportedly bought the property in July 1995, shortly before Mr. Drake's death, the property was retitled just a few months later to reflect that Designmark was the actual purchaser.[19] In addition, when asked about his role in the foreclosure, Mr. McNair stated, "I had some discussions with [Mr. Drake] prior to his death regarding that property, and my advice to him generally was to walk away from it." Although this statement minimized Mr. McNair's role in the retitling of the property, he went on to explain that he was involved in the transfer of the Q Street property proceeds to the Drake Trusts. He testified in his deposition that he frequently consulted with a representative of Mr. Drake's estate to discuss execution of the will and the trust instruments, as well as the transfer of assets.
We are not persuaded that these statements, even if they can be regarded as evasive, rise to the level of active concealment, nor do they warrant depriving Mr. McNair and the other appellees of the protection of the statute of limitations. See Cevenini, 707 A.2d at 774 ("we are unwilling to hold that a failure to disclose information that has not even been requested constitutes fraudulent concealment"); Young, 412 A.2d at 1191 ("Generally the defendant must have done something of an affirmative nature designed *621 to prevent discovery of the cause of action"). Furthermore, Mrs. Drake cannot be excused from taking steps to protect her own interests, especially when Mr. McNair owed her no fiduciary obligation. Even if representations are false or misleading, it is unreasonable for a party to rely on those representations if the party had "an `adequate opportunity to conduct an independent investigation' and the party making the representation `did not have exclusive access to such information.'" In re Estate of McKenney, 953 A.2d 336, 343 (D.C.2008) (citing Howard v. Riggs Nat'l Bank, 432 A.2d 701, 707 (D.C.1981)).[20]
We note that Mr. McNair incorrectly stated during his deposition that Mr. Hodin worked on pre-death and not post-death matters for Mr. Drake. Nevertheless, we are satisfied that this statement, even assuming that it was intentionally false, did not toll the statute of limitations. As we pointed out earlier, Mr. McNair had no continuing fiduciary duty to Mrs. Drake because he had previously relinquished his appointment as co-personal representative of Mr. Drake's estate.[21] In addition, Mrs. Drake was already on inquiry notice of Mr. Hodin's involvement in the foreclosure sale of the Q Street property because Hodin's name appeared on the Confirmatory Substitute Trustee's Deed as the person to whom the deed should be returned after it was recorded. Thus it would not have been reasonable for Mrs. Drake to rely on any suggestion by Mr. McNair that Mr. Hodin was involved exclusively with pre-death matters. See Diamond, 680 A.2d at 376 ("the presence of a fraudulent misrepresentation does not excuse the injured party from acting reasonably to protect her interests").
C. The Settlement Agreement
The trial court, relying on One-O-One Enterprises, Inc. v. Caruso, 270 U.S.App. D.C. 251, 848 F.2d 1283 (1988), and Hercules & Co. v. Shama Restaurant Corp., 613 A.2d 916, 923 (D.C.1992), held independently of the statute of limitations that the incorporation clause in the parties' 1998 Settlement Agreement barred Mrs. Drake's claims that appellees made fraudulent or negligent misrepresentations which induced her to enter into the agreement.[22] According to the trial court, "if *622 [Mrs. Drake] considered the representations important enough to have induced her to agree, she and her attorneys should have demanded that those representations be included in the [Settlement Agreement]." On appeal Mrs. Drake contends that this incorporation clause in no way bars her claims because the agreement itself was procured by fraud.
The trial court also concluded that the release provision in the Settlement Agreement "remains in effect and thus bars [Mrs. Drake's] claims."[23] Mrs. Drake does not raise any specific challenge to this ruling, but rather asserts that the release clause, like the incorporation clause, does not bar her claims because the alleged fraudulent representations "transcend statements made during negotiations" and involve representations made and omissions that occurred during discovery and litigation. She further argues that the Settlement Agreement was void ab initio because it was procured by fraud. We reject all of these contentions because Mrs. Drake has failed to substantiate any claim of fraud that would invalidate the Settlement Agreement.
"At common law, the requisite elements of fraud were (1) a false representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive, and (5) an action that is taken in reliance upon the representation.... At least in cases involving commercial contracts negotiated at arm's length, there is the further requirement (6) that the defrauded party's reliance be reasonable." Hercules, 613 A.2d at 923 (citations omitted; emphasis in original). "[I]n the absence of a showing that a parol representation made during negotiations by a party to a completely integrated contract was omitted from the contract by fraud, mistake, or accident ... the opposing party is barred from relying on such a representation as material to its acceptance of the deal and from claiming that its reliance on it was reasonable." Id. at 929 (citation omitted); see also In re U.S. Office Products Co. Securities Litigation, 251 F.Supp.2d 77, 102 (D.D.C.2003) ("Unless the plaintiffs allege that the representation omitted from the contract was omitted by fraud, mistake or accident, an integration clause bars representations not contained in the contract even when the plaintiffs allege fraudulent inducement to enter the contract" (citations omitted)).
In the One-O-One case, the United States Court of Appeals, applying District of Columbia law relating to common law fraud, rejected One-O-One's claims of fraud in the inducement. One-O-One, a Maryland corporation which owned and operated a chain of Ponderosa Steak Houses, entered into an agreement with Caruso and Sullivan, controlling stockholders in a Pennsylvania corporation which owned and operated Rustler Steak Houses. That agreement conveyed ten of One-O-One's Ponderosa Steak Houses to Caruso *623 and Sullivan and authorized One-O-One to convert and operate twenty-five of its restaurants as Rustler Steak Houses. According to One-O-One's complaint, Caruso and Sullivan allegedly made oral representations that they would retain a controlling interest in the Rustler Steak Houses and would undertake a long-term commitment to maintain and expand the Rustler restaurants. The final agreement between the parties, however, contained no mention of this alleged long-term commitment, and Caruso and Sullivan eventually sold their corporation to Sizzler Restaurants, Inc.[24]
In analyzing One-O-One's claims of fraud in the inducement, the court noted that the final agreement between the parties included an integration clause stating that the agreement "supersede[d] any and all previous understandings and agreements." 270 U.S.App. D.C. at 254, 848 F.2d at 1286. According to the court, this language "made any reliance by plaintiffs on prior representations concerning [Caruso and Sullivan's] long-term commitment to the Rustler operation unreasonable and any failure by [Caruso and Sullivan] to disclose the existence of negotiations with Sizzler immaterial." Id. The court held that "silence in a final agreement containing an integration clause in the face of prior explicit representations must be deemed an abandonment or excision of those earlier representations." Id. at 255, 848 F.2d at 1287 (citation omitted).
This court considered a similar fraud-in-the-inducement claim in the Hercules case. Hercules and Company had contracted with Shama Restaurant Corporation to renovate Shama's restaurant in Alexandria, Virginia. The contract between Hercules and Shama contained a general integration clause which stated that the contract "constitute[s] the entire agreement between" the parties.[25] Hercules argued that Shama represented generally that it had the financial stability to satisfy its obligations under the contract and represented specifically that it was depositing money in a money market account for construction on the project, but these representations were not included in the written contract. After analyzing One-O-One, this court concluded that Hercules had failed to demonstrate that the representations at issue were either material or reasonably relied upon because they were not included in the final, fully integrated agreement between Hercules and Shama. We reasoned, "If Hercules considered these assurances important enough to induce it to agree to the contract ... it could have conditioned its agreement on the explicit inclusion of those representations in the contract." 613 A.2d at 932. By the same rationale, we concluded that Hercules' reliance on any representation not included in the final written contract could not have been reasonable. Id. at 934 ("the reasons for holding that Hercules' complaint was deficient as to the element of materiality apply equally to the question whether Hercules' reliance was reasonable").[26]
*624 In Whelan v. Abell, 310 U.S.App. D.C. 396, 48 F.3d 1247 (1995), the District of Columbia Circuit qualified to some extent its holding in One-O-One. Rejecting the appellants' "rather broad reading" of that decision, the court in Whelan said:
[O]ur conclusion in [One-O-One] was plainly not intended to say that an integration clause bars fraud-in-the-inducement claims generally or confines them to claims of fraud in execution.... Such a reading would leave swindlers free to extinguish their victims' remedies simply by sticking in a bit of boilerplate.
Id. at 407, 48 F.3d at 1258 (citation omitted). The court noted specifically that two of the three alleged claims of fraud in One-O-One were based on alleged oral promises of future behavior, and that the third alleged claim of fraud involved concealment of negotiations that "were at worst in violation of the first two alleged promises." Id.
Although the court did not engage in any significant discussion of the differences between the fraud claims in One-O-One and those at hand in Whelan, and although the discussion of fraud in the inducement in One-O-One is technically dictum, we agree with the court's general statement in Whelan that an integration clause does not provide a blanket exemption to claims of fraud in the inducement.[27] We are satisfied, however, that the Whelan court was correct in distinguishing allegedly fraudulent representations with regard to promises of future behavior. See Hercules, 613 A.2d at 918-919 (involving allegations that Shama's misrepresentation that it would deposit money into an account to satisfy obligations under the contract induced Hercules to agree to include an arbitration clause in the contract); One-O-One, 270 U.S.App. D.C. at 253, 848 F.2d at 1285 (involving allegations that Caruso and Sullivan's promise that they did not intend to sell or dispose of their interest in Rustler, although not included in the final, fully integrated agreement, fraudulently induced One-O-One to enter into the contract).
When a written contract contains an incorporation clause, any alleged prior representations that a party will or will not do something in the future that are not included in that written contract generally do not support a fraud-in-the-inducement claim. On the other hand, prior representations that conceal fraudulent conduct, thereby precluding a party from filing suit within the statute of limitations period, may provide support for such a claim. Here, we respect that distinction and note that Mrs. Drake's allegations involved representations that may have shielded fraudulent conduct and information which allegedly would have enabled her to file her suit before the statute expired.
Nevertheless, we conclude that Mrs. Drake has not demonstrated that she was fraudulently induced to sign the Settlement Agreement. She cannot claim to have reasonably relied on any representations made by Mr. McNair during his deposition. At the time the deposition was taken, Mr. McNair was no longer the personal representative of Mr. Drake's estate and thus no longer owed any fiduciary duty to that estate or its beneficiaries, including Mrs. Drake. See Hercules, 613 A.2d at 934 (citing Management Assistance, Inc. v. Computer Dimensions, Inc., 546 F.Supp. 666, 672 (N.D.Ga.1982) ("One cannot close his eyes and blindly rely upon *625 the assurances of another absent some fiduciary relationship or emergency"), aff'd sub nom. Computer Dimensions v. Basic Four, 747 F.2d 708 (11th Cir.1984)). If Mrs. Drake had any suspicions about the transfer of property from the estate to the trusts, she should not have signed the Settlement Agreement in the first place; rather, she should have taken affirmative steps at that time to investigate any possible fraud. See Estate of McKenney, 953 A.2d at 343.[28] We therefore hold that there is no allegation of fraud in this case sufficient to prevent enforcement of the Settlement Agreement.
III
Our holdings with respect to the Rule 12(b)(6) motion, the statute of limitations, and the Settlement Agreement necessarily dispose of all of Mrs. Drake's claims. We agree with the trial court that all of those claims were barred either by the statute of limitations or by the Settlement Agreement, or both. We therefore need not consider, and do not consider, any issue regarding res judicata.[29] The judgment is accordingly
Affirmed.
NOTES
[1] Our summary of the facts is drawn from the pleadings filed in the trial court and from the trial court's order granting appellees' motion to dismiss.
[2] Taurus is not and has never been incorporated or registered under the laws of any state or the District of Columbia.
[3] In her First Amended Complaint, filed on May 3, Mrs. Drake added Alvitra Drake, Leaph Drake, and Necia Drake as defendants. On June 30 she filed a Second Amended Complaint.
[4] On May 30, 1996, Mrs. Drake renounced her husband's will.
[5] The Settlement Agreement contained both an incorporation clause and a release clause. See notes 22 and 23, infra.
[6] From the context, we infer that this should read "someone not yet known" or "someone yet unknown."
[7] In addition, Mrs. Drake claims that it was not until May 9, 2006, that she received notice of the August 21, 1995, letter from Ms. Royster and Mr. McNair to Smith Barney, purporting to indemnify Smith Barney from any and all claims or liabilities resulting from the change of its Taurus Investments account to a Drake Trusts account.
[8] Mrs. Drake's Amended Complaint revised her factual allegations, amended her claim of breach of fiduciary duty to breach of a duty to the estate, and added a claim for a declaratory judgment that Mrs. Drake is the sole owner of the stock in a corporation known as Hawk One.
[9] Mrs. Drake's Second Amended Complaint contained only minor revisions to the factual allegations made in her Amended Complaint.
[10] Mrs. Drake's Third Amended Complaint dropped her claims of fraudulent misrepresentation, breach of duty of good faith and fair dealing, and breach of duty to the estate, and her request for a declaratory judgment regarding the Hawk One stock ownership.
[11] The court concluded that the doctrine of res judicata applied only to Mrs. Drake's claims against Necia Drake, who the court said was the sole party in the probate proceedings. Appellees challenge this part of the court's decision, asserting that Mr. McNair in his capacity as a former trustee was also a party. The court ruled in addition that Mrs. Drake's civil action was based on the same nucleus of facts as the probate action and that the Special Master's Final Report and Recommendation, which the probate court approved, was a final judgment (i.e., res judicata) on the merits of all her claims involving the Q Street property.
The trial court's reasoning on the res judicata issue is not entirely clear. However, as we shall explain, we need not decide whether res judicata bars some or all (or none) of Mrs. Drake's claims because we can affirm the judgment on other grounds.
[12] Mrs. Drake's brief also states that one of the issues presented for review is whether her Third Amended Complaint was time-barred. Because she has failed to include in her brief any substantive argument related to this issue, however, we deem it waived.
[13] For example, Mrs. Drake's Amended Complaint and Second Amended Complaint referred specifically to the Substitute Trustee's Deed and the Confirmatory Substitute Trustee's Deed. Her Third Amended Complaint referred to the Substitute Trustee's Deed generally and the Confirmatory Substitute Trustee's Deed specifically.
[14] The Substitute Trustee's Deed was recorded on August 24, 1995. The Confirmatory Substitute Trustee's Deed was recorded on January 16, 1996. Mrs. Drake filed her complaint in the instant case on May 26, 2005.
[15] Even assuming, for the sake of argument, that the trial court's consideration of the Substitute Trustee's Deed and the Confirmatory Substitute Trustee's Deed converted appellees' motion to dismiss into a motion for summary judgment, Mrs. Drake would not necessarily prevail on this point. A trial court is not required to order discovery when considering a motion for summary judgment. See Super. Ct. Civ. R. 56(f) ("Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the Court ... may order a continuance to permit ... discovery to be had" (emphasis added)). In other words, the court has discretion not to authorize additional discovery under Rule 56(f). We would be hard pressed on this record to find an abuse of discretion by the trial court that would warrant reversal.
[16] It is not clear from the affidavit whether Mr. Thompson actually told the auctioneer that Taurus was a fictitious entity.
[17] The Confirmatory Substitute Trustee's Deed, which was duly recorded, named Mr. Hodin as the person to whom the deed should be returned upon recordation.
[18] The Substitute Trustee's Deed, dated July 28, 1995, and recorded on August 24, 1995, stated that Taurus had purchased the Q Street property. The Confirmatory Substitute Trustee's Deed, dated November 20, 1995, and recorded January 16, 1996, stated that the Substitute Trustee's Deed had mistakenly named Taurus as the purchaser of the Q Street property, that Designmark had actually provided the purchase money for the property, and that Taurus was not incorporated or registered under the laws of any state or of the District of Columbia.
[19] Appellees maintain that Taurus was acting as the alter ego of Designmark, so that Designmark was actually the initial purchaser of the Q Street property.
[20] Mrs. Drake has not made a sufficient showing that any actionable fraud was committed on the court. Fraud on the court is "confined to the most egregious cases, such as bribery of a judge or juror, or improper influence exerted on the court by an attorney, in which the integrity of the court and its ability to function impartially is directly impinged." Partnership Placements, Inc. v. Landmark Insurance Co., 722 A.2d 837, 844 (D.C. 1998) (citation omitted). Mr. McNair's evasive deposition testimony cannot be compared to the actions of the defendants in Synanon Foundation, Inc. v. Bernstein, 503 A.2d 1254, 1259-1262 (D.C.1986), who engaged in an extensive and ongoing scheme to destroy incriminating evidence requested during discovery.
[21] On August 21, 1995, Mr. McNair and Ms. Royster sent a letter to Smith Barney asking the firm to change the account title for the Q Street property. This letter listed Mr. McNair as co-personal representative of the estate and was signed by him in that capacity. Mr. McNair relinquished his position as co-personal representative on October 5, 1995. The petition for probate, filed November 30, 1995, stated that Mr. McNair had declined to serve as co-personal representative of the estate.
[22] The incorporation clause reads as follows:
This Settlement Agreement constitutes the full and final agreement of the parties hereto concerning the subject matter of the Litigation and/or the claims (including both asserted and unasserted claims) released hereby. There are no other representations or agreements between the parties, whether written or oral. All prior discussions or negotiations of any nature whatsoever are deemed to have been merged into this Settlement Agreement. No representation or understanding not contained in the Settlement Agreement and Mutual Release shall be considered to have any effect.
[23] The release clause reads as follows:
Plaintiff [Mrs. Drake] hereby expressly and irrevocably releases, acquits and discharges [appellees] of and from any and all claims, causes of actions or complaints of any nature whatsoever that have arisen or have accrued up to the date hereof including, but not limited to, those that have been or could have been asserted against any of the foregoing persons or entities or that could have been asserted against them in the Litigation or in any way arising from or respecting any relationship whatsoever which [Mrs. Drake] had with [Mr. Drake] or with any of the persons or entities mentioned in this paragraph. This release includes not only asserted claims but unasserted claims whether the same are known or unknown to [Mrs. Drake].
[24] As a result of the sale to Sizzler, the level of promotional effort devoted to the Rustlers diminished, and One-O-One's Rustler restaurants performed poorly. One-O-One, 270 U.S.App. D.C. at 253, 848 F.2d at 1285.
[25] The contract also contained an arbitration clause, "stating that the parties agreed to have all disputes arising out of the project resolved by independent arbitrators...." Hercules, 613 A.2d at 918.
[26] It is worth noting that our holding in Hercules was based on the "especially compelling" policies against circumventing the parol evidence rule when a party is seeking to avoid an arbitration clause. We emphasized that "[w]e need not ... decide whether we should follow cases like One-O-One ... in the generality of `fraud in the inducement' disputes." 613 A.2d at 931.
[27] In addition, the parties in the case at bar did not explicitly debate the veracity of the representations. See Adler v. Abramson, 728 A.2d 86, 90 (D.C.1999) ("The absence from the signed lease of a limitation on which the parties had explicitly bargained, in a final agreement containing an integration clause (as this one did), is strong indication that the parties reasonably meant to bind themselves only by the words they employed").
[28] It should also be emphasized that Mrs. Drake was represented by counsel during the settlement negotiations and was under no duress when she signed the Settlement Agreement. See Hercules, 613 A.2d at 932 (noting that each party was "represented by competent counsel" and that they "engaged in arm's length negotiations before reaching agreement" in concluding that the parties were bound by their agreement).
[29] We note that it was the 1998 Settlement Agreement, not the 2004 Special Master's Report, which resulted in the final adjudication of the earlier probate litigation a fact which the trial court and both parties may have overlooked. In any event, appellant's present complaint, filed in 2005, arises from the same set of facts and circumstances that were the subject of the Settlement Agreement and thus is barred by it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1005696/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1836
FRANKLIN C. REAVES,
Plaintiff - Appellant,
versus
CITY OF MULLINS; J. C. RICHARDSON, Individ-
ually and in his official capacity as City of
Mullins Administrator; RODNEY JOHNSON, ind-
ividually and in his official capacity as City
of Mullins Planner; JIMMY AFFORD, JR., indi-
vidually and in his official capacity as Chief
of Police of City of Mullins; JOE COX;
individually and in his official capacity as
City of Mullins Judge; MARION COUNTY; EDWIN P.
ROGERS, individually and in his capacity as
Marion County Administrator; DANNY GERALD,
individually and in his capacity as employee
of Marion County; DANNY GARDNER, individually
and in his capacity as an employee of Marion
County; DENNIS FLOYD, individually and in his
capacity as an employee of Marion County; JOHN
W. ROBERTS, individually and as an employee of
the City of Mullins; BOYD JOHNSON, individ-
ually and as an employee of the City of
Mullins; GENE LEWIS, individually and as an
employee of the City of Mullins; WALTER
GODBOLD, individually and as employee of the
City of Mullins; HENRY JACKSON, individually
and as employee of the City of Mullins,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Margaret B. Seymour, District Judge.
(CA-00-528-24-4-BF)
Submitted: October 18, 2001 Decided: October 25, 2001
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Franklin C. Reaves, Appellant Pro Se. Douglas Charles Baxter,
RICHARDSON, PLOWDEN, CARPENTER & ROBINSON, Myrtle Beach, South
Carolina; Robert Thomas King, WILLCOX, BUYCK & WILLIAMS, P.A.,
Florence, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Franklin C. Reaves appeals the district court’s order dismiss-
ing his § 1983 action alleging various constitutional violations in
the condemnation and demolition of two houses by the City of
Mullins, South Carolina. We dismiss the appeal for lack of juris-
diction because Reeves’ notice of appeal was not timely filed.
Parties are accorded thirty days after entry of the district
court’s final judgment or order to note an appeal, see Fed. R. App.
P. 4(a)(1), unless the district court extends the appeal period
under Fed. R. App. P. 4(a)(5) or reopens the appeal period under
Fed. R. App. P. 4(a)(6). This appeal period is “mandatory and
jurisdictional.” Browder v. Director, Dep’t of Corrections, 434
U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S.
220, 229 (1960)).
The district court’s order was entered on the docket on May
16, 2001. However, Reeves’ notice of appeal was not filed with the
district court until June 18, 2001. Because Appellant failed to
file a timely notice of appeal or to obtain an extension or reopen-
ing of the appeal period, we dismiss the appeal.* We dispense with
oral argument because the facts and legal contentions are adequate-
*
To the extent Reeves mailed his notice of appeal to the
district court for filing on June 15, 2001, because he is not
incarcerated, he does not benefit from Houston v. Lack, 487 U.S.
266, 270-71 (1988). See Thompson v. E.I. DuPont de Nemours & Co.,
76 F.3d 530, 534 (4th Cir. 1996).
3
ly presented in the materials before the court and argument would
not aid the decisional process.
DISMISSED
4 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918212/ | 764 A.2d 627 (2000)
Magdalena KRUCZKOWSKA, Appellant,
v.
Grace M. WINTER, Appellee.
Superior Court of Pennsylvania.
Argued July 27, 2000.
Filed December 18, 2000.
*628 Bruce G. Cassidy, Philadelphia, for appellant.
Paul G. Kork, Philadelphia, for appellee.
Before JOYCE, LALLY-GREEN and BECK, JJ.
BECK, J.:
¶ 1 Appellant, Magdalena Kruczkowska, appeals from the order of February 22, 2000, which denied her motion for post-trial relief, and entered judgment in favor of appellee, Grace M. Winter. Kruczkowska argues the jury's verdict was against the weight of the evidence. For the reasons that follow, we reverse.
¶ 2 This case arises from a motor vehicle accident that occurred on October 2, 1994. A vehicle driven by Winter collided with a bicycle operated by Kruczkowska as Winter was pulling out of a parking lot. At a jury trial, the parties disagreed about whether Kruczkowska's bicycle ran into Winter's vehicle or whether Winter's vehicle hit Kruczkowska on her bicycle. Winter testified that from the exit driveway of the parking lot she intended to make a left hand turn onto the roadway. She testified that when she looked to her left on the roadway she did not see Kruczkowska on her bicycle. As she was looking to her right, Winter testified a driver of another vehicle traveling on the roadway waved her onto the street. Before looking to her left Winter proceeded onto the roadway and at that point the collision occurred. Kruczkowska testified that she first saw Winter's vehicle stopped in the exit driveway from a distance of approximately thirty-three feet away. She stated that she saw Winter look away from her direction to the right but proceeded down the roadway. Kruczkowska maintained that as she crossed the exit driveway, Winter moved forward striking her and the bicycle. On cross-examination, Kruczkowska stated she did not make any attempts to go around the car even though she could have ridden her bicycle into the driveway to go behind Winter's vehicle and proceed back onto the roadway.
¶ 3 Both parties' testimony revealed that upon impact, Winter exited her vehicle and Kruczkowska asked her to get back into her vehicle to move the car that was stopped on Kruczkowska's foot. Following the accident, Kruczkowska was taken to the emergency room. X-rays revealed no bone fractures in her foot or her ankle. Kruczkowska's foot was treated with ice packs and she was released that day. Kruczkowska sought further treatment on October 11, 1994 with the Home Medical Center. She subsequently consulted Necmi Gurkaynak, M.D., on January 18, 1995, who treated her on three occasions until May 1995.
¶ 4 Kruczkowska's medical expert, Dr. Gurkaynak, testified via videotape deposition. He testified Kruczkowska suffered from thoracic sprain and strain, lumbosacral sprain and strain and a contusion to the right hip and foot as a result of the accident. Winter did not present a medical expert. Regarding her injuries, Kruczkowska testified that immediately after the accident her foot was very sore and swollen, and that upon leaving the hospital she could hardly walk. She further testified her pain lasted over a year, and that she was unable to play sports due to her pain.
*629 ¶ 5 Following a two-day trial, the jury returned a verdict in favor of Winter and against Kruczkowska. In response to special interrogatories, the jury found that Winter was negligent but that her negligence was not a substantial factor in bringing about harm to Kruczkowska. As a result of its negative response to the second interrogatory, the jury did not answer questions regarding contributory or comparative negligence. Kruczkowska filed post-trial motions. By order dated January 18, 2000, the trial court denied Kruczkowska's post-trial motions and entered judgment. In its opinion the trial court found the fact that Kruczkowska suffered some injuries was irrelevant to the jury's conclusion that Winter's negligence was not a substantial factor in causing the injuries. Trial Court Opinion, 2/22/00, at 2. The court referred to evidence that could have caused the jury to determine comparative negligence on Kruczkowska's part, stating that such evidence was sufficient to justify the jury's determination. Id. This appeal followed.
¶ 6 Kruczkowska argues the jury's verdict was against the weight of the evidence. Our standard of review in denying a motion for a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or committed an abuse of discretion. Randt v. Abex Corporation, 448 Pa.Super. 224, 671 A.2d 228, 232 (1996). A new trial will be granted on the grounds that the verdict is against the weight of the evidence where the verdict is so contrary to the evidence it shocks one's sense of justice. Watson v. American Home Assurance Company, 454 Pa.Super. 293, 685 A.2d 194, 198 (1996), appeal denied, 549 Pa. 704, 700 A.2d 443 (1997). An appellant is not entitled to a new trial where the evidence is conflicting and the finder of fact could have decided either way. Id.
¶ 7 Kruczkowska specifically claims that because the jury found Winter was negligent and there was uncontradicted evidence she suffered injuries in the accident, the jury's determination that Winter's negligence was not a substantial factor in causing her harm was against the weight of the evidence. In support of her argument, Kruczkowska relies on Craft v. Hetherly, 700 A.2d 520 (Pa.Super.1997). In Craft, the plaintiff and defendant were involved in a motor vehicle accident. At trial, both parties presented expert medical testimony regarding the nature of plaintiff's injuries. The medical experts testified that plaintiff was injured as a result of the accident and differed only with regard to the severity and duration of the injuries. In response to interrogatories, the jury found the defendant was negligent in causing the accident, but found that the negligence was not a substantial factor in causing plaintiff's injuries. On appeal, this Court affirmed the trial court's grant of a new trial based upon its finding the verdict was against the weight of the evidence. See also Hixson v. Barlow, 723 A.2d 716 (Pa.Super.1999), approved on these grounds, disapproved on different grounds, Mano v. Madden, 738 A.2d 493 (Pa.Super.1999)(en banc)(upholding award of new trial where liability was conceded and both defense and plaintiff's experts agreed that plaintiff, who had pre-existing medical injuries, suffered distinct injuries as a result of the accident); Lewis v. Evans, 456 Pa.Super. 285, 690 A.2d 291 (1997)(affirming trial court's grant of a new trial on the issue of damages when defense and plaintiff's expert witnesses agreed that plaintiff suffered injuries from accident, and only extent of the injuries was contested); Rozanc v. Urbany, 444 Pa.Super. 645, 664 A.2d 619 (1995)(holding a new trial was warranted in automobile accident case where jury found the defendant negligent, but that the negligence was not a substantial factor in bringing about harm where the defense expert admitted plaintiff suffered an injury from the accident).
¶ 8 Kruczkowska submits like Craft, Hixson, Lewis and Rozanc, it was uncontradicted that she suffered some injury as *630 a result of the accident. Kruczkowska argues this fact, coupled with the jury's finding Winter was negligent, demonstrates the jury decision that Winter's negligence was not a substantial factor in bringing about the harm was clearly erroneous and against the weight of the evidence. Winter counters by noting that in the present case, unlike the cases relied on by Kruczkowska, the defense never presented any expert testimony that Kruczkowska suffered an injury during the accident. Winter argues the jury was not required to accept everything or anything Kruczkowska and her doctor said, even if their testimony was uncontradicted.
¶ 9 In Hawley v. Donahoo, 416 Pa.Super. 469, 611 A.2d 311 (1992), the defendant conceded liability and agreed that the plaintiff had suffered a compression fracture of his back. This Court, in reversing the order of the trial court, which had denied a new trial, held that "the existence of the fractured vertebra was not questioned by the [defendant] on cross-examination, and therefore the jury's refusal to believe in the existence of this injury was unwarranted." Id. at 313. The Court also noted that counsel for the defendant conceded the existence of an injury in his closing argument. The Court further stated:
While the jurors are the sole judges of credibility, and [plaintiff's] inconsistent and perhaps exaggerated testimony could have been perceived as an indication of [plaintiff's] interests of opportunity beyond pain which could dilute their belief in the existence of the occasion itself, the jury is not free to ignore an obvious injury. As our Supreme Court stated in Thompson v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961): "It is true that the jury is the final arbiter of facts but it may not, in law, ignore what is patent to the eye, obvious to the mind and clear to the normal process of ordinary computation." Id. at 332, 169 A.2d at 778-779.
Hawley, 611 A.2d at 313.
¶ 10 As in Hawley, in the present case, the jury's refusal to believe in the existence of the sprained ankle was unwarranted. While there existed no admission from a defense expert witness that Kruczkowska suffered an injury during the accident, the existence of a sprained ankle was not questioned by Winter during her cross-examination of Kruczkowska and Dr. Gurkaynak. Rather, Winter's cross-examination of both Kruczkowska and Dr. Gurkaynak revealed only a dispute about the severity of Kruczkowka's injury and how long and to what extent it impaired her normal activities.
¶ 11 Although Winters notes Dr. Gurkaynak's credibility was called into question during cross-examination when she questioned his expertise in the field of orthopedic medicine, such questioning did not call into question whether Kruczkowska suffered any injury. Rather, it only spoke to the doctor's credentials.
¶ 12 Moreover, as in Hawley, Winter's counsel admitted the existence and cause of Kruczkowska's injury in his closing argument. Counsel stated, "Ms. Kruczkowska, no question she had some injury; okay? She was hit. She hurt her ankle. No question about that." N.T., Trial, 6/23/99, at 129. Counsel later stated, "[i]t wasn't a broken ankle. It was a sprained ankle. And would that stop Ms. Kruczkowska for a week or two in doing what was normal? Yeah." Id. at 134. After our review of the record, it is apparent only the extent and duration of Kruczkowska's injury was contested by Winter.
¶ 13 Winter contends the jury's verdict must stand as it can logically be read under the evidence that it was Kruczkowska's own negligence which caused, or which was a substantial factor, in bringing about her own harm. Winter argues the jury obviously found the testimony of Kruczkowska and her expert not credible, which it was free to do. Winter relies on this Court's plurality decision in Hilbert v. Katz, 309 Pa.Super. 466, 455 A.2d 704 (1983), as well as its decision in Holland v. *631 Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984).
¶ 14 In Hilbert, the plaintiff and defendant were involved in a motor vehicle accident. Plaintiff was traveling west down a two-way road as defendant attempted to turn east onto the street. Even though each party claimed to have stayed within his own lanes of traffic, the left front of the defendant's car hit the left rear of the plaintiff's car. The plaintiff claimed the accident revived a prior neck and shoulder injury. The jury found that the defendant was negligent, but that his negligence was not a substantial factor in bringing about harm to the plaintiff. The jury did not reach the question of contributory negligence. The trial court granted plaintiff's motion for a new trial based on the jury's failure to answer questions regarding plaintiff's negligence. The trial court found the jury's failure left it unclear whether the jury believed the plaintiff's own negligence was of such a quality to match or exceed the defendant's negligence. The trial court also found that the weight of the evidence contradicts the jury's finding that the defendant's negligence was not a substantial factor in bringing about the plaintiff's harm. On appeal, our Court reversed. We held that uncertainty as to the underlying reasons for the jury's verdict is not a valid reason for granting a new trial. We also examined the trial court's objection to the jury's finding regarding whether the defendant's negligence was a substantial factor. After reviewing the record, we determined that given the facts of the case, the verdict did not shock our sense of justice.
¶ 15 In Holland, the plaintiff's vehicle that was stopped at a light was rear-ended by a vehicle driven by the defendant. The plaintiff alleged injuries to her neck, and offered the testimony of three physicians who testified that she suffered a neck injury as a result of the accident. The defendant's expert testified that the plaintiff's pain was caused by anxiety over her lawsuit with the defendant. The jury found that while the defendant was negligent, his negligence was not a substantial factor in causing the alleged injuries. On appeal, our Court affirmed the trial court's order denying the plaintiff a new trial. We found that the evidence supported the jury's verdict. Despite the finding of negligence on the defendant's part for "bumping" the plaintiff's vehicle, we stated the jury clearly found that the plaintiff's actions had nothing to do with the plaintiff's condition. We found the jury rejected the testimony of the plaintiff's medical expert, simply not believing that the headaches and other severe pain described by the plaintiff were caused by the defendant's negligent action of bumping the plaintiff's vehicle. Instead, we found the jury accepted the testimony of the defendant's expert, which it was free to do.
¶ 16 Winter's reliance on Hilbert and Holland is misplaced. While the facts in those cases supported the juries' verdicts that the defendants' negligence was not a substantial factor in causing the plaintiffs' injuries, the evidence in the present case does not support the same type of verdict. In Hilbert, it was disputed that the plaintiff sustained injuries as a result of the accident. Likewise, in Holland, there was competing expert testimony regarding the plaintiff's injuries. In both cases, the juries could have concluded that the defendants' negligence was not a substantial factor in bringing about the plaintiffs' harm because plaintiffs did not sustain injuries as a result of the accident.
¶ 17 Here, the facts are "so clearly of a greater weight that to ignore them or to give them equal weight with all the facts is to deny justice." Craft, 700 A.2d at 524 (quoting Thompson v. City of Philadelphia, 507 Pa. 592, 601, 493 A.2d 669, 674 (1985)). Winter's negligent act of pulling out of a driveway into the roadway pursuant to the urging of an unknown motorist, without first looking to see if the path was clear at that time, was an established factor in causing the accident. Moreover, Winter admitted she had to back her car *632 off of Kruczkowska's foot after the collision occurred. Thus, Winter's negligence was clearly the cause of Kruczkowska's foot and ankle injury, the existence of which was not contradicted. We conclude that the jury's determination Winter's negligence was not a substantial factor bears no rational relationship to the evidence adduced at trial. A contrary conclusion would result in a miscarriage of justice.
¶ 18 For the reasons set forth above, we find that the trial court abused its discretion in denying Kruczkowska a new trial. Accordingly, we reverse the order of the trial court, and remand for a new trial.
¶ 19 Reversed and remanded for a new trial. Jurisdiction relinquished. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3763784/ | OPINION
{¶ 1} This appeal arises from the Trumbull County Court of Common Pleas, Domestic Relations Division. Appellant Janine A. Scott, appeals the trial court's findings of fact and conclusions of law in a final decree of divorce.
{¶ 2} Appellant and appellee, William Scott, were married on January 15, 1994. No children were born during the marriage. Appellant was employed full-time as a major market manager for Sprint at all times during the marriage. Appellee was employed full-time at Delphi Packard at all times during the marriage.
{¶ 3} On February 1, 2001, appellee filed a complaint for divorce. Appellant filed an answer to appellee's complaint along with a counterclaim for divorce on April 17, 2001. On June 27, 2001, appellant filed a motion requesting, inter alia, exclusive occupancy of the marital residence along with one-half of the costs of the mortgage, utilities, home insurance, and real estate taxes to be paid by appellee for the time period during which he resided at the marital residence. A hearing on that motion was held on October 30, 2001.
{¶ 4} A one-day contested divorce hearing was held on April 1, 2002. At the hearing, both parties stipulated to the division of a number of household goods and furnishings, both parties' individually-owned rental properties, a 1992 truck, and two timeshares in Florida, which were jointly owned.
{¶ 5} On April 12, 2002, the trial court issued a final decree of divorce with findings of fact and conclusions of law. The judgment entry included the division of the marital property. Appellant subsequently filed a motion for a new trial and clarification of judgment entry, pursuant to Civ.R. 59(A), on April 26, 2002. In her motion, appellant contended that the judgment entry issued by the trial court was incomplete for a number of reasons: (1) it failed to specifically set forth how the parties were to calculate the equity in the marital residence; (2) it did not clearly identify which assets were marital and which were separate; and (3) it did not address appellant's claim for reimbursement for improvements made to appellee's rental property.
{¶ 6} On October 29, 2002, the trial court denied appellant's motion. Appellant subsequently filed this appeal, citing six assignments of error:
{¶ 7} "[1.] The trial court committed prejudicial error to appellant-wife and abused its discretion in failing to make an equitable distribution of the marital residence in accordance with R.C. 3105.171(C) and by failing to explain its division of the marital residence.
{¶ 8} "[2.] The trial court committed prejudicial error to appellant-wife and abused its discretion in finding that substantial improvements made by appellant-wife to the marital residence prior to her marriage to appellee-husband or from separate and traceable monies were marital property.
{¶ 9} "[3.] The trial court committed prejudicial error to appellant-wife and abused its discretion in refusing to consider the verbal agreement entered into between appellant-wife and appellee-husbandprior to their marriage.
{¶ 10} "[4.] The trial court committed prejudicial error to appellant-wife and abused its discretion by failing to equitably divide the parties' marital property, namely the 1994 Oldsmobile, the 1970 Nova and various car parts, and appellee-husband's corporation by the name of Classic Auto Wire, Inc.
{¶ 11} "[5.] The trial court committed prejudicial error to appellant-wife and abused its discretion by failing to accurately determine and apportion the marital debts and credit appellant-wife for enhancements made to appellee-husband's rental property.
{¶ 12} "[6.] The trial court committed prejudicial error to appellant-wife and abused its discretion in denying appellant-wife's motion for new trial and clarification of judgment entry pursuant to Civ.R. 59(A)." (Emphasis sic.)
{¶ 13} For the reasons that follow, we must dismiss this appeal for lack of a final, appealable order.
{¶ 14} Pursuant to R.C. 2505.02, an order that does not adjudicate all the claims or the rights and liabilities of all the parties is not final and appealable.1 Other appellate courts have determined that, under certain circumstances, divorce decrees may constitute final, appealable orders although not all issues have been resolved.2 However, without a clear, final determination as to marital property and debt, an appellate court is without jurisdiction to hear the appeal.3
{¶ 15} In the instant case, the trial court noted in its findings of fact: {¶ 16} "On 3/29/95 the parties remortgaged [the marital residence]. The new mortgage was in the name of both parties but title remained in the name of Wife alone.
{¶ 17} "The parties made significant improvements to the real estate including the addition of an in-ground pool upon refinancing.
{¶ 18} "The Court finds that the increase in the equity of the real estate during the marriage is a marital asset subject to equal division.
{¶ 19} "At the time of this hearing, the appraisal on this property was not completed."
{¶ 20} Later in the judgment entry, the court made the following order:
{¶ 21} "Wife shall retain the marital residence known as 1021 Central Parkway in Warren, Ohio, and upon completion of the evaluation, pay Husband his one-half equity interest accrued since the date of marriage up to and including the date of this hearing."
{¶ 22} Having already acknowledged that the appraisal of the property had yet to be completed, the court recognized that it lacked the values necessary in determining whether any equity in the home existed and, if so, what amount. An appraisal of the property was completed and appellant included it within her subsequent Civ.R. 59 motion for new trial. The trial court denied that motion, and, thus, an equitable division of the marital property was never completed.
{¶ 23} Moreover, the final divorce decree is also incomplete as it does not address debts owed on the marital residence as a result of the remortgage of the property, and does not address any other debts owed by each party individually and separately, including appellant's contention that improvements to appellee's rental property were made with separate, traceable monies.
{¶ 24} Therefore, as the divorce decree is incomplete, leaving open the issues of equity in the marital residence and marital and personal debt, we conclude that it is not a final, appealable order and we are without jurisdiction to hear the appeal. Thus, the appeal is dismissed.
Grendell, J., concurs,
Christley, J., Ret., Eleventh Appellate District, sitting by assignment, concurs in judgment only.
1 Noble v. Colwell (1989), 44 Ohio St.3d 92, syllabus.
2 See Evicks v. Evicks (1992), 79 Ohio App.3d 657, 663; Shull v.Shull (Aug. 9, 1990), 2d Dist. No. 89-CA-89, 1990 Ohio App. LEXIS 3311, at *5; Gordon v. Gordon (1973), 33 Ohio App.2d 257, 258; Joseph v.Joseph (Jan. 25, 1988), 5th Dist. No. CA-7126, 1988 Ohio App. LEXIS 250, at *6-7.
3 Evicks v. Evicks, at 660-661. See, also, Davis v. Davis (Oct. 25, 1994), 3d Dist. No. 14-94-21, 1994 Ohio App. LEXIS 4783, at *2. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2858531/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-235-CV
THE ISLAND ON LAKE TRAVIS, LTD., ET AL.,
APPELLANTS
vs.
THE HAYMAN COMPANY GENERAL CONTRACTORS, INC.,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. 462,013, HONORABLE JOE B. DIBRELL, JUDGE
O R D E R
PER CURIAM
On August 26, 1992, this Court issued its opinion and judgment granting
appellants' motion to dismiss and dismissing the appeal. Appellants have filed a motion for
rehearing and reconsideration.
This Court grants the motion for rehearing and reconsideration as to that portion
that requests this Court to withdraw its previous opinion and judgment and to proceed with the
appeal. The remainder of the motion for rehearing and reconsideration is overruled.
Accordingly, this Court's opinion and judgment, dated August 26, 1992, are hereby withdrawn.
Appellants' motion to dismiss for want of jurisdiction will remain pending on the docket of this
Court.
It is so order this 23rd day of September 1992.
[Before Justices Powers, Jones and Kidd]
Motion for Rehearing Granted in Part and Overruled in Part
Filed: September 23, 1992
[Do Not Publish] | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1575366/ | 458 S.W.2d 673 (1970)
Leonard Thomas BRADLEY, Relator,
v.
John H. MILLER et al., Respondents.
No. 43335.
Court of Criminal Appeals of Texas.
October 14, 1970.
Stone, Luther & Dyer, by Curtis B. Dyer, Corpus Christi, for relator.
*674 Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
ONION, Judge.
This proceeding involves an application for writ of mandamus seeking to prevent a second robbery trial growing out of the same transaction. Said application alleges that the relator was convicted on May 21, 1970, in the 36th District Court of San Patricio County of the robbery of one R. B. Bailey, Jr., and that his punishment of ten years was assessed by the jury who recommended probation. It further states that Bailey, the alleged injured party, as well as one Lee Millikin testified as to the multivictim robbery and that in fixing the conditions of probation the court required the relator to pay restitution to both Bailey and Millikin. The application further alleges that subsequent to such action a second indictment has been returned charging the relator with the offense of robbery by firearms of Millikin growing out of the same transaction and identical acts as the first conviction, and that the trial judge has summarily overruled his plea of former conviction.[1] Therefore, relator seeks to have this Court mandamus the district judge, district attorney and the district clerk to dismiss the second indictment.[2]
The Court of Criminal Appeals has appellate jurisdiction coextensive within the limits of the state in all criminal cases, and original jurisdiction to issue the writ of habeas corpus and under such regulations as may be prescribed by law, power to issue such writs as may be necessary to enforce its own jurisdiction. Article V, Sec. 5, Texas Constitution, Vernon's Ann.St.; Article 4.04, Vernon's Ann.C.C.P.
Thus, it is clear that the Court of Criminal Appeals has no general but only limited writ of mandamus authority. Millikin v. Jeffrey, 117 Tex. 134, 299 S.W. 393. It can issue mandamus only to enforce its own jurisdiction. Ex parte Quesada, 34 Tex.Cr.R. 116, 29 S.W. 473; Ex parte Firmin, 60 Tex.Cr.R. 222, 131 S.W. 1116; Eaves v. Landis, 96 Tex.Cr.R. 555, 258 S.W. 1056; Ex parte Boehme, 158 Tex.Cr.R. 597, 259 S.W.2d 201; Ex parte Rubison, 170 Tex.Cr.R. 314, 340 S.W.2d 815; Pope v. Ferguson, Tex., 445 S.W.2d 950, 955. See also 15 Tex.Jur.2d, Courts, Sec. 23, p. 443; Carter, "The Texas Court of Criminal Appeals," 11 Tex.L.Rev. 1, 13.
One seeking to invoke the jurisdiction of this Court must point to some constitutional or statutory provisions conferring such right and bring himself within the procedure prescribed. See Ex parte Minor, 115 Tex.Cr.R. 634, 27 S.W.2d 805. This the relator has not done.[3]
*675 Our jurisdiction not having been invoked, this Court is without authority to issue a writ of mandamus. Apparently relator would have this Court pass upon the trial judge's denial of his plea of former conviction prior to trial, conviction or notice of appeal.
Even where authority exists a mandamus will not lie where the duty is clearly discretionary. It is an extraordinary writ and is not normally available where there are other adequate remedies. It is not a substitute for and cannot be used to perform the office of an appeal. See 37 Tex.Jur.2d, Mandamus, Secs. 12, 13, 14, 18, 19.
Being without authority to entertain such writ under the circumstances presented and to order the dismissal of the second indictment, the application for writ of mandamus must be dismissed.
It is so ordered.
NOTES
[1] A transcription of such proceedings is not in the record before us.
[2] It is interesting to note what the Supreme Court said in Pope v. Ferguson, Tex., 445 S.W.2d 950: "The only Article of the Code (of Criminal Procedure) authorizing dismissal, after indictment, is Article 32.02 which authorizes the attorney representing the State to dismiss with consent of the judge. Further, the judge does not have power to dismiss a criminal case before trial except upon motion of the State's attorney. State v. Anderson, 119 Tex. 110, 26 S.W.2d 174, 69 A.L.R. 233 (1930). It follows that, in the absence of a motion to dismiss filed in the trial court by the County Attorney of Limestone County, this court cannot direct Judge Ferguson by writ of mandamus to enter an order which he has no power to enter. * * *"
[3] We further observe that in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed. 2d 469, which involved a former acquittal, the Supreme Court held that since the single rationally conceivable issue in dispute before the jury was whether the defendant had been one of the robbers, the federal rule of collateral estoppel, which is embodied in the Fifth Amendment's guaranty against double jeopardy, made the second state trial wholly impermissible. The majority did say, however: "The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again." For decisions involving the question of former convictions which construe Ashe v. Swenson narrowly and find it inapplicable, see Pulley v. Norvell (6th Cir.) 431 F.2d 258, 7 Cr.L.R. 1085; United States ex rel. Brown v. Hendrick (3rd Cir.) 431 F.2d 436.
In Duckett v. State, Tex.Cr.App., 454 S.W.2d 755, Ashe v. Swenson was cited merely as an example of the retroactive application of Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (which declared the double jeopardy provisions of the Fifth Amendment binding on the states). Duckett also noted the holding of Ashe as to the incorporation of the doctrine of collateral estoppel into the Constitution. It was not cited as authority for the decision eventually reached in Duckett. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4184959/ | FILED
NOT FOR PUBLICATION
JUL 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT SCHUTZA, No. 15-55704
Plaintiff-Appellant, D.C. No.
3:14-cv-02628-JM-RBB
v.
FRN OF SAN DIEGO, LLC, a Delaware MEMORANDUM*
Limited Liability Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted February 6, 2017**
Pasadena, California
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
We vacate the district court’s dismissal of this action, and we remand for
reconsideration in light of Karczewski v. DCH Mission Valley, LLC, No.
15-55633.
VACATED and REMANDED. Costs on appeal awarded to Plaintiff.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
FILED
Schutza v. FRN of San Diego, LLC, No. 15-55704
JUL 10 2017
BYBEE, Circuit Judge, acquiescing dubitante: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I acquiesce dubitante for the reasons articulated in my separate opinion in
Karczewski v. DCH Mission Valley, LLC, No. 15-55633. | 01-03-2023 | 07-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/2390463/ | 590 A.2d 526 (1991)
Roberta F. DUNSTON
v.
TOWN OF YORK, et al.
Supreme Judicial Court of Maine.
Argued January 17, 1991.
Decided January 17, 1991.
Opinion Issued April 29, 1991.
Elizabeth F. Stout (orally), Daniel R. Warren, Bean, Jones & Warren, Scarborough, for plaintiff.
John C. Bannon (orally), Murray, Plumb & Murray, Portland, for Town of York.
F. Paul Frinsko (orally), Catherine O'Connor, Bernstein, Shur, Sawyer & Nelson, Portland, for School Dist.
Michael E. Carpenter, Atty. Gen., Cabanne Howard (orally), Deputy Atty. Gen., Augusta, Amicus Curiae.
Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD, COLLINS and BRODY, JJ.
GLASSMAN, Justice.
By her appeal, Roberta F. Dunston[1] contends the trial court erred in granting a summary judgment in favor of the defendants, Town of York (Town) and Town of *527 York School District (School District)[2] entered in the Superior Court (York County, Fritzsche, J.) on her complaint, pursuant to M.R.Civ.P. 80B, seeking a court order to compel the Town Selectmen either to place before the townspeople an article to rescind the vote of September 15, 1989, approving the construction of a new elementary school or to call a special town meeting. She also contends the court erred in holding that her claim under the provisions of 42 U.S.C. § 1983 (1981)[3] was frivolous and in awarding the defendants their attorney fees as provided in 42 U.S.C. § 1988 (1981).[4] We affirm the judgment.
On September 25, 1989, the voters of the Town approved a warrant article that authorized the School District to spend up to $5,081,000 to buy land and build a new elementary school. Within the following year the School District issued $900,000 worth of bond anticipation notes, bought land for $365,000 plus a land swap, and awarded a construction contract in excess of $3,000,000 with a completion date of October 13, 1991, obligating the School District to make monthly progress payments. The land at the site was cleared and construction begun.
Dunston and other members of a local political group opposed the plan for the new school from the outset but took no action after the 1989 vote until August 23, 1990, when they submitted to the office of the Town Clerk a petition requesting a special town meeting to consider an article rescinding the vote. The petition was validated and certified by the Town Clerk and scheduled for consideration at the next meeting of the selectmen. At that meeting on September 10, 1990, the selectmen voted not to place the article before the voters or take further action on the petition. On October 10, 1990, the present action was instituted. Each of the parties filed a motion for a summary judgment. The School District also requested an expedited hearing on the motions on the ground that it would be difficult if not impossible to sell securities to fund the bond anticipation notes due to mature the following month while the viability of the school construction project was in question. After a hearing, the court granted the defendants' motions and granted the defendants their attorney fees for the defense of the claimed violation of 42 U.S.C. § 1983.
The law is well established that a summary judgment pursuant to M.R.Civ.P. 56 is properly granted if no genuine issue of material fact remains and any party is entitled to such judgment as a matter of law. Saltonstall v. Cumming, 538 A.2d 289, 290 (Me.1988). The thrust of the complaint in the present action was that the Town Selectmen had violated 30-A M.R. S.A. § 2522 (Pamph.1990), which provides that on the written petition of a sufficient number of voters "the municipal officers shall either insert a particular article in the next warrant issued or shall within 60 days call a special town meeting for its consideration." This section must, however, be read in conjunction with 30-A M.R.S.A. § 2521(4) (Pamph.1990) which provides an alternative method for calling a town meeting if the selectmen "unreasonably" refuse to do so. We interpret this alternative provision as recognizing the authority of the selectmen to exercise their sound discretion in determining whether the written petition required compliance with the provisions of section 2522. We have previously held that once a third party has acquired vested rights or acted to their detriment in *528 reliance on a legally authorized vote the town may not reconsider that original vote. See Inhabitants of the Town of N. Berwick v. State Bd. of Educ., 227 A.2d 462, 472 (Me.1967); Parker v. Titcomb 82 Me. 180, 182, 19 A. 162, 163 (1889). In this case the action authorized by the 1989 vote, the issuing of bonds for the construction of the school, clearly had been taken by the time the petition was submitted to the Town Clerk. In further reliance on the 1989 vote, the School District had entered into a construction contract and the rights of the third party noteholders and the construction company had long since vested.
Here, the relief sought of securing a court order to compel the Town Selectmen to place before the townspeople an article to rescind the 1989 vote or to call a special town meeting to consider the matter was in the nature of an action for mandamus. The remedy of mandamus is statutorily available, see 14 M.R.S.A. § 5301 (1980), although the writ no longer exists in Maine. See Young v. Johnson, 161 Me. 64, 69, 207 A.2d 392, 395 (1965). The court is governed by the procedural requirements of M.R.Civ.P. 80B and advised by the common law principles that governed the writ. It is well established that mandamus can be used to compel officials to perform only mandatory, not discretionary, functions, although it may be used to compel them to exercise their discretion. See id. 161 Me. at 69, 207 A.2d at 395. In this case the selectmen exercised their discretion by refusing to grant the relief requested in the petition. The plaintiffs made no claim, nor could they on this record, that the selectmen had unreasonably refused to comply with the mandate of section 2522 or in any manner abused the discretion vested in them. Accordingly, we hold that the trial court properly determined that no genuine issue of a material fact remained in the case and that the defendants were entitled to a summary judgment as a matter of law, see Pelletier v. Mellon Bank, N.A., 485 A.2d 1002, 1003-04 (Me.1985), and need not address the trial court's determination that the plaintiffs lacked standing to initiate this action as an alternative ground for granting the defendants' motions for a summary judgment.
Nor do we find merit in Dunston's argument that the award of section 1988 attorney fees to the defendants was an abuse of the court's discretion. The record clearly reflects that Dunston did not pursue her section 1983 claim before the trial court, nor has she provided us with any justification for her request that we vacate that award. The trial court properly found the claim was "frivolous, unreasonable, or groundless" and awarded attorney fees to the defendants. See Burr v. Town of Rangeley, 549 A.2d 733, 735 (Me.1988); see also Poire v. Manchester, 506 A.2d 1160, 1164 (Me.1986). We find Dunston's appeal on this issue to be frivolous, and accordingly, pursuant to section 1988, we award the defendants additional attorney fees for the defense of this issue on appeal.
The entry is:
Judgment affirmed. Remanded to the Superior Court for determination of reasonable attorney fees to be paid to the Town of York and the Town of York School District for this appeal in accordance with the opinion herein.
All concurring.
NOTES
[1] The notice of appeal recited that "[p]laintiffs hereby provide notice that they appeal." M.R. Civ.P. 73(b) provides that the "notice of appeal is a pleading for the purposes of Rule 11." Rule 11 requires that all pleadings be signed by the attorney representing a party or by each of the pro se parties. Of the ten plaintiffs named on the complaint only Roberta F. Dunston signed the notice of appeal.
[2] Without objection of the parties the Superior Court granted the motion of the Town of York School District to intervene as a party defendant in this action.
[3] Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State ... subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or any other proper proceeding for redress.
[4] Section 1988 provides in pertinent part:
In any action or proceeding to enforce a provision of ... [42 U.S.C. §§ 1981-83] ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575062/ | 253 S.W.2d 1002 (1952)
GIBBS
v.
STATE.
No. 26012.
Court of Criminal Appeals of Texas.
November 12, 1952.
Rehearing Denied January 14, 1953.
Allen, Crampton, Johnson & Purcell and Z. D. Allen, all of Wichita Falls, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
BEAUCHAMP, Judge.
Appellant was given a sentence of ten years in the penitentiary by a jury verdict on a charge of cattle theft.
The indictment in the case contains four counts, the first charging appellant with the theft of 53 head of cattle belonging to Tommie Howard. The second count charges theft of 53 head of cattle belonging to L. H. Turner. The third charges the theft of 50 head of cattle belonging to Tommie Howard, and the fourth charges the theft of 50 head of cattle belonging to L. H. Turner.
No evidence was introduced by appellant in the case and the facts presented by the state are to the effect that appellant purchased 54 head of cattle from a commission company in Palo Pinto County on the 22nd day of September, 1951, for which he gave a check on a Wichita Falls bank, in the amount of $8,442.87. The check was accepted and, thereafter, the cattle were taken by appellant and moved to another county. The conviction is on the fourth count in the indictment charging theft.
It is the contention in this appeal that the prosecution should have been for swindling by giving a check on a bank in which he had insufficient funds. Four propositions of law are presented in appellant's brief, three of which are dependent upon appellant's contention that the prosecution *1003 should have been for swindling. The fourth complains of the closing argument of the prosecution, based on the contention that it was a reference to the failure of the defendant to testify.
On the question of the alleged error in prosecuting appellant for theft instead of swindling, appellant refers to 39 Tex.Jur. p. 1088; DeBlanc v. State, 118 Tex. Crim. 628, 37 S.W.2d 1024; and Johnson v. State, 144 Tex. Crim. 392, 162 S.W.2d 980. These cases are discussed in the brief but we are unable to follow the reasoning therein. To the contrary, we think that each citation is authority for the state's position that, the evidence having shown swindling by check under circumstances that would authorize the prosecution for theft, it was the duty of the state to prosecute for the latter. The DeBlanc case, an opinion by Judge Morrow, makes this quite clear. The Johnson case, following the DeBlanc case, was under a little different state of facts and, while following the reasoning of the DeBlanc case, the facts are not such as to make it a spotted horse case, with the same spots, to the full extent that the DeBlanc case is.
The opinion in the DeBlanc case is a lengthy one and is quite exhaustive on the subject which is the controlling question in the instant case. A long line of authorities are listed and discussed. It is said that where facts are such as would warrant prosecution on either swindling or theft, the indictment should be for theft, citing Articles 1413, 1545 and 1549, Vernon's Ann.P.C. It was further emphasized that prosecution should be for swindling only where the facts would not sustain conviction for theft, or conviction under some other provision of the penal code penalizing fraudulent acquisition of property. We do not know how to make it clearer or more emphatic but we do commend the DeBlanc opinion as being very clear and exhaustive on the subject. It will be followed in this case.
The argument complained of is: "It would have been a good thing for Gibbs or his counsel to have brought out anything about the check." The trial court declined to approve this bill as presented to him but attached thereto his qualification referring to the statement of facts and, directing attention to page 22 thereof, he says that during the oral argument to the jury one of the defendant's attorneys stated: "What became of the check Gibbs got for the cattle he sold in Mineral Wells: This money could have been applied on this sale."
The trial court viewed the state's argument as being in reply to the quoted argument by defense counsel. The bill was accepted with that qualification and appellant is bound by it.
No reversible error is presented by the record and the judgment of the trial court is affirmed.
On Appellant's Motion for Rehearing
WOODLEY, Judge.
Appellant suggests that, if our original disposition of his appeal stands, we make it "clear that the offense of swindling by check can be tried under a straight theft indictment."
It is well settled that the offense of theft by false pretext defined in Art. 1413, P.C., may be prosecuted under an indictment charging theft. See McCain v. State, 143 Tex. Crim. 521, 158 S.W.2d 796; Berg v. State, 2 White & W. 148; Hawkins v. State, 58 Tex. Crim. 407, 126 S.W. 268.
Any question as to the effect of our holding in DeBlanc v. State, cited in our original opinion, should be resolved by reference to Article 1549 P.C. as amended by Acts of the 48th Legislature, 1943, p. 362, Ch. 240, Sec. 1, Art. 1549 Vernon's Ann. P.C., which reads as follows:
"Where property, money, or other articles of value enumerated in the definition of swindling, are obtained in such manner that the acquisition thereof constitutes both swindling and some other offense, the party thus offending shall be amenable to prosecution at the state's election for swindling or for such other offense committed by him by the unlawful acquisition of said property in such manner."
*1004 The evidence being deemed sufficient to sustain conviction for theft by false pretext, it is immaterial that prosecution might have been successfully maintained for swindling.
The motion for rehearing is overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575052/ | 253 S.W.2d 985 (1952)
CENTRAL TRUCKAWAY SYSTEM, Inc.
v.
WALTNER (four cases).
Court of Appeals of Tennessee, Eastern Section.
July 15, 1952.
Certiorari Denied December 5, 1952.
*986 S.F. Dye, Knoxville, Ogle & Ogle, Sevierville, for plaintiff in error.
Fowler, Long & Fowler and Wm. W. Piper, Knoxville, for defendants in error.
Certiorari Denied by Supreme Court December 5, 1952.
HOWARD, Judge.
These consolidated tort actions grew out of an automobile accident which occurred on the Chapman Highway between Knoxville and Sevierville, about 5 miles west of Sevierville, on August 3, 1950, when the automobile owned and driven by the plaintiff, Homer N. Waltner, struck the balustrade of a bridge across the highway. Riding in the car with the plaintiff were his wife, Emma Mae Waltner, age 40, who was killed instantly, and their three minor daughters, Shirley Ann, age 17, who sustained minor *987 injuries, Marilyn, age 15, who sustained a broken hip as well as a brain concussion and cuts about the head and face, and Delores, age 7, who escaped uninjured. Waltner also sustained serious injuries, including a shattered right knee cap, a broken right arm above the elbow, and a brain concussion which greatly impaired his hearing. He further sustained numerous cuts and bruises about his face and other parts of his body, and the radial nerve which controls the muscles in his right hand was injured, limiting its use. At the time of the accident plaintiff and his family, residents of Canton, Ohio, were on a vacation trip to the Smoky Mountains.
Also involved in the accident was a large truck or automobile carrier 44 feet and 4 inches in length, owned by the defendant, Central Truckaway System, Inc., and driven by one of its employees, Henry C. Willis. This carrier was loaded with 4 new automobiles which were to be delivered to the Ford dealer at Sevierville. Both vehicles involved were traveling in an eastwardly direction, toward Sevierville. The accident occurred about 10:30 A.M. on a clear day, and at the time the pavement was dry. However, the grass on the shoulder of the road was still damp from a shower earlier that morning.
It appears that the concrete pavement of the highway over which the parties were traveling was 20 feet wide, and that the shoulder of the highway at or near the bridge where the accident occurred ranged in width from 4 to 8 feet, and was solid and flush with the pavement. The width of the bridge was 24 feet, 2 feet wider on each side than the pavement, and the concrete balustrades were about 3 feet high. The accident occurred on a straight portion of the highway estimated in length at approximately 1000 feet, while Waltner was attempting to pass the defendant's carrier. There was no contact between the two motor vehicles and the accident occurred when the left front of plaintiff's car struck the north balustrade of the bridge, completely demolishing the car. There was a white line in the center of the highway dividing the two lanes of traffic, with yellow lines on curves warning drivers not to attempt to pass other vehicles at such points. The yellow line on the west ended approximately 670 feet from the bridge and started again on the east 165 feet therefrom.
In case No. 1144, Waltner individually sued the defendant to recover damages for his personal injuries and medical and hospital expenses for himself as well as for his two daughters; also for the loss of his daughters' services, and for the damages to his automobile.
In case No. 1145, Waltner, in his own behalf and for the use and benefit of his three minor daughters, sued the defendant for the wrongful death of his wife and for the expenses incidental to her burial.
In cases Nos. 1146, and 1147, Waltner, as next friend of his two minor daughters, Shirley Ann and Marilyn, sued the defendant to recover damages for their injuries and suffering.
Each of the four declarations contains several counts, alleging in substance that the driver of the defendant's truck was negligently and carelessly operating said vehicle prior to and at the time of the accident; that after the plaintiff had sounded his horn and was in the act of passing said vehicle, the driver pulled the tractor part thereof to the left across the white line of the highway onto and into the left lane in front of plaintiff's car, forcing said car into the north balustrade of the bridge, resulting in the injuries and damages complained of; that prior to and at the time of the accident defendant's driver was driving recklessly in violation of Code Section 2681, and did not have said vehicle under proper control; that he drove to the left of the center of the highway without giving any signal of his intention to do so in violation of Code Section 2682, and that the defendant's vehicle prior to and at the time of the accident was being operated at a rate of speed in excess of 40 miles per hour in violation of Code Section 2682.1. All the foregoing Sections refer to Williams' Tennessee Code.
To each of the declarations the defendant interposed a plea of not guilty and filed special pleas in which it was admitted (1) *988 that the carrier belonged to the defendant and was on the defendant's business at the time of the accident, and (2) that the driver was an employee of the defendant. At the conclusion of all the evidence the defendant moved for peremptory instructions in all the cases, which motion was overruled, and the trial resulted in the following jury verdicts: $10,000 for Waltner; $12,000 for the death of his wife; $3,500 for Marilyn, and $1200 for Shirley Ann. Motion for a new trial in each of the cases was made and overruled, and this appeal was granted and perfected. No question is made below and none is made here that the verdicts were excessive.
By assignment 1 the defendant contends there was no evidence to support the verdicts, and that the trial court erred in refusing to direct a verdict for the defendant. While this question involves a review of the evidence, such review is only to determine whether there is any substantial evidence to support the verdicts. Under our decisions we are required to "take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict." D.M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W. (2d) 897, 901. Applying the foregoing rule to the facts as they appear in the instant case, we think there was ample evidence to support the verdict.
Reviewing the evidence, Waltner and his two daughters, Shirley Ann and Marilyn, testified that they overtook the defendant's carrier several minutes before the accident and followed it several miles without attempting to pass, because of the curves in the highway; that when they drove out of the curve more than 600 feet west of the bridge they saw that the road was straight for a considerable distance with no approaching traffic, and that Waltner, after sounding his horn, pulled to the left to pass; that when the car got alongside the carrier unit, about the middle, the defendant's driver pulled to the left without giving any warning, crossing over the white center line about 2 feet, forcing Waltner to drive the left side of his car off the pavement and onto the shoulder; that seeing this Waltner again sounded his horn, applied his brakes and slowed down the speed of his car; that after the horn was sounded the defendant's driver pulled back to his side of the road, and Waltner, believing that the driver had heard the horn proceeded in his efforts to pass; that as the car got alongside the cab of the tractor the defendant's driver again, and without warning, pulled sharply to the left across the center line in front of them; that this action by him blocked the highway and forced their car into the balustrade of the bridge. Waltner stated that when he first saw the bridge he was approximately 500 feet away and that in his efforts to get back onto the pavement, after being forced therefrom, his car slid sideways into the balustrade. He further stated that he was driving at a moderate rate of speed, was looking ahead, and estimated the speed of the defendant's truck at from 40 to 50 miles per hour. The two girls also stated that as they were attempting to pass the defendant's carrier just before being forced off the road, that the carrier got so close to their car they could have reached out the window and touched it.
The plaintiffs introduced two state highway patrolmen who arrived on the scene shortly after the accident, and from their investigation they testified that there were skid marks on the shoulder of the road extending from the bridge west to where the left wheels of the plaintiff's car left the pavement, a distance of approximately 116 feet, and that the grass on the shoulder was damp and slightly slippery because of a rain several hours previously. These patrolmen further stated that the left side of plaintiff's car struck the balustrade just behind the left front wheel, and that it looked like this wheel had knocked off a chunk of the concrete.
The defendant's driver testified that he never saw the plaintiff's car prior to the accident and denied that he forced it off the highway. He said that he only heard a short "beep" of plaintiff's horn which was simultaneously with the crash, and that plaintiff's car never did get alongside the cab of the tractor; that he did not know *989 plaintiff was following him until he heard the crash and then he looked in one of the rearview mirrors and saw what had happened; that he had previously pulled off the road and stopped, about two miles back, to permit other cars following him to pass in safety. He also denied that he was driving from 40 to 50 miles per hour, and estimated his speed at 30 to 35 miles.
The defendant introduced several witnesses who visited the scene of the accident. Some of these witnesses stated that plaintiff's car skidded as much as 195 feet before it struck the balustrade, and that the body of the car was torn loose from the frame.
As will be observed from the foregoing brief summary of the evidence, there were many conflicts to be reconciled by the jury. There was evidence from which the jury could find (1) that Waltner's car was traveling at a moderate rate of speed, and that he was keeping a proper lookout ahead; (2) that he was attempting to pass the defendant's vehicle at a place of safety; (3) that before starting to pass he sounded his horn; (4) that while he was in the act of passing the defendant's driver negligently drove to the left, forcing his car from the highway; (5) that defendant's driver was driving in excess of 40 miles per hour; (6) that he violated Code Section 2682 by not signaling his intentions; and (7) that his negligence was the proximate cause of the accident.
It is earnestly argued that the Court should have directed a verdict for the defendant in the case of Waltner individually, because of his contributory negligence in attempting to pass the defendant's carrier when he could see the bridge and the balustrade ahead; that had he not been driving at such a high rate of speed he could have stopped his car before striking the balustrade. It occurs to us that this was a question over which there was much controversy, and it was for the jury, under proper charge of the Court, to consider Waltner's contributory negligence, if any, along with the other controverted question. In numerous cases our Courts have held that where there is conflicting evidence, questions of negligence and contributory negligence are for the jury. Tubb v. Boyd, 13 Tenn. App. 432; Duling v. Burnett, 22 Tenn. App. 522, 124 S.W. (2d) 294; Patillo v. Gambill, 22 Tenn. App. 485, 124 S.W. (2d) 272; McBroom v. S.E. Greyhound Lines, Tenn. App., 193 S.W. (2d) 92; Campbell v. Campbell, Tenn. App., 199 S.W. (2d) 931. Likewise, questions of ordinary care and proximate cause. Southeastern Greyhound Lines v. Groves, 175 Tenn. 584, 136 S.W. (2d) 512, 127 A.L.R. 1378; Campbell v. Campbell, Tenn. App., 199 S.W. (2d) 931; Fields v. Gordon, Tenn. App., 203 S.W. (2d) 934.
Under the circumstances Waltner had a right to assume that the driver of the defendant's carrier would if he intended to turn to the left, give timely warning thereof. Gary v. Powell, 8 Tenn. C.C.A. 363.
By assignment 2 the defendant complains that the Court erred in refusing to direct a verdict on various portions of the declarations, particularly those alleging speed in excess of 40 miles per hour; that there was no proof to support these allegations. We find no merit in this assignment as Waltner estimated the speed of the carrier at from 40 to 50 miles per hour. Furthermore, this was not reversible error as there were other counts in the declarations supported by the material evidence. According to the record the jury returned general verdicts and the rule is well settled that a general verdict is not vitiated by the absence of proof on some counts of a declaration if there is evidence to sustain the averments of a single count. Code Section 8824. East Tennessee, V. & G.R. Co. v. Gurley, 80 Tenn. 46; Tennessee Cent. Ry. Co. v. Umenstetter, 155 Tenn. 235, 291 S.W. 452; Sledge & Norfleet v. Bondurant, 5 Tenn. App. 319; Allen v. Melton, 20 Tenn. App. 387, 99 S.W. (2d) 219; Taylor v. Cobble, 28 Tenn. App. 167, 168, 187 S.W. (2d) 648.
Under Assignment 3 the defendant contends that the trial court erred in permitting various doctors to testify for and on behalf of the plaintiff over seasonable objections as to consequences which might possibly arise, remain or develop or result from the respective injuries; that *990 said testimony was based on conjecture and bare possibilities rather than upon reasonable certainty and should have been excluded. We find no merit in this assignment as the evidence when offered was objected to by the defendant and the jury was told by the trial judge not to consider same unless supported by other competent testimony. In the absence of a showing to the contrary, we think that it may be assumed that the jury followed the court's instructions. Moreover, the error complained of was only an element of damages to be considered by the jury in reaching its verdict, and had no bearing on the determination of defendant's liability.
Assignment 4 complains of the action of the trial court in permitting plaintiffs to testify over objections that Waltner undertook to pass defendant's truck on two different occasions prior to his arriving at or near the bridge where the accident occurred, and to further testify that on each occasion the driver of the automobile sounded the horn, and that the defendant's driver, without signal or warning, steered the carrier to his left across the center line of the highway; that the above testimony did not conform with the allegations in the declarations. We find no merit in this assignment. The plaintiffs' declarations allege as follows:
"The defendant's vehicle was operated at a high and dangerous rate of speed, * * * and * * * when the plaintiff was about to pass * * * it suddenly and without warning was driven or permitted to pass across the center line of the highway and on to the half along which the plaintiff was planning to travel in passing such vehicle, so that the principal portion of the lefthand side of the above highway was occupied by defendant's tractor, * * * at a point where the tractor was about to enter upon a concrete bridge carrying the highway across a ravine, * * * thereby forcing the plaintiff to veer to the left suddenly to avoid a collision * * * and in an effort to avoid a collision the plaintiff's left wheels had to be driven upon the shoulder of the highway on the left side and in so doing the wet surface of the shoulder caused plaintiff's automobile to skid shortly before reaching the banister to the bridge."
The evidence showed that Waltner made only one attempt to pass the carrier, during which time the driver on two occasions drove to the left across the center line in front of him. Instead of Waltner making two or more attempts to pass as insisted, the proof indicated that only one continuous attempt was made. Therefore, we find no material variance between the evidence and the allegations contained in the declarations. Besides, our appellate courts are not permitted to reverse for error unless it affirmatively appears that the error complained of affected the results of the trial. Code Section 10654.
Assignment 5 complains of the Court's refusal to charge three requests, the substance of which is as follows: (1) that the mere happening of an accident does not create a presumption that the defendant was guilty of negligence; (2) that it was the duty of Waltner, the driver of the car, to be always on the lookout ahead, to keep his automobile under control, and if he failed in any of these duties which caused or proximately contributed to the accident, he could not recover; and (3) that it was the duty of Waltner to be careful and observant and to see and pay heed to all that came within the radius of his vision; that if he failed to see those things which were obvious and which an ordinary prudent person would have seen, and such failure proximately contributed to the accident, he could not recover.
We find no error in the court's refusal to give the foregoing requests, because the substance contained therein had already been amply covered in the general charge. To deny a special request, the substance of which has been covered in the general charge, is not error. Jones v. Noel, 30 Tenn. App. 184, 204 S.W. (2d) 336; Graham v. Cloar, 30 Tenn. App. 306, 205 S.W. (2d) 764; Spivey v. St. Thomas Hospital, 31 Tenn. App. 12, 211 S.W. (2d) 450; Carman v. Huff, 32 Tenn. App. 687, 227 S.W. (2d) 780.
*991 Finally, under assignment 6, the defendant contends that the verdict of the jury and the judgment of the court based thereon is contrary to the law and evidence, because the trial judge failed to exercise his duty as a thirteenth juror. No insistence is made that the Court did not approve the verdicts. This assignment is based upon the following statement of the trial judge made at the time of overruling each of the motions for a new trial:
"* * * The Court is of the opinion that said motion in each of these cases is not well taken and should be overruled and disallowed, though the Court would not have disturbed the jury verdict had it been for the defendant in these cases."
Because of the equivocal and confusing statement of the learned trial judge, this assignment has given us much concern. However, after carefully reviewing the authorities we have concluded that this assignment should be overruled.
The rule in this state is firmly established that the trial court shall exercise the function of a thirteenth juror upon hearing of a motion for a new trial; that it is his duty to weigh the evidence and independently determine therefrom whether or not it is sufficient to sustain the verdict. England v. Burt, 23 Tenn. 399; Illinois Cent. Railroad v. Brown, 96 Tenn. 559, 35 S.W. 560; Nashville, C. & St. L.R. Co. v. Neely, 102 Tenn. 700, 52 S.W. 167; Telephone & Telegraph Co. v. Smithwick, 112 Tenn. 463, 79 S.W. 803; Carter v. Pickwick Greyhound Lines, 166 Tenn. 200, 60 S.W. (2d) 421; State ex rel. Richardson v. Kenner, 172 Tenn. 34, 109 S.W. (2d) 95; Davis v. Mitchell, 27 Tenn. App. 182, 178 S.W. (2d) 889; Third National Bank v. American Equitable Ins. Co., 27 Tenn. App. 249, 178 S.W. (2d) 915. Sound reasons for the foregoing rule are stated in Telephone & Telegraph Co. v. Smithwick, supra [112 Tenn. 463, 79 S.W. 804], as follows:
"The reasons given for the rule are, in substance, that the circuit judge hears the testimony, just as the jury does, sees the witnesses, and observes their demeanor upon the witness stand; that, by his training and experience in the weighing of testimony, and the application of legal rules thereto, he is especially qualified for the correction of any errors into which the jury by inexperience may have fallen, whereby they have failed, in their verdict, to reach the justice and right of the case, under the testimony and the charge of the court; that, in our system, this is one of the functions the circuit judge possesses and should exercise as it were, that of a thirteenth juror. So it is said that he must be satisfied, as well as the jury; that it is his duty to weigh the evidence, and, if he is dissatisfied with the verdict of the jury, he should set it aside."
Where the trial judge sees fit to approve a verdict, without reasons, his satisfaction therewith is adequately indicated; but, if he comments thereupon, this court must determine from his observations whether or not he was satisfied with the verdict. Telephone & Telegraph Co. v. Smithwick, supra.
It appears from an analysis of the decisions on this subject that where it affirmatively appears that the trial court did not weigh the evidence and was not satisfied with the verdict, our only course is to reverse and remand for a new trial. State ex rel. Richardson v. Kenner, supra. In disposing of a similar question, the middle section of this court, in Third National Bank v. American Equitable Ins. Co., supra, said [27 Tenn. App. 249, 178 S.W. (2d) 922]:
"Certainly that sentence, read in its context, as it must be, does not show, as counsel contend, that the chancellor failed to weigh the evidence or was dissatisfied with the verdict. Nor does the following, on which counsel rely: `Under all the facts and circumstances in this case, the Court cannot set aside the finding of the jury on the evidence for any reason other than that the court might have reached a different conclusion from the evidence, had he been on the jury, and under *992 the authorities above quoted this would not be a proper course.'
"While this would seem a misappreciation of some of the authorities referred to above (but compare [Chattanooga Electric] Railroad Co. v. Finney, 105 Tenn. 648, 650, 48 [58] S.W. 540; Southeastern Greyhound Lines v. Clements, infra [Court of Appeals, unreported, filed May 25, 1940]), it does not show that the chancellor failed to perform his duty of weighing the evidence, or that he was not satisfied with the verdict. Especially is this true, in view of the other parts of the opinion appraising the evidence and pointing out why it preponderated in favor of the verdict. Considered with the rest of the opinion, this sentence is too equivocal and ambiguous to call for a reversal. More or less similar expressions of trial judges have been held no ground for reversal." (Citing numerous cases.)
Though the statement of the trial judge is ambiguous and superfluous, it does not affirmatively appear therefrom that he failed to perform his duties in the respects indicated, and, here again, the presumption is that he did.
It results that all assignments of error will be overruled and the judgments will be affirmed at defendant's costs.
McAmis, J., concurring.
Hale, J., dissenting.
Hale, Judge (dissenting).
As I understand appellate procedure it must affirmatively appear that the trial judge has approved the verdict of the jury before we can apply the material evidence rule.
In State ex rel. Richardson v. Kenner, 172 Tenn. 34, 109 S.W. (2d) 95, 96, there is approved the following statement, viz.:
"The case had passed from the jury, and had reached that state in which the judge must approve or disapprove the verdict; and, `in discharging that exclusive and independent duty, he must unavoidably determine for himself, after giving all due weight to the verdict of the jury, whether or not the evidence * * * was sufficient to sustain that verdict.'"
For the trial Judge to say that he would not have disturbed the Jury's verdict had it been for the defendants, indicates to my mind that the trial judge was controlled entirely by the verdict and that he did not exercise that exclusive and independent judgment required of him. In short, it was not the preponderance of the evidence but the action of the jury that was of sole importance.
I would reverse for this reason. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1005739/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-7039
YUESEYUAN CRUEL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-99-625, CA-01-708-6-20)
Submitted: October 10, 2001
Decided: October 22, 2001
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Yueseyuan Cruel, Appellant Pro Se. David Calhoun Stephens, Assis-
tant United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CRUEL
OPINION
PER CURIAM:
Yueseyuan Cruel appeals from the district court’s order denying
his motion filed under 28 U.S.C.A. § 2255 (West Supp. 2001). For the
reasons that follow, we grant a certificate of appealability and vacate
and remand for further proceedings.
In the district court below, Cruel made several allegations of error
including that his counsel was ineffective for failing to file a notice
of appeal from his conviction for uttering counterfeit securities. The
district court denied all of Cruel’s claims. The court found Cruel’s
claim that his attorney provided ineffective assistance by not filing a
notice of appeal failed because Cruel had not shown that he specifi-
cally asked his attorney to appeal. The court relied on United States
v. Peak, 992 F.2d 39, 42 (4th Cir. 1993), as authority for this finding.
When a client does not specifically instruct counsel to appeal,
whether counsel has been ineffective by failing to appeal depends
upon whether counsel consulted with the defendant. Roe v. Flores-
Ortega, 528 U.S. 470, 476-77 (2000); see also Hudson v. Hunt, 235
F.3d 892, 896-97 (4th Cir. 2000) (applying Roe and finding defen-
dant’s attorneys were constitutionally deficient for failing to consult
with defendant regarding an appeal). Thus, we vacate and remand this
appeal for the district court to conduct an analysis under Roe. We
deny Cruel’s motions for judgment, summary judgment, to expedite,
for bail pending appeal, to suppress evidence, and for a writ of man-
damus. We decline to address the other issues raised in this appeal.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1005743/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4226
OLOYEDE JOHNSON, a/k/a Johnson
Oloyede, a/k/a Little Black,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4227
WILLIAM M. PARROS, a/k/a B.J.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4228
ALFRED CHEESE, III, a/k/a Big
Cheese,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4271
CLARENCE HICKS, a/k/a Bunky,
Defendant-Appellant.
2 UNITED STATES v. JOHNSON
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4280
KENDALL SCHUYLER, a/k/a Sleepy,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4315
OWEN ROBINSON, a/k/a Heavy,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-98-259-L)
Submitted: August 31, 2001
Decided: November 2, 2001
Before NIEMEYER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
David P. Henninger, Bel Air, Maryland; Gerald D. Glass, Towson,
Maryland; Flynn M. Owens, Baltimore, Maryland; Michael D. Mon-
UNITED STATES v. JOHNSON 3
temarano, Baltimore, Maryland; Gary A. Ticknor, Baltimore, Mary-
land; G. Godwin Oyewole, Washington, D.C., for Appellants.
Stephen M. Schenning, United States Attorney, Robert R. Harding,
Assistant United States Attorney, Tarra DeShields, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Oloyede Johnson, William Parros, Alfred Cheese, Clarence Hicks,
Kendall Schuyler, and Owen Robinson were convicted on charges
related to their participation in a drug distribution ring operating in
Baltimore, Maryland. For the following reasons, we affirm their con-
victions, although we vacate the sentences imposed on Parros, Schuy-
ler and Robinson and remand as to those Appellants for re-sentencing.
I.
Appellants are former members of a drug trafficking conspiracy
based predominantly in the O’Donnell Heights area of southeast Bal-
timore. That conspiracy, captained by Antonio Howell, distributed
primarily cocaine base, but also sold powder cocaine, heroin, and
marijuana. At the height of the conspiracy, Appellants required
weekly trips to New York to obtain kilogram quantities of powder
cocaine, which they would cook into cocaine base, in order to supply
their operation. The volume and profit of the organization was
matched by its ruthlessness, however, as at least two individuals were
killed as part of the organization’s attempt to secure control over its
areas of distribution.
At trial, several members of the conspiracy testified against the
Appellants, including Howell and Michael Scales. At the conclusion
4 UNITED STATES v. JOHNSON
of the thirty-day trial, a jury convicted each Appellant of conspiring
to distribute a controlled substance in violation of 21 U.S.C.A.
§§ 846, 841 (West 1999 & Supp. 2001). Johnson was also convicted
of conspiring to murder and committing murder in aid of racketeering
activity in violation of 18 U.S.C.A. § 1959(a)(1), (5) (West 2000),
possessing cocaine base with intent to distribute in violation of 21
U.S.C.A. § 841 (West 1999 & Supp. 2001), possession of a firearm
by a felon in violation of 18 U.S.C.A. § 922(g) (West 2000), and use
of a firearm in a drug trafficking offense in violation of 18 U.S.C.A.
§ 924(c) (West 2000). Additionally, Cheese was also convicted of two
counts of possession of a firearm by a felon in violation of § 922(g),
Schuyler of carrying a firearm in connection with drug trafficking in
violation of § 924(c), and Robinson of possessing cocaine base with
intent to distribute in violation of § 841(a).
Although Appellants raise nine issues on appeal, collectively they
raise three challenges to their convictions on Count Three, charging
Appellants with conspiring to distribute controlled substances. As a
result of their convictions on Count Three, William Parros and Clar-
ence Hicks each received thirty-year sentences,1 and Johnson a ten-
year sentence. Cheese, Schuyler and Owen Robinson, however,
received life sentences. On appeal, Appellants contend that, in light
of the Supreme Court’s decision in Apprendi v. New Jersey,2 § 841 is
unconstitutional, and that their sentences were imposed in violation of
Apprendi’s requirement that "other than the fact of prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." 530 U.S. 466, 490.
II.
Because Appellants did not raise these challenges to their convic-
tions and sentences before the district court, they may only do so on
appeal if they can demonstrate plain error. See United States v. Angle,
254 F.3d 514, 517 (4th Cir. 2001) (citing Fed. R. Crim. P. 52(b);
1
Parros and Hicks were only convicted on Count Three of the second
superseding indictment.
2
530 U.S. 466 (2000).
UNITED STATES v. JOHNSON 5
United States v. Olano, 507 U.S. 725, 731-32 (1993)). Consequently,
in order to prevail on appeal Appellants must demonstrate that: 1)
their indictment does not include the specific threshold drug quanti-
ties necessary for conviction under the aggravated drug trafficking
offenses in § 841(b)(1)(A), (B);3 2) their resulting sentences are in
excess of the statutory maximum otherwise available under
§ 841(b)(1)(C); 3) sentencing in this manner affected their substantial
rights; and 4) this court should notice that error. See United States v.
Promise, 255 F.3d 150, 156-57, 160, 161 (4th Cir. 2001). We note as
a threshold matter that the Appellants’ indictment does not identify
the drug quantities involved.
A.
Initially, we reject Appellants’ challenge to the constitutionality of
§ 846 and § 841. In essence, Appellants argue that because courts uni-
formly treated the criteria in § 841(b) permitting enhanced maximum
sentences as sentencing factors prior to Apprendi, but have since iden-
tified those facts as elements of "aggravated drug trafficking
offenses," see, e.g., Promise, 255 F.3d at 152 n.1, Apprendi renders
§ 841 internally inconsistent, and thus unconstitutional. However,
because the sentencing factor label applied to the drug thresholds of
§ 841(b) is a purely judicial construct, the creation and use of which
followed the enactment of § 841, we find the reassignment of these
facts from sentencing factors to elements of the offense following
Apprendi is not of constitutional moment. See United States v. Cerno-
byl, 255 F.3d 1215, 1218-19 (10th Cir. 2001) (citing cases from the
Fifth, Seventh, and Eleventh Circuits dismissing constitutional chal-
lenges to § 841 in the wake of Apprendi); see also Promise, 255 F.3d
at 168-74 (Luttig, J. concurring) (arguing the constitutional rule of
Apprendi should not impact the statutory analysis of § 841).
B.
With respect to Appellants’ challenge to their sentences on Count
Three of the second superseding indictment, we find that Johnson and
Hicks cannot show their sentences exceeded the applicable statutory
3
See United States v. Promise, 255 F.3d 150, 152 n.1 (4th Cir. 2001).
6 UNITED STATES v. JOHNSON
maximums. Under § 841(b)(1)(C), a defendant whose indictment for
a violation of § 841(a) does not describe the quantities of drugs
involved may receive a sentence of twenty years upon conviction. As
a result, Johnson’s ten year sentence for his conviction under § 846,
which is punishable like a violation of § 841, does not give rise to an
error under Apprendi. See United States v. Angle, 254 F.3d 514, 518
(4th Cir. 2001).
Similarly, Hicks cannot demonstrate error with respect to his thirty-
year sentence as to Count Three, his single count of conviction.
Although the base statutory maximum of § 841(b)(1)(C) is twenty
years, that subparagraph permits a maximum of thirty years where the
defendant has one or more prior felony convictions. Here, the Gov-
ernment filed the required pre-trial information on January 8, 1999
indicating its intent to seek enhanced penalties under § 841(b) against
Hicks, Cheese, Schuyler, and Robinson in accordance with 21 U.S.C.
§ 851 (1994). Because § 841(b)(1)(C) authorizes a ten-year enhance-
ment based solely on a defendant’s prior felony convictions, and
Apprendi explicitly exempts prior convictions from its scope, 530
U.S. at 490, Hicks’ thirty-year sentence does not contain an Apprendi
defect. Accordingly, Johnson’s and Hicks’ convictions and sentences
do not implicate Apprendi as a threshold matter.
Although Parros, Cheese, Schuyler, and Robinson all received sen-
tences in excess of the maximum applicable to them under
§ 841(b)(1)(C), we find Cheese cannot satisfy the third prong of the
plain error inquiry, as his sentence does not affect his substantial
rights. Although Cheese’s life sentence on Count Three is erroneous,
because his offense level under the Sentencing Guidelines required a
mandatory life sentence, and he also received statutory-maximum life
sentences under § 924(e) for his firearms convictions, the error as to
Count Three did not expose him to a longer term of incarceration than
that to which he would otherwise be subject. See Angle, 254 F.3d at
518. As a result, Cheese cannot demonstrate the Apprendi error in his
sentence on Count Three affected his substantial rights.
Applying the plain error analysis to the remaining Appellants, Par-
ros, Schuyler, and Robinson, we find their sentences must be vacated
in light of Apprendi. The life sentences imposed on Schuyler and
Robinson are in excess of the thirty-year statutory maximum dis-
UNITED STATES v. JOHNSON 7
cussed above, demonstrating error that is plain. See Promise, 255 F.3d
at 156-57. Likewise, because the Government did not include Parros
in its pre-trial § 851 information, only the twenty-year maximum of
§ 841(b)(1)(C) was authorized as to him. See § 851. With respect to
the third prong of the plain error inquiry, we have found that a sen-
tence in excess of the authorized statutory maximum to which a
defendant would not otherwise be subject affects his substantial
rights. Id. Finally, we recently determined that where the sentence
imposed is defective due to a fatal error in the indictment, as is the
case here, this court should notice that error. United States v. Cotton,
261 F.3d 397, ___ (4th Cir. 2001). Accordingly, we vacate the sen-
tences imposed on Parros, Schuyler, and Robinson for Count Three,
as well as the life sentence imposed on Robinson for Count Four, and
remand to the district court for re-sentencing at or below the relevant
statutory maximums of § 841(b)(1)(C).4
In light of the foregoing consideration of the Appellants’ sentences
in light of Apprendi, we find their additional collective assignments
of error to be meritless. With respect to the application of the cross-
reference contained in § 2A1.1(d) of the United States Sentencing
Guidelines Manual (2000) in calculating their sentences, we have
found that Apprendi does not reach a judge’s determination as to facts
impacting the determination of a sentence, provided the resulting sen-
tence is within the statutory maximum authorized by the elements
charged in the indictment. Promise, 255 F.3d at 156 n.5; United
States v. Kinter, 235 F.3d 192, 202 (4th Cir. 2000). Additionally, to
the extent some Appellants challenge the use of their prior convic-
tions against them at sentencing, the Supreme Court in Apprendi rec-
ognized that while its decision was arguably in conceptual tension
with Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998)
(5-4 decision) (holding prior convictions constitute sentencing factors,
even if they increase the available statutory maximum), it nonetheless
stated that its resolution left the sui generis issue of recidivism
addressed in Almendarez-Torres undisturbed. See Apprendi, 530 U.S.
at 489-90. Accordingly, we find these additional assignments of error
on appeal to be meritless.
4
We note, however, that because Schuyler and Robinson have multiple
counts of conviction, on remand their sentences may be "stacked" in
accordance with United States v. White, 238 F.3d 537 (4th Cir. 2001).
8 UNITED STATES v. JOHNSON
III.
Appellants also raise several individualized assignments of error.
However, our careful review of each indicates that they do not under-
mine the validity of those Appellants’ convictions or sentences.
A.
On appeal, Johnson contends the district court erred in refusing
him the opportunity to explore transcripts of a state trial in which
Michael Scales, a Government witness against the Appellants, had
previously been accused of the murder that was the basis for Count
Sixteen of the instant indictment, charging both Johnson and Schuyler
with use of a firearm in relation to a drug trafficking crime in viola-
tion of § 924(c). Johnson contends that because Scales testified below
that the key witnesses at his state trial testified truthfully in exonerat-
ing him, and that their earlier statements were false, he should be per-
mitted to explore whether those witnesses’ earlier statements
(implicating both Scales and Schuyler) were false as Scales con-
tended, or were in fact true.
We find the district court did not abuse its discretion in denying
Johnson the opportunity to do so. See United States v. Brooks, 111
F.3d 365, 371 (4th Cir. 1997) (reviewing evidentiary decisions for
abuse of discretion, subject to harmless error review). Essentially,
Johnson sought to present testimony through the Scales’ trial tran-
script in order to support his defense theory that others were responsi-
ble for the murder in question. However, Johnson’s presence at the
murder scene was not ruled out by the witnesses’ earlier statements
against Scales, and the testimony offered by Scales and Howell in the
instant trial, that Johnson was the triggerman and was wounded dur-
ing an exchange of gunfire, was corroborated by evidence that John-
son sought treatment at an area hospital on the night in question for
a bullet wound. Moreover, the jury was presented with evidence that
Scales had been tried and acquitted of the murder in question, based
on the inconsistent statements of the key witnesses. As a result, we
find there was a sufficient independent basis for Johnson to both chal-
lenge Scales’ credibility and raise the possibility that others were
responsible for the murder in question.
UNITED STATES v. JOHNSON 9
Johnson next argues the district court erred in denying his motion
for severance. Because there is a presumption that co-defendants
indicted together will be tried together, see Fed. R. Crim. P. 14, we
will only reverse a district court’s decision not to sever co-defendants
if it is so unfairly prejudicial that a miscarriage of justice would
result, United States v. Williams, 10 F.3d 1070, 1080 (4th Cir. 1993),
and thus we find that it abused its discretion in failing to sever. See
United States v. Smith, 44 F.3d 1259, 1267 (4th Cir. 1995). However,
because we find Johnson’s allegations on appeal indicate only that the
district court’s decision made his defense more difficult, United States
v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984) (internal citations
omitted), we find this assignment of error unavailing as well.
B.
Cheese offers two related assignments of error, which we find to
be meritless. First, Cheese claims the district court erred in failing to
suppress evidence seized from his vehicle based on information the
Government obtained from a confidential source, inasmuch as that
information failed to provide probable cause that his vehicle consti-
tuted forfeitable contraband, and was thus subject to a warrantless
search. Our review of the pre-trial suppression hearing indicates the
Government provided the district court with evidence both corrobo-
rating the source’s statement and confirming its reliability as required
by Illinois v. Gates, 462 U.S. 213, 233-34 (1983).5 Accordingly, we
find the district court’s suppression determination is not erroneous.
Similarly, we find the district court did not err in declining to sup-
press evidence seized during the subsequent search of 1215 Sugar-
wood, a residence to which Cheese was linked through utility bills for
that address seized from his vehicle. On appeal, Cheese contends that
the items sought in the search warrant for that property could not rea-
sonably have been expected to be found there. However, contrary to
Cheese’s assertion on appeal, the schedule of items sought included
5
In particular, the Government substantiated the source’s track record
for reliability and the fact that Cheese had previously been stopped with
a firearm and large sum of cash, the hallmarks of drug trafficking, see
United States v. Kennedy, 32 F.3d 876, 882-83 (4th Cir. 1994); United
States v. Thomas, 913 F.2d 1111, 1115 (4th Cir. 1990), in the vehicle.
10 UNITED STATES v. JOHNSON
indicia of ownership or occupancy, including items linking Cheese to
the residence. Accordingly, we find this assignment of error to be
meritless as well.
C.
Finally, Parros offers two challenges to his thirty-year custodial
sentence as to Count Three, his only count of conviction. Essentially,
Parros contends the district court’s decision not to adjust the computa-
tion of his offense level to reflect his relatively minor role in the con-
spiracy constitutes clear error, and that the district court misperceived
its authority to depart downward from the resulting sentencing range.
We disagree.
As a preliminary matter, this Court reviews denials of a downward
adjustment to a defendant’s offense level for clear error. See United
States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001). Here, the record
supports the district court’s conclusion that while Parros was indeed
the least involved defendant at trial, his role, although limited, was
not commensurate with a minor role as contemplated by USSG
§ 3B1.2. Accordingly, we decline to disturb Parros’ sentence on that
basis.
We also reject Parros’ challenge to the district court’s conclusion
that a downward departure was not authorized. We need not resolve
here whether a jury’s recommendation for leniency can even serve as
a basis for a downward departure under the Sentencing Guidelines.
Compare United States v. Mickens, 977 F.2d 69, 73 (2nd Cir. 1992)
(concluding a downward departure is permissible), with United States
v. Rose, 20 F.3d 367, 374 n.6 (9th Cir. 1994) (stating a downward
departure is not permitted), and United States v. Dorvil, 784 F. Supp.
849, 853 (S.D. Fla. 1991) (concluding a downward departure is not
permitted). Under the circumstances of this case, the district court’s
conclusion that Parros’ role in the offense made him ineligible for a
downward adjustment under § 3B1.2 disqualified Parros for a down-
ward departure under § 5K2.0 based upon that same factor. See Koon
v. United States, 518 U.S. 81, 94-95 (1996) (even an encouraged fac-
tor is not appropriate basis for departure if applicable guideline has
taken it into account).
UNITED STATES v. JOHNSON 11
IV.
In light of the foregoing, we affirm the Appellants’ convictions, but
vacate the sentences imposed on Parros, Schuyler, and Robinson, and
remand those Appellants for re-sentencing consistent with this opin-
ion. Additionally, while we grant Hicks’ motion to file a pro se sup-
plemental brief, we deny relief on the claims raised therein as meritless.6
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
6
In that brief, Hicks argues 21 U.S.C.A. § 844 (West 1999) provides
the appropriate penalty provision where drug quantity is not charged in
the indictment. However, we have previously stated § 841 provides the
penalty provisions for violations of § 846. See Promise, 255 F.3d at 153
n.3. Hicks further argues the appropriate statutory maximum against
which to make the Apprendi inquiry is provided by the Sentencing
Guidelines. However, we find this argument meritless. See Kinter, 235
F.3d at 201. | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575105/ | 17 So.3d 705 (2009)
JOHNSON
v.
STATE.
No. SC08-418.
Supreme Court of Florida.
October 2, 2009.
Decision without published opinion review granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575129/ | 281 F.Supp. 998 (1968)
Marshall William DAVIS, an infant by his father and next friend, William Davis, William Davis and Donna McAllister Parks, Complainants,
v.
NATIONAL GRANGE INSURANCE COMPANY, Defendant.
Civ. A. No. 6413.
United States District Court E. D. Virginia, Norfolk Division.
February 15, 1968.
William E. Fears and Wescott E. Northam, Accomac, Va., for plaintiffs Davis, infant, and Davis.
C. Lester Drummond, Accomac, Va., for plaintiff, Parks.
William King Mapp, Keller, Va., Walkley E. Johnson, Jr., Norfolk, Va., for defendant.
MEMORANDUM ORDER
KELLAM, District Judge.
Marshall William Davis, hereafter called Marshall, an infant by his father, William Davis, and William Davis, hereafter called William, recovered judgments against Donna McAllister Parks for $25,000.00 and $1,077.00, respectively, with court costs, by reason of injuries suffered by Marshall as a result of the negligent operation of an automobile by Parks. William's judgment was for sums expended by him for his son, Marshall, for medical attention. After recovery of the judgment, National Grange Mutual Insurance Company, the liability insurance carrier on the car operated by Parks, paid $15,000.00 on Marshall's judgment, alleging such sum to the limits of the policy issued by it.
On October 19, 1967, this suit was filed against defendant alleging, among other things, that execution had been issued on said judgment and a return made by the Sheriff of Accomack County on August 16, 1967, marked "No goods found." The complaint further alleges that following the accident and injury, and prior to obtaining said judgments, in negotiations with defendant, the Davises offered to compromise and settle said claims within the alleged limits *999 of said policy, but that defendant in bad faith failed to advise or consult with Parks concerning the said offers or with reference to her responsibility, and otherwise acted in bad faith. As a result thereof, plaintiffs have been damaged. Defendant filed a motion to dismiss (1) for failure to state a cause of action upon which relief could be granted, and (2) that as to William the Court lacked jurisdiction because of the amount in controversy.
Defendant's contention is that (1) the Davises cannot maintain this suit because no tort has been committed against them, and that (2) Parks has not paid the judgment and has suffered no damage because the Officer's return on the execution issued against her returned "No goods found", shows she owns no property and therefore has suffered no damages. These questions will be dealt with in inverse order.
Execution was issued on the judgments obtained by the Davises and placed in the hands of the Sheriff of Accomack County to be levied. It was returned marked "No goods found." However, this does not show Parks does not own real or personal property. By the terms of § 8-411 of the Code of Virginia, 1950, as amended, the execution (writ of fieri facias) may be levied on the current money and bank notes, and on "the goods and chattels" of the judgment debtor. Jurisdiction of the sheriff to make such a levy is in his own county, in this case, Accomack County. Section 15.1-79, Code of Virginia, 1950, as amended. Likewise, the execution cannot be levied on real estate.[1] Parks may own money and notes, and goods and chattels in other locations than Accomack, and may own real estate in Accomack as well as elsewhere. Hence, there is no merit to this contention.[2]
Turning to the next question, defendant says the action sounds in tort, and that no tort has been committed against the Davises; that if any tort has been committed, it is against Parks only, and that the Davises cannot maintain the action; that inasmuch as Parks has not paid anything on the judgment, and does not own property out of which the judgments can be collected, she has suffered no damage and cannot maintain the suit.
In a proper case liability may be imposed upon an insurer for excess judgment against an insured for failure to settle within the policy limits.[3] Some courts have imposed liability upon the grounds of negligence,[4] others have adopted the good faith test.[5] As to who is a proper plaintiff in such action, there is likewise a difference of opinion.[6] Some authorities hold that only the insured may maintain the suit,[7] while others hold the injured party may maintain *1000 the suit directly against the Company.[8] Under the early common law, the injured party had no cause of action against the insurance company because of lack of privity. Today in Virginia anyone injured by the negligence of the insured under the policy is a beneficiary of the policy.[9] Sections 38.1-380 and 38.1-381 of the Code of Virginia, 1950, as amended, were enacted for the benefit of the injured party and are to be liberally construed. Section 38.1-380 makes a part of every policy issued in Virginia a provision that the insolvency or bankruptcy of the insured "shall not relieve the insurer of any of its obligations under the policy or contract," and further, that if an execution on a judgment against the insured is returned unsatisfied, "then an action may be maintained against the insurer under the terms of the policy or contract" for the amount of the judgment, but not to exceed the "amount of the applicable limits of coverage under the policy."[10] The question at once arises whether the language last quoted means the figure limit named in the policy, or whether it means the amount for which the company could be held liable for failure to exercise good faith in handling and disposing of actions against the insured. If it means only the figure limit, then the action cannot be maintained by the insured. If it applies to the injured person, it must apply to the insured. We know it does not prohibit the insured from maintaining an action against the company for bad faith conduct. Another question is, does the action against the insurer sound in tort or contract? In any event, it grows out of the contract of insurance. If the injured party is a beneficiary under the contract of insurance and the policy is made for his benefit,[11] then he should be entitled to maintain an action in his own name for a breach of that contract. Section 55-22 of the Code of Virginia, 1950, as amended, in part, provides that "if a covenant or promise be made for the benefit, in whole or in part, of a person with whom it is not made, * * * such person, whether named in the instrument or not, may maintain in his own name any action thereon which he might maintain in case it had been made with him only * * *." Since the injured party is a beneficiary under the policy,[12] and it was made for his benefit,[13] it would seem the injured party is intended by the language of Section 55-22 of the Code of Virginia, 1950, as amended, as one entitled to maintain the action in his own name.[14] In Comunale v. Traders & General Insurance Co., 50 Cal.2d 654, 328 P.2d 198, 68 A.L.R.2d 883, the Court held that an action for damages in excess of the policy limits based on an insurer's wrongful failure to settle is assignable, whether considered as sounding in tort or in contract, and the insured may assign his right to sue to the injured party.
In the case at bar both the injured and the insured are parties plaintiff. Since Parks has not yet paid any sum on account of the judgment and does not allege she is being threatened with injury on account of said judgment, and any recovery will be for the benefit of the Davises, it does not appear any *1001 injustice or inconvenience can be caused by permitting the suit to continue as it is. Amending the pleadings to show that the action should proceed in the name of Parks for the benefit of the Davises does not appear to be necessary.
The motion is, therefore, denied.
NOTES
[1] Section 8-411, Code of Virginia, 1950, as amended; Clark v. Allen, D.C., 117 F. 699; Allen v. Clark, 4 Cir., 126 F. 738.
[2] Payment of judgment not a prerequisite to right of insured to bring suit. Gaskill v. Preferred etc., D.C., 251 F.Supp. 66, affirmed 4 Cir., 371 F.2d 792; Jessen v. O'Daniel, D.C., 210 F.Supp. 317, affirmed National Farmers Union Property & Cas. Co. v. O'Daniel, 9 Cir., 329 F.2d 60; Chitty v. State Farm Mutual Auto. Ins. Co., D.C., 38 F.R.D. 37; Smoot v. State Farm Mutual Auto. Ins. Co., 5 Cir., 299 F.2d 525; Southern Farm Bureau, Cas. Ins. Co. v. Mitchell, 8 Cir., 312 F.2d 485; National Farmers Union Property & Cas. Co. v. O'Daniel, 9 Cir., 329 F.2d 60.
[3] Aetna Casualty & Surety Co. v. Price, 206 Va. 749, 146 S.E.2d 220; 29 Am. Jur., Insurance § 1444 p. 556; 45 C.J.S. Insurance § 936, p. 1067; 7A Appleman, Insurance Law & Practice § 4711 p. 551 FF; Abernethy v. Utica Mutual Ins. Co., 4 Cir., 373 F.2d 565; State Farm Mutual Auto. Ins. Co. v. Jackson, 8 Cir., 346 F. 2d 484; Detenber v. American etc., 6 Cir., 372 F.2d 50.
[4] Annotation, Duty of Liability Insurer to Settle or Compromise, 40 A.L.R.2d 168.
[5] Id.; Aetna Casualty & Surety Co. v. Price, 206 Va. 749, 146 S.E.2d 220; Radio Taxi Service, Inc. v. Lincoln Mutual Ins. Co., 31 N.J. 299, 157 A.2d 319.
[6] 40 A.L.R.2d 195; 29A Am.Jur.Insurance, § 1447, p. 562.
[7] Id.
[8] Id.
[9] Storm v. Nationwide Mutual Insurance Co., 199 Va. 130, 97 S.E.2d 759, 764, 69 A.L.R.2d 849.
[10] The policy is not before the Court. But the statute provides that the policy must include terms at least as favorable as those set out in the statute.
[11] Storm v. Nationwide Mutual Insurance Co., 199 Va. 130, 97 S.E.2d 759, 69 A. L.R.2d 849.
[12] Storm v. Nationwide Mutual Insurance Co., 199 Va. 130, 97 S.E.2d 759.
[13] Aetna Casualty & Surety Co. v. Anderson, 200 Va. 385, 105 S.E.2d 869; Liberty Mutual Ins. Co. v. Venable, 194 Va. 357, 73 S.E.2d 366; Liberty Mutual Ins. Co. v. Tiller, 189 Va. 544, 53 S.E.2d 814.
[14] Horney v. Mason, 184 Va. 253, 35 S.E. 2d 78. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575146/ | 458 S.W.2d 945 (1970)
O. M. JOBE, Jr., et al., Appellants,
v.
Olan E. WATKINS et al., Appellees.
No. 17146.
Court of Civil Appeals of Texas, Fort Worth.
September 25, 1970.
Rehearing Denied October 30, 1970.
Lattimore & Lattimore, and Hal M. Lattimore, Fort Worth, for O. M. Jobe, Jr. and John W. Templer.
Shannon, Gracey, Ratliff & Miller, and Sam Rosen, Fort Worth, for Glenn C. McGouirk and Julian S. Haber.
Davis, Callaway & Marshall, and Clyde M. Marshall, Jr., Fort Worth, for appellees.
OPINION
BREWSTER, Justice.
This is an appeal from an order that granted a temporary injunction against Dr. Glenn C. McGouirk, Dr. Julian S. Haber, Orville M. Jobe, Jr., and John W. Templer.
The case involves Lots 7, 8, 9 and 10 in Wedgwood Addition to Fort Worth, Tarrant County, Texas. Dr. McGouirk owns Lot 7. Dr. Haber owns Lot 8, and Jobe and Templer together own Lots 9 and 10. These people were all deeded their lots on *946 January 3, 1970, by the West Texas District Church of the Nazarene.
E. L. Baker owned these lots at the time he dedicated them and some neighboring land as a part of Wedgwood Addition to Fort Worth on August 4, 1955. By the dedication he restricted these four lots to residential use only, providing that no building other than single family dwellings could be erected thereon and that no trailer or structure of a temporary character could ever be placed on such lots.
In September, 1969, Dr. McGouirk and Dr. Haber entered into sales contracts with Jobe and Templer by which McGouirk agreed to buy Lot 7 and Haber agreed to buy Lot 8, conditioned that the above referred to restrictions were removed so that dental offices and medical clinics could be constructed and operated on these lots.
Jobe and Templer, apparently, at that time had a contract to buy these lots from the Church if these restrictions could be removed.
To accomplish this, Jobe and Templer, as plaintiffs, brought a class suit in which all defendants named therein were owners of lots located in the area that was dedicated in E. L. Baker's dedication of August 4, 1955, which area also included the four lots in question. These defendants were sued individually and as representatives of all people who owned interests in land included in the land area that was the subject matter of that dedication.
No defendant contested Jobe and Templer's suit. This resulted in the trial court, on November 18, 1969, rendering a default declaratory judgment against all defendants sued, individually and as representatives of all property owners and mortgagees of property located in the part of Wedgwood Addition that was covered by these restrictions. The decree was to the effect that all restrictions imposed by E. L. Baker on Lots 7, 8, 9 and 10, Block 30 of Wedgwood Addition, in the dedication and plat that he signed on August 4, 1955, be cancelled and that the owners of such lots and their successors can use them free of such restrictions.
This judgment was allowed to become final. The Church then, on January 3, 1970, deeded to McGouirk Lot 7, to Haber Lot 8 and to Jobe and Templer Lots 9 and 10, all in Block 30.
In February, 1970, there was placed on one of these lots a sign reading as follows: "Medical Centerstarting soon Suites availableCall Glenn C. McGouirk WA3-2335 or WA3-1237."
When this sign appeared, Olan E. Watkins, and wife, Lynda Lee Watkins, and Gayle Y. Waska joined as plaintiffs in filing a bill of review in the case wherein the judgment was rendered that cancelled the restrictions. These people had not been named as defendants in the case and alleged that they knew nothing about it until the sign was placed on the lot.
Mr. and Mrs. Watkins are owners of Lot 10, Block 29, Wedgwood Addition. This lot was across the street from the McGouirk lot and was a part of the property that was dedicated in the instrument that dedicated Lots 7, 8, 9 and 10 of Block 30 on August 4, 1955.
Mrs. Waska owned Lot 3, Block 30 of Wedgwood Addition. This lot backed up to and joined Lot 9 from the rear and was in the immediate vicinity of the other three lots. However, Mrs. Waska's lot was not a part of the property covered by E. L. Baker's dedication of August 4, 1955. Her lot was not dedicated by the same instrument that dedicated the four lots in question and that imposed the restrictions in question on Lots 7, 8, 9 and 10 in Block 30.
In mid-April, 1970, Dr. McGouirk moved a mobile home trailer onto his lot. He intended to temporarily conduct his dental practice in this building until he could complete a building on his lot for that purpose.
*947 On April 17, 1970, Mrs. Waska, one of the plaintiffs in the bill of review, independent of the other two plaintiffs in the bill of review, filed in that case an application for a temporary injunction against Dr. McGouirk, Dr. Haber, Orville Jobe, Jr., and John W. Templer.
A hearing was held and the trial court granted a temporary injunction against all four such persons, enjoining them from doing any act in furtherance of the erection of a building on Lots 7, 8, 9 and 10 of Block 30, Wedgwood Addition, and from using any of said lots for other than residential purposes. Dr. McGouirk was mandatorily required to remove the mobile home from his Lot 7. The order required Mrs. Waska to post $2,500.00 bond payable to defendants, before the clerk would issue the injunction.
All four defendants have appealed.
Mrs. Waska contends that she filed the application for temporary injunction on behalf of all plaintiffs and she and Mr. Watkins contend that his oral request, while testifying, that the court grant the injunction was sufficient to make him an applicant for the injunction. We overrule both these contentions.
The question of who was the applicant for the temporary injunction in this case is material on the question of whether or not the applicant for the injunction in question had a justiciable interest in the matter being litigated. Mr. and Mrs. Watkins owned a lot located in the land area that was the subject matter of the dedication when the four lots in question were dedicated on August 4, 1955, by E. L. Baker. Mrs. Waska did not own such a lot.
The plaintiffs, Mr. and Mrs. Watkins, did not join in the application for the temporary injunction. He testified at the hearing that he was out of town when it was filed but at the hearing he orally requested that a temporary injunction be granted.
Rule 682, Texas Rules of Civil Procedure, requires that one applying for an injunction put his application in writing and swear to it. Mr. and Mrs. Watkins did not do this. Only Mrs. Waska complied with that rule and her application purports to act only for her. An oral application for temporary injunction is insufficient in a case such as this.
Rule 684, T.R.C.P., provides in substance that before issuance of a temporary injunction the applicant shall execute and file with the clerk a bond payable to the adverse parties in an amount to be set by the court. This bond is for protection of those enjoined in case the injunction is wrongfully issued. Only Mrs. Waska purported to comply with this rule. Neither Mr. or Mrs. Watkins signed the bond, as the rule requires applicants for injunctions to do, and thus gave no security to appellants in connection with the issuance of the injunction.
We hold that under these circumstances neither Mr. or Mrs. Watkins were "applicants" for the temporary injunction involved here. Mrs. Waska was the sole applicant in the eyes of the law for this temporary injunction.
By their point 3 defendants contend that the trial judge erred in granting a temporary injunction to the plaintiff, Gayle Waska, because she was not privy to the restrictions and owned no interest in real estate that entitled her to enforce the restrictions against Lots 7, 8, 9 and 10, Block 30.
By their points 6 and 7 defendants urge error by the trial court in granting the injunction because Mrs. Waska's evidence was insufficient and failed to establish that she had any probable right of recovery.
We sustain these 3 points. Such action requires a reversal of the case.
It is elementary that the burden was on Mrs. Waska, who applied for the temporary injunction, to prove at the hearing facts that would entitle her to such injunction. *948 31 Tex.Jur.2d 264, Injunctions, Sec. 150.
She was not required to prove that she would prevail at the final hearing, but was required to prove a prima facie case of a probable right to recover at the trial on the merits. 31 Tex.Jur.2d 264, Injunctions, Sec. 150.
A trial judge abuses his discretion in granting a temporary injunction in a case where the evidence fails to establish a reasonable basis for deciding that the applicant has a probable right of recovery. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961).
One element of Mrs. Waska's cause of action necessary to be proved at the temporary injunction hearing was that she was a member of that group of people who were entitled to have restrictions against the lots in question enforced. (Just everybody cannot successfully insist that restrictions against realty be enforced.) Russell Realty Co. v. Hall, 233 S.W. 996 (Dallas, Tex.Civ.App., 1921, writ dism.), and Moody v. City of University Park, 278 S.W.2d 912, 923 (Dallas, Tex.Civ.App., 1955, ref. n. r. e.).
"In every case where parties seek to enforce a restrictive covenant, the burden of proof is upon them to establish that the covenant was imposed on the land for the benefit of land owned by them." Brehmer v. City of Kerrville, 320 S.W.2d 193 (San Antonio Tex.Civ.App., 1959, no writ hist.).
Mrs. Waska did not meet this burden at the hearing. No proof whatever was offered showing the history of the dedication of her lot, the ownership of it when it was dedicated and whether or not it was restricted in any way. Her lot was not a part of the land covered by the August 4, 1955 dedication by which the four lots in question were dedicated and restricted.
The record does show that she owns Lot 3, of Block 30 of Wedgwood Addition, but no proof whatever was offered which in any way tended to prove that she is a member of a class of people for whose benefit E. L. Baker originally placed the restrictions in question on Lots 7, 8, 9 and 10 of Block 30.
No effort was made at the hearing to prove that those four lots were restricted by E. L. Baker for the benefit of land that Mrs. Waska now owns. The record does not show that Baker ever owned her Lot 3 of Block 30.
With the evidence offered at the hearing being in this state, Mrs. Waska's status here is analogous to that of an owner of a lot located in one addition who is seeking to stop the owner of a neighboring lot that is located in another addition from violating restrictions covering this latter lot.
The law is that property owners in one subdivision of an addition have no standing in court to enforce deed restrictions imposed on property located in a separate and distinct subdivition. See Russell Realty Co. v. Hall, supra; Moody v. City of University Park, supra; and Wald v. West MacGregor Protective Association, 332 S.W.2d 338 (Houston, Tex.Civ.App., 1960, ref., n. r. e.).
For the reasons above stated, Mrs. Waska failed to prove a prima facie case at the hearing showing that she had a probable right to recover on the merits. From the proof made it actually appears that Mrs. Waska has no justiciable interest in the matter being litigated and therefore that she probably could not prevail on the merits.
It follows that the trial court erred in granting a temporary injunction in this case on the application of Mrs. Waska.
The other points become immaterial in view of this holding.
The case is reversed and remanded. Costs of the appeal are taxed against Mrs. Waska. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575203/ | 458 S.W.2d 637 (1970)
James DOYLE, Appellant,
v.
STATE of Tennessee, Appellee.
Court of Criminal Appeals of Tennessee.
February 11, 1970.
Certiorari Denied April 20, 1970.
*638 Hugh W. Stanton, Jr., and John P. Colton, Jr., Memphis, for appellant.
David M. Pack, Atty. Gen., Thos. E. Fox, Deputy Atty. Gen., Nashville, Phil M. Canale, Jr., Dist. Atty. Gen., Eugene C. Gaerig, Asst. Dist. Atty. Gen., Memphis, for appellee.
Certiorari Denied by Supreme Court April 20, 1970.
OPINION
RUSSELL, Judge.
James Doyle appeals from the dismissal of his petition for post conviction relief without an evidentiary hearing. The petition is lacking in allegations about the actual conviction, stating only that it was for murder in the first degree. He seeks a new trial because of (1) the alleged insufficiency of the evidence, and (2) alleged prejudice to him from the alleged systematic exclusion of Negroes from the grand and petit juries which dealt with his case.
The actual pleadings tell us no more about the case, because the State of Tennessee did not reach the point precedurally of having to file an answer. The State's motion to strike was sustained.
The Public Defender raises the question, on appeal, of the absence in the record of any authority for the holding of the petitioner, "as is required by Ussery v. Avery, ___ Tenn. ___; 432 S.W.2d 656 (1968)". This holding is not applicable for a number of reasons. First, Ussery dealt with a petition brought under our Habeas Corpus statutes, T.C.A. § 23-1801 et seq. This petition specifically sought relief under the Post Conviction Procedure Act, T. C.A. § 40-3801 et seq. A petition so brought does not fall within the holding of Ussery. The requirements relative to the State's answer in a proceeding such as this are governed by T.C.A. § 40-3814. We would note that in this case T.C.A. § 40-3804 dealing with the prescribed contents of a post conviction relief petition were not complied with. As we see it, there was no mandatory requirement upon the State to comply with Ussery in this case, even if an answer had been procedurally called for. See Trolinger v. Russell, Tenn.Cr.App., 446 S.W.2d 538. In the case sub judice, the question of proper answer content was never reached, because the petition was struck upon motion.
We must look to a prior proceeding by Doyle for our background information. We may, of course, take judicial notice of prior proceedings by the same petitioner. State ex rel Wilkerson v. Bomar, 213 Tenn. 499, 376 S.W.2d 451. We find that a previous habeas corpus petition was finally disposed of by our Supreme Court in a reported case styled State ex rel. Doyle v. Henderson, Warden, reported in 221 Tenn. 156, 425 S.W.2d 593. In that case it appeared that Doyle had been tried and convicted of first degree murder and sentenced to 99 years in the penitentiary. He was indigent then, as now; and contended that he had been deprived of his constitutional right to an appeal. It appeared that no evidence was introduced on behalf of Doyle. After he was sentenced, the trial judge asked in open court it he desired to appeal and his counsel replied negatively. Our Supreme Court held, under the facts of the case, that this effectively waived his right to appeal.
This, in turn, disposes of the first question before us. The sufficiency of the evidence for conviction is a question to be disposed of on appeal. Here, his appeal was waived. He may not now use a petition for post-conviction relief as a substitute for an appeal. Habeas corpus and post-conviction proceedings may not be employed to question or review or test the sufficiency of the evidence at the original trial. 39 C.J.S. Habeas Corpus § 29(J), p. 518. Fernandez v. Klinger, 346 F.2d 210 (9th Cir. 1965), cert. den. 382 U.S. 895, 86 S.Ct. 191, 15 L.Ed.2d 152. Nor may same be used to determine the question of guilt or innocence. State ex rel. Brown v. Newell, 216 *639 Tenn. 284, 391 S.W.2d 667; State ex rel. Dickens v. Bomar, 214 Tenn. 493, 381 S.W. 2d 287.
We now reach the final question raised by this appeal; i. e., does the allegation of systematic exclusion of Negroes from jury service require an evidentiary hearing. The State's brief is grounded upon the premise that the conviction was upon a plea of guilty, but this was not the case.
We hold, however, that his right to raise this question was waived when it was not raised upon the trial by motion or plea in abatement prior to his pleading to the indictment. Discrimination in the composition of venires has long been condemned in Tennessee. See Zanone v. State, 97 Tenn. 101, 36 S.W. 711. It has also been held in Tennessee, in a long line of cases, that unless a defendant objects by motion or plea in abatement to the venire before he pleads to the indictment he cannot thereafter avail himself of a claim that the venire was improperly composed. State v. Cole, 28 Tenn. 626; McTigue v. State, 63 Tenn. 313; Turner v. State, 89 Tenn. 547, 15 S.W. 838; Ellis v. State, 92 Tenn. 85, 20 S.W. 500. See also State ex rel. Lawrence v. Henderson, Tenn.Cr.App., 433 S.W.2d 96. We do not believe that one should be permitted to raise a question in a post conviction proceeding that was waived by failure upon the trial, by design or otherwise, to timely raise it when our procedural law prescribes that it should be raised. To permit this type procedure would make a sham of the trial itself. A defendant would not raise such questions upon the trial in the hope that he would be acquitted, but with the assurance that he could avail himself of the complaint post conviction to obtain a new trial. We hold that this question was disposed of upon the trial adversely to Doyle when it was not then raised. We are not dealing with a constitutional principle newly announced since his trial, but a right well recognized and protected at that time.
The judgment of the trial court is affirmed.
HYDER and MITCHELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575205/ | 308 S.W.3d 14 (2010)
David Stuart BISHOP, Appellant,
v.
The STATE of Texas, Appellee.
No. 04-08-00693-CR.
Court of Appeals of Texas, San Antonio.
December 16, 2009.
Discretionary Review Refused April 28, 2010.
*15 Patrick Barry Montgomery, Attorney at Law, San Antonio, TX, for Appellant.
Susan D. Reed, Criminal District Attorney, San Antonio, TX, for Appellee.
Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
OPINION
Opinion by: PHYLIS J. SPEEDLIN, Justice.
David Bishop appeals the trial court's judgment convicting him of possession with intent to deliver methamphetamine in an amount greater than four grams and less than two hundred grams. We affirm the trial court's judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On February 8, 2007, David Bishop was driving an automobile with his former sister-in-law, Jessica Bishop, in the front seat as a passenger. Bishop turned right from a public roadway into the parking lot of a Motel 6 without displaying a turn signal. Officer Joshua Crumley observed Bishop make the illegal turn, and turned his patrol car into the motel parking lot. Bishop had exited his vehicle and was walking toward the motel when Officer Crumley called out for Bishop to stop and return to him. As Bishop approached, Crumley observed that Bishop had a lock-blade knife attached to his pants with a metal clip, which is prohibited by municipal ordinance. The officer asked Bishop for his driver's license, but Bishop stated he had forgotten it. When Crumley asked Bishop's name, he answered that it was "Hernandez;" Crumley did not think Bishop looked like a person named "Hernandez." Crumley also asked Bishop his age and *16 date of birth; the answer Bishop gave was not mathematically consistent. Crumley placed Bishop in custody in his patrol car for safety reasons until he could verify his identity.
Officer Crumley then questioned Jessica Bishop, who told the officer Bishop's true identity. Jessica was arrested for drugs and drug paraphernalia found inside her purse, and was placed in another officer's patrol vehicle. When he ran Bishop's true name, the officer discovered that Bishop had an active arrest warrant and a suspended driver's license. Bishop's vehicle was then searched by the officers pursuant to a search incident to an arrest. When the officers began to search Bishop's vehicle, he started yelling loudly from inside the patrol car that they did not have permission to search the vehicle and it was an illegal search. During the vehicle search, the officers discovered a black shaving kit bag with baggies of methamphetamine and marihuana, and other drug paraphernalia, lying in plain view on the backseat floorboard. Jessica denied any knowledge of the contents of the black zipper bag, but admitted to possessing the contraband inside her purse.
Bishop was charged in a two-count indictment with possession with intent to deliver methamphetamine, and possession of methamphetamine. Jessica testified against Bishop at his trial, stating that the drugs and paraphernalia in the black zipper bag belonged to Bishop and she had seen him toss the black bag into the backseat when he exited the vehicle at the motel. A jury found Bishop guilty on both counts; however, the trial court recognized that Count II is a lesser included offense of Count I and stated that Count II would be disregarded. The trial court sentenced Bishop to ten years' confinement, but suspended the sentence and placed Bishop on ten years' community supervision.[1] Bishop now appeals.
ANALYSIS
In two issues, Bishop argues the trial court erred in permitting the State to introduce statements he made objecting to the officers' search of his vehicle because they were an assertion of his Fourth Amendment rights, and erred in admitting the evidence seized from the vehicle because it was the product of an illegal search. See U.S. CONST. amend. IV.
Statements Objecting to Vehicle Search
In his first issue, Bishop argues that he was asserting his Fourth Amendment right to be free from an unreasonable search and seizure when he yelled to the officers that they did not have permission to search his vehicle; he contends that such an assertion of a constitutional right is not admissible as evidence of guilt at trial and was harmful because the State *17 used his statements to connect him to the contraband found inside the vehicle. Officer Crumley testified at trial that when he began searching the vehicle, Bishop started yelling that the officers did not have permission to search the vehicle, "telling me I couldn't search the vehicle, it was an illegal search." Even though Bishop was inside the patrol car with the windows rolled up, Crumley could hear him continuously yelling and screaming at them while they searched the car. At trial, Bishop objected to the admission of his statements on the basis they were an invocation of his Fourth Amendment right against illegal search and seizure; the court overruled the objection and admitted the statements but granted Bishop a running objection.
The State responds that Bishop's statements were not an assertion of his Fourth Amendment rights because the officers did not ask Bishop for consent to search; rather, the officers were relying in good faith on the law in effect at the time of the search permitting a search of a vehicle's passenger compartment incident to an arrest. See New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (holding police may search the passenger compartment of a vehicle, and any containers therein, incident to a recent occupant's lawful arrest); see also State v. Ballard, 987 S.W.2d 889, 892 (Tex.Crim. App.1999). We agree. The record is clear that the basis for the search of Bishop's vehicle was not consent, but was incident to his arrest and the arrest of his passenger, Jessica. Because the search was not a consent-based search, Bishop's statements were not an invocation of his Fourth Amendment right to decline permission for a search. Further, Bishop's statements objecting to the search of his vehicle were made spontaneously, in the excitement of the moment, and were not the result of questioning; therefore, they were admissible as "res gestae" statements. See TEX. CODE CRIM. PROC. ANN. art. 38.22 § 5 (Vernon 2005).
Even if Bishop's statements are construed as an invocation of his general Fourth Amendment right to be free from an unreasonable search, Bishop presents no direct authority holding it is error to admit statements attempting to invoke a Fourth Amendment right in a search incident to arrest context; he analogizes to cases excluding evidence of a defendant's assertion of a constitutional right to counsel or to remain silent. See Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (denial of due process to use defendant's post-arrest, post-Miranda silence for impeachment purposes); Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim.App.1991) (relying on Doyle and stating that evidence of defendant's invocation of right to counsel is inadmissible as evidence of his guilt). The State points out that the Court of Criminal Appeals subsequently clarified the scope of Doyle and Hardie by explaining that both cases involved erroneously informing a defendant that he had a constitutional right to counsel and then using his exercise of that right against him, and stating that "[t]hose decisions left open the question whether it was federal constitutional error to admit a defendant's request for an attorney when he was not erroneously told that he had the right to counsel before taking a blood-alcohol test." Griffith v. State, 55 S.W.3d 598, 606 (Tex.Crim.App.2001) (holding defendant's due process rights were not violated by admission of evidence that he requested counsel because defendant was repeatedly informed he did not have the right to an attorney before taking a blood-alcohol test).
Bishop also relies on Reeves v. State, in which the Waco court of appeals held it was constitutional error to admit evidence *18 that the defendant, who was not in custody, refused to consent to a warrantless search of his home, but found the error was harmless. See Reeves v. State, 969 S.W.2d 471, 494-95 (Tex.App.-Waco 1998, pet. ref'd); see also Powell v. State, 660 S.W.2d 842, 845 (Tex.App.-El Paso 1983, no pet.) (in context of custodial defendant's refusal to consent to search of package, court held admitting evidence of the refusal was error, stating generally that invocation of constitutional rights "such as assistance of counsel, silence, or freedom from unreasonable searches may not be relied upon as evidence of guilt"). Both Reeves and Powell involved evidence of a defendant's refusal to an officer's request for consent to conduct a search. As noted, the officers did not ask Bishop to consent, and he therefore did not refuse consent, to a search of his vehicle; he was already in custody and under arrest when the officers searched the vehicle incident to his arrest. Bishop has not supplied this court with any authority holding that a custodial defendant's statements objecting to a search incident to arrest may not be admitted into evidence because they constitute an invocation of the Fourth Amendment, and we have found no such authority. Accordingly, we decline to hold that it is constitutional error to admit a defendant's statements objecting to a search incident to his arrest, as occurred in Bishop's case. We overrule Bishop's first issue.
Admission of Evidence Seized from Vehicle
In his second issue, Bishop complains that the trial court erred in admitting the evidence seized from his vehicle because it was the product of an illegal search in violation of the Fourth Amendment under the recent Supreme Court decision in Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009); U.S. CONST. amend. IV. In Gant, the Supreme Court limited the scope of vehicle searches incident to a recent occupant's arrest to situations where the arrestee is unsecured and within reaching distance of the passenger compartment of the vehicle at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Gant, 129 S.Ct. at 1721, 1723. Bishop argues that the search of his vehicle was unlawful under Gant because at the time of the search he was in custody in the backseat of a patrol car, and thus could not access his vehicle; in addition, he was under arrest for driving with a suspended license, an offense for which a vehicle search would not yield any evidence. See id. The State responds that Bishop failed to raise any objection to admission of the evidence in the trial court, and therefore has forfeited any complaint on appeal; alternatively, the State argues in part that even if the vehicle search was unlawful under Gant, exclusion of the evidence is not required because the officers acted in good faith.
With respect to waiver, Bishop acknowledges that he made no objection to admission of the evidence during trial,[2] with his counsel affirmatively stating "no legal objection" and that the legality of the search as incident to arrest was "conceded." It is well established that in order to preserve a complaint for appellate review, the defendant must have made a specific, timely objection or motion in the trial court, and must have obtained an adverse ruling from the trial court. TEX. R.APP. P. 33.1(a); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App.1999). This same rule applies in preserving constitutional issues for appellate review. *19 Heidelberg v. State, 144 S.W.3d 535, 542-43 (Tex.Crim.App.2004). Further, an affirmative statement of "no objection" waives any error in the admission of evidence. De Hoyos v. State, 81 S.W.3d 853, 854 (Tex.App.-San Antonio 2002, no pet.).
Bishop argues that his failure to preserve error is excused in this instance because the complaint he now raises on appeal is based on Gant, which was issued by the Supreme Court after his trial had concluded. Bishop cites no authority in support of this assertion, merely stating that he was bound by "the decades of well-settled precedent following Belton" and "could not reasonably be required to lodge an objection predicated upon a case that had yet to be decided." We disagree. To preserve the issue for appellate review, Bishop was required to raise an objection to admission of the evidence at trial. TEX. R.APP. P. 33.1(a).
Further, Bishop did have a legitimate objection to raise at trial because, as the Supreme Court pointed out in Gant, the rationale for a search incident to arrest has always been based on the dual purposes of officer safety and preservation of evidence, and "[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to arrest exception are absent...." Gant, 129 S.Ct. at 1716-17 (noting the limitations set forth in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), continue to define the boundaries of the search incident to arrest exception, and that Belton was based in large part on the assumption that items inside the passenger compartment of a vehicle are generally within the area into which an arrestee might reach). The Supreme Court in Gant did not overrule Belton; rather, it rejected a broad reading of Belton which would permit vehicle searches incident to every arrest, even when there is no possibility the arrestee could access the vehicle. Id. at 1718-19 (noting that such a broad reading of Belton would "untether the rule from the justifications underlying the Chimel exceptiona result clearly incompatible with our statement in Belton that it `in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests'"). We conclude that Bishop failed to preserve his complaint. We overrule Bishop's second issue.
Based on the foregoing analysis, we overrule Bishop's issues on appeal. However, in order to correct a discrepancy between the trial court's oral pronouncement and the written judgment, we set aside the trial court's judgment as to Count II because it reflects a lesser included offense, and affirm the trial court's judgment as to Count I.
NOTES
[1] In its brief, the State points out that, despite the trial court's oral pronouncement that it would disregard the jury's guilty verdict on Count II, the clerk's record contains a judgment for Count I and a separate judgment for Count II. Accordingly, we set aside the judgment pertaining to Count II because, as noted by the trial court, it reflects a lesser included offense of Count I and thus violates Bishop's double jeopardy rights. See Tex.R.App. P. 43.2(b); Littrell v. State, 271 S.W.3d 273, 279 (Tex.Crim.App.2008) (when defendant's double jeopardy rights are violated by judgment convicting of both greater and lesser included offenses, the remedy is to modify the trial court's judgment to set aside the conviction and sentence for the lesser included offense while retaining the conviction and sentence for the greater offense); Ex parte Madding, 70 S.W.3d 131, 136-37 (Tex.Crim.App.2002) (where oral pronouncement of sentence by trial court and written judgment differ, the proper remedy is to modify the judgment to match the court's oral pronouncement). It makes no difference that the two sentences are concurrent; Bishop is entitled to have one judgment set aside. Littrell, 271 S.W.3d at 279 n. 33.
[2] The record contains a motion to suppress evidence filed by Bishop, but no hearing was held on the motion and no ruling was made by the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575219/ | STATE OF LOUISIANA,
v.
TERRANCE K. TODD.
No. 2009 KA 0430.
Court of Appeals of Louisiana, First Circuit.
September 11, 2009.
Not Designated for Publication.
HON. SCOTT M. PERRILLOUX, District Attorney, ANGEL MONISTERE, PATRICIA PARKER, Assistant District Attorneys, Attorneys for State of Louisiana.
MARY E. ROPER, Attorney for Defendant-Appellant. TERRANCE K. TODD
Before: CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
PETTIGREW, J.
The defendant, Terrance K. Todd, was charged by bill of information with possession with intent to distribute crack cocaine, a violation of La. R.S. 40:967(A)(1). He pled not guilty. Following a trial by jury, the defendant was convicted as charged. The trial court sentenced the defendant to imprisonment at hard labor for twenty-two years. The defendant now appeals. Finding no merit in the assigned error, we affirm the defendant's conviction and sentence.
FACTS
On February 7, 2006, Thad Gratier of the Hammond Police Department was patrolling a high crime area in an unmarked vehicle when he observed the defendant wave down a passing vehicle. Once the vehicle stopped, the defendant approached and conducted what appeared to be an illegal drug transaction. As Officer Gratier and other officers approached, the driver of the vehicle pulled off, and the defendant fled on foot. A chase ensued. The defendant was eventually apprehended and placed under arrest. A plastic bag with approximately thirteen pieces of suspected crack cocaine was found at the defendant's feet when he was captured. Chemical analysis revealed that the rock-like substances contained cocaine.
CHALLENGE FOR CAUSE
In his sole assignment of error, the defendant contends the trial court abused its discretion in granting the state's challenge for cause of prospective juror Vernon Banks. Specifically, he asserts Banks should not have been excluded because he indicated that he could apply the law as given to him and could be fair to both sides.
Initially, we note that the defendant argues in his brief that the basis for the cause challenge against Banks was his admission that the defendant was his "neighbor" and that he did not want to see his neighbor go to jail. The record reflects that while Banks did make these particular responses during voir dire, they were not the reason for the state's cause challenge against this prospective juror. The state challenged Banks for cause based upon his voir dire responses regarding personal experiences that created bias toward police. Specifically, Banks indicated that he personally observed a police officer plant drugs in an individual's vehicle. He explained that because he is human, this observation would come into play when deciding the case. In ruling on the cause challenge, the trial court noted that by the time the defense attempted to rehabilitate Banks, the damage (the revealed bias towards the Hammond Police Department) was too "far gone." The trial court granted the challenge and dismissed prospective juror Banks for cause.
The defendant does not have the right to question this ruling on appeal. Louisiana Code of Criminal Procedure article 841(A) provides that "[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence." The record reflects that defense counsel failed to object after the court granted the state's challenge for cause as to Banks. Thus, the issue was not properly preserved for appellate review. La. Code Crim. P. art. 841. Furthermore, La. Code Crim. P. art. 800(B) clearly provides that a defendant cannot complain of the trial court's erroneous allowance to the state of a challenge for cause; unless the effect of the ruling is the exercise by the state of more peremptory challenges than it is entitled to by law. An examination of the record reveals that the state only exercised two peremptory challenges in selecting the twelve-person jury. Since the trial court's alleged error did not afford the state more than the twelve challenges to which it is entitled under La. Code Crim. P. art. 799, this alleged error does not give rise to a claim for relief. Therefore, even if the prospective juror was erroneously dismissed for cause, the defendant has no basis for complaint on appeal. See State v. Thibodeaux, 97-1636, pp. 20-21 (La. App. 3 Cir. 11/18/98), 728 So.2d 416, 426-427, writ denied, 98-3131 (La. 5/7/99), 741 So.2d 27, cert. denied, 528 U.S. 936, 120 S.Ct. 341, 145 L.Ed.2d 266 (1999). This assignment of error lacks merit.
CONVICTION AND SENTENCE AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2585130/ | 187 P.3d 753 (2008)
STATE
v.
CRARY.
No. 80683-7.
Supreme Court of Washington, En Banc.
July 10, 2008.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918178/ | 272 So. 2d 788 (1973)
Christine Tyler KNOTTS, Individually and as Administratrix of Larry Edwin Knotts, Plaintiff-Appellant,
v.
HARDWARE MUTUAL CASUALTY CO. et al., Defendants-Appellees.
No. 11995.
Court of Appeal of Louisiana, Second Circuit.
January 9, 1973.
Rehearing Denied February 6, 1973.
*789 Charles B. Bice, Winnfield, for plaintiff-appellant.
Goff & Goff, by A. K. Goff, III, Ruston, for defendants-appellees.
Before AYRES, HEARD, and HALL, JJ.
En Banc. Rehearing Denied February 6, 1973.
HEARD, Judge.
Plaintiff, Christine Tyler Knotts, brought this action individually and on behalf of her minor son, Larry Edwin Knotts, for medical expenses and personal injuries suffered by the latter while a guest passenger in a 1965 Ford Mustang. The accident occurred on January 16, 1968 in the Mustang owned by E. L. Meredith, Jr. and being driven by a minor, Stephen Oscar Warren, resulting in the injuries received by Larry Edwin Knotts. Made defendants in the original petition were Hardware Mutual Casualty Company, Jonesboro Concrete Company, Inc., Robert Salter, as liquidator of the concrete company, E. L. Meredith, Jr., individually and as administrator of his minor child's estate, and Oscar Warren, individually and as administrator of his minor child's estate. A second amended petition for damages was later filed making American Employers' Insurance Company a party defendant, alleging it to be the insurer of the automobile involved. By motion the actions against Hardware Mutual, Jonesboro Concrete, Salter, and Meredith were dismissed. American Employers' moved for a "declaratory" judgment, alleging that it did not cover the automobile involved, as no notice of its acquisition was given to the company as provided in the policy. This motion was sustained, and plaintiff appealed. This judgment is reversed and remanded.
E. L. Meredith, Jr. purchased the 1965 Mustang November 20, 1967. Both then and on the date of the accident, January 16, 1968, American Employers' had a policy in effect specifically covering a 1965 Chevrolet owned by Meredith for the policy period of June 21, 1967 to June 21, 1968. "Owned automobile" is defined in the policy as being:
(a) A private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates coverage is afforded,
(b) * * * * * *
(c) A private passenger, farm or utility automobile ownership of which is acquired by the named insured during the policy period, provided
(1) * * * * *
(2) the company insures all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile, or
(d) * * * * * *
(emphasis ours)
American Employers' contends its policy covering the 1965 Chevrolet did not cover the Mustang involved in the accident because Meredith never notified the company of its acquisition within the 30 day or policy period as required. American Employers' first notice of both the acquisition and the accident came when it was served with plaintiff's second amended petition, April 2, 1969. Plaintiff's contention is that the car was covered under the "automatic coverage period" provided for newly acquired automobiles under the policy which is either 30 days from acquisition or during the *790 policy period. The trial court ruled that an additional automobile of the insured is automatically covered until 30 days following its delivery, but that such coverage ceases at the end of that time if the insured fails to give the required notice to his insurer. As there was no notice given by Meredith during that period, the coverage ceased upon expiration. With the exception of Pendleton v. Ricca, 232 So. 2d 803 (La.App.4th Cir. 1970), the cases cited by the court as authority for its ruling dealt with policies providing notice periods of only 30 days and not the expanded language of the policy under consideration. See Matthews v. Marquette Casualty Company, 152 So. 2d 577 (La.App.2d Cir. 1963); Green v. American Home Assurance Company, 169 So. 2d 213 (La.App.2d Cir. 1964); Collard v. Globe Indemnity Company, 50 So. 2d 838 (La.App.1st Cir. 1951). These cases are thus inapposite.
The Pendleton case, upon which both sides rely, involves the same notice provision as the instant case but a different factual situation. The car involved in that case was purchased by Ricca on February 24, 1965, approximately three days before the accident and nine days prior to the policy expiration date. No notice was given to Ricca's insurer, and it was contended by the insurer that as a result no coverage was afforded him, citing Matthews, supra. However, the court held that the car was automatically covered under the terms of the policy the moment Ricca purchased it, and such automatic coverage continued for a period of 30 days or until the end of the policy period, whichever was shorter, irrespective of notice to the insurer, (p. 807). While concurring with the result in Pendleton, we do not agree with its interpretation of the notice clause and do not find this controlling. The Matthews case, as stated above, is no authority for such a conclusion under an expanded notice term, nor can the express notice provision be held to be anything other than what it clearly states. In both Pendleton, supra, and the instant case, the notice provision states the insured has during the policy period or within 30 days after the date of acquisition in which to notify the insurer.
The general rule is expressed as follows:
"Where the accident takes place within the notice period but before any notice has been given it has been generally held, on the theory that the requirement of notice is a condition subsequent rather than a condition precedent to extended coverage, that such coverage is automatically effected upon delivery of the new automobile and remains in effect until the end of the specified period, irrespective of whether or not notice has been given. That is, notice is not required to provide coverage which is automatic during the specified time period...."
[Couch on Insurance 2d, Vol. 12, § 45:205, p. 251]
See also Appleman Insurance Law and Practice, Vol. 7, § 4293; Blashfield Automobile Law and Practice 3d, Vol. 7, § 316.6; 34 A.L.R. 2d 944; Pendleton v. Ricca, supra. The accident in the instant case occurred on January 16, 1968, over five months prior to the expiration period and thus prior to the expiration of the notice period. Since the notice period had not expired at the time of the accident, American Employers' did provide automatic coverage on the newly acquired Mustang regardless of Meredith's failure to notify it. Pendleton v. Ricca, supra; St. Paul Mercury Insurance Company v. Pennsylvania Lumbermen's Mutual Insurance Company, 378 F.2d 312 (4th Cir. 1967); Travelers Indemnity Company v. Gaitings, 306 N.Y. S.2d 224 (1969); National Union Fire Insurance Company v. Falciani, 208 A.2d 422 (1965).
For the foregoing reasons, we are of the opinion that American Employers' Insurance Company did afford coverage to Meredith under the terms of its policy and that the judgment sustaining the motion for a "declaratory" judgment is reversed and remanded at appellee's cost. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575125/ | 458 S.W.2d 274 (1970)
Vandal L. DALBY, Appellant,
v.
HERCULES, INC., Respondent.
No. 54046.
Supreme Court of Missouri, Division No. 2.
October 12, 1970.
William H. Sanders, David C. Trowbridge, Kansas City, for appellant, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, of counsel.
Lane D. Bauer, C. Patrick McLarney, Ross T. Roberts, Kansas City, John W. Scott, Grant W. Scott, Joplin, for respondent, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
DREW W. LUTEN, Jr., Special Judge.
Plaintiff, then 35 years of age, received indisputably severe and disabling electrical *275 burns and injuries on November 9, 1965, while blasting rock from the basement excavation for a house, when the wires, which ran from a dynamite charge to a truck battery providing the electrical power source to detonate the charge, were thrown into the air and against a high tension power line. He brought this suit against defendant, claiming damages of $400,000.00, and, following an adverse verdict and judgment, took this appeal.
All of the evidence as to how plaintiff's injury occurred was adduced by plaintiff, and is without substantial conflict. All facts herein referred to were developed in the evidence offered by plaintiff, except as otherwise noted.
The site of the occurrence was a farm of one Bill N. Glenn, some 10 miles northwest of Sedalia, on the south side of a county gravel road which ran in a general easterly and westerly direction. The excavation for the basement was some 80 feet south of the gravel road, and had been dug into earth some 6 feet deep, at which depth the rock was encountered. Between the north edge of the excavation and the south side of the gravel road, some 40 feet north of the excavation and parallel to the gravel road were high tension power lines of the Central Missouri Electric Cooperative, the top wire of which was approximately 23 feet above the ground level, and the lower wire was some 3 to 4 feet below the top one. Those power lines, and the poles supporting them, were open, obvious and plainly visible. Some 40 feet south of the excavation was a shed, and some 80 feet south and somewhat east of the excavation was an old barn. There was a dirt lane or driveway which ran westwardly from this farm to a point west of the excavation, and then turned north and ran to the gravel road. West of this lane or driveway, and some 40 to 60 feet west and slightly south of the excavation, was another shed.
On the morning of his injury, which was a clear "sunshiny" day, plaintiff was instructed by his boss, Mr. James W. Atkinson, who owned and operated the Atkinson Construction Company, to go to the Glenn farm and blast the rock from the basement excavation. The only instructions given by Mr. Atkinson to plaintiff consisted of a small diagram showing how much rock was to come out of the different parts of the surveyed excavation, and the details of the work were left up to the plaintiff. In order to do the work, plaintiff required blasting caps, wire and dynamite.
An electrical blasting cap consists of a metal shell containing a charge of ignitable powder through which runs a small piece of high resistance wire connected at each end with an insulated wire, which insulated wires are known as "cap wires." When electrical current is passed through the cap wires to the resistance wire, that wire heats and ignites the powder, causing an explosion of the cap which, if inserted in a stick of dynamite, detonates the dynamite. Cap wires come in various lengths, but are relatively short, and, in blasting operations, are connected to the source of electrical current by longer insulated wires known as a "firing line."
Plaintiff, who was in charge of the blasting job, obtained from the construction company shop a box of electrical blasting caps, having 6 foot cap wires and manufactured by defendant, and he and another Atkinson employee, Orville Lane, who was to do the drilling, took one of the construction company's trucks, towing a compressor, to be used for drilling, to get to the Glenn farm. However, plaintiff first drove the truck to a hardware store in Sedalia, where he purchased a half case of dynamite, manufactured by defendant, and a 500 foot spool of two wire braided, insulated firing line wire.
Upon arriving at the Glenn farm, plaintiff drove the truck and compressor into the lane or driveway and to a point some 30 feet south of the excavation, and there detached the compressor and left it. He then unloaded his dynamite and put it behind (west of) one corner of the shed which stood to the west of the excavation, and put the blasting caps behind the other *276 corner of that same shed. He then drove the truck out onto the gravel road to a point north of the excavation, and parked it on the south shoulder of the road there, facing west. Meanwhile, Mr. Lane had run his air hose for the drill from the compressor down into the excavation, and plaintiff directed Mr. Lane where to drill, and Mr. Lane proceeded to do the drilling of three holes, some 24 to 30 inches deep, in the rock in the excavation.
Plaintiff then went back to the shed behind which he had put the dynamite, and read through a pamphlet of instructions enclosed by defendant in every case of dynamite and box of blasting caps produced by it, and which plaintiff had received with the dynamite which he had purchased earlier that morning at the hardware store. That pamphlet of instructions was entitled "Prevention of Accidents in the Use of Explosives, Approved by the Institute of Makers of Explosives, February 1, 1964." That Institute was a private trade association of manufacturers of explosives, one of the functions of which was to cooperate with various governmental agencies, organizations of users of explosives, and safety organizations, to promote proper and safe transportation, storage, handling and use of explosives. Beginning about 1955, all of the companies which were members of the Institute and manufactured dynamite inserted a copy of a similar pamphlet, as revised from time to time, in every case of dynamite which they manufactured. The pamphlet began:
"The prevention of accidents in the use of explosives is a result of careful planning and observance of the best known practices. The explosives user must remember that he is dealing with a powerful force and that various devices and methods have been developed to assist him in directing this force. He should realize that this force, if misdirected, may either kill or injure both him and his fellow workers.
"WARNING: All explosives are dangerous and must be handled and used with care either by or under the direction of competent experienced persons. It is the responsibility of all persons who handle explosives to know and to follow all approved safety procedures.
"It is obviously impossible to include warnings or approved methods for every conceivable situation. A list of suggestions to aid in avoiding the more common causes of accidents is set forth herein. Additional information is available in the Institute of Makers of Explosives publications listed below. Copies of these publications may be obtained by writing the Institute of Makers of Explosives, 420 Lexington Avenue, New York, New York 10017, or from your explosives supplier: * * *."
and it contained more than 70 numbered "Do's and Don'ts" with a reference on its first page, in large letters surrounded by a red ink arrow pointing to the "Do's and Don'ts", reading:
"Read these Do's and Don'ts Carefully."
One of the "Don'ts", included in all the revisions of the pamphlet although bearing a different number in some revisions, stated:
"45. DON'T load any bore holes near electric power lines unless the firing line, including the electric blasting cap wires, is so short that it cannot reach the power lines."
After reading the pamphlet, plaintiff "primed", by attaching blasting caps to sticks of dynamite as prescribed in the pamphlet, three sticks of dynamite, by which time Mr. Lane had completed the drilling of three holes, and plaintiff then "loaded" those holes by placing in each of them one of the three primed sticks of dynamite, tamping dirt and dust from the drilling into the holes on top of the dynamite, and packing clay on top of that. He then connected together in series the blasting cap wires leading from the three loaded holes, after which he connected the two loose ends of the cap wires to his firing line, some 100 to 150 feet of which, either *277 just before or just after loading the holes, he had unrolled and cut from the spool and strung between the south side of the excavation and the truck. The connections between the cap wires and the firing line wires were made by twisting together bare ends of the respective wires.
After plaintiff had connected the firing line wires to the blasting wires in the excavation, he and Mr. Lane walked to the north side of the truck, where plaintiff, after taking the insulation off about an inch of the ends of the firing line wires, touched the bare ends of the firing line wires to the terminals on the truck battery, which was located next to the cowl under the hood on the right side of the truck, thereby causing the dynamite to explode. The blast caused rock, dirt and other debris to fly up in the air, some rock chips and pieces as large as a man's fist, if not larger, being thrown as far as 130 feet north of the excavation.
A second blast was then carried out, similar to the first, except that it involved five or six drilled holes and sticks of dynamite, instead of three, and except that the firing line, having been strung from the excavation to the truck for the first blast, was not replaced with a new length of wire. The results of this second blast were similar to the earlier one.
Preparations were then made for a third blast, and those were carried out as with respect to the second blast, and, up to the point where the explosion of the dynamite occurred, everything was as with the second blast. On this third blast, when the explosion of the dynamite took place, the firing line, either with or without the cap wires, was blown up into the air and into contact with the high voltage power lines, there was a large flash of light like lightning and fire which came out from near the battery under the hood of the truck, and an arcing at the overhead power line, and Mr. Lane observed plaintiff standing "stiff as a board." Mr. Lane grabbed plaintiff around the waist, and Mr. Lane was knocked down by electric shock, but got up, and, by pulling on plaintiff's suspenders, jerked plaintiff away from whatever was charged with electricity from the power line, the two men falling to the ground together. Plaintiff was then taken to a hospital for treatment of his injuries.
Mr. Atkinson's testimony by deposition read during the course of defendant's evidence, was to the effect that, later in the afternoon of the day of plaintiff's injury, he had gone to the Glenn farm, was there advised of what had occurred, found that the firing line had catapulted into the power line, leaving the end of a piece of the firing line hooked over the power line, which piece of firing line he dislodged with a long wooden handle.
A few days after plaintiff's injury, his father, William E. Dalby, and Mr. Lane finished the blasting work at the excavation. On that occasion, the truck was parked at the northwest corner of the barn on the Glenn farm, and the firing line was strung southwardly from the excavation to the truck.
There is no contention by plaintiff that the dynamite or blasting caps manufactured by defendant were in any way defective, or that he was injured by them. Plaintiff contends that defendant was negligent in failing to give him adequate warning of the hazard of a firing line being thrown up into the air and against overhead high tension power lines by the explosion of dynamite during blasting operations, and here asserts error in an instruction on contributory negligence given at defendant's request. In our view of this case, neither of these issues need be reached, nor determined, because, from a careful consideration of the record, we have reached the conclusion that the question of plaintiff's contributory negligence is the decisive issue.
Everyone has the duty to exercise due care for his own safety, as well as the safety of others, and he should not expect someone else to compensate him for his injuries when he does not do so. In determining *278 the question of whether plaintiff was contributorily negligent as a matter of law, we bear in mind that plaintiff's negligence is a jury question, unless it may be said from all the evidence, viewed in the light most favorable to plaintiff, that it appears so convincingly that no reasonable and disinterested minds can rightfully disagree that plaintiff failed to exercise due care for his own safety and was negligent, and that his negligence was a proximate cause of his injury (Brooks v. Stewart, Mo., 335 S.W.2d 104, 109-110; Adkins v. Boss, Mo., 290 S.W.2d 139, 140; Russell v. Johnson, 349 Mo. 267, 160 S.W.2d 701, 704). In making such a determination, each case must be considered in the light of its own peculiar facts and circumstances (Moore v. Eden, Mo., 405 S.W.2d 910, 916; Creech v. Riss & Co., Mo., 285 S.W.2d 554, 559; Shaffer v. Sunray Mid-Continent Oil Co., Mo., 336 S.W.2d 102, 107).
The plaintiff, while having quit school shortly after completing the eighth grade and being without formal education respecting explosives, was a competent and experienced person in the handling of explosives, including dynamite, and he testified that he so considered himself. As a young boy on the farm in Iowa, he had observed blasting in quarries in the area, and knew from those observations that the blasting there was done with dynamite and electric blasting caps. When he was in the Army in Germany, in his late teens and early twenties, he received instruction, and took part, in demolition by the use of TNT detonated by blasting caps and fuse. After he first went to work for Mr. Atkinson, he gained experience in blasting work from watching and assisting his father and other of Mr. Atkinson's employees, and for 10 or more years before his injury he frequently did blasting in the regular course of his employment by Mr. Atkinson, using dynamite and electric blasting caps.
Plaintiff concededly knew, as was stated in the pamphlet hereinbefore referred to, that one dealing with explosives was dealing with a force which, if misdirected, could kill him or others. He knew, from the time he was a boy in Iowa, that rocks, dirt and other matter were thrown up into the air by the discharge of dynamite in blasting operations. While he categorically denied that he was aware, prior to his injury, of the hazard of a firing line wire being catapulted into overhead power lines, his denial manifestly was based upon his testimony that he had never seen a firing line catapulted into the air by a blast, for, on at least two occasions during his cross-examination, he stated that he had testified on deposition that he anticipated the possibility that somethingrock, or a firing line, or anything that might be loosemight fly up into the air from the explosions of the dynamite he was using in the blasting in the excavation, and that such testimony at his deposition was true. Plaintiff knew of no reason why a firing line would not, like rock and other material, be thrown up into the air as the result of a dynamite blast.
Plaintiff also knew that high power lines carry high voltages of electricity, and any contact with them was extremely dangerous and hazardous, and, consequently, he said he would never take a chance of either coming in contact with them personally, or having a wire that was in his hand do so.
Plaintiff also testified that not only had he read on the morning of his injury the pamphlet he received when he purchased the dynamite, but he had previously on several occasions read the pamphlet or earlier editions of it. He testified that Don't No. 45 meant to him that one doing blasting should be sure that his cap wires should not reach a power line while he was loading the bore hole, that it applied only while the bore hole was being loaded, that it applied only to the cap wires and that it did not apply to the firing line because the firing line is not connected up while a bore hole is being loaded. His interpretation of the Don't is unacceptable. That Don't clearly reads:
"Don't load any bore holes near electric power lines, unless the firing line, *279 including the electric blasting cap wires, is so short that it cannot reach the power lines." (Emphasis supplied.)
That Don't obviously referred to the firing line as its primary subject, which line is necessarily of considerable length, and referred only secondarily to cap wires, which are relatively short (in this instance only 6 feet long as compared to some 150 feet of firing line), as an extension of the firing line. To attribute to that Don't the meaning for which plaintiff claims would be not only to ignore its plain language and its obvious purpose to prevent contact between a firing line and power lines, but to ignore the indisputable facts that the only wires involved in the drilling and loading process were the cap wires which were only 6 feet long, were partially buried in the loaded bore holes, and could not reach to the level of the top of the excavation, much less to overhead power lines. Plaintiff here is in the same position as was plaintiff in Borowicz v. Chicago Mastic Co., 7 Cir., 367 F.2d 751, 756, where, in holding that plaintiff was contributorily negligent for not following instructions on a label, his understanding of which was contrary to the meaning of the words used, it was said:
"`Plaintiff had read this label at least eight times previously and it needs to be read as a whole. He may not now lift certain words or phrases out of the context of that familiar label, and thereby seek to impose liability on the manufacturer for injuries occasioned by his own negligence.'"
Plaintiff knew, without ever having read Don't No. 45, that electric power lines were a source of danger and hazardous, and Don't 45 specifically pointed to them as such. The power lines here involved, and the poles supporting them, were open and obvious, but plaintiff said that he did not see either those lines or poles, never even looked for them, and would have proceeded with his blasting work as he did had he known of their presence, because he never concerned himself with power lines unless a pole supporting them was so close to the blasting that it would be likely to be caused to fall over. He had a duty to look, and to look was to see what was plainly apparent had he looked (Hamilton v. Laclede Electric Cooperative, Mo., 294 S.W.2d 11, 17; Branscum v. Glaser, Mo., 234 S.W.2d 626, 627; Burroughs v. Union Electric Company, Mo.App., 366 S. W.2d 69, 74; Bryan v. Sweeney, 363 Mo. 1024, 256 S.W.2d 769, 774), so that, in the eyes of the law, he knew of the existence and location of the power lines. Plaintiff testified, further, that he knew of no reason why he could not have parked the truck to the south of the excavation, instead of to the north of it as he did, in order to perform the blasting work to be done.
Furthermore, Mr. Lane testified, for plaintiff, that plaintiff placed a rock on the firing line at the top of the north bank of the excavation when plaintiff strung the firing line before the first blast. Plaintiff did not recall doing that, but said that, if he did it, his only purpose was to keep from separating the firing wires from the cap wires where they were connected together, by tension being put upon the connections while he was stringing out his firing line, as he never placed rocks or anything else on a firing line to anchor it to the ground.
Plaintiff was, and he knew he was, dealing with an imminently and inherently dangerous instrumentality. Don't No. 45 plainly directed his attention to the dangers of contact between a firing line and overhead power lines, and directed that the firing line be kept "so short that it cannot reach the power lines."
Plaintiff not only failed to follow that Don't, but he failed to discoverin fact ignoredthe presence of the power lines, and failed to take any precaution to avoid contact between his firing line and the power lines. Had he followed Don't No. 45, or had he parked his truck to the south of the basement excavation as his father later did when he finished the blasting work, or had he anchored his firing line to the *280 ground by some means, he could not have been injured in the manner in which he was injured. That he failed to exercise ordinary care under the circumstances is a fact about which there is no room for reasonable and disinterested minds to differ.
Plaintiff leans heavily upon the decision in Bean v. Ross Manufacturing Co., Mo., 344 S.W.2d 18, to support his contention that he was not contributorily negligent. The facts of that case differentiate it from the case at bar. The product there in use was not in itself an imminently and inherently dangerous explosive, as was the dynamite here, and the plaintiff's knowledge of the hazard involved was not there, as it was here, established by his general background and experience.
The only conclusion we can reach is that plaintiff was negligent and that his negligence directly contributed to his injury. We hold that plaintiff cannot recover because his own evidence shows contributory negligence as a matter of law. (Hamilton v. Laclede Electric Cooperative, Mo., 294 S.W.2d 11, 15; Frandeka v. St. Louis Public Service Co., 361 Mo. 245, 234 S.W.2d 540, 547; Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185, 187.)
The judgment is affirmed.
MORGAN, Acting P. J., and FINCH, J., concur.
DONNELLY, P. J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575127/ | 17 So.3d 886 (2009)
Thadius GLOVER, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-1103.
District Court of Appeal of Florida, Fourth District.
September 16, 2009.
*887 Carey Haughwout, Public Defender, and Kristy Militello, Emily Ross-Booker and Paul Petillo, Assistant Public Defenders, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
STEVENSON, J.
In December of 2007, Thadius Glover was on probation in two separate lower court cases. Affidavits of Violation of Probation (VOP) were filed in both case numbers, charging Glover with violating his probation by committing burglary of a conveyance (count I), grand theft (count II), resisting an officer without violence (count III), and by failing to complete the Broward Sheriff's Office Day Reporting Re-entry Division (count IV). Following a VOP hearing, the trial court found Glover guilty of the violations alleged in counts I, II, and III, revoking Glover's probation. In this appeal, Glover contends the order revoking his probation must be reversed, arguing the evidence was insufficient to prove he committed any of the charged violations. We reject Glover's claim that since the police did not have justification to detain him, the trial court committed fundamental error in finding that he resisted an officer without violence. As a review of the evidence will show, the record contained at least minimally sufficient factors to establish "reasonable suspicion" and justify the stop, which was not challenged at the hearing. We find merit, however, in the claims that the evidence was insufficient to establish that Glover violated his probation by committing the crimes of burglary of a conveyance and grand theft, and write to address these issues.
The evidence at the VOP hearing established that, at about 5:15 or 5:30 a.m., on December 2, 2007, Jim Jackson came downstairs for a drink of water and, through his front window, saw a man on a bicycle, circling in front of his next-door neighbor's home. Jackson saw two other men in the back of his across-the-street neighbor's Cadillac Escalade. Jackson observed the two men exit the Escalade and go to his next-door neighbor's car. The dome light of the next-door neighbor's car went on. Jackson phoned his next-door neighbor, Tim Schiavone, and police. Jackson admitted he did not see the men actually take anything. As for the identity of the men, Jackson testified he could not identify them, apart from the fact that they were black. Before police arrived, the men fled, heading toward A1A.
At approximately 5:37 a.m., police received a call regarding "several" subjects breaking into cars "around A1A and 16th Place." After being at the scene "briefly," the officers observed four black males "crossing over a concrete wall on A1A from the 1600 block." According to the officers, one of the men was on a bicycle. The officers, who were in uniform, testified that they identified themselves as police officers and ordered the group of men to stop. Instead, the group fled. Three of the men were taken into custody approximately a block away. Tim Schiavone's cell phone was found on one of the three. Items belonging to two other individuals, including Jason Cooper, were also found on the men.
A perimeter was set up and a K-9 unit was called. Glover was found on a roof *888 top. On the roof police also found a calculator, a digital camera and case, a GPS, a garage door opener, a baggie of change, and a Blockbuster card belonging to Jason Cooper. All of these items were wrapped in a white t-shirt. One of the officers testified that Cooper had reported being robbed earlier that day. There was no testimony regarding to whom the other items belonged.
The defendant admitted being instructed on the conditions of his probation, including the condition that he not commit any new criminal offenses. The defendant testified he had purchased the items found on the roof from one of the men police saw him with. He denied being in possession of the Blockbuster card. When asked about his reason for being about at 5:30 a.m., the defendant testified that he had worked until 10 p.m. the previous evening and had missed the bus. He explained that he only went up on the roof because police were chasing him and had released a dog.
To establish a violation of probation, the State need only prove its case by the greater weight of the evidence. See Russell v. State, 982 So.2d 642, 646 (Fla.), cert. denied, ___ U.S. ___, 129 S.Ct. 272, 172 L.Ed.2d 201 (2008). As for the resisting an officer in the lawful performance of his duty charge, the trial court did not commit fundamental error in finding that Glover committed this offense because the record demonstrates the order to stop was lawful. In short, the evidence revealed that, in the early morning hours, a witness observed three black men, one of whom was on a bicycle, entering his neighbors' cars. Very shortly thereafter, perhaps as little as ten to fifteen minutes, police observed a group of four black men, one of whom was on a bicycle, going away from the area and crossing over a wall of a nearby block. We believe that the close temporal and geographical factors present, time of day, similar group size, and the distinguishing feature that the small group of pedestrians included one man on a bicycle, justified the police's actions in attempting to briefly detain the individuals to conduct an investigatory stop. See, e.g., King v. State, 17 So.3d 728, 731 (Fla. 1st DCA 2009) ("A reviewing court must consider `[t]he totality of the circumstances... when determining whether an officer had a reasonable suspicion of criminal activity to justify the investigatory stop.'" (quoting Huffman v. State, 937 So.2d 202, 206 (Fla. 1st DCA 2006))).
We do find, however, that the evidence here was insufficient to establish that Glover was either himself guilty of burglarizing Schiavone's car or was guilty under a "principals" theory. Since there was testimony that the other three men were found in possession of property belonging to Schiavone very near Schiavone's home and very shortly after a witness saw Schiavone's car being burglarized, there was sufficient evidence to link them to the burglary. This is not, however, the case for Glover. No witness placed Glover inside of Schiavone's car or stated that Glover was the man riding the bicycle in the street. None of the items found in Glover's possession belonged to Schiavone. It is tempting to speculate that the defendant was involved in burglarizing Schiavone's car given the fact that the three men he was observed with had property belonging to Schiavone and Cooper, and the defendant had a Blockbuster card belonging to Cooper. There was, however, no actual evidence of Glover's involvement. These same shortcomings, in addition to the fact that the State failed to present any evidence as to the value of the property taken, require a finding that the evidence was also insufficient to sustain a finding that Glover was guilty of grand theft.
*889 Having reversed two of the three grounds upon which Glover's probation was revoked, we remand the instant case to the trial court to determine whether revocation of probation is appropriate based upon the sole remaining violation. See, e.g., Eubanks v. State, 903 So.2d 1005, 1006 (Fla. 2d DCA 2005) (remanding for reconsideration of revocation of community control where "the record is unclear whether the trial court would have revoked" community control solely on remaining violation); Costanz v. State, 740 So.2d 71, 72 (Fla. 4th DCA 1999) (same).
Affirmed in part; Reversed in part; and Remanded.
MAY and LEVINE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575130/ | 17 So.3d 676 (2009)
Jerry C. KELLIS
v.
ESTATE OF Betty K. SCHNATZ and Petie Schnatz, executor of the estate of Betty K. Schnatz.
Estate of Betty K. Schnatz and Petie Schnatz, executor of the estate of Betty K. Schnatz
v.
Jerry C. Kellis.
2070565.
Court of Civil Appeals of Alabama.
February 27, 2009.
*678 Joshua P. Myrick of Stankowski, L.L.P., Fairhope, for appellant/cross-appellee Jerry C. Kellis.
Mary E. Murchison and James Parrish Coleman of Murchison & Howard, L.L.C., Foley, for appellees/cross-appellants Estate of Betty K. Schnatz and Petie Schnatz, executor of the estate of Betty K. Schnatz.
MOORE, Judge.
This is the second time these parties have appeared before this court. See Kellis v. Estate of Schnatz, 983 So.2d 408 (Ala.Civ.App.2007). In Kellis, this court affirmed that portion of a judgment entered by the Baldwin Circuit Court ("the trial court") declaring void a purported real-property sales agreement between Betty K. Schnatz and Jerry C. Kellis ("Kellis") and his wife, Mary Kellis, 983 So.2d at 412-13; however, the court reversed that portion of the judgment denying Kellis any compensation for improvements made to the real property by Kellis in reliance on the sales agreement. 983 So.2d at 413-14. The court remanded the case to the trial court with instructions to "balance the equities" in accordance with Culbreath v. Parker, 717 So.2d 430 (Ala. Civ.App.1998), to determine, as a matter of equity, the amount, if any, the estate of Betty Schnatz owed Kellis. 983 So.2d at 414.
On remand, the trial court conducted another hearing. At that hearing, Kellis testified that he had paid approximately $13,500 to Betty Schnatz in monthly payments for the property; that he had paid approximately $130 per year for three years for property taxes; and that he had paid $2,733 for insurance premiums to cover the old house and the mobile home located on the property.[1] Kellis further testified that he had spent $5,520 making various improvements to the old house and $170-$175 adding a handicap ramp to the mobile home and $600 repairing the central air-conditioning unit in that mobile home. Kellis also introduced evidence indicating that he had spent $8,200 removing *679 debris and fallen trees from the property following Hurricane Ivan, which made landfall in Alabama in September 2004.
According to Kellis, a fire caused by lightning on April 6, 2005, totally destroyed the house and damaged the mobile home. Kellis testified that he received $25,000 in insurance proceeds for the damage to the house and that he received $3,700 or $3,800 in insurance proceeds for the damage to the mobile home. Kellis also testified that, following the fire, he had spent $21,500 removing asbestos from the old house and $5,075 repairing and cleaning the mobile home.
Petie Schnatz, executor of Betty Schnatz's estate, testified that the house was not habitable at the time of the trial and that the reasonable rental value of the house before Kellis's improvements was approximately $100 per month. Petie also testified that the reasonable rental value of the mobile home was $600 per month. Kellis testified that he had rented the house to a man named Wayne, who had stayed in the house for four or five months. According to Kellis, Wayne had agreed to pay $300 per month in rent or to perform services for Kellis, including repairs to the house, in lieu of rent. Kellis stated that Wayne had assisted him with repair work and painting and that he did not recall ever having collected any rent from Wayne. Kellis also testified that he had rented the mobile home on two separate occasions, the first time to a couple for four months for $600 a month and the second time for two months for $600 a month. Kellis testified that his mother-in-law moved into the mobile home at some point in 2006 and that she lived there until January 2008, rent free.
Following the hearing, the trial court entered a judgment on February 6, 2008, stating:
"The court having heard the testimony and considered the evidence offered and admitted and having considered and followed the Court of Civil Appeals' instructions on remand to balance the equities, this court is of the opinion that Jerry C. Kellis is owed no compensation for any improvements made to the property in question or for any other expenditures by Kellis for or about the property. This court has taken into consideration the down payment and monthly payments made by Kellis on the property, the expenditures for improvement to the property, and the evidence presented by Kellis for the clean-up of the property after the hurricane and fire, also any taxes and insurance paid by Kellis. This court has balanced the above with the insurance proceeds received by Kellis, and the amount of rents received by Kellis, and the rental value of the property until January 2008, when Kellis finally moved his mother out of the trailer and off the property."
Kellis filed his notice of appeal to this court on March 18, 2008. On April 4, 2008, the estate and Petie Schnatz, as executor of the estate (hereinafter collectively referred to as "the estate"), filed a cross-appeal. This court transferred the appeal and the cross-appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction on September 8, 2008; that court then transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.
Issues
On appeal, Kellis argues that the trial court erred in several respects, which are more fully explained hereinafter, in determining that he was not entitled to any recovery. In its cross-appeal, the estate argues primarily that the trial court erred *680 in failing to award it compensation for rent and waste during Kellis's use of the property.
Standard of Review
We outlined the appropriate standard of review in Kellis:
"`When ore tenus evidence is presented, a presumption of correctness exists as to the trial court's findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court `will assume that the trial judge made those findings necessary to support the judgment.' Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, `[u]nder the ore tenus rule, the trial court's judgment and all implicit findings necessary to support it carry a presumption of correctness.' Transamerica, 608 So.2d at 378. However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court's judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala. 1996); Marvin's, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978). `Questions of law are not subject to the ore tenus standard of review.' Reed v. Board of Trustees for Alabama State Univ., 778 So.2d 791, 793 n. 2 (Ala.2000). A trial court's conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993). This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 ('[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court's judgment carries no presumption of correctness.')."'
"[Farmers Insurance Co. v. Price-Williams Assocs., Inc.,] 873 So.2d [252] at 254-55 [(Ala.Civ.App.2003)] (quoting City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002))."
983 So.2d at 412.
Discussion
As noted above, in Kellis, this court affirmed that portion of the trial court's judgment rescinding the sales agreement between Betty Schnatz and the Kellises. In cases in which an agreement regarding the transfer of real property is rescinded, equity requires that the parties thereto be returned to the status quo ante, as if the agreement had not existed. See Clark v. Wilson, 380 So.2d 810, 812 (Ala. 1980). Normally, upon rescission of the agreement, the vendor must tender to the purchaser the amount given in consideration. Craig v. Craig, 372 So.2d 16, 21 (Ala.1979). However, reimbursement is ordinarily offset by the value of the use of the land that the purchaser enjoyed before the rescission of the agreement. Id.
As his first point of error, Kellis argues that the value of his use of the property should be measured by the actual rents he received and not by the reasonable rental value of the property. Kellis points out that in Kellis, this court mentioned that it could not determine the *681 amount of the rent Kellis had actually received. 983 So.2d at 413. From that statement, Kellis contends that this court must have intended for the trial court, on remand, to determine that amount and use that amount in calculating any offset against the consideration paid. However, Kellis overlooks our specific remand instructions to the trial court, in which the court stated:
"We conclude that a balance of the equities, as contemplated by Culbreath [v. Parker, 717 So.2d 430 (Ala.Civ.App. 1998)], is necessary in the present case. The amount expended for improvements to the property by Kellis, the amount of insurance received by Kellis and the amount of the insurance proceeds Kellis retained after necessary cleanup and repairs on the property, the amount of consideration and taxes payed by Kellis for the subject property, and the rental value of the property during Kellis's use thereof should each be considered in balancing the equities in this case."
983 So.2d at 414. Those instructions indicate that the trial court was to use the rental value of the property during Kellis's use and not the actual rents received by Kellis in determining the offset. Moreover, that reading is consistent with other Alabama cases requiring a party returning property following a voided transaction to pay the reasonable rental value for his or her use and occupancy of the land. See, e.g., Griffin v. Griffin, 206 Ala. 489, 90 So. 907 (1921); and Bell v. Harris, 664 So.2d 903 (Ala.1995). Hence, we reject Kellis's argument that the trial court should have used the actual rents received and not the reasonable rental value of the property in determining the offset.
Kellis next argues that the trial court erred in concluding that Kellis owed rent to the estate up to the date his mother-in-law vacated the mobile home. As noted earlier, Alabama law provides that the reasonable rental value of the property is payable for the purchaser's use and occupancy of the land up to the time of the date of the rescission of the sales agreement. Craig, supra. In this case, the trial court rescinded the sales agreement on November 1, 2006; however, Kellis's mother-in-law did not vacate the mobile home until January 2008. Kellis argues that because the trial court denied his motion to set the amount of a supersedeas bond to stay enforcement of the judgment, it would be unfair to charge him rent for the use of the land following the entry of the November 1, 2006, judgment. Putting aside the fact that Kellis could have petitioned this court to approve the supersedeas bond following the trial court's denial of his motion, see Rule 8(b), Ala. R.App. P., we note that Kellis did not present to the trial court any argument that it had erroneously extended the rental period beyond the date of the November 1, 2006, judgment. This court will not consider arguments raised for the first time on appeal. T.J.H. v. S.N.F., 960 So.2d 669, 673 (Ala. Civ.App.2006).
Undisputed evidence, consisting of the testimony of Petie Schnatz, establishes that, on the date Kellis took possession of the property, see Ex parte Meadows, 598 So.2d 908, 912 (Ala.1992) (holding that reasonable rental value should be computed based on such value at the time purchaser obtained possession), the property had a reasonable rental value of $700 per month. The evidence establishes that Kellis entered the property and began repairing the old house some time after the execution of the February 2003 sales agreement but before June 2003; however, Kellis testified that he only commenced those repairs with Betty Schnatz's permission. Kellis assumed unrestricted use and occupancy of the land in June 2003 when Betty Schnatz vacated the property and gave *682 Kellis the keys to the mobile home. Using June 2003 as the starting date and January 2008 as the ending date, Kellis used and occupied the land exclusively for a total of 55 months. Thus, the reasonable rental value during Kellis's possession would be $38,500.
Kellis testified that he had paid Schnatz $13,500 plus three years of property taxes at $130 per year. The total consideration paid by Kellis amounts to $13,890. Subtracting the reasonable rental value from the consideration paid by Kellis yields a balance of $24,610 in favor of the estate.
When balancing the equities following rescission of a real-property sales agreement, the purchaser is entitled to the present value of improvements made to the property at the time of the trial. Griffin, supra; and Culbreath, supra. See also Manning v. Wingo, 577 So.2d 865 (Ala.1991). The vendor would be unjustly enriched if allowed to retain the value of improvements made to the property by the purchaser. Culbreath, 717 So.2d at 432. In accord with this view, the purchaser would be entitled to recover only to the extent of the enhanced value of the property attributable to permanent improvements made by the purchaser. Cf. Penny v. Penny, 247 Ala. 434, 437, 24 So.2d 912, 915 (1946) (cotenant held to be entitled to "reasonable value of permanent improvements erected on the land ... to the extent of the proportionate enhancement in the market value of the whole property"); and McDaniel v. Louisville & Nashville R.R., 155 Ala. 553, 46 So. 981 (1908) (bona fide purchaser, who made permanent improvements that enhanced the value of the property, was entitled to receive in a sale for division in equity the value of the lands as enhanced, over and above his pro rata share of the lands without the improvements).
In this case, the only permanent improvements Kellis made to the property consisted of his addition of the ramp onto the mobile home, the repair of the central air-conditioning unit in the mobile home, and his removal of the fallen trees and other debris following Hurricane Ivan. Kellis claims he is entitled to compensation for the improvements made to the old house, but it is uncontradicted that those improvements were destroyed in the 2005 fire and were no longer present on the property at the time of the trial.[2] Hence, those improvements cannot be considered to have enriched the estate such that Kellis would be entitled to compensation for their present value.
As to the value of the improvements, Kellis testified that he spent $775 in improving the mobile home and $8,500 remediating the hurricane damage.[3] However, as we have noted, the measure of compensation is the extent to which the value of the property has been enhanced. The record is silent in that regard. Even assuming that the property value increased exactly in the amounts Kellis spent, that amount, $9,275, would only reduce *683 the balance in favor of the estate to $15,335.
Kellis last argues that he should have received credit for the insurance premiums he paid. Kellis points out that he spent $2,733 to insure the old house and the mobile home during his use and occupancy. Kellis received $28,700 to $28,800 in insurance proceeds following the 2005 fire, out of which he spent $26,575 removing asbestos from the old house and repairing and cleaning the mobile home. Kellis acknowledges that he received more in insurance benefits than he spent in making repairs, an amount between $2,125 and $2,225, but he maintains that the estate should still have to compensate him for the insurance premiums. We need not address this issue, however, because even if Kellis could recover the insurance premiums, under our directions to the trial court to "balance the equities," that amount would be completely offset by the balance in favor of estate set out above.
After a thorough consideration of the points Kellis raises in his appellate brief, we are convinced that the trial court did not commit reversible error in determining as a matter of equity that Kellis could not recover from the estate any compensation for the amounts expended by him in reliance on the voided sales agreement. We therefore conclude that the trial court could have reasonably determined that the amounts owing to the estate for rent completely offset the value of the improvements and consideration paid by Kellis.
In its cross-appeal, the estate argues that the trial court erred in failing to award it damages. The estate points out that, after offsetting the value of improvements made by Kellis and the money paid by Kellis in consideration for the purchase of the property, Kellis still owes the estate rent for his use and occupancy of the property. The estate further maintains that Kellis should be held accountable for the loss of the old house. Whatever the merits of the estate's claims against Kellis, we conclude that those claims have been waived. In Kellis, the estate filed a complaint against Kellis seeking, among other things, damages for his use of the property. In its final judgment, the trial court did not award either party any damages. Kellis appealed that judgment, but the estate did not. Hence, the estate waived any objection to the trial court's failure to compensate it for the alleged waste committed by Kellis and for the rents due from Kellis. See J.K.L.B. Farms, LLC v. Phillips, 975 So.2d 1001, 1010 (Ala.Civ.App.2007). Contrary to the estate's argument, by remanding the case to the trial court to "balance the equities" to determine the compensation Kellis may have been owed from the estate, see 983 So.2d at 414, this court did not revive the estate's claims against Kellis and authorize the trial court to award the estate any compensation.
Based on the foregoing, we affirm the trial court's judgment.
AFFIRMED.
THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.
NOTES
[1] Kellis testified that he had paid $310 in annual insurance premiums for the house on the property for three years and that he had paid annual premiums of $601 for insurance on the mobile home for three and one-half years. However, in his brief on appeal, Kellis estimated his insurance payments for the mobile home to be $1,803, which equates to only three years of payments at $601 per year.
[2] Kellis does not argue that the repairs to the mobile home and the removal of the asbestos from the old house following the 2005 fire constituted permanent improvements.
[3] In its cross-appeal, the estate argues that the trial court erred in admitting documents supporting Kellis's testimony regarding the amounts he spent on the property. We do not necessarily agree that the trial court erred in admitting those documents, but we note that, even if the trial court had committed error, that error is not reversible error because the documents are merely cumulative of Kellis's testimony, to which no objection was raised, so any error would be harmless. See T.C. v. Cullman County Dep't of Human Res., 899 So.2d 281, 289 (Ala.Civ.App.2004). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575154/ | 308 S.W.3d 740 (2010)
Daniel HENDRICKS and Katherine Hendricks, Appellants,
v.
The CURATORS OF the UNIVERSITY OF MISSOURI, et al., Respondents.
No. WD 70398.
Missouri Court of Appeals, Western District.
April 27, 2010.
*742 Kathleen A. McNamara, Esq., and Frederick G. Thompson, IV, Esq., Kansas City, MO, for appellant.
Susan F. Robertson, Esq., Kansas City, MO and Wade H. Ford, Jr., Esq., Columbia, MO, for respondent.
Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
ALOK AHUJA, Judge.
Plaintiffs-Appellants Daniel and Katherine Hendricks filed a petition seeking damages from the Curators of the University of Missouri, among others, for alleged negligence relating to medical care provided to Daniel Hendricks when he was a patient at the University Hospital in Columbia. The circuit court dismissed the Hendrickses' claims against the Curators on the basis of sovereign immunity, and certified its judgment as final.
The Hendrickses appeal. In their first Point Relied On, they argue that the Curators waived sovereign immunity by adopting a self-insurance plan which provides coverage for the Hendrickses' claims. In their second Point, the Hendrickses contend that the court erroneously treated the Curators' motion to dismiss as a motion for summary judgment, and that the motion to dismiss should have been overruled under the standards applicable thereto. We affirm.
Standard of Review
We review a trial court's decision to grant a motion to dismiss de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).
"A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It *743 assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case."
State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009) (citation omitted).
Analysis
I.
Under § 537.600,[1] sovereign immunity generally protects public entities from liability for negligent acts. "The Curators of the University of Missouri `is a public entity with the status of a governmental body and, as such, is immune from suit for liability in tort in the absence of an express statutory provision.'" Langley v. Curators of the Univ. of Mo., 73 S.W.3d 808, 811 (Mo.App. W.D.2002) (quoting Brennan ex rel. Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo.App. W.D.1997)).[2]
Two exceptions to sovereign immunity exist, neither of which is applicable under these facts. §§ 537.600.1(1), (2).[3] Besides the exceptions to sovereign immunity contained in § 537.600.1, § 537.610.1 provides that a public entity may waive sovereign immunity for tort claims by the purchase of liability insurance, or the adoption of a self-insurance plan, to the extent of the coverage provided in the insurance policy or self-insurance plan.
At the time of the alleged injury to Mr. Hendricks, the Curators had adopted a self-insurance plan which provided, subject to the limits of liability and other conditions of the plan, that:
The Employer . . . will pay on behalf of the covered person all sums which the covered person shall become legally obligated to pay as damages because of injury to the person or property of a patient arising out of the operations of a medical facility or because of injury arising out of the rendering of or failure to render, while the Plan is in effect, professional services by the covered person, or by any person for whose acts or omissions such covered person is legally responsible, performed in the practice of the individual covered person's profession including service by the individual covered person as a member of a formal accreditation or similar professional board or committee of a medical facility or professional society.
The plan defined "Employer" to mean "The Curators of the University of Missouri, a public corporation, including all its campuses, divisions, branches and parts." "Covered persons" was defined to include "[t]he Employer," "[i]ndividual members of the Board of Curators of the University of Missouri and the Board of Curators of the University of Missouri," as well as "[a]ll employees." The self-insurance plan also expressly provided, however, that it not be construed as a waiver of sovereign immunity:
*744 Nothing in the Plan shall be construed as a waiver of any governmental immunity of the Employer, the Board of Curators of the University of Missouri nor any of its employees in the course of their official duties.
Although the Curators had adopted a self-insurance plan whose coverage clause is apparently broad enough to apply to the Hendrickses' claims, the express proviso that the plan would not waive the Curators' sovereign immunity defeats any waiver argument. Numerous cases have applied such non-waiver provisions in governmental entities' insurance policies, and held that immunity was preserved despite the existence of insurance coverage which might otherwise fall within § 537.610.1. Thus, in State ex rel. Board of Trustees of City of North Kansas City Memorial Hospital v. Russell, 843 S.W.2d 353 (Mo. banc 1992), a city-owned hospital had purchased liability insurance which contained an endorsement explicitly disclaiming coverage for "any claim barred by the doctrine[] of sovereign immunity," and declaring that "[n]othing in this policy . . . shall constitute any waiver of whatever kind of the[ ] defense[ ] of sovereign immunity." Id. at 360. The Supreme Court held that "[t]he endorsement disclaiming coverage of any claim barred by the doctrine of sovereign immunity avoids any waiver of sovereign immunity" which might otherwise have resulted from the purchase of liability insurance. Id.[4]
Later decisions have followed Russell, and held that an express non-waiver provision in a liability insurance policy purchased by a governmental entity defeats any waiver of sovereign immunity under § 537.610.1. See, e.g., Topps v. City of Country Club Hills, 272 S.W.3d 409, 417-18 (Mo.App. E.D.2008); Conway v. St. Louis County, 254 S.W.3d 159, 167 (Mo. App. E.D.2008); Parish v. Novus Equities Co., 231 S.W.3d 236, 246 (Mo.App. E.D. 2007); State ex rel. Ripley County v. Garrett, 18 S.W.3d 504, 508-09 (Mo.App. S.D. 2000);[5]Casey v. Chung, 989 S.W.2d 592, 594 (Mo.App. E.D.1998).
In Langley, we applied these cases to hold that the very self-insurance plan at issue here did not effect a waiver of the Curators' sovereign immunity:
A public entity does not waive its sovereign immunity by maintaining an insurance policy where that policy includes a provision stating that the policy is not meant to constitute a waiver of sovereign immunity. Since the Curators' self-insurance plan contains such language, Appellant cannot establish that the self-insurance plan gives rise to a waiver of their sovereign immunity.
73 S.W.3d at 811-12 (citing, inter alia, Russell, Ripley County, and Casey).
The Hendrickses argue that we should disregard Langley's holding and address the effect of the non-waiver provision in the Curators' self-insurance plan anew, because the appellant in Langley apparently did not seriously contest whether the self-insurance plan waived the Curators' sovereign immunity, but instead focused her arguments on the Curators' purchase of a separate excess liability insurance policy. See id. at 812 ("Recognizing that sovereign immunity was expressly retained by the *745 Curators in their self-insurance plan, thereby defeating her claim, Appellant seizes on the Curators' purchase of an excess liability insurance policy as a basis for claiming waiver."). We are not persuaded, however, that we can dismiss Langley's explicit holding that the self-insurance plan was ineffective to waive sovereign immunity as mere dictum. First, it arguably would have been unnecessary for Langley to even address the appellant's arguments as to the effect of the separate excess policy if it had found that the self-insurance plan itself waived immunity to the extent of its coverage. Moreover, the proper interpretation of the self-insurance plan's non-waiver clause was essential to Langley's interpretation of the excess policy on which the appellant there principally relied. Langley noted that the excess policy provided that its coverage was generally "`subject to the same terms, conditions, agreements, exclusions and definitions' as the underlying self-insurance plan," id., and that the excess insurer's payment obligation was contingent on the fact "`that the underlying insurance also applies, or would apply but for the exhaustion of its applicable limits of insurance.'" Id. at 813 (footnote omitted). Thus, the Court's conclusion that the Curators' excess insurance policy did not waive immunity depended in significant degree on the Court's interpretation of the self-insurance plan: "The self-insurance plan expressly retains the Curators' sovereign immunity, and the language of the excess liability insurance policy incorporates that provision by reference." Id.
The Hendrickses also argue that Langley's interpretation of the non-waiver provision of the Curators' self-insurance plan was erroneous, and that we should therefore disregard (or, more properly, overrule) it. First, the Hendrickses argue that the phrase "in the course of their official duties" in the non-waiver clause limits the scope of the Curators' preservation of sovereign immunity. We cannot agree that the phrase "in the course of their official duties" applies to all three categories of insureds listed in the non-waiver provision: "the Employer," "the Board of Curators," and "its employees." To the contrary, the phrase appears directly after the reference to "employees," and is properly interpreted to apply only to them under "the long recognized `last antecedent rule,' which instructs that: `relative and qualifying words, phrases, or clauses are to be applied to the words or phrase immediately preceding and are not to be construed as extending to or including others more remote.'" Rothschild v. State Tax Comm'n of Mo., 762 S.W.2d 35, 37 (Mo. banc 1988) (citation omitted); see also Thompson v. Comm. on Legislative Research, 932 S.W.2d 392, 395 n. 3 (Mo. banc 1996).[6] The Hendrickses' argument based on the phrase "in the course of their official duties" fails, as that phrase is inapplicable to the Curators, who are the only insureds at issue in this appeal.
The Hendrickses also argue that Langley "does not correctly apply the law of the cases it relied upon." They argue that the cases upon which Langley relies are distinguishable because, in each of them, the "non-waiver" language appeared in an endorsement to an insurance policy, rather than as here "buried" in a "Miscellaneous" section of the self-insurance plan itself.
*746 The Hendrickses are correct that rules of insurance policy interpretation provide that, "[i]f the language of the endorsement and the general provisions of the policy conflict, the endorsement will prevail, and the policy remains in effect as altered by the endorsement." Abco Tank & Mfg. Co. v. Fed. Ins. Co., 550 S.W.2d 193, 198 (Mo. banc 1977). Unlike the prior cases involving non-waiver clauses in endorsements, here the Hendrickses' argue that the non-waiver provision creates a conflict or ambiguity within the self-insurance plan itself, which must be resolved in favor of coverage (and thus in favor of a waiver of immunity).
If we were to find an ambiguity in the self-insurance plan, there might be some question as to whether that ambiguity should be resolved in favor of coverage (and immunity waiver) under rules of construction applicable to insurance policies generally, or instead resolved against finding a waiver of immunity. The general rule is that "[w]aivers of sovereign immunity" at least as they appear in statutes "are . . . strictly construed." Richardson v. State Highway & Transp. Comm'n, 863 S.W.2d 876, 882 (Mo. banc 1993). Although Richardson applied the strict construction rule to a statutory waiver provision, this Court has apparently applied this principle to the interpretation of insurance policies alleged to waive sovereign immunity. See Casey v. Chung, 989 S.W.2d 592, 594 (Mo.App. E.D.1998). There may also be a question whether the rules governing interpretation of standard-form policies issued by insurance companies apply to self-insurance plans like the one at issue here. See, e.g., Anderson v. Nw. Bell Tel. Co., 443 N.W.2d 546, 549 (Minn.App.1989) ("The rules of insurance policy interpretation are not applicable in the context of self-insurance."); McClain v. Begley, 457 N.W.2d 230, 232 (Minn.App. 1990) ("a self-insurance plan is not construed strictly against the drafter, as insurance policies are"), rev'd on other grounds, 465 N.W.2d 680 (Minn.1991).
We need not resolve these issues, however, because we find no ambiguity in the self-insurance plan. The Hendrickses argue that the plan is ambiguous because its coverage clause promises coverage for medical negligence, but the non-waiver clause then takes that coverage away. "`If a contract promises something at one point and takes it away at another, there is an ambiguity.'" Burns v. Smith, 303 S.W.3d 505, 512 (Mo. banc 2010) (citation omitted). Contrary to the Hendrickses' repeated assertions, however, the non-waiver clause does not remove all coverage, even for the Curators themselves. It is at least conceivable that the plan provides protection to the Curators for claims that "aris[e] out of the operations of a medical facility" within the meaning of the insuring clause, but which might at the same time fall within one of the two unconditional waivers of immunity found in §§ 537.600.1(1) and (2). The plan also provides coverage for acts of employees. Despite the fact that the plan is inapplicable in this case, it offers coverage in other circumstances, and so the non-waiver clause does not render the self-insurance plan meaningless as the Hendrickses contend.[7]
*747 II.
The Hendrickses also argue that the trial court erroneously treated the Curators' motion to dismiss as a motion for summary judgment.
"[B]efore a trial court may treat a motion to dismiss as one for summary judgment, when matters outside the pleadings are presented and not excluded, it must notify the parties that it is going to do so and give the parties an opportunity to present all materials pertinent to the motion for summary judgment.". . . "A trial court's order will constitute a dismissal, and not a summary judgment, where the record contains no evidence that the court notified the parties that it intended to review pleadings and documents as a summary judgment motion, nor that the court considered matters outside the pleadings."
Pikey v. Bryant, 203 S.W.3d 817, 820-21 (Mo.App. S.D.2006) (citations omitted).
Although the trial court's Judgment referred to the Curators' motion as one for summary judgment, and stated it was granting that motion, the label the circuit court used is not dispositive. The court did not consider any documents outside the pleadings, nor did it advise the parties that it would be treating the motion as one for summary judgment. Although the court's judgment necessarily addressed the Hendrickses' contentions as to the effect of the self-insurance plan, the Hendrickses' amended petition specifically recites that the plan "is attached hereto as Exhibit A and incorporated by reference as though fully set forth herein." (Emphasis added.) Under Rule 55.12, "[a]n exhibit to a pleading is a part thereof for all purposes." When considering a motion to dismiss for failure to state a claim, "[w]e also consider exhibits attached to the petition. . . as part of the allegations." Armistead v. A.L.W. Group, 155 S.W.3d 814, 816 (Mo.App. E.D.2005). The fact that the trial court considered the terms of the Curators' self-insurance plan did not convert their motion into one for summary judgment.
The Hendrickses also argue that, to the extent the trial court intended to rule on a motion to dismiss, it improperly failed to assume that the allegations of their petition were true. In particular, they point to their allegation "[t]hat at all times herein pertinent the Defendants, and each of them, were either not entitled to or waived the application of sovereign immunity in that each of them was covered by the University of Missouri Medical Professional and Patient General Liability Plan." However, although we treat all of the factual allegations in a petition as true, and liberally grant to plaintiffs all reasonable inferences therefrom, "[c]onclusory allegations of fact and legal conclusions are not considered in determining whether a petition states a claim upon which relief can be granted." Willamette Indus., Inc. v. Clean Water Comm'n, 34 S.W.3d 197, 200 (Mo.App. W.D.2000).
The allegation in the Hendrickses' amended petition that the defendants had waived their sovereign immunity because of the self-insurance plan was a legal conclusion that the circuit court was not required to accept as true. The circuit court's dismissal was fully consistent with the procedures and standards applicable to a motion to dismiss.
*748 Conclusion
The circuit court's judgment, dismissing the Hendrickses' claims against the Curators of the University of Missouri, is affirmed.
All concur.
NOTES
[1] All statutory references are to the RSMo 2000 updated through the 2009 Cumulative Supplement unless otherwise indicated.
[2] Section 172.020 provides that "the state university is hereby incorporated and created as a body politic and shall be known by the name of `The Curators of the University of Missouri,' and by that name shall have perpetual succession, power to sue and be sued, complain and defend in all courts."
[3] The exceptions relate to injuries caused by a public employee's use of a motor vehicle and to injuries directly resulting from the dangerous condition of a public entity's property.
[4] While Russell involved a possible waiver of the immunity of a municipal entity under § 71.185, the Court held that the language of §§ 71.185 and 537.610.1 did not materially differ. 843 S.W.2d at 360; see also Conway v. St. Louis County, 254 S.W.3d 159, 167 n. 5 (Mo.App. E.D.2008) (holding Russell applicable to case involving § 537.610); Brennan, 942 S.W.2d at 436 (same).
[5] Overruled on other grounds, Amick v. Pattonville-Bridgeton Terr. Fire Prot. Dist., 91 S.W.3d 603 (Mo. banc 2002).
[6] Although frequently used in statutory construction, the last antecedent rule also has been used in contract interpretation. See e.g., Boatmen's Trust Co. v. Sugden, 827 S.W.2d 249 (Mo.App. E.D.1992); Reddi-Wip, Inc. v. Lemay Valve Co., 354 S.W.2d 913 (Mo.App. 1962). Rules of contract construction generally apply to insurance policies. Blair by Snider v. Perry County Mut. Ins. Co., 118 S.W.3d 605, 606 (Mo. banc 2003).
[7] Because we find the self-insurance plan unambiguous, there is no justification for resorting to extrinsic evidence to interpret it.
We recognize that the non-waiver provision appears in an Article of the self-insurance plan titled "Miscellaneous Provisions," in a section entitled "Actions against the Plan." However, while the placement of the non-waiver provision could have been more prominent, we cannot agree with the Hendrickses that this fact alone creates an ambiguity, or would justify our disregard of the non-waiver provision's plain meaning. As with statutes, we must interpret all provisions of an insurance policy together, and adopt a construction which gives meaning to all of the policy's provisions, if possible. Topps v. City of Country Club Hills, 272 S.W.3d 409, 416 (Mo.App. E.D.2008). We believe the construction adopted by this Court in Langley, and reaffirmed today, does just that. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575168/ | 458 S.W.2d 383 (1970)
Bobby Glenn FERGUSON and Martha FERGUSON, Appellants,
v.
STATE of Arkansas, Appellee.
No. 5517.
Supreme Court of Arkansas.
October 12, 1970.
*384 James L. Sloan, Little Rock, for appellants.
Joe Purcell, Atty. Gen., Mike Wilson, Asst. Atty. Gen., Little Rock, for appellee.
GEORGE ROSE SMITH, Justice.
The appellants, Bobby Glenn Ferguson and his wife Martha, were charged with having burglarized the Town & Country Restaurant at Fort Smith on August 18, 1969. Both were found guilty. The jury sentenced the husband to twenty-five years imprisonment, as a habitual criminal, and the wife to two years imprisonment. The appellants urge twelve points for reversal, but inasmuch as we find a new trial to be necessary we need discuss only those assignments of error that are apt to arise again during another trial.
The most serious question in the case concerns the validity of a search warrant that was used by the city police to search the defendants' apartment in Fort Smith, where certain incriminating articles were found. The vital question is whether the affidavit for the search warrant sufficiently established probable cause for the search. As a background for our discussion of that issue it will be necessary for us to narrate the pertinent facts in some detail.
The manager of the Town & Country Restaurant closed and locked it at about 10:30 p. m. on the evening of Sunday, March 17, 1969. A few hours later, at about 1:00 a. m., Norman Pound, a baker employed at the restaurant, arrived at the premises, unlocked the door, and went in to begin the preparation of food for the next day's business. Pound discovered that the restaurant had been entered. He called the police, who arrived promptly.
Entry had been gained by the removal of a piece of metal siding from the outside of the building and the removal of a plywood panel from the inside of the wall. In the restaurant an upright safe had been partly opened, when, it may be surmised, the burglar *385 or burglars had been frightened away. A sufficient opening had been made in the safe to expose a layer of asbestos and cement filling, fine particles of which were scattered about the floor. Among the burglary tools still at the scene were a sledge hammer, a smaller hammer, a long-shank punch, a crescent wrench, a Samsonite suitcase containing other tools, and a half-inch electric drill, Skil brand, bearing serial number 624092. It was not shown at the trial that any fingerprints were found.
The officers checked the cars in the vicinity. At a nearby motel, within sight of the restaurant, they found a Chevrolet El Camino parked in a breezeway. According to the proprietor of the motel, the El Camino did not belong to anyone registered there.
An El Camino is a two-door, one-seated vehicle, designed to be used both as a passenger car and a pick-up truck. The windows of the El Camino were down. Simply by looking into the vehicle the officers observed two electric drills and two pairs of gloves, on the floor. The gloves, upon being shaken, appeared to have on them a substance similar to the asbestos or cement material that came from the safe. That material is flaky and tends to cling to clothing.
Upon leaving the premises the officers left one of their number to watch the El Camino (which proved to be registered in the name of the defendant Ferguson's mother or mother-in-law). At about 2:30 a. m. the Fergusons drove up to the motel in a Cadillac car. Mrs. Ferguson got into the El Camino, and the two vehicles drove away.
The police, notified by the officer who was watching, stopped the two cars within a few blocks. The Fergusons gave the same version of their activities that they seem to have adhered to ever since. They were living temporarily at the Mumey Apartments in Fort Smith while they were buying a house in the city. They had been living at Jacksonville, Arkansas. On the preceding night they had driven to Jacksonville, spent the night in their home there, and packed up some of their belongings, which they took to their apartment in Fort Smith.
During their absence they had left the El Camino with a man named David Williams, who was staying at the Town & Country Motel and who was going to make some repairs at the house which the Fergusons were buying. When the Fergusons returned from Jacksonville to their apartment early in the morning, they decided that Mrs. Ferguson would need the El Camino to use in going to work the next morning. That, in substance, was their explanation of their activities immediately preceding their return to the motel.
When the officers stopped the two cars and questioned the couple, Ferguson said that he owned one of the drills in the El Camino, but he did not own the other drill or the gloves. Ferguson, driving the El Camino, was taken to police headquarters and questioned for a short time, after which he was released.
When Ferguson was taken to headquarters Mrs. Ferguson started back to the apartment in the Cadillac. Officer Adams followed her to the Mumey Apartments, where another officer was already waiting, having gone there in response to a request radioed by Officer Adams. The two officers entered the apartment with Mrs. Ferguson, who denied at the trial that she voluntarily invited them in. The officers looked around the apartment for a minute or two, satisfying themselves that no accomplice was present. They saw a number of tools in the apartment, including some drills and a keyhole saw.
According to Mrs. Ferguson's testimony at the trial, when her husband returned a short time later from police headquarters, the two of them went down to examine the El Camino more carefully. In a compartment behind the seat, not readily visible, they found an empty box with a slip of paper in it. They took the box up to the apartment and left in on a bureau.
*386 Before noon on that same day the police arrested both the Fergusons upon the charge of burglary. At some time they examined the Fergusons' hair, eyebrows, clothing, and shoes for particles similar to those that came from the safe, but nothing was found. It is not certain from the record whether those examinations were made when the Fergusons were first stopped on the street or after their arrest.
At about five o'clock that afternoon Officer Brooks, in company with a deputy prosecuting attorney, applied to the municipal judge in Fort Smith for a search warrant to search the Fergusons' apartment. We quote the affidavit in full:
AFFIDAVIT
At approximately 1:00 A.M., Monday, August 18, 1969, Mr. Harold Adams, an employee, entered the Town & Country Restaurant, and found that there had been an attempt to break into the safe in the office. The metal covering on the door had been peeled back, some of the asbestos filling had been stripped away. There was a large suitcase and burglar tools present: to wit, 1, ½ inch electric drill, numerous drill bits, a sawed-off sledge hammer (etc.). The point of entry to the building was in the rear of the building at the Northwest corner. Mr. Adams didn't see anyone. Police arrived and searched the immediate scene and didn't find anyone. Police found a 1968 Chevrolet El Camino, Maroon color, 69 Ark. ABC617, parked on the south side of the Town & Country Motel in direct view of the point of entry, about 100 yards away, in the breezeway. Two electric drills were observed inside the El Camino and also two pair of gloves. It was then placed under police surveillance. At approximately 2:45 A.M., a 1967 Bronze Cadillac, 69 Oklahoma ZF4514, with two occupants, Bob Ferguson and Martha Ferguson, drove up. Martha got into the El Camino and turned north on Towson following Bob Ferguson in the Cadillac. Detectives Armstrong and Brooks stopped the Cadillac. Mr. Ferguson admitted ownership of one (1) of the drills, but denied that the other drill and gloves were his. Ferguson explained that he and his wife had gone out of town at approximately 1:00 A.M., Sunday, August 17, 1969, to Jacksonville, Ark., and had parked the El Camino at Town & Country Motel because he didn't have room to park it at his residence. Monday, August 18, 1969, Armstrong and Brooks questioned Milow ______, the custodian, employed at the Town & Country Motel and he stated that he saw Mr. and Mrs. Ferguson in the bronze Cadillac at the Town & Country Motel, Sunday afternoon at approximately 1:00 P.M., August 17, 1969. At approximately 11:00 A.M., Mr. Ferguson was arrested at his residence at 405 South 14th Street Apt. 5, and brought to the Police Department where he was booked for investigation of Burglary. At the crime scene a large amount of asbestos filling which is insulation material contained in the safe, was found on the floor of the office. This substance had a tendency to cling to clothes, shoes, etc. A substance similar to this in appearance was found on the gloves that were found in the El Camino.
WHEREFORE, the affiant has reasonable grounds for believing that Mr. Ferguson was involved in the burglary of the Town & Country Restaurant and that his clothing and shoes will contain particles of this asbestos filling and that that clothing and shoes are now concealed at apartment #5, 405 South 14th Street.
/s/ Det Eddie Brooks
On the basis of the foregoing affidavit the municipal judge issued a search warrant. In the warrant the articles to be seized were described as "Burglar's tools, clothing and shoes which were used in the burglary of Town and Country Restaurant on August 18, 1969," though in fact the *387 affidavit contains nothing to indicate the affiant's belief that burglar's tools would be found at the apartment.
Pursuant to the warrant the Fergusons' apartment was searched. The principal articles found, which were introduced at the trial over the defendants' objection, were an empty box on which there was printing that showed that the box had contained a Skil brand drill with the identical serial number as that on the drill found at the scene of the burglary; also a sales slip for a long-shank punch similar to the one found at the scene. At the trial a salesman at the store where the sales slip originated testified that he thought he had sold such a punch to Ferguson, but he was unable to identify Ferguson with certainty. In the search at the apartment the officers did not find any clothing or shoes having dust particles similar to those that came from the burglarized premises.
Recent decisions of the United States Supreme Court have placed comparatively strict limitations upon the power of a magistrate to issue a search warrant. In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the court held that the affidavit for a search warrant must contain affirmative allegations of fact from which the magistrate may independently decide for himself whether there is probable cause for the search. Affirmations of mere suspicion or belief, without adequate supporting facts, are insufficient. More recently, in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the court interpreted an affidavit strictly by disregarding statements of fact that were open to an innocent interpretation as well as to an incriminating one. There, for instance, the court gave no weight whatever to the fact that a suspected bookmaker's place of operation had two telephones, because "[m]any a householder indulges himself in this petty luxury." When we apply the Supreme Court's reasoning to the affidavit in the case at bar, we are unable to say that the officer's assertion of probable cause for the search rested upon anything more than suspicion. We disregard the fact that the search warrant authorized a search for burglary tools, because the affidavit was not drafted with a view to such a search and actually set forth no facts tending to indicate that the Fergusons had such tools in their apartment.
There remains the asserted belief of the affiant, Officer Brooks, that Ferguson's "clothing and shoes will contain particles of this asbestos filling and that that clothing and shoes are now concealed at" the Fergusons' apartment. In weighing the facts contained in the affidavit, we think it essential to consider them along with other facts which, according to the evidence adduced at the hearing upon the motion to suppress the State's evidence, were known to the affiant when he signed the affidavit. Any other rule would encourage overzealous officers to conceal known facts in an effort to persuade the magistrate to issue the requested search warrant.
According to the proof in the record, the officers were alert from the outset to the possibility that incriminating dust from the safe might implicate the Fergusons. Officer Brooks, who made the affidavit, testified that when he first saw the Fergusons after their cars were stopped by the officers, and again at the police station, he checked their clothing, hair, eyebrows, and shoes for telltale dust, but he found nothing. Moreover, the officers apparently examined both the Ferguson cars during their investigation, yet there is no suggestion that incriminating dust was found in either vehicle. Finally, it is not without significance that the affiant's suspicion proved to be wholly unfounded, in that no traces of the dust were found upon the Fergusons' clothes or shoes as a result of the search.
It is our conclusion that the meager facts recited in the affidavit for the search warrant gave rise at best to a suspicion perhaps, more accurately, a hope on the part of the affiant that the search would *388 turn up dust particles such as the officers had been unable to find in more likely places. Mere suspicion, however, cannot take the place of "facts and circumstances * * * such as to warrant a man of prudence and caution in believing" that there was probable cause for the search. Dumbra v. United States, 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed. 1032 (1925). For these reasons the trial court should have granted the defendants' motion to suppress the evidence disclosed by the search; namely, the box that had contained the Skil drill, serial number 624092, and the sales slip.
The other points for reversal do not call for extended discussion. We agree with the appellants' contention that the court erred in giving in its instructions a definition of "alibi" that required the jury not only to find that the defendants were not present when the crime was committed but also that they were without "knowledge or connection with the offense." The quoted phrase was repeated in substance five times in the instruction. The instruction was fatally defective in that it would have allowed the jury to reach a finding of guilty if they found that the defendants had innocent knowledge of the offense, even though they did not participate in it.
On the other hand, we see no error in the court's having given an instruction defining principals and accessories. It was the State's theory that the Fergusons had participated jointly in the crime, but there was no direct evidence to show what part either one may have played. Hence the jury were properly told in substance that one who aids and abets another in the commission of an offense is also guilty as a principal.
Finally, the appellant Bobby Glenn Ferguson argues three points with respect to the habitual criminal statute. First, the constitutionality of such statutes is questioned, but it is enough to point out that their validity has long been sustained. Wharton's Criminal Law and Procedure, § 2218 (Anderson's Ed., 1957).
Secondly, it is insisted that the proof of Ferguson's prior convictions was defective in that the certified copies merely identified him by name, as Bobby Glenn Ferguson or Bobby Ferguson. That argument was rejected in Higgins v. State, 235 Ark. 153, 357 S.W.2d 499 (1962). Thirdly, we find no merit in the appellants' argument that the jury must have known that one or the other of the defendants had previously been convicted of some offense, simply because the verdict forms that were first submitted required the jury to make a finding of guilt or innocence without also fixing the punishment. Counsel do not suggest how the matter could have been handled with any greater fairness toward the defendants, nor is any authority cited to show that the trial court's procedure was subject to criticism. We find no semblance of error in the court's selection of the verdict forms.
Reversed and remanded for a new trial.
HARRIS, C. J., and FOGLEMAN, J., concur.
FOGLEMAN, Justice (concurring).
I concur in the result reached by the majority but do not agree upon the basis on which that result should be reached. In my opinion the affidavit states a reasonable ground for belief that clothing and shoes in Ferguson's apartment would contain telltale particles of the asbestos filling from the "peeled" safe. It appears to me, however, that the search warrant was fatally defective in that there is no authority for the issuance of such a search warrant, however desirable it might be that magistrates be vested with that authority.
According to the testimony of the municipal judge who issued the search warrant, the affidavit reproduced in the majority opinion was the sole basis for its issuance. This affidavit nowhere mentions *389 any belief that there were burglar tools or other contraband in the place to be searched or that there were any other articles for which a search warrant might be issued either under statutory or common law authority. I agree with the appellants that there must be such authority before any judicial officer has the power to issue a search warrant. Gouled v. U. S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921); White v. Wagar, 185 Ill. 195, 57 N.E. 26 (1900); Sugarman v. State, 173 Md. 52, 195 A. 324 (1937). See also, 79 C.J.S. Searches and Seizure § 64, 827; 47 Am. Jur. 511, Searches and Seizures, § 14; 1 Varon, Searches, Seizures and Immunities 371; 4 Wharton's Criminal Law and Procedure, Anderson 173, § 1548.
It is clear that there is common law authority for the issuance of a search warrant for burglary tools, stolen or forfeited property, any property which it is unlawful to possess, weapons or instrumentalities of crime and other articles of such nature and character. See Boyd v. U. S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Weeks v. U. S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas. 1915C, 1177 (1914).
I do not think that the case of Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), relied upon by the state, overruled Gouled in its holding that there is no common law authority for issuance of a warrant to search for "mere evidence." In Warden, the search was made contemporaneously with a lawful arrest upon hot pursuit. The incriminating evidentiary material was found and seized by the officers in the course of a proper search of the premises for the person or persons to be arrested, for weapons and instrumentalities or fruits of the crime. The only effect of Warden upon this situation, in my opinion, is the holding that there are no federal constitutional inhibitions against the seizure of mere evidence. There is no indication in that case that there is authority for the issuance of such a warrant, without common law or statutory authority.
I have been unable to find any statute that authorizes the issuance of a warrant to search for Ferguson's clothing and shoes. I do not believe that they can be considered instrumentalities of the crime.
It is suggested that we found inherent authority for justices of the peace and municipal judges to issue search warrants for anything for which a search is constitutionally permissible in Albright v. Karston, 206 Ark. 307, 176 S.W.2d 421. I do not agree with this argument. In the first place, the authority of the municipal judge to issue a properly authorized warrant was based upon the common law authority of justices of the peace to issue search warrants. The power of justices of the peace to issue the warrants in that case was related to statutory authority for the issuance of warrants to search for gaming devices and authorizing the destruction of such devices. According to the majority opinion, the undisputed testimony showed that all of the articles seized were being actually used in carrying on gambling operations, and for no other purpose. The argument that authority is inherent and limited only by constitutional restrictions is hinged upon the following language in that opinion:
* * * The operation of a "bookmaking" establishment constitutes a felony and, since justices of the peace have jurisdiction to cause persons accused of a felony to be arrested and brought before them for examining trial, it follows that they have power to issue a search warrant by which devices used in the commission of felonies may be seized, that they may be used as evidence, and that they may be destroyed, if they are such as have been outlawed by statute.
I submit that, even if this language is not dictum, it is applicable only when power is vested in justices of the peace at common law or by statute to issue search warrants for instrumentalities used in the *390 commission of felonies and nothing further.
I agree with all other matters covered in the majority opinion except for certain language with reference to consideration of lack of success of the search as a significant factor in determination of the validity of the warrant and consideration of the failure of the officers to find incriminating dust on the clothing of the Fergusons before the affidavit was made.
The validity of the warrant should be determined upon the basis of the evidence produced before the magistrate issuing it. Success of a search will not validate a warrant. Walton and Fuller v. State, 245 Ark. 84, 431 S.W.2d 462. Failure should not be evidence of invalidity. This premise is recognized in United States v. Cunningham, 424 F.2d 942 (D.C.Ct.App.1970).
The significance of the failure of the officer to disclose that he and others had failed to find evidence of incriminating dust on the persons and clothing of the Fergusons completely eludes me. I cannot see how the officer can be said to have been concealing anything. It might be different if the Fergusons had been apprehended upon the burglarized premises and there inspected. It must be remembered that they were not seen at the neighboring motel until 1½ hours after the burglary had been discovered. They would have had ample time to go to their residence, bathe and change clothes before they dared to try to rescue the El Camino, if they had been active participants in the safe peeling. I find no indication of any lack of good faith or withholding of information from the magistrate by the officers.
I find the language of Mr. Justice Goldberg in United States v. Ventresca, 380 U. S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), to be appropriate:
* * * the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.
HARRIS, Chief Justice (concurring).
I agree that this case should be reversed because of the erroneous instruction relating to an alibi, but I do not agree with the majority that the affidavit of Officer Brooks was defective in that it did not set forth sufficient facts to enable the magistrate to independently determine that there was probable cause for the issuance of the search warrant. The affidavit and surrounding circumstances are set forth in the majority opinion, and I see no point in commenting further. To me, the grounds set forth in the affidavit were ample to justify the magistrate in issuing the warrant, and I therefore respectfully dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575183/ | 308 S.W.3d 417 (2010)
Bonnie Miller REED, Appellant,
v.
The STATE of Texas, State.
No. 2-09-126-CR.
Court of Appeals of Texas, Fort Worth.
March 11, 2010.
*418 C. Mark Nelon, Atticus J. Gill, The Dunham Law Firm, P.C., Fort Worth, TX, for Appellant.
Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallin, Asst. Criminal District Atty. and Chief of the Appellate Section, Andy Porter, Brooke Panuthos, and Jon O'Toole, Assistant Criminal District Attorneys, for Appellees.
Panel: DAUPHINOT, GARDNER, and McCOY, JJ.
OPINION
BOB McCOY, Justice.
I. Introduction
Appellant Bonnie Miller Reed challenges the trial court's denial of her motion to suppress in a driving while intoxicated (DWI) case. In one issue, Reed argues that the trial court erred by finding reasonable suspicion existed for her detention on suspected DWI. We affirm.
II. Factual and Procedural Background
Bedford Police Officer Chris Miller was the only witness at Reed's suppression hearing.[1] In addition to testifying that he had been a police officer for three years and had attended specialized training for field sobriety tests, he also testified to the following.
While out on routine patrol around 12:45 a.m. on February 12, 2008, he had seen a vehicle driving eastbound on State Highway 183 veer onto the shoulder of the roadway.[2] When asked to describe how far the vehicle had crossed over onto the shoulder, Officer Miller stated, "[I]f you divide the vehicle down the middle, I would say the right-hand, or the passenger compartment, was off of the roadway on the shoulder. The driver's side, or the left side, was still in the roadway." Officer Miller activated his in-car video camera at that time and proceeded to follow the vehicle. He observed the driver, later identified as Reed, turn on her right-hand turn signal when there were no exits or roads to turn onto and leave the signal on for approximately one-quarter to one-half mile before moving into the exit lane. Officer Miller again saw Reed's vehicle veer onto the shoulder of the roadway before it exited. Officer Miller stated and the videotape confirmed that when Reed's vehicle veered onto the shoulder the second time, "[t]he passenger tires [were] clearly over the line."
Officer Miller testified that although he had not seen Reed entering or leaving a bar, she had been driving away from an area of Bedford that contained several bars and restaurants that served alcohol, and that he had previously pulled over other drivers for DWI in that same area. When asked about Reed's driving and the surrounding conditions, Officer Miller stated that Reed's movements had not been jerky or violent but had been more like a gradual drift, that the traffic on the roadway had been light, and that Reed had not *419 posed an immediate danger to any other vehicles. Officer Miller also stated that, based on his experience and training, intoxicated drivers sometimes drift.
Finally, Officer Miller testified that in addition to the probable cause from the traffic violationsthat is, failure to maintain a single lane and illegal use of a turn signalhe had stopped Reed because he suspected that she might be intoxicated based on her driving, the time of day, the area of the city that she had been coming from, and his experience with intoxicated drivers exhibiting similar driving characteristics.
After hearing all the evidence, the trial court denied Reed's motion to suppress, and on March 18, 2009, it entered findings of fact and conclusions of law. The trial court's findings were:
The [trial court] finds there was no traffic violation under Section 545.060(a) [of the] Transportation Code. There is no evidence that the Defendant's failure to drive in a single lane was unsafe. The use of the turn signal was not done in an illegal manner. There was no probable cause for the stop. This leaves the question of whether there was reasonable suspicion to justify the stop.
The reasons against the unlawfulness of the detention in this case are:
1. No traffic violation.
2. Not weaving within the lane.
3. Nothing unsafe about weaving on to the shoulder.
4. Very light traffic.
5. No erratic speed changes.
6. Driving within the speed limit.
The reasons for the lawful detention in this case are:
1. Crossing on to the shoulder of the roadway by one-half width of the vehicle.
2. Crossing on to the shoulder a second time by a few inches.
3. Unusual use of turn signal. Turn[ed] on when not approaching an exit and kept on for an unusual length of time for approximately one-half mile.
4. Leaving the bar area of the city at approximately 12:45 a.m.
5. Based on the Officer's training and experience, intoxicated drivers show these characteristics of driving.
6. Based on his training and experience, the officer suspected the driver might be intoxicated.
The trial court concluded that "the articulated facts justifying the stop were sufficient to overcome the articulated facts mitigating against the stop and were sufficient to give Officer Miller a reasonable suspicion to detain [Reed] for further investigation." Thus, Reed's "Fourth Amendment rights under the United States Constitution and under Article 1[,] Section 9 of the Texas Constitution were not violated."
Reed subsequently pleaded guilty to the offense of DWI but preserved her right to appeal the denial of the motion to suppress. The trial court sentenced Reed to fifteen days' confinement and assessed a $500 fine. This appeal followed.
III. Discussion
In her sole issue, Reed argues that the trial court erred by concluding that Officer Miller had reasonable suspicion, under both the United States and Texas constitutions, to stop her for suspected DWI.[3]
*420 A. Standard of Review
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002).
B. Applicable Law
The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007). To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672. A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Id. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 673; Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim. App.2005); Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005).
A detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000).[4] An officer conducts a lawful temporary detention when he or she has reasonable suspicion to believe that an individual is violating the law. Ford, 158 S.W.3d at 492. Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Id. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id.
C. Analysis
In her sole issue, Reed argues that neither the trial court's findings nor Officer Miller's testimony rises to the level of proof required for an investigative detention for DWI. Reed cites several cases in support of her argument. See Fowler v. State, 266 S.W.3d 498, 505 (Tex.App.-Fort Worth 2008, pet. ref'd); State v. Palmer, *421 No. 02-03-00526-CR, 2005 WL 555281, at *1, 3 (Tex.App.-Fort Worth Mar. 10, 2005, pet. dism'd) (mem. op., not designated for publication); State v. Arriaga, 5 S.W.3d 804, 807 (Tex.App.-San Antonio 1999, pet. ref'd); State v. Tarvin, 972 S.W.2d 910, 912 (Tex.App.-Waco 1998, pet. ref'd). These cases, however, are all distinguishable.
In Fowler, the officer testified that he had initiated the stop because Fowler's truck had crossed into an adjacent same-direction lane by a tire's width and had drifted within its own lane on two occasions. 266 S.W.3d at 499. In Arriaga, the officer testified that he had initiated the stop because Arriaga's vehicle had drifted out of its lane on multiple occasions. 5 S.W.3d at 807. And in Tarvin, the officer testified that he had initiated the stop because Tarvin's vehicle had been weaving within its own lane of traffic. 972 S.W.2d at 912. Here, however, Officer Miller not only testified that he had stopped Reed because of her driving violations, but also because he had suspected that she might be intoxicated based on the time of day, the area of the city that she had been coming from, and his experience with intoxicated drivers exhibiting similar characteristics of driving. See Curtis v. State, 238 S.W.3d 376, 380-81 (Tex.Crim.App. 2007) (applying the totality of the circumstances test and concluding that a rational inference could be made that the driver was intoxicated based on the driver's weaving, the time of day, and the officer's experience).
In Palmer, the officer testified to facts similar to those in this case. See 2005 WL 555281, at *1-2. However, the trial court in Palmer granted the defendant's motion to suppress and did not enter findings of fact or conclusions of law. This court, on appeal, noted that the videotape from the officer's in-car camera did not support the officer's assertion that the driver had applied his brakes in a sudden and unsafe manner. Id. Thus, we concluded that, under the totality of the circumstances, the facts were insufficient to support reasonable suspicion. Id.
This appeal differs from Palmer in that the trial court here entered findings of fact and found Officer Miller's testimony to be credible. Furthermore, the videotape from Officer Miller's in-car camera supports his testimony. Thus, after giving almost total deference to the trial court's rulings on application-of-law-to-fact questions that turn on credibility and demeanor and reviewing de novo those rulings that do not, we conclude that the totality of the circumstances surrounding the stop, support a reasonable suspicion that Reed was driving while intoxicated. Therefore, the trial court did not err by denying Reed's motion to suppress. Accordingly, we overrule Reed's first issue.
IV. Conclusion
Having overruled Reed's sole issue, we affirm the trial court's judgment.
DAUPHINOT, J. filed a dissenting opinion.
LEE ANN DAUPHINOT, Justice, dissenting.
I, frankly, am reluctant to write this dissent because I am concerned that it could be construed as criticism of an officer who in all ways displayed a conscientious respect for the law and treated Appellant with courtesy. In short, Officer Chris Miller behaved as I would hope all our law enforcement officers would. But I must respectfully dissent from the majority opinion because I do not believe that the record supports a finding that Officer Miller had reasonable suspicion to detain Appellant when the officer turned on his *422 overhead lights and Appellant submitted to his show of authority.
The majority states that Officer Miller was driving eastbound on Highway 183, also known as Airport Freeway, at about 12:45 a.m. when he noticed Appellant's dark-colored Volkswagen driving in front of him on the highway. Although the majority is correct in stating that he testified that the time was 12:45 a.m., the record actually shows that Officer Miller first saw Appellant's vehicle twenty minutes earlier at 12:25 a.m.:
Q. Okay. So it wasn't 12:45, 1:00?
A. When I initially observed the vehicle?
Q. Correct.
A. Yes, that's correct.
Specifically, Officer Miller testified, "This was noted in my report that it was 25 minutes after midnight on the date in question."
As the majority notes, he testified that Appellant "had been driving away from an area of Bedford that contained several bars and restaurants that served alcohol" and that he had previously pulled over other drivers for driving while intoxicated (DWI) in that same area.[1] But the video reveals that Appellant was on a freeway that is a major state highway with restricted ingress and egress and that passes through residential areas, warehouse areas, office areas, and areas with bars and restaurants. The portion of Highway 183 visible on the videotape made by Officer Miller is raised and well separated from the structures along the access road. He did not see Appellant enter the freeway. He first saw her driving on Highway 183.
Officer Miller testified that he "was on routine patrol [and] was driving westbound [sic] on 183 about to get on 121 and go north.... There was ait was a dark-colored Volkswagen four-door sedan driving in front of [him] on the highway." On cross-examination he clarified his testimony:
A. Again, it's justit's just an observation. I'm not saying that she was leaving a bar. It was just I observed her leaving a part of our city that has many bars. It's just an observation.
Q. And you didn't see her on any side streets because, I mean, you can't let me back up. You would have to get off the highway or get on to the highway to get to or leave from a bar in Bedford, right?
A. Yes.
....
Q. So you just see her driving down the highway. You never saw her enter onto the highway; is that correct?
A. No.
....
Q. So, again, you didn't ever see her leave a bar?
A. No, I didn't see her leave a bar.
Officer Miller testified that he never saw Appellant enter or leave a bar or a restaurant; he only saw her drive past bars and restaurants on a major state highway that passes above them. If we hold that merely driving past a bar provides reasonable suspicion justifying the detention of a motor vehicle and requiring the driver to submit to questioning and field sobriety tests, every person leaving downtown Fort Worth, or driving down 6th Street in Austin, or driving down a highway or freeway through any commercial area will be fair game to be pulled over, questioned, searched for the officer's safety, and *423 hauled out of the car to perform feats of line-walking, nose-touching, and balancing on one foot. Indeed, if one lives across the street from fraternity row, one should be prepared to be pulled over every time he leaves home because everyone knows fraternity houses are rife with alcohol.
The majority says that Officer Miller testified that he believed that Appellant was driving while intoxicated because of the time of night, her driving, the area of the city that she had been coming from, and his experience with intoxicated drivers exhibiting similar driving characteristics.[2] But Officer Miller actually testified that it was less the time of night than the fact that it was night:
Q. But, nevertheless, it's not in your report what time it was orit doesn'tyour report is not reflective of
A. I think it's fair to say that the number of impaired drivers increase[s] in the nighttime hours especially leaving an area of the City that has several bars or restaurants thatif you will, that serve alcohol.
Our sister court in Austin was faced with a similar set of circumstances in Foster v. State.[3] First, the Foster court noted,
While the Court of Criminal Appeals no longer employs the "as consistent with innocent activity as with criminal activity" test for reasonable suspicion, the plausibility of an innocent explanation in this case affects our determination of whether there was a reasonable basis for suspecting that Foster was intoxicated.[4]
With that caveat in mind, I would look at the trial court's determination of credibility; that is, the trial court's findings of fact. Officer Miller testified that he pulled Appellant over because he saw her commit a traffic violation. But he was mistaken. What he observed was not a violation of the law. As this court has previously explained, reasonable suspicion of an alleged traffic violation cannot be based on a police officer's mistaken understanding of traffic laws.[5]
As the Foster court posited, "In the absence of a traffic offense, was there reasonable suspicion of intoxication?"[6] A reviewing court must determine whether "the combined weight of [the] circumstances is ... so much greater than the aggregation of their individual weights that it allows for a rational inference of intoxication."[7] The majority points out that the trial court found no traffic violation, no unsafe driving, very light traffic, and no erratic speed changes.[8]
The majority then properly addresses the remaining justifications for the detention.
1. Time of night. "Time of day, by itself, is `owed virtually no weight' as a factor in determining reasonable suspicion."[9]
*424 2. Leaving a bar area. Actually, Officer Miller did not see Appellant leaving a bar area but, rather, driving on a freeway/major state highway that was routed through an area that had some bars and restaurants. He did not observe her leaving any parking lot or even driving on a roadway other than Highway 183 with limited ingress and egress. He did not observe her at any point before she was driving on Highway 183. As the Foster court stated, "[L]ocation is generally `an insufficient basis for a rational inference that would lead to a reasonable suspicion.'"[10]
3. Crossing on to the shoulder of the roadway, once by one-half the width of the vehicle and a second time by a few inches and "[u]nusual use of turn signal."
The trial court correctly concluded that the record reveals that Appellant committed no traffic offense.[11] Was the use of the turn indicator, combined with the other circumstances, sufficient to provide reasonable suspicion to detain Appellant? Officer Miller suggested that he thought that Appellant's signal was a violation of the law.
Section 545.104(b) of the transportation code provides in pertinent part that "[a]n operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn."[12] The statute does not provide for a maximum distance beyond which a person may not signal a turn, only a minimum distance. Officer Miller did not see Appellant violate the law by engaging her turn indicator more than 100 feet before changing lanes or exiting the freeway.
An officer's reasonable suspicion of an alleged traffic violation cannot be based on a mistaken understanding of traffic laws. And an officer's honest but mistaken understanding of the traffic law which prompted a stop is not an exception to the reasonable suspicion requirement.[13]
The issue, then, is whether the non-violation was a circumstance providing, in light of all the circumstances, reasonable suspicion for Officer Miller to stop Appellant. This question requires close examination of the videotape.
The videotape shows that when Appellant first engaged her turn signal, there was a traffic lane to her right and a sign indicating the Harwood exit from the freeway. After she engaged the turn indicator, it became clear that the lane to her right merged into the lane she was in. At this point she had a choice to make. She could disengage the turn indicator, and then immediately re-engage it in order to signal her intent to exit the freeway, or she could leave the turn indicator on. Was one choice really so much more rational than the other that to make the other choice indicated intoxication? Was her decision *425 not to flick the indicator off and then immediately on even unreasonable?
The detention cannot be justified by the fruits of the detention. The reasonable suspicion for the stop must exist at the time the officer exercises a show of authority and the suspect indicates an intent to or actually acquiesces to the show of authority.[14] Officer Miller engaged his overhead lights before Appellant exited the freeway.
I would hold that the combined circumstances of Officer Miller's seeing Appellant's vehicle traveling at 12:25 a.m. on a limited ingress/egress major highway through an area containing bars and restaurants, seeing the vehicle's tires crossing or touching the right lane line twice, and seeing Appellant indicating her exit from the freeway for more than 100 feet do not provide reasonable suspicion to believe that Appellant was committing the offense of DWI. I would hold, therefore, that the State did not sustain its burden of proving that the warrantless stop was lawful, and I would further hold that the trial court abused its discretion by denying Appellant's motion to suppress the fruits of the stop. Because the majority does not, I must respectfully dissent.
NOTES
[1] The State also introduced the videotape of the stop made from the camera in Officer Miller's patrol unit.
[2] Officer Miller testified that the vehicle was driving westbound. A review of the videotape, however, shows that the vehicle was actually traveling eastbound. Because this is irrelevant to the issue at hand, we note it simply for the sake of accuracy.
[3] When, as in this case, the appellant has not separately briefed state and federal constitutional claims, we assume that the appellant claims no greater protection under the state constitution than that provided by the federal constitution. See Varnes v. State, 63 S.W.3d 824, 829 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Therefore, we will analyze Reed's claim solely under the Fourth Amendment of the United States Constitution, following guidelines set by the United States Supreme Court in interpreting the Fourth Amendment. See State v. Guzman, 959 S.W.2d 631, 633 (Tex.Crim.App. 1998).
[4] Because a routine traffic stop typically involves only a short, investigative detention, as opposed to a custodial arrest, we analyze traffic stops under the principles developed for investigative detentions set forth in Terry v. Ohio. 392 U.S. at 22, 88 S.Ct. at 1880; see Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Martinez v. State, 236 S.W.3d 361, 369 (Tex. App.-Fort Worth 2007, no pet.).
[1] Majority op. at 418-19.
[2] Id.
[3] 297 S.W.3d 386 (Tex.App.-Austin 2009, pet. granted).
[4] Id. at 393 (citing Curtis v. State, 238 S.W.3d 376, 379 (Tex.Crim.App.2007)).
[5] Fowler v. State, 266 S.W.3d 498, 504 (Tex. App.-Fort Worth 2008, pet. ref'd); see United States v. Granado, 302 F.3d 421, 423 (5th Cir.2002).
[6] 297 S.W.3d at 393.
[7] Id. (citing State v. Thirty Thousand Six Hundred Sixty Dollars & no/100, 136 S.W.3d 392, 400 (Tex.App.-Corpus Christi 2004, pet. denied)).
[8] Majority op. at 419.
[9] Foster, 297 S.W.3d at 393 (quoting Thirty Thousand Six Hundred Sixty Dollars & no/100, 136 S.W.3d at 400).
[10] Id. (quoting Thirty Thousand Six Hundred Sixty Dollars & no/100, 136 S.W.3d at 401).
[11] See Fowler, 266 S.W.3d at 504-05; State v. Huddleston, 164 S.W.3d 711, 716 (Tex.App.-Austin 2005, no pet.).
[12] Tex. Transp. Code Ann. § 545.104(b) (Vernon 1999).
[13] Fowler, 266 S.W.3d at 504 (citations omitted).
[14] St. George v. State, 237 S.W.3d 720, 725-26 (Tex.Crim.App.2007) (citing Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575188/ | 308 S.W.3d 756 (2010)
Deborah THEERMAN, Appellant,
v.
FRONTENAC BANK, Respondent.
No. ED 93313.
Missouri Court of Appeals, Eastern District, Division Four.
April 27, 2010.
*758 Ted F. Frapolli, St. Louis, MO, for Appellant.
Lawrence E. Parres, Ronald A. Norwood, St. Louis, MO, John R. Hamill III, St. Charles, MO, Edward M. Pultz, Farmington, MO, for Respondent.
GEORGE W. DRAPER III, Judge.
Deborah Theerman (hereinafter, "Appellant") appeals the trial court's grant of summary judgment in Frontenac Bank's (hereinafter, "the Bank") favor finding Appellant was not entitled to the proceeds of four certificates of deposit (hereinafter, "the disputed CDs") as a matter of law. Appellant raises three points on appeal. We reverse and remand.
It is well-settled that when considering a grant of summary judgment, we review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Co., 854 S.W.2d 371, 376 (Mo. banc 1993). "Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those employed by the trial court to determine the propriety of sustaining the motion initially." Id. A summary judgment movant has the burden of proof to establish a legal right to judgment flowing from facts about which there is no genuine dispute. Id. at 378. "The moving party bears the burden of establishing a right to judgment as a matter of law." Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 580 (Mo. banc 2006).
"A `defending party' may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements. . ., (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense." ITT Commercial Fin. Corp., 854 S.W.2d at 381.
"When the movant makes a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law," the nonmovant must show by affidavits, depositions, answers to interrogatories, or admissions on file that one or more of the material facts shown by the movant to be without any genuine dispute is, in fact, genuinely disputed. Id. (quoting Rule 74.04(e)). "A `genuine issue' exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." Id. at 382.
The record viewed in the light most favorable to Appellant is as follows: Edna Holt (hereinafter, "Holt") was the grandmother of Appellant. Holt and her husband, Norman Holt (hereinafter, "Norman"), opened approximately thirteen CDs with the Bank between 1999 and his death on March 3, 2005. Included in these thirteen CDs were the disputed CDs: # 2340, #2695, #2703, and #6101. Holt and *759 Norman named Holt's daughters, Jacqueline Sills Blank (hereinafter, "Blank") and Janet Y. Layman (hereinafter, "Layman"), as the pay-on-death (hereinafter, "the POD") beneficiaries of the disputed CDs.
In 2006, Appellant had a conversation with Holt during which Holt promised Appellant that "there were additional monies for [her], if anything would ever happen to [Holt], at Frontenac Bank." Appellant's sister, Pamela Stock (hereinafter, "Stock"), was present during this conversation. The parties do not dispute Holt was of sound mind at the end of her life. Blank testified Holt's mental health was "as sharp as can be" during the last ten years of her life and she was capable of handling her own financial matters. Similarly, Appellant observed Holt handling her own financial affairs and her mail without assistance.
On March 14, 2006, the Bank issued an interest check on CD # 2340 in Holt's name only. Thereafter, the Bank issued interest checks on CD #2340 to "Edna Newhouse Holt or Debra Theernan" on June 14, 2006, September 14, 2006, December 14, 2006, and March 14, 2007.[1] The Bank issued an interest check on CD # 2695 to "Edna Newhouse Holt/Debra Theernan" on May 5, 2006, August 6, 2006, November 6, 2006, and February 6, 2007. Furthermore, the Bank issued financial statements to "Edna Newhouse Holt/Debra Theernan" for the disputed CDs from January 1, 2006, through December 31, 2006.
Holt died on March 24, 2007. After Holt's death, Appellant learned Holt had named her a POD beneficiary for CD #14741 held at the Bank. On April 6, 2007, Appellant inquired about locating "some other accounts" for her at the Bank. At this time, the Bank denied Appellant had other accounts. At some point, the Bank paid the proceeds of the disputed CDs to Blank and Layman.
On November 20, 2007, Appellant filed a petition for damages against the Bank alleging Holt designated Appellant as joint owner of the disputed CDs. According to Appellant, the Bank wrongfully distributed $91,717.65 in proceeds and accrued interest on the disputed CDs to Blank and Layman, the POD beneficiaries. In response, the Bank filed a third party petition for indemnity against Blank and Layman for money had and received.
On October 23, 2008, the Bank filed its motion for summary judgment alleging two bases in support thereof.[2] First, the Bank claimed it was entitled to judgment as a matter of law under Sections 461.021 and 461.028 RSMo (2000)[3] because it paid the disputed CDs in accordance with the POD beneficiary designations. Second, the Bank alleged it was entitled to judgment *760 as a matter of law under Section 362.471 because it paid the disputed CDs in accordance with the POD beneficiary designations. In effect, the Bank asserted Sections 461.021, 461.028, and 362.471 as affirmative defenses to Appellant's claim the Bank should have paid her, as joint owner, the proceeds of the disputed CDs.
In its statement of uncontroverted material facts, the Bank claimed Holt never expressed her intent to have Appellant be a named joint owner of the disputed CDs. First, Holt allegedly never asked the Bank to amend its paper records adding Appellant as a joint owner. Second, Appellant never completed the required signature card or tax reporting form to make her a joint owner of the disputed CDs. Third, the Bank claims Holt never gave Appellant any documentation indicating she was a joint owner of the disputed CDs. Fourth, the Bank alleges Appellant's "name was, unbeknownst to [the] Bank, inadvertently inserted into the Bank's computer records when the Bank switched computer program systems." Fifth, the Bank claims to rely on its paper records in the event of disputes or inconsistencies between computer records and paper records.
Following the Bank's filing of its motion for summary judgment and in preparation of its response thereto, Appellant conducted a deposition of Gretchen Funaro (hereinafter, "Funaro"), a client services manager with Fiserv Cir., Inc. Fiserv conducted a computer conversion at the Bank in May 2004. Funaro denied the Bank notified Fiserv of "any issues related to the conversion of CDs." Funaro testified she was not aware of any computer error that would result in a joint owner being added to a CD or to a CD interest check. Funaro further stated the addition of Appellant's name to an interest check "could only happen if someone at [the] Bank made some type of change." According to Funaro, the Bank's Central Information Systems log (hereinafter, "the CIS log") lists "names and addresses that can or cannot be attached to accounts." Funaro indicated a review of the CIS log would be necessary to explain why Appellant's name was added to interest checks for the disputed CDs. Only the Certificate of Deposit log (hereinafter, "the COD log") was presented during Furnaro's deposition. Wendy Stengel (hereinafter, "Stengel"), operations officer for the Bank, testified the COD log is "on the application certificate side," whereas the CIS log "is on the port side, which house the names, the addresses, anything that could be on the various accounts."
Following Funaro's disclosure of the relevancy of the CIS log, the trial court compelled the Bank to produce the Bank's CIS log on January 6, 2009. The CIS log reflected an entry was initiated on April 14, 2006, by Katrina Elliot (hereinafter, "Elliott"), branch manager and vice president of the Bank's Earth City location, indicating "400388 Changed for Primary Holder Edna Newhouse Holt" to "Debra Theernan" under "Name 2." Stengel testified this entry indicated something was changed, but the CIS log does not show what account or CD was changed, or whether only the actual CIS log was changed.
On June 1, 2009, the trial court granted the Bank's motion for summary judgment and found Appellant was not entitled to the proceeds of the disputed CDs. Appellant appeals.
In her first point on appeal, Appellant asserts the trial court erred in granting summary judgment in favor of the Bank because a genuine issue of material fact exists.[4] Specifically, Appellant alleges the *761 Bank's claim Appellant's name was added as a joint owner of the disputed CDs due to a computer error was "denied and controverted" by Funaro, who testified such error could not have occurred. Appellant first notes the computer conversion occurred in May 2004, whereas Appellant's name initially appeared on interest checks and financial statements for the disputed CDs in 2006. Second, Appellant relies on Funaro's testimony that "in [her] 23 years of experience [she] had never seen nor heard of" a computer error causing a name to be added to a CD interest check. Rather, Funaro stated Appellant's name could only have been added to an interest check "if someone at [the] Bank made some type of change."
The Bank contends that in order for an addition of a joint owner to be effective, the addition must have been made in accordance with the Bank's policies. The Bank proffers Appellant's name must have been added to the face of the CDs or the deposit documents completed by Holt. John Thomas (hereinafter, "Thomas"), the Bank's compliance officer, testified the Bank's policy required Holt to authorize any new owner in writing and Appellant was required to sign a signature card. It is undisputed the Bank has no writing to this effect nor did Appellant sign a new signature card for the disputed CDs. Further, the Bank claims Appellant's name was added to the Bank's "computer records relating to the CDs due to a computer error." The Bank also fails to offer a specific theory as to how Appellant's name appeared on Bank-issued financial statements and interest checks for the disputed CDs.
However, the law guides us as to what constitutes ownership, not the Bank's unwritten policy. This Court must determine whether a reasonable jury could find Appellant was a joint owner of the disputed CDs. In Maudlin v. Lang, 867 S.W.2d 514 (Mo. banc 1993), the Missouri Supreme Court established a three-part test to decide if a joint tenancy with right of survivorship exists. First, a court must determine if an account complies with one of the methods provided in Sections 362.470 and 369.174. Id. at 516. Sections 362.470 and 369.174 "create three routes to a joint tenancy with right of survivorship: 1) describing the named persons as `joint tenants'; 2) making the deposit `in form to be paid to any one or more of [the named persons]'; or 3) making the deposit `in form to be paid to ... the survivor or survivors." Id. Second, if a deposit does not comply with Sections 362.470 or 369.174, ownership is determined by the language used in the deposit documents. Id. at 517. Third, if "ownership cannot be determined by compliance with the statute or the meaning of the deposit documents, the depositor's intent controls." Id. at 519. Here, the trial court erred in granting the Bank's motion for summary judgment because genuine issues of material fact exist. The affidavits, depositions, and exhibits offered by the Bank and Appellant demonstrate a genuine issue whether Appellant was a joint owner of the disputed CDs.
First, there is a genuine dispute whether Holt requested Appellant be added as a joint owner to the disputed CDs. In her affidavit, Elliott denied Holt expressed a desire to add Appellant as a joint owner to *762 the disputed CDs: "Holt did not add any authorized individuals or co-owners to the CDs between [Norman's] passing and her own death. Furthermore, during this time Holt never expressed any desire or intention to add any other authorized individuals or co-owners to the CDs." Elliott also relied on the fact Appellant did not complete a new signature card, which the Bank's unwritten policy required to become a joint owner of the disputed CDs.
Conversely, Appellant testified about a conversation between herself, Holt, and Stock during which Holt indicated, "there were additional monies for [Appellant], if anything would ever happen to [Holt], at Frontenac Bank." Appellant produced copies of eight interest checks issued for CDs #2340 and #2695 on which the names of both Holt and Appellant are listed. Appellant also produced copies of eight financial statements for CDs #2340, #2695, #2703, and #6101 on which the names of both Holt and Appellant are listed. Furthermore, Elliott initiated an entry in the CIS log on April 14, 2006, which indicated an unidentified account held primarily by Holt was "Changed to Debra Theernan." These facts clearly indicate a genuine dispute whether Holt requested Appellant to be added as a joint owner to the disputed CDs.
Second, as Appellant emphasizes in her brief, there is genuine dispute whether Appellant's name was added as a result of a computer error following the 2004 computer conversion. Thomas testified Appellant's name was added to the disputed CDs as a result of "a computer error," but was unable to state when or why the computer error occurred. During her deposition, Elliott recalled informing Christine Caguin (hereinafter, "Caguin"), Holt's power of attorney, after Holt's death that Appellant's name appeared on the computer system records due to "the conversion error." Elliott testified she received this information after speaking with Fiserv. Elliott further stated in her affidavit that "[t]he Bank relies on the paper records containing the signature of the account owners and authorized individuals in the event of disputes or inconsistencies between the Bank's computer records and the Bank's paper records." Thus, Elliott alleged the Bank's paper records must control because a computer error caused the Bank's computer records to be inconsistent.
In contrast, Funaro refuted the Bank's allegation that a computer error caused the addition of Appellant's name to the disputed CDs. When questioned if she was aware of any computer error that would cause Appellant's name to be added, Funaro responded, "Absolutely not." Funaro testified the addition of Appellant's name to an interest check "could only happen if someone at [the] Bank made some type of change." She suggested a review of the Bank's CIS log to explain why Appellant's name was added to interest checks for the CDs. Finally, contrary to Elliott's deposition testimony, Funaro denied the Bank ever notified Fiserv of any issues arising from the conversion. These facts illustrate a genuine dispute exists whether Appellant's name was added as a result of a computer error.
Third, there is a genuine dispute whether written evidence exists demonstrating Appellant was a joint owner of the disputed CDs. The Bank alleges in its brief that "Funaro at FISERV testified unequivocally that a name listed on the FISERV CID computer logs does not reflect ownership and did not identify Deborah Theerman as an owner." The Bank's statement raises several issues. First, Funaro clearly testified the logs at issue were maintained by the Bank, not by FISERV. Second, a "CID computer log" was not at issue.[5]*763 Third, this Court's review of the legal file reflects Funaro testified in reference to the CIS log that "a name line may or may not be an owner." This testimony contradicts the Bank's characterization of Funaro's testimony as "unequivocal" that "a named listed ... does not reflect ownership." Fourth, Funaro did not have the actual CIS logs available for examination while testifying at her December 16, 2008, deposition.[6] Therefore, Funaro's statement that "I do not see a change where Deborah Theerman was added as an owner of the four CDs" was in reference to the COD logs presented during her deposition, not the CIS log.
Moreover, Appellant produced testimony and exhibits supporting the existence of written evidence she was a joint owner of the disputed CDs. Funaro testified during her deposition that "names that appear on checks are coded on the system as an owner." Correspondingly, Appellant offered copies of eight interest checks for two of the disputed CDs on which Appellant's name appears. Thus, the interest checks could be construed as written instruments evidencing ownership by the trier of fact. Appellant also included in her exhibits financial statements from 2006 that the Bank issued to Holt and Appellant for the disputed CDs. These facts demonstrate a genuine dispute as to whether there is written evidence that proves Appellant was joint owner of the disputed CDs.
Further, contrary to the Bank's assertion, it is not necessary for this Court to determine whether Appellant has proven she was a joint owner of the disputed CDs by clear and convincing evidence. It is sufficient for this Court to find that a genuine issue of material fact exists because there is a genuine dispute whether Appellant was a joint owner of the disputed CDs. Genuine issues of material fact must be determined by a trier of fact. Monsanto Co. v. Garst Seed Co., 241 S.W.3d 401, 416 (Mo.App. E.D.2007). Point one is granted.
Given our decision on Appellant's first point on appeal, it is not necessary for this Court to consider Appellant's second or third points on appeal. However, in the interests of judicial economy, we will address Appellant's remaining points as they may be an issue on remand. Shaner v. Sys. Integrators, Inc., 63 S.W.3d 674, 679 (Mo.App. E.D.2001); see also Monnig v. Monnig, 53 S.W.3d 241, 248 (Mo.App. W.D.2001)("Because the issues raised in Husband's third point may arise again on remand, in the interest of judicial economy, we will briefly address them at this time.").
In her second point on appeal, Appellant asserts the trial court erroneously entered summary judgment in the Bank's favor because it incorrectly interpreted Sections 461.021 and 461.028 as requiring the Bank to pay the proceeds of the disputed *764 CDs to the POD beneficiaries. Specifically, Appellant alleges Sections 461.021 and 461.028 do not address the relationship between a joint owner and POD beneficiaries nor do they require a written document for a CD holder to add a joint owner. The Bank effectively alleges these sections act as affirmative defenses to Appellant's claim that a genuine issue of material fact exists as to whether she was a joint owner of the disputed CDs.
Statutory construction is a matter of law. Ragan v. Fulton State Hosp. and Div. of Employment Sec., 188 S.W.3d 473, 475 (Mo.App. E.D.2006). When engaging in statutory construction, the primary purpose is to ascertain the intent of the legislature from the language used to give effect to the intent if possible. Crack Team USA, Inc. v. Am. Arbitration Ass'n, 128 S.W.3d 580, 581 (Mo.App. E.D.2004). Words are to be given their plain and ordinary meaning wherever possible. Id. "Where the statutory language is clear and unambiguous, this Court will give effect to the language as written and not engage in statutory construction." City of Bridgeton v. Titlemax of Missouri, Inc., 292 S.W.3d 530, 536 (Mo.App. E.D.2009).
Chapter 461 governs nonprobate transfers of property. Section 461.005(7) defines a nonprobate transfer as "a transfer of property taking effect upon the death of the owner, pursuant to a beneficiary designation." However, it specifically excludes the application of Sections 461.003 to 461.081 "survivorship rights in property held as joint tenants." If the trier of fact finds Appellant to be a joint owner of the disputed CDs, then Section 461.021 and 461.028 are inapplicable and cannot serve as affirmative defenses for the Bank.
Moreover, the Bank engages in a strained reading of Section 461.028. Specifically, the Bank claims "Section 461.028 provides that the pay-on-death beneficiary designations on the CDs are `conclusive evidence' of the ownership of those CDs." Section 461.028.5 provides, in relevant part:
An account record, security certificate, or instrument evidencing ownership of property that contains a transfer on death direction written as part of the name in which the property is held or registered, is conclusive evidence ... that the direction was regularly made by the owner and accepted by the transferring entity, and was not revoked or changed prior to the death giving rise to the transfer.
Under Section 461.028.5, an account record evidencing ownership of property that includes a written transfer on death direction as part of the name in which the property is held or registered is conclusive evidence that the transfer on death direction "was regularly made ... and was not revoked or changed prior to the death giving rise to the transfer." Section 461.028.5 provides conclusive evidence of the pay-on-death beneficiary designation, not conclusive evidence of ownership of the disputed CDs. While the disputed CDs may be in full compliance with Sections 461.021 and 461.028, that compliance with regard to designation of pay-on-death beneficiaries is irrelevant under Chapter 461 if Appellant is found by the trier of fact to be a joint owner of the disputed CDs.
In her third point on appeal, Appellant claims the trial court erroneously granted the Bank's summary judgment motion because it wrongly interpreted Section 362.471.6 as mandating the Bank pay the proceeds of the disputed CDs to the POD beneficiaries. Specifically, Appellant alleges Section 362.471 does not address the relationship between a joint owner and POD beneficiaries nor do they require a written document for a CD holder to add a joint owner. In response, the Bank claims *765 it is entitled under Section 362.471.6 to "full credit" for its payments to the POD beneficiaries because it was not served with process by a court restricting those payments.
Section 362.471 addresses POD accounts maintained by banks and trust companies. The Bank relies on Section 362.471.6 as an affirmative defense. Section 362.471.6 provides:
Any payment made by a bank or trust company on an account as described in this section shall be entitled to full credit upon such payment without necessity of determining whether any other person shall have an interest in the account, unless the bank or trust company shall have been served with process by a court of competent jurisdiction restricting payment on the account in accordance with the terms of such process.
While it is undisputed by the parties that the Bank did not receive service of process by a court restricting payment on the disputed CDs, the deposition testimony of Elliott indicates the Bank had actual notice of a dispute regarding the disputed CDs. Specifically, Elliott testified Caguin inquired after Holt's death why Appellant's name was on the computer system records.
Nevertheless, according to Section 362.471.3, a POD account becomes the property of the person(s) named as the POD person(s) "at the death of all the first named persons." Thus, if there is more than one first named person on the POD account, they are considered joint tenants with right of survivorship, and "the account shall be paid in equal shares to pay-on-death persons living at the time all first named persons have died." Section 362.471.3. Accordingly, the Bank would not be entitled to judgment as a matter of law pursuant to Section 362.471.6 for paying the POD beneficiaries the proceeds of the disputed CDs until "all first named persons [on the disputed CDs] have died."
The trial court's grant of the Bank's summary judgment motion is reversed and remanded for further proceedings consistent with this opinion.
KURT S. ODENWALD, P.J., and GARY M. GAERTNER, JR., J., concur.
NOTES
[1] The interest checks and financial statements discussed were issued to "Edna Newhouse Holt" and "Debra Theernan." While Appellant's name is spelled "Theerman," the Bank did not challenge the misspelling of Appellant's name in its motion for summary judgment or its Respondent's brief on appeal. The Bank merely noted in its statement of uncontroverted material facts in support of its motion for summary judgment that Appellant's name was spelled "Theernan" on the CIS log, financial statements, and interest checks issued by the Bank.
[2] In its original motion for summary judgment, Respondent alleged a third basis in support of its motion. Namely, Respondent alleged it was entitled to judgment as a matter of law under the express terms of the written instruments because it paid the disputed CDs in accordance with POD beneficiary designations and no evidence exists establishing Respondent consented in writing to any transfer of ownership in the disputed CDs. Respondent withdrew this argument on December 3, 2008, by motion.
[3] All statutory references are to RSMo (2000) unless otherwise indicated.
[4] The Bank's brief fails to address Appellant's first point on appeal. While there is no requirement that a respondent file a brief, its failure to address this point leaves us without the benefit of its argument, if any, to support the trial court's finding of no genuine issue of material fact. See Parrish v. Dir. of Revenue, 11 S.W.3d 652, 654 (Mo.App. E.D. 1999)("While there is no requirement that a respondent file a brief, Driver's failure leaves us without the benefit of her argument, if any, to support the trial court's decision.").
[5] The Bank's counsel was clearly aware of the existence of two separate logs, a COD log and a CIS log, during the deposition of Stengel when counsel objected, "We're not here to talk about COD logs. The court order is abundantly clear, that we're here to talk about CIS logs." The Bank fails to acknowledge this distinction throughout its brief. The Bank's unwillingness to make this distinction is significant. While referring to a COD log produced at her deposition, Funaro testified, "[t]here is nothing on this report that would indicate that [Appellant] is specifically a joint owner" of any CD owned by Holt. Conversely, Appellant's name does appear on the CIS log under an April 14, 2006, entry initiated by Elliott as "Name 2."
[6] In fact, on December 22, 2008, Appellant was forced to file a motion to compel the Bank to produce the CIS log, after the Bank failed to produce it. The trial court ordered the Bank to produce the CIS log on January 6, 2009. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575202/ | 281 F.Supp. 802 (1968)
CRUSADER MARINE CORPORATION, Plaintiff,
v.
CHRYSLER CORPORATION and Johnson and Towers, Inc., Defendants.
Civ. A. No. 27892.
United States District Court E. D. Michigan, S. D.
March 22, 1968.
John P. O'Neill, Blinstrub, O'Neill & Shannon, Detroit, Mich., John T. Miller, Washington, D. C., for plaintiff.
Walter B. Maher, Keith A. Jenkins, Detroit, Mich., for defendant, Chrysler Corp.
Sol. J. Schwartz, Schwartz & Cooper, Detroit, Mich., for defendant, Johnson and Towers, Inc.
OPINION AND ORDER DENYING MOTION TO DISMISS
LEVIN, District Judge.
The question presented on this motion to dismiss filed by defendant Johnson and Towers, Inc. is whether the Eastern District of Michigan is a district in which it may be sued under the provisions of the Clayton Act. The pertinent section of the Act provides that:
"Any suit, action, or proceeding under the antitrust laws against a corporation *803 may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business." 15 U.S.C. § 22.
I have concluded that Johnson and Towers was transacting business within this district in the years 1962 to 1965 inclusive and hence that it was subject to suit here at the commencement of this action on January 13, 1966.
The relevant facts as established by answers to interrogatories filed by the president of defendant Johnson and Towers are as follows: Johnson and Towers is a Pennsylvania corporation engaged in selling marine engines and other products for boats, principally to boat manufacturers. During the four-year period at issue, approximately ninety-five to ninety-eight per cent of the engines which it sold were manufactured in Michigan by the defendant Chrysler Corporation, the Detroit Diesel Division of General Motors Corporation, and other Michigan suppliers.
Johnson and Towers served as a distributor for General Motors Corporation under contracts executed annually. Purchases from General Motors Corporation for each of the years in question were between $1,000,000 and $1,250,000, and personnel of Johnson and Towers visited General Motors offices in Michigan approximately twenty times during this period, primarily to attend training school and sales meetings.
Johnson and Towers' gross purchases from defendant Chrysler Corporation during the four years next preceding the filing of the complaint ranged from $600,000 to $850,000 a year. Johnson and Towers served as a distributor for Chrysler Corporation under a non-exclusive agreement covering portions of Pennsylvania, New Jersey, Maryland and Delaware. The latest agreement, executed in the Camden, New Jersey store of Johnson and Towers on November 11, 1964, states that it "will be interpreted and construed under and according to the Laws of the State of Michigan". Shipment by Chrysler was by common carrier with freight paid by Johnson and Towers. However, on six occasions, "probably in 1963", Johnson and Towers sent its own trucks into Michigan to pick up products. Officers and personnel of Johnson and Towers visited Chrysler Corporation facilities in Michigan approximately four times between 1962 and 1965, spoke by telephone to the General Manager of Chrysler's Marine and Industrial Division an average of twelve times a year, and exchanged approximately twenty-four letters a year other than purchase orders with Chrysler Corporation. About five times a year Johnson and Towers shipped defective material or overstocked material to Michigan offices of Chrysler Corporation for replacement or credit.
Defendant Johnson and Towers argues that because it is not licensed to do business in Michigan, has no property or agents in Michigan and solicits no business in Michigan, it is not an "inhabitant" of this state nor is it "found" here or "transacting business" here.
The Sherman Act provided for suit only in the district where the defendant "resides or is found" 26 Stat. 210. It is clear that the intent of Congress in 1914, when it included the words "or transacts business" in the venue provision of the Clayton Act, was to enlarge the venue and broaden the choice of forum available in antitrust actions. The additional words in the Clayton Act were intended to remedy the difficulties in enforcement of the antitrust policy apparent under the earlier act. Eastman Kodak Co. v. Southern Photo Material Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927). "The practical, everyday business or commercial concept of doing or carrying on business `of any substantial character' became the test of venue," United States v. Scophony Corp. of America, 333 U.S. 795, 807, 68 S.Ct. 855, 861, 92 L.Ed. 1091 (1948), and the words "transacts business" were given a broader *804 meaning than terms such as "doing business", "found", and "carrying on business". Commonwealth Edison Co. v. Federal Pacific Electric Co., 208 F. Supp. 936 (N.D.Ill.1962).
Johnson and Towers cites several cases to support its position that its activities in this district were not sufficient to constitute the "transaction of business" within the meaning of the Clayton Act. In Commonwealth Edison, supra, the defendant had made six isolated sales in Illinois, with a total value of $3,080.90, which represented an insignificant fraction of the company's total sales. The court granted the motion to dismiss, saying:
"While the phrase `transacts business' in the venue provision of the statute (15 U.S.C.A. § 22) has been held to have the broadest connotation of all the antitrust statutes for venue purposes, still it embraces elements of substantiality of business done, with continuity in character, regularity, contemporaneousness with time of service, and not looking toward cessation of business." 208 F.Supp. at 940.
Likewise in Stern Fish Co. v. Century Seafoods, Inc., 254 F.Supp. 151 (E.D. Pa.1966), the court held that "more than a few isolated and peripheral contacts with the particular judicial district [were required]", and granted a motion to dismiss as to a defendant whose officers and employees made only infrequent visits to Pennsylvania to discuss an advertising campaign for South African rock lobster tails, but which had no substantial business dealings within the state.
The answers filed by Johnson and Towers' president to plaintiff's interrogatories establish that his company's business transactions with its Michigan suppliers were neither isolated nor sporadic, but were continuous activities which formed a substantial part of its business. The only question then is whether purchases within a district and other activities incident to these purchases can be a sufficient basis for finding that a corporation is transacting business there within the meaning of the Clayton Act. To hold that purchasing is to be excluded from the definition of "transacting business" would not be realistic, for it is obvious that in any line of commerce purchasing may very well be as important to business as the selling of commodities and under certain circumstances could constitute conduct prohibited by the antitrust laws.
In United States v. Burlington Industries, Inc., 247 F.Supp. 185 (S.D.N.Y. 1965) one factor which supported a finding that venue was proper in that district was that the defendant purchased two million dollars' worth of goods there. The court did not indicate whether that factor alone would have been sufficient. For a discussion of the question whether purchasing alone constitutes transacting business see the comprehensive opinion of Justice Traynor in Henry R. Jahn & Son, Inc. v. Superior Ct. etc., 49 Cal.2d 855, 323 P.2d 437 (1958). Jahn had made regular purchases of goods as exclusive export agent of a California company through orders placed by mail. Shipment by the manufacturer was f. o. b. California. This placed title to the goods in the New York corporation while they were still in California, and a general forwarding company in California then shipped the goods at its direction. "It reaped the benefits of our laws that protected its goods while they were here, and it had access to our courts to enforce any rights in regard to these transactions." 323 P.2d at 441.
The argument by Johnson and Towers that venue in a suit brought under the antitrust laws may be based upon purchases within a state only when the suit concerns the purchase transaction itself is not well founded. It is true that in Jahn and many of the other cases relied upon by the plaintiff, purchasing activities would not have supported general jurisdiction, but this was either because the statutes being construed conferred only limited jurisdiction or because due process would have been *805 offended. Here there is no due process issue, see United States v. Scophony Corp. of America, 333 U.S. at 804, 68 S.Ct. 855, 92 L.Ed. 1091, and the language of the statute clearly makes a district a proper forum for any antitrust suit against a corporation transacting business there. 15 U.S.C. § 22.
The motion to dismiss is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575215/ | 308 S.W.3d 432 (2010)
Steven KAHN, Appellant,
v.
IMPERIAL AIRPORT, L.P., Appellee/Cross-Appellant,
v.
Steven Kahn and Condom Sense, Inc., Cross-Appellees.
No. 05-08-01022-CV.
Court of Appeals of Texas, Dallas.
March 16, 2010.
*435 Russell Hubbard, Monica Lynne Luebker, Glast, Phillips & Murray, PC, Dallas, TX, for appellant.
Scott D. Weber, Calloway, Norris, Burdette & Weber, Dallas, TX, for appellee.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
OPINION
Opinion By Justice FITZGERALD.
This appeal involves a commercial lease (the Lease) for a retail store selling adult novelty items under the name "Condom Sense" in Irving, Texas. Imperial Airport, LP (Imperial), the lessor, sued Steven Kahn, Condom Sense, Inc. (CSI), and M. Stack, LLC (M. Stack) for breach of the Lease. CSI and M. Stack counterclaimed, alleging Imperial had breached a pre-Lease agreement between Kahn and Imperial's leasing agent.[1] The trial court's judgment found Kahn liable and awarded Imperial damages for breach of the Lease, attorney's fees, and interest. The judgment ordered that Imperial take nothing on its claims against CSI and M. Stack and that CSI and M. Stack take nothing on their breach-of-Lease counterclaim. Kahn appeals; Imperial cross-appeals. We affirm the trial court's judgment in part and reverse and remand it in part.
BACKGROUND
Imperial owned the leased premises; Bradford Management Company, Inc. managed the property for Imperial. Bradford employee Michael Brashears negotiated the Lease with Kahn. Kahn signed the Lease in July 2005. The Lease term began October 1, 2005 and extended for sixty-three months. The leased premises was to be occupied by a store under the name "Condom Sense." Kahn operated four stores under the same name in Dallas. During the negotiations, Brashears visited at least one of the Dallas stores. Thus, both parties knew the nature of the store that was to occupy the premises.
At trial two different versions of the Lease were introduced into evidence. Kahn's version was Defendant's Exhibit 1. It includes the following signature block for the lessee; italicized words were handwritten or printed on the Lease signature page by Kahn.
LESSEE:
Condom Sense
*436
By: Steve Kahn It's president
STEVE KAHN (President)
(Type Name and Title)
By: DBA Condom Sense
______________________
(Type Name and Title)
The page appears to be dated July 2, 2005, although the date is less than clear.[2] The document Kahn objected to was Plaintiff's Exhibit 1; it is dated July 21, 2005. The lessee's signature block on this exhibit is similar, but not identical:
LESSEE:
Condom Sense
By: It's president
Steve Kahn
(Type Name and Title)
By: STEVEN KAHN
____________________
(Type Name and Title)
Other than the date, the significant difference between the two signature blocks is Kahn's inclusion on his version of the handwritten phrase "DBA Condom Sense."
With Imperial's knowledge, Kahn applied for the store's certificate of occupancy himself. He did not disclose the nature of the business in his application. In December 2005, Kahn oversaw creation of M. Stack, a limited liability corporation that Kahn claims was to be the actual lessee. During this time period, Imperial finished out the premises to Kahn's specifications at a cost of $27,000. Rent was paid for the initial months of the Lease term by an entity named SB TAZ, LLC.
The Irving Condom Sense store opened on February 9, 2006. The next day, the store was raided by the Irving police, who seized some, but not all, of the store's inventory. The City of Irving did not close the store down. However, Kahn, his mother Marcia Kahn, and M. Stack (collectively designated the Applicants by the City) entered into an Agreed Order with the City. The terms of that order required the store to cease sale of "items used in conjunction with sexual activity" and to change its name. In return, the Applicants would avoid prosecution. But despite the order, the store did not re-open, and after April 2006 no more rent payments were made. Imperial locked the lessee out, seized the remaining inventory, and attempted to re-let the premises. Imperial did not find a new tenant until August 2007.
Imperial sued Steven Kahn, CSI, and M. Stack for breach of the Lease. Imperial also made claims for misrepresentation against Kahn. CSI and M. Stack counterclaimed based on the seizure of the inventory. The case was tried to the court, and the trial court issued a lengthy set of findings of fact and conclusions of law. The court's judgment denied Imperial's claims against CSI and M. Stack. It ordered Kahn to pay Imperial the finish-out costs, leasing commissions incurred, attorneys' fees, interest, and costs. Finally, the judgment ordered Imperial to return the seized inventory.[3]
Kahn appeals. Imperial cross-appeals as to certain trial-court rulings involving Kahn and CSI. M. Stack is not a party to this appeal.
STANDARD OF REVIEW
Findings of fact entered in a case tried to a court are of the same force and dignity *437 as a jury's verdict on jury questions. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). We apply the same standards in reviewing the legal and factual sufficiency of the evidence supporting the trial court's fact findings as we do when reviewing the legal and factual sufficiency of the evidence supporting a jury's answer to a jury question. Rich v. Olah, 274 S.W.3d 878, 883 (Tex.App.-Dallas 2008, no pet.). In a legal sufficiency review, we consider the evidence in the light most favorable to the finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We ask whether the evidence, crediting favorable evidence if a reasonable fact finder could and disregarding contrary evidence unless a reasonable fact finder could not, would permit reasonable and fair-minded people to reach the finding under review. Id. at 827. In our factual sufficiency review, we consider all the evidence; we will set aside the finding only if the evidence supporting the finding is so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). In a bench trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. LaCroix v. Simpson, 148 S.W.3d 731, 734 (Tex.App.-Dallas 2004, no pet.). This Court is not a fact finder and we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). We review the trial court's conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002).
BREACH OF LEASE
The parties' issues are rooted in the Lease at the most fundamental level. They disagree concerning the identity of the lessee, whether there was a breach of the Lease, and the appropriate measure of damages for any breach found. We address these issues in turn.
Identifying the Lessee
The trial court concluded Kahn breached the Lease and is individually liable as the lessee. Kahn's first four issues challenge these findings. Imperial's first cross-issue, on the other hand, argues CSI should be held liable as lessee jointly and severally along with Kahn.
Two Versions of the Lease
In his first issue, Kahn challenges the trial court's ruling admitting into evidence a version of the Lease that varied from the version introduced by Kahn. Kahn argues Imperial's version of the Lease was not properly admitted because it was proved up by an untimely filed business records affidavit. Rule 902(10) of the Texas Rules of Evidence requires business records affidavits to be filed at least fourteen days prior to trial. Imperial's affidavit was filed twelve days before trial. Kahn objected to the exhibit, and the issue was discussed at a pre-trial hearing. Ultimately the trial court granted Imperial leave to file the untimely affidavit.
The rules of civil procedure give a trial court substantial discretion in admitting evidence. And when an act is required to be performed within a specified time, the court generally has discretion to order that period of time enlarged. TEX.R. CIV. P. 5. However, even if the trial court lacked discretion to extend the period of time for filing business records affidavits, there is no reversible error unless admission of the alternative version of the Lease probably *438 caused the rendition of an improper judgment. See TEX.R.APP. P. 44.1(a)(1). Kahn makes no argument at all concerning any harm purportedly caused by the shortened time period between the filing date and the start of trial. Instead, Kahn's arguments are limited to the potential harm caused by admitting a version of the Lease that does not include any assertion Kahn was signing for a "DBA."[4] The only difference between the two versions of the Lease is the signature page. The trial judge heard the attorneys argument on this issue and heard the parties testify as to when and how the Lease was executed. The court could consider the differences between the documents and the testimony of the parties. The trial court was uniquely well-situated to review the conflicting evidence, to determine how much weight to give to the different documents and testimony, and to draw conclusions based on weight and credibility of the evidence. See Rich, 274 S.W.3d at 884 ("In a bench trial, the trial court is the sole judge of the credibility of the witnesses, assigns the weight to be given their testimony, may accept or reject all or any part of their testimony, and resolves any conflicts or inconsistencies in the testimony."). We conclude the court's admission and examination of the second version of the Lease did not probably cause rendition of an improper judgment. See TEX.R.APP. P. 44.1(a)(1). We overrule Kahn's first issue.
Kahn's Individual Liability
In his third and fourth issues, Kahn challenges the trial court's findings that he entered into the Lease in his individual capacity and should be liable in that capacity. Kahn testified he signed the Lease on July 21, 2005 as Condom Sense's president. He testified he was not president of CSI on that date, but he did not know what entities he was president of on that date. Kahn claimed at trial that M. Stack was really the lessee under the Lease, although he acknowledged that "M. Stack" did not appear anywhere in the Lease. He agreed that M. Stack did not exist when the Lease was signed, or when the Certificate of Occupancy was signed, and that he had no authority to sign the Lease for M. Stack. Kahn testified it was his practice to have a DBA Condom Sense enter into a lease on behalf of an entity to be formed after "everything [is] resolved." If the landlord wanted the lease signed before formation, he testified, there would be an addendum to the lease. But Kahn testified no addendum was drafted in this case, and he had never notified anyone at Bradford that M. Stack was to be the lessee for the Irving store.
Kahn's arguments have no basis in law. Initially, an individual cannot sign for and bind a DBA entity. A DBA is no more than an assumed or trade name. And it is well-settled that a trade name has no legal existence. See Davis v. Raney Auto Co., 249 S.W. 878, 878 (Tex.Civ. App.-Texarkana 1923, no writ) (trade name "has no actual or legal existence"). Thus, to the extent Kahn purported to sign the Lease on behalf of Condom Sense as a DBA, he bound only himself. Likewise, one cannot sign for and bind a legal entity that does not yet exist. Kahn argues he signed the Lease as a promoter for the later-created M. Stack. But when a promoter signs a contract on behalf of an unformed entity, he is personally liable on the contract unless there is an agreement *439 with the contracting party that the promoter is not liable. Fish v. Tandy Corp., 948 S.W.2d 886, 897 (Tex.App.-Fort Worth 1997, writ denied). Our record contains no evidence Imperial agreed not to hold Kahn liable. Moreover, the Lease was not made in the name of the unformed entity; there was conflicting testimony concerning whether Brashears knew Kahn was purporting to sign for an unformed entity; and no evidence was presented indicating M. Stack adopted the Lease after its formation. See id. We conclude that, under the facts of this case, Kahn is personally liable on the Lease.
Imperial argued below that Kahn is liable individually because a specific provision of the Lease, article 14.09, makes a person executing the Lease individually liable if he makes false representations concerning the ability of the corporation to do business or his authority to sign for the corporation.[5] In his second issue, Kahn asserts the trial court erred in finding he made any misrepresentation. But there is ample evidence supporting the trial court's finding. Although Kahn testified that Brashears knew Kahn was signing the Lease for an unformed entity, Brashears denied that he had been told. Based on Kahn's conduct and representations, Brashears believed Kahn signed for CSI. Kahn signed as president of the lessee entitywhatever it was at that timealthough he was not president of any entity he could name at trial. Marcia Kahn, the actual president of CSI, testified Kahn did not have authority to sign the Lease on behalf of CSI. We conclude a reasonable fact finder could have concluded Kahn misrepresented his own or the lessee's status. See City of Keller, 168 S.W.3d at 822. We further conclude the evidence supporting the misrepresentation finding is not so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust. See Cain, 709 S.W.2d at 176. The trial court had sufficient evidence to make its credibility determinations in this case, and we will not substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. See Clancy, 705 S.W.2d at 826.[6]
Kahn's signature and his arguments suggest a number of possibilities: Kahn signed the Lease for CSI when he had no authority to do so; Kahn signed for a non-existent LLC; or Kahn signed for a DBA. In each of those scenarios liability as lessee would fall, if at all, on Kahn personally. We affirm the trial court's conclusion that Kahn was individually liable as lessee in this case. We overrule Kahn's second, third, and fourth issues.
Ratification
Kahn's eighth issue argues the court erroneously failed to find in his favor on the affirmative defense of ratification. "Ratification is the adoption or confirmation by a person, with knowledge of all *440 material facts, of a prior act that did not then legally bind that person and which that person had the right to repudiate." Avary v. Bank of America, N.A., 72 S.W.3d 779, 788 (Tex.App.-Dallas 2002, pet. denied). Kahn argues that even if there were initially grounds for holding him individually liable under the Lease, Imperial confirmed M. Stack as the true lessee. Because ratification is an affirmative defense, Kahn bore the burden of proof. See id. at 787-88. Kahn relies upon the Acceptance of Premises, a trial exhibit that he signed on December 12, 2005. Kahn asserts that Imperial received the Acceptance of Premises and made no objection to it, thus ratifying M. Stack as the true lessee.
In this instance, the signature block included the typed name of the lessee as "Condom Sense," with a handwritten annotation as to the identity of the lessee. Again, handwritten entries are in italics.
LESSEE
STACK LLC DBA
Condom Sense
(Type Name of Lessee)
By Steven Kahn
(Signature)
Steven Kahn Its President
(Type Name and Title)
12/12/05
(Date Signed)
The purported lessee on this document Stack LLC DBA Condom Sensewas never an entity related to the Kahns in any way. And the entity that Steven Kahn argues ratified the Lease through this documentM. Stackis not mentioned in the document. (Indeed, the record establishes that M. Stack still did not exist when Kahn signed the Acceptance of Premises.) The names of the entities are similar, but in the end that similarity only adds to the confusion caused by Kahn's cavalier usage of entities and titles. In dealing with Imperial, Kahn signed documents as president of Condom Sense, president of DBA Condom Sense, and president of Stack LLC. Rent for the Irving store was paid by yet another entity, SBK TAZ, LLC. And Steven Kahn testified that he never informed Imperial that M. Stack, once it was finally formed, was to be the lessee under the Lease. The Lease was never amended to name M. Stack as lessee, nor was the Lease assigned or its obligations in any manner transferred to M. Stack. Ratification requires knowledge of all material facts. Id. at 788. We find no evidence Imperial knew of the existence of M. Stack, let alone that Kahn was asserting M. Stack had become Imperial's lessee. The trial court did not err in finding there was no ratification in this case. Kahn's eighth issue is without merit.
CSI's Liability
In its first cross-issue, Imperial argues CSI should be jointly and severally liable as lesseealong with Kahnbased on the legal principle of apparent authority. Apparent authority arises when a principal either: (a) knowingly permits an individual to hold himself out as having authority to act as agent for the principal, or (b) acts with such a lack of ordinary care as to clothe the individual with indicia of authority, leading a reasonably prudent person to believe the agent has authority to bind the principal. Baptist Mem. Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948 (Tex.1998). In making a determination of apparent agency, only the conduct of the principal is relevant, and the principal must have full knowledge of all material facts. Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex.2007). Thus, our review examines the conduct of the principal and the reasonableness of the third party's assumptions *441 about authority. Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907, 913 (Tex.App.-Dallas 2008, no pet.). Representations by the purported agent are not evidence of apparent authority; nor are the mere speculations of the third party. Id. Indeed, "[w]ithout acts of the purported principal, acts of a purported agent which may mislead persons into false inferences of authority, however reasonable, will not serve as a predicate for apparent authority." CNOOC Southeast Asia Ltd. v. Paladin Resources (SUNDA) Ltd., 222 S.W.3d 889, 899 (Tex.App.-Dallas 2007, pet. denied) (quoting Disney Enters., Inc. v. Esprit Fin., Inc., 981 S.W.2d 25, 30 (Tex.App.-San Antonio 1998, pet. dismissed w.o.j.)). Finally, Texas law does not presume agency; the party alleging agency has the burden of proving it. IRA Resources, Inc. v. Griego, 221 S.W.3d 592, 597 (Tex.2007). Thus, it was Imperial's burden below to prove the elements of apparent agency.
In this case, Imperial relies exclusively on acts or statements attributed to the putative agent, Kahn, rather than to the putative principal, CSI. Imperial's pleading refers only to statements and conduct by Kahn. Likewise, its briefing in this Court refers only to statements and conduct by Kahn. Our review of the record has identified no contact between Marcia Kahn (CSI's president and apparently its sole representative) and Imperial or Bradford or Brashears. Nor do we find evidence that Marcia Kahn allowed her son to hold himself out as CSI's agent.[7] Marcia Kahn testified she did not know her son had planned to open an Irving store and had negotiated the Lease until he asked her "to file for a corporation." Imperial argues Steven Kahn led it to believe he was acting for CSI. But apparent agency can only be created by the acts of the principal. First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 471 (Tex. 2004). Indeed, "[d]eclarations of the alleged agent, without more, are incompetent to establish either the existence of the alleged agency or the scope of the alleged agent's authority." Gaines, 235 S.W.3d at 183-84.
Kahn argues we should not even address Imperial's apparent authority argument because it was not pleaded. Imperial responds that the issue was tried by consent. We conclude the facts relied upon by Imperial were pleaded and placed into evidence at trial. However, as a matter of law, those facts do not establish apparent agency. Thus, Imperial's argument fails on the merits. We decide Imperial's first cross-point against it.
Existence of a Breach
In his fifth issue, Kahn argues the trial court erroneously found he had breached the Lease.
Article 14.09 of the Lease
The trial court found Kahn breached article 14.09, quoted above, by misrepresenting both the lessee's corporate status and his own authority in signing the Lease. However, assuming the trial court is correct and Kahn did misrepresent his own or the lessee's status, he did not thereby breach the Lease. Article 14.09 is not a covenant Kahn promised to keep. It is a liability-shifting provision, assuring the Lessor that someone will satisfy the obligations of the Lessee. Accordingly, article 14.09 establishes Kahn's liability if some other breach of the Lease is proven, but it *442 will not on its own support an award of damages against Kahn.
Nonpayment of Rent
The trial court also found that:
Despite Imperial's full performance of all obligations and conditions of the Lease, beginning in the month of April, 2006, Kahn, despite demand, failed and refused to pay rentals and other charges due under the terms of the Lease, or to otherwise cure the breach of the Lease.
Kahn does not deny he failed to make payments due under the Lease beginning in April 2006. However, he argues his failure to comply with Lease obligations should be excused because the Lease was terminated by the City's actions, which he characterizes as a taking of the leased premises. The trial court's findings support Kahn on this issue. The court found "a substantial part of the Leased Premises was taken by the City of Irving for quasi-public use under a governmental law, ordinance or regulation" and that this taking materially interfered with the intended use of the leased premises. Accordingly, according to the trial court, no rent or other obligations of the lessee were owed after the date of the raid. In its second cross-point, Imperial challenges the trial court's finding that the Lease terminated and Kahn was, as a result, discharged from his obligations as lessee. We agree with Imperial on this issue.
A taking may be either physical or regulatory. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). A physical taking occurs when the government authorizes an unwarranted physical occupation or appropriation of an individual's property. See id.; City of Dallas v. Blanton, 200 S.W.3d 266, 271 (Tex.App.-Dallas 2006, no pet.). The trial court did not find, and Kahn does not contend, the City physically appropriated the leased premises for some governmental purpose. Instead, the trial court found Kahn's leasehold was taken by the City "under a governmental law, ordinance or regulation." A compensable regulatory taking occurs if governmental regulations deprive a property owner of all economically viable use of his property or if those regulations totally destroy the property's value. City of Dallas v. VRC LLC, 260 S.W.3d 60, 65 (Tex.App.-Dallas 2008, no pet.). Kahn has not argued that the City's sexually oriented business ordinance destroyed the value of the leased premises or the ability to use the premises for any economically viable purpose. However, we will recognize a regulatory taking if the governmental restrictions unreasonably interfered with Kahn's rights to use his property. See id. We determine whether there has been unreasonable interference by considering (1) the economic impact of the regulation, and (2) the extent to which the regulation interferes with the owner's distinct investment-backed expectations. Id. (citing Mayhew, 964 S.W.2d at 935).
Kahn argues the Irving Condom Sense store could not be operated for its intended use under the terms of the Agreed Order and under the City's interpretation of its ordinance. However neither of these restrictions on the use of the leased premises qualifies as a governmental taking. The Agreed Order represents the joint decision of the Applicants including Kahn and the City; it was not a unilateral act or regulation by the City. Kahn could have chosen to litigate the City's interpretation of the ordinance. Indeed, he testified at trial that at least one court had held Condom Sense was not a sexually oriented business under an identical ordinance. But Kahn voluntarily agreed not to litigate and to accept the restrictions in the Agreed Order. And as to the restrictions posed by the ordinance *443 itself, it is uncontroverted that the Irving ordinance pre-dated Kahn's negotiation of the Lease and that Kahn himself was familiar with the ordinance. When existing law regulates the use of property, an owner's reasonable expectations must take those regulations into account. See City of Dallas v. VRC, 260 S.W.3d at 66. Kahn did not prove he had a reasonable expectation of operating the store he intended at the leased premises. Accordingly, we conclude he did not prove a regulatory taking in this case. See id.
No provision of the Lease provides for termination of the Lease under these circumstances. Article 8.01 involves termination when all or a substantial part of the leased premises are taken by governmental action. We have concluded no such taking occurred. In article 3.03, the lessee promises to comply with all laws, ordinances, orders, rules, and regulations of governmental entities. Again, the undisputed facts establish the City's sexually oriented business ordinance pre-dated the Lease and Kahn was familiar with its terms. Nevertheless, he promised, as lessee, to comply with it. The Lease certainly does not provide that his obligations are excused if he breaks that promise.
We conclude the Lease was not terminated by any action or regulation of the City or by operation of the Lease itself. Accordingly, when Kahn failed to pay rent and otherwise comply with his obligations as lessee, his breach was not excused. Kahn's fifth issue is overruled, and Imperial's second cross-point is sustained.
Damages Under the Lease
In his sixth issue, Kahn argues the trial court should not have awarded Imperial contract damages and attorney's fees when the court found the Lease had been terminated. Because we have concluded the Lease was not terminated, we overrule this issue.
In Kahn's seventh issue, Kahn challenges the trial court's damages award itself. The trial court awarded Imperial $45,000 in damages, representing the sum of $27,000 Imperial spent to finish out the leased premises at Kahn's request and $18,000 Imperial spent for commissions in connection with the Lease. Kahn argues these amounts are not the natural, probable, and foreseeable consequences of his breach. We agree. Kahn's breach was the failure to pay rent and otherwise comply with his obligations as lessee from April 2006 through August 2007. Amounts spent for initial finish out or commissions are not relevant to this breach, and the Lease does not otherwise make them recoverable. We sustain Kahn's seventh issue to the extent it complains of the $45,000 award for contract damages.
CONCLUSION
We affirm the trial court's judgment in all respects except insofar as it awards Imperial damages in the amount of $45,000 for Kahn's breach of the Lease. We reverse that damages award, and the related pre-judgment and post-judgment interest awards, and we remand the case for further proceedings on damages consistent with this opinion.
NOTES
[1] Kahn and M. Stack also alleged conversion of inventory and sought a declaration that they were the rightful owners of the inventory. Those claims have been resolved and are not at issue in this appeal.
[2] The date is handwritten in blanks:
this 2 day of July, 2005.
The superscript following the handwritten "2" appears to read "th."
[3] Imperial has returned the seized inventory, so inventory-related issues are not included within this appeal.
[4] "DBA"or "d/b/a"is the abbreviation for "doing business as"; it generally precedes a person's or business's assumed name. BLACK'S LAW DICT. 425 (8th ed. 2004). An assumed name, or a trade name, is the name under which a business operates. Id. at 133, 1533. In this opinion we will use the term DBA to mean an assumed or trade name.
[5] The provision states in its entirety:
If Lessee executes this Lease as a corporation, each of the persons executing this Lease on behalf of Lessee does hereby personally represent and warrant that Lessee is a duly authorized and existing corporation, that Lessee is qualified to do business in the state in which the leased premises are located, that the corporation has full right and authority to enter into this Lease, and that each person signing on behalf of the corporation is authorized to do so. In the event any representation or warranty is false, all persons who execute this Lease shall be liable individually, as Lessee.
[6] We note that Kahn also argues he should not be individually liable under article 14.09 because the Lease was signed by a DBA and not a corporation. As we have discussed above, signing on behalf of a DBA would also result in individual liability for Kahn.
[7] Imperial points to a September 8, 2005 letter from Steven Kahn to Bradford and charges the letter was written on CSI letterhead. But the letterhead did not use the corporation's name; it used only the trade name, Condom Sense. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3042888/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3557
___________
Dontay Lay, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
H.N. Green, Sheriff, St. Francis County, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: June 15, 2007
Filed: July 6, 2007
___________
Before RILEY, MAGILL, and MELLOY, Circuit Judges.
___________
PER CURIAM.
Arkansas inmate Dontay Lay (Lay) appeals the district court’s1 dismissal
without prejudice of his 42 U.S.C. § 1983 complaint for failure to comply with Rule
5.5(c)(2) of the Local Rules of the Eastern District of Arkansas, which allows
dismissal if a communication from the court is not responded to within thirty days.
The district court dismissed the action after Lay failed to respond to the district court’s
order to amend his complaint within thirty days. Upon careful review, we conclude
that the dismissal was not an abuse of discretion. See Nw. Bank & Trust Co. v. First
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
Ill. Nat’l Bank, 354 F.3d 721, 725 (8th Cir. 2003) (standard of review); Settlemire v.
Watson, 877 F.2d 13, 14 (8th Cir. 1989) (per curiam) (affirming district court’s
dismissal without prejudice of pro se complaint pursuant to local rule allowing
dismissal where litigant fails to respond to communication of court within thirty days).
Although Lay contends he did not receive the district court’s order directing
him to amend his complaint, Lay did not raise this matter before the district court and
we will not consider the argument for the first time on appeal. See Poolman v. City
of Grafton, __ F.3d __, No. 06-3220, 2007 WL 1597912, at *3 (8th Cir. June 5, 2007).
Accordingly, we affirm.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1575242/ | 458 S.W.2d 206 (1970)
Dr. Jesus TURULLOLS et al., Appellants,
v.
SAN FELIPE COUNTRY CLUB et al., Appellees.
No. 14853.
Court of Civil Appeals of Texas, San Antonio.
September 2, 1970.
Rehearing Denied September 30, 1970.
*207 Pete Tijerina, Mario Obledo, Gerald R. Lopez, Mayo J. Galindo, San Antonio, Mike V. Gonzales, Del Rio, for appellants.
Foster, Lewis, Langley, Gardner & Hawn, Ralph Langley, Emerson Banack, Jr., San Antonio, for appellees.
KLINGEMAN, Justice.
This is a suit by three taxpayers of the City of Del Rio, appellants here, against the San Felipe Country Club, and other parties,[1] seeking to have a deed from the City of Del Rio to San Felipe Country Club declared void, to have a lease agreement between the City of Del Rio and San Felipe Country Club declared void or terminated, to enjoin the San Felipe Country Club from carrying on certain alleged discriminatory practices, and for damages. The City of Del Rio was one of the defendants in appellants' First Original Petition, and was served with citation thereon. Appellants thereafter filed their First Amended Original Petition, in which the City of Del Rio was dropped as the defendant, but was named a party plaintiff. No copy of such amended petition was ever furnished the City of Del Rio, nor was the City of Del Rio notified of the hearing on the motions for summary judgment and plea in abatement. The City of Del Rio did not appear or take part in any of the court proceedings. The trial court sustained appellees' plea in abatement and dismissed said suit with prejudice. The court then granted appellees' motion for partial summary judgment, and denied appellants' motion for partial summary judgment.
In 1935, the City of Del Rio purchased a tract of approximately 89 acres from the San Felipe Country Club, which tract was the site of the San Felipe Golf Course and Country Club, and on which, was located the spring of water used by the City of Del Rio for its water supply. The consideration recited in such deed was the assumption by the City of Del Rio of an indebtedness owing by the San Felipe Country Club in the approximate sum of $22,490.00, the execution and delivery coincident with the deed of a lease of the land conveyed for a term of 99 years to the San Felipe Country Club for a nominal rental of $1.00 per year, and the furnishing by the city, free of charge, sufficient water to maintain the golf course and club. On the same day, such a lease was entered into between the City of Del Rio and San Felipe Country *208 Club according to the terms and conditions of the deed, which lease also provided that there was excepted from the operation of such lease the spring of water used by the City of Del Rio for its water supply. San Felipe Country Club bound itself to keep the golf course in good condition during the whole term of the lease.
By resolution dated October 12, 1965, the City Commission of the City of Del Rio approved a motion to sell 8 acres incompassing the present club house and appurtenances thereto to the San Felipe Country Club; and on such date, the City of Del Rio conveyed to San Felipe Country Club such 8 acres of land. This deed recites a consideration of $500.00 cash paid. This deed is one of the instruments appellants seek to set aside, the other being the lease agreement between the City of Del Rio and San Felipe Country Club executed in 1935.
It is appellees' contention that the trial court correctly granted appellees' plea in abatement and motion for partial summary judgment on the grounds that appellants did not have a justiciable or litigable interest in the subject matter of the suit.
Appellants assert three points of error on this appeal:
First Point: Since Article 1015c., Vernon's Annotated Civil Statutes, permits "Any Taxpayer" to file suit in district court to enforce the provisions of the article, the trial court erred in sustaining appellees' plea in abatement.
Second Point: Since Article 6252-16 provides that a civil action for preventive relief may be instituted by the "person aggrieved", the trial court erred in sustaining appellees' plea in abatement as to appellants' second cause of action.
Third Point: Since the pleadings, answer to requests for admissions, and exhibits show that no election was held as required by Articles 1015c., 1017, and 1019, Vernon's Annotated Civil Statutes, the trial court erred in granting defendants' motion for partial summary judgment and in denying plaintiffs' motion for partial summary judgment.
In most cases of this nature, in the absence of a statute, it has usually been required that in order for a plaintiff to maintain such a cause of action, he must be a person aggrieved, or a person whose interests are adversely affected, or a person having a special interest in the matter. Scott v. Board of Adjustment, 405 S.W.2d 55, (Tex.1966); City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754 (1888); San Antonio Conservation Society v. City of San Antonio, 250 S.W.2d 259, (Tex.Civ. App.Austin 1952, writ ref'd). A good discussion of the rights of a citizen or taxpayer to test the legality of local official conduct or governmental action is found in Scott v. Board of Adjustment, supra, where the Supreme Court upheld the statutory right of three taxpayers of the City of Corpus Christi to maintain a suit challenging certain governmental action of the City of Corpus Christi and its Board of Adjustment.
Appellants premised their standing to sue on Article 1015c., V.A.C.S. Such article authorizes cities to build, purchase, or encumber golf courses, golf course club houses, swimming pools, and other recreational projects. Section 2 of said act provides that none of the projects authorized in Section 1 of such act shall ever be sold until such sale is authorized by a majority vote of the qualified voters of such city or town. Section 4 provides for the keeping of certain records and accounts, and that the failure to do so shall constitute a misdemeanor with fines of $100.00 to $1,000.00 on conviction thereof. Said section further provides that any taxpayer residing within such city or town, or holder of such indebtedness, shall have the right by appropriate civil action in the district court of the county in which such city or town is located to enforce the provisions of this act.
Appellees concede on this appeal that no election was held authorizing such *209 sale, and that the sale, complained of was not executed in compliance with the provisions of Article 1015c. They assert, however, that Article 1015c., V.A.C.S., does not confer a justiciable interest in appellants to institute this cause, and that the provision in Section 4, authorizing a taxpayer to bring an action in the district court, only authorizes a civil action by such taxpayer to require the mayor of such city to install and maintain the accounting records provided for in Section 4. We do not agree with this construction of such statute. It is to be noted that such statute provides in part that "any taxpayer * * shall have the right by appropriate civil action in the District Court of the county in which such city or town is located to enforce the provisions of this Act." [emphasis supplied] It is a fundamental rule that a statute be construed as a whole, and that all of its parts be harmonized if possible, so as to give effect to the entire act according to the evident intention of the legislature. Pursuant to this rule, a court that is called on to interpret a statute will consider, examine, read, and view the act in its entirety. 53 Tex.Jur.2d, Statutes, Sec. 160, page 229. In our opinion, if the legislature intended that such suits be restricted to the provisions of Section 4, it would not have used the word "act". The language of a statute is presumed to have been selected and used with care and deliberation, and every word or phrase is presumed to have been used intentionally. Ordinarily, words are presumed to have been used in the sense which they are commonly understood, and when a word has a settled meaning or legal significance, it is presumed to have been used in that sense. 53 Tex.Jur.2d, Statutes, Sec. 181, page 270.
Since in our opinion, the legislature, in Article 1015c., authorized any taxpayer residing within such town or city to enforce the provisions of such act by appropriate civil action in the district court of the county in which that city is located, the trial court erred in dismissing this cause. In so much as the appellants have the right to bring this suit as taxpayers, we do not reach the question as to whether there was sufficient injury to themselves or their property to be considered as "persons aggrieved".
This opinion is not to be construed as approving or disapproving the action of the City of Del Rio in deeding the 8 acre tract to appellees, or in entering into a lease agreement with appellees as to the 89 acre tract. Our holding is that the plaintiffs are entitled to their day in court. In view of the trial court sustaining appellees' plea in abatement, and dismissing appellants' entire cause of action with prejudice, the court should not have passed on either motion for summary judgment, and its action thereon was of no effect.
The judgment of the trial court is reversed, and the cause is remanded to the district court for trial.
CADENA, J., not participating.
NOTES
[1] The other appellees are Does A through Z (former members and present members of the Board of Directors and members of the San Felipe Country Club). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575282/ | 458 S.W.2d 251 (1970)
STATE of Missouri, Respondent,
v.
Duane Harold SWIGGART, Appellant.
No. 54834.
Supreme Court of Missouri, Division No. 1.
October 12, 1970.
John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
Alan G. Kimbrell, Clayton, for appellant.
HOUSER, Commissioner.
By indictment Duane Harold Swiggart and David Michael Lusk were jointly charged with the first degree murder of George Hassen. Lusk took a severance. Lusk, tried first, was convicted. On appeal the judgment was reversed. State v. Lusk, Mo.Sup., 452 S.W.2d 219. In Swiggart's case an information was filed in lieu *252 of indictment, adding to the allegations of assault, conjunctively, the element of exposure of Hassen's body to the elements. A jury found him guilty of murder in the first degree and he has appealed.
One of the grounds for reversal of the judgment of conviction in the Lusk case was that the disjunctive submission of the assault as a contributing cause of the death was not supported by the evidence. The evidence on this issue was thoroughly analyzed and the pertinent law applied in the opinion in State v. Lusk, supra. The evidence on this issue was substantially the same at the two trials. Verdict-directing Instruction No. 1 in Swiggart's case was identical in all pertinent respects with Instruction No. 1 given in Lusk's trial. On the authority of the Lusk case, supra, 452 S.W.2d pp. 221, 222, 223, we reverse the judgment in Swiggart's case and remand the cause for a new trial.
Other points raised in appellant's brief need not be ruled on this appeal either because they are not likely to reoccur or because the State, having the benefit of appellant's challenges on this appeal, may avoid these pitfalls on retrial. These involve other instructions given at the first trial; the contention that the opinion of Dr. Ganter as to the cause of death was based entirely on hearsay; the admission in evidence of an allegedly gruesome photograph of the body of the deceased, and certain rulings made by the court during the empanelling of the jury. On these matters we will not issue an advisory opinion.
Appellant raises one other point, however, which should be decided on this appeal, namely, that the court erred in overruling appellant's pretrial motion for discovery of evidence, quashing his subpoena duces tecum for a police report and in overruling his trial motion for disclosure of evidence. Prior to trial Swiggart filed a motion "to inspect all evidence in the possession of the State favorable to this defendant," requesting "a list of witnesses and their statements, known to the State to have knowledge of this cause favorable to the defense." After the case was assigned for trial Swiggart filed a motion for disclosure, requesting "the names of all persons, other than those endorsed by the State as witnesses, whom the Prosecuting Attorney has been informed were or may have been in `Artie's Loop Bar on February 28 and February 29, 1968." During the trial Swiggart's counsel caused a subpoena duces tecum to issue to the police department to bring in "all of the police reports" relating to the investigation of the death of George Hassen. The court overruled the motions and ordered the subpoena quashed. The question is whether in so ruling the court erred, in the light of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215; Giles v. Maryland 386 U.S. 66, 87 S. Ct. 793, 17 L. Ed. 2d 737, and State v. Thompson, Mo.Sup., 396 S.W.2d 697. Appellant also cites and relies upon the unpublished opinion in State v. Cannon, No. 54,252, decided July 13, 1970 in Division 1, but that case treats of a different aspect of this problem, and has no binding force in any event, for it is in the status of a pending and undecided case, having been transferred to the court en banc on the dissent of one of the judges.
Swiggart contends that the prosecuting attorney has a positive duty to disclose all evidence in the possession of the State favorable to the defendant and that if furnished the names of all persons interviewed by the police and given access to the police reports the witnesses thereby revealed "might have shed light" on the extent to which George Hassen was intoxicated; "may have been able to state" whether Hassen fell or received an injury in the bar, and "might have been able" to say "whether the waitress at the bar asked Lusk or Swiggart to remove Hassen from the bar." Swiggart contends for a rule which would give an accused unlimited access to all of the files of prosecuting and police officials. Such a rule has never been in force in this State. There is no general right of discovery in criminal cases, *253 either by statute or court rule. State v. Yates, Mo.Sup., 442 S.W.2d 21; State v. Coleman, Mo.Sup., 441 S.W.2d 46; State v. Reynolds, Mo.Sup., 422 S.W.2d 278; State v. Maxwell, Mo.Sup., 400 S.W.2d 156. Criminal "Rule 25.19 [authorizing issuance of a subpoena duces tecum] does not permit unlimited discovery, nor should it be construed to do so." State ex rel. Arbeiter v. Reagan, Mo.Sup., 427 S.W.2d 371, 374. Criminal Rule 25.19, V.A.M.R., "does not authorize a blanket request for all material in the possession of the prosecution or police. * * * Whether the motions filed in this case and the requests for subpoenas duces tecum be considered separately or together, there is no right of defendant to require the prosecution to prepare his defense, which was the result of the requests in this case." State v. Berry, Mo.Sup., 451 S.W.2d 144, 146 [1], 147 [2]. In State v. Aubuchon, Mo.Sup., 381 S.W.2d 807, and subsequent cases, this Court has frequently expressed its unwillingness to "open up, carte blanche, the files of the State to a defendant," or, as otherwise expressed, to permit the defendant to engage in a fishing expedition. State v. Berry, supra; State v. Yates, supra; State v. Blevins, Mo.Sup., 421 S.W.2d 263, 268. Such a wholesale review of the State's files and complete appropriation of the work product of the prosecuting officials and investigative agencies, without focusing on one particular material item, is not authorized or required.
The case of Brady v. Maryland, supra, does not require "that the prosecuting attorney perform the investigation and preparation for trial which normally should be performed by defense counsel." State v. Reynolds, supra, 422 S.W.2d l. c. 283. In Brady v. Maryland petitioner's counsel did not, as here, request the prosecution to allow him to examine all evidence favorable to him, but limited his request to his codefendant's extrajudicial statements. Several statements were shown to him but one statement (the one in which he was interested, in which the codefendant admitted the actual homicide) was withheld and did not come to his attention until after the conviction was affirmed on appeal. The element of suppression of material evidence was involved. The Supreme Court of the United States held that "* * * the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S., l. c. 87, 83 S.Ct., l. c. 1196, 10 L.Ed.2d, l. c. 218. That element is missing in the case before us. Brady v. Maryland does not require the prosecution to divulge everything in the State's files on the prospect that something might be found which might or might not prove to be helpful to the defense. State v. Reynolds, supra; State v. Yates, supra.
Judgment reversed and cause remanded for a new trial.
WELBORN and HIGGINS, CC., concur.
PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
HOLMAN, J., concurs.
SEILER, P. J. concurs in separate concurring opinion filed. BARDGETT, J., concurs in separate concurring opinion of SEILER, P. J.
SEILER, Presiding Judge (concurring).
I concur in the portion of the opinion reversing the judgment and remanding the cause for a new trial because of the error in the instruction.
However, I see no good reason not to sustain the motion of defendant asking for the names of all persons other than those endorsed by the state as witnesses whom the prosecuting attorney had been informed were in the bar on the occasion *254 in question, assuming the matter is not moot by reason, if so, of defendant's counsel having the desired information already as result of the evidence presented by the state in the first trial. If the motion is sustained, the names sought could easily be produced under supervision of the trial court without necessitating the unlimited access to the files of the prosecutor and the police so feared by the main opinion.
Witnesses do not belong to the state even though they have been interviewed by the state or listed by the police in their investigation. Once defense counsel has the names of the people who were in the bar he would have to do his own work to find out by talking to them what they knew about the case, but I see no reason why he should not be given the names, and certainly providing him with these witnesses does not mean we would be requiring the prosecution to prepare his defense. The objection that providing names of witnesses means one side is being asked to prepare the other side's defense or case is reminiscent of the apprehensions which were voiced twenty years or so ago against enlarging discovery in civil litigation, which experience has proved groundless. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575236/ | 308 S.W.3d 444 (2010)
CITY OF CARROLLTON, Texas, Appellant,
v.
RIHR INCORPORATED, Appellee.
No. 05-08-01715-CV.
Court of Appeals of Texas, Dallas.
March 18, 2010.
Rehearing Overruled April 26, 2010.
*446 Fredrick Quast, Taylor, Olson, Adkins, Salla & Elam, L.L.P., Fort Worth, TX, for Appellant.
Richard B. Schiro, Law Office of Richard B. Schiro, Dallas, TX, for Appellee.
Before Justices MORRIS, O'NEILL and FILLMORE.
OPINION
Opinion by Justice FILLMORE.
Appellee RIHR Incorporated, owner of two residential development lots in Carrollton, Texas, applied to appellant The City of Carrollton for building permits to complete construction of houses on those lots. Carrollton refused to issue those permits, demanding instead that RIHR first reimburse Carrollton for a portion of the city's cost to remediate a collapsed retaining wall on lots not owned by RIHR. Following a non-jury trial, the trial court signed a final judgment in favor of RIHR on its claim that Carrollton imposed an improper exaction as a condition to granting the requested building permits, thereby taking private property without providing adequate compensation. In three issues, Carrollton asserts the trial court erred in (i) concluding Carrollton engaged in an unlawful exaction, (ii) awarding damages to RIHR, and (iii) awarding attorney's fees to RIHR. We affirm in part, and reverse and render in part.
Factual and Procedural Background
A 1993 plat recorded in Dallas County, Texas, depicts a subdivision known as Josey Park Estates consisting of fifty-five lots located in Carrollton. Carrollton-Farmers Branch Independent School District (CFBISD) purchased seven lots in Josey Park Estates (the CFBISD Property). After acquisition of the CFBISD Property, CFBISD had a retaining wall constructed on two of those lots, lots 17 and 18, along the western and southern boundaries of the CFBISD Property. The retaining wall was not required by or referred to in the original plat for Josey Park Estates.
In December 2002, after construction of the retaining wall was completed, Josey Park, L.P. purchased six of the seven lots from CFBISD in order to build houses on those lots (the Josey Park Lots). In 2003, Josey Park, L.P. replatted those six lots, as shown on the replat entitled "Lots 16R, 17R, 18R, 19R, 20R and 21R, Block A Josey Park Estates" recorded in Dallas County. As replatted, lots 17 and 18 became lots 17R and 18R. The retaining wall originally built on lots 17 and 18 was not shown or mentioned on the replat and was not a condition of or related in any way to Josey Park, L.P.'s obtaining approval of the replat from Carrollton. Carrollton issued building permits, and in early 2004, Josey Park, L.P. began construction of houses on lots 19R and 20R.
*447 The retaining wall partially collapsed in June 2004, and Carrollton notified Josey Park, L.P. that the wall had failed and was a threat to life, safety, and the environment. Carrollton requested Josey Park, L.P. take action to, among other things, repair or remove the collapsed wall. In July 2004, Carrollton issued an official notice ordering that work on the houses on lots 19R and 20R cease and stating that no other building permits would be issued for the Josey Park Lots until the collapsed wall was removed or repaired by Josey Park, L.P. In January 2005, Carrollton issued to Josey Park, L.P. a corrected notice and order stating that the wall had been found to be a dangerous structure under the 1994 Uniform Code for the Abatement of Dangerous Buildings as adopted by Carrollton Ordinance 2233 and giving Josey Park, L.P. official notice to start repairs or begin demolition of the structure within thirty days. That notice and order identified the retaining wall as "the structure and premises located at" lots 17R and 18R of Josey Park Estates.
In February 2005, Carrollton's Construction Advisory and Appeals Board (CAAB) conducted a hearing regarding the collapsed retaining wall. At the hearing, an engineer employed by Carrollton stated that "the lots affected by the failure of the wall" were 17R, 18R, 19R, 20R and 21R. Following the hearing, CAAB issued an order stating that the wall was dangerous, substandard, dilapidated, and a hazard to the public health, safety, and welfare, and that it should be demolished or repaired. In reliance on the engineer's report, the order further provided that in accordance with Carrollton City Code No. 150.100, the expense of demolition and stabilization performed under contract with Carrollton or by Carrollton would constitute a nontransferable lien against lots 17R, 18R, 19R, 20R, and 21R.
At a public foreclosure sale in April 2005, RIHR purchased lots 19R and 20R (RIHR Lots). In May 2005, RIHR applied for building permits to complete construction of the houses on the RIHR Lots, paid the required permit fees, and registered as a general contractor in Carrollton in order to obtain the building permits. Notwithstanding RIHR's submission of proper applications and payment of the required fees, Carrollton refused to issue the requested building permits and informed RIHR that the permits would not be issued until the wall was repaired or removed by RIHR. In June 2005, RIHR attempted to appeal to CAAB, requesting an order for issuance of the building permits to complete the houses and directing Carrollton to assess the cost of repairing the wall only to those lots on which the wall had been constructed, Josey Park Lots 17R and 18R. Carrollton refused to accept RIHR's application for appeal. In September 2005, Carrollton's Director of Engineering communicated the following to Carrollton's Assistant City Manager:
Staff plans to put liens on all 6 properties [of the Josey Park Lots] in hopes of recouping our cost. However, as I mentioned before and I believe I stated this to Council when they approved this item, it is likely that the property owner(s) will simply walk away from this and leave the property as is. . . . The only lots where the city may recoup some of its investment [the remediation expense] is [sic] the two lots that have homes [the RIHR Lots].
In 2006, Carrollton remediated the damage caused by the wall's collapse by having the collapsed portions of the wall removed or replaced and having portions of some of the Josey Park Lots graded to eliminate the need for a retaining wall. None of this remediation occurred on the RIHR Lots. *448 This remediation work was completed in May 2006 and was paid for by Carrollton.
RIHR contacted Carrollton in July 2006 to inquire whether Carrollton would issue the requested building permits for completion of the residential construction on the RIHR Lots. Carrollton responded that before it would issue permits, RIHR was required, among other things, to sign an agreement with Carrollton stating in part that the retaining wall was required as part of the platting process and to pay Carrollton the sum of $40,121, one-third of the remediation cost as allocated by Carrollton to the RIHR Lots.
RIHR filed suit against Carrollton alleging an unconstitutional taking and seeking temporary and permanent injunctive relief, damages, and a declaratory judgment. After a hearing, the trial court signed an order for temporary injunction. The trial court found that the collapsed retaining wall was not on and did not affect the lots owned by RIHR, and Carrollton's "existing and continuing refusal to issue the building permits unless and until RIHR reimburses or pays the City for remediation of the collapsed Wall is an unconstitutional taking." The temporary injunction compelled Carrollton to approve RIHR's application for building permits, issue those building permits, release by duly recorded instruments the liens filed by Carrollton against the RIHR Lots, and consider, without reimbursement by RIHR of remediation costs relating to the retaining wall, RIHR's application for a permit to construct a driveway on the access easement adjacent to the RIHR Lots. Carrollton issued the building permits on May 7, 2007.[1] The construction necessary to complete the houses on lots 19R and 20R commenced in June 2007 and was completed in November 2007.[2]
The case was tried before the court without a jury. The trial court found in favor of RIHR and signed a final judgment awarding RIHR $119,200.15 in damages and $69,752.87 for attorney's fees. The trial court filed findings of fact and conclusions of law. Carrollton appealed the judgment.
Exaction
In its first issue, Carrollton asserts the trial court erred in concluding there was an unconstitutional exaction resulting in a taking of RIHR's property. Carrollton asserts no exaction occurred because (1) Carrollton abandoned the conditions about which RIHR complains and issued the requested building permits for lots 19R and 20R, and (2) RIHR did not ultimately pay Carrollton any portion of the cost of wall remediation.
Whether particular facts constitute an unconstitutional taking of property is a question of law subject to de novo review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 937 (Tex.1998). Accordingly, we will examine the trial court's conclusions of law under a de novo standard. See Piazza v. City of Granger, 909 S.W.2d 529, 532 (Tex.App.-Austin 1995, no writ). We will uphold a trial court's conclusion of law unless it is erroneous as a matter of law. See id.
A prohibition against taking private property for public use without just compensation is set forth in Article I, section 17 of the Texas Constitution, which provides that "[n]o person's property shall be taken, damaged, or destroyed for or applied *449 to public use without adequate compensation being made, unless by the consent of such person." TEX. CONST. art. I, § 17. See Mayhew, 964 S.W.2d at 933. The Just Compensation Clause of the Fifth Amendment to the United States Constitution, applied to the individual states through the Fourteenth Amendment, contains similar language. It provides that "private property [shall not] be taken for public use, without just compensation." U.S. CONST. amends. V, XIV. As a result, Texas courts typically look to federal cases for guidance on the constitutionality of a taking. See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex. 2004).
Takings are classified as either physical or regulatory. Mayhew, 964 S.W.2d at 933; Sefzik v. City of McKinney, 198 S.W.3d 884, 891 (Tex.App.-Dallas 2006, no pet.). A physical taking is an unwarranted physical appropriation or invasion of the property. Mayhew, 964 S.W.2d at 933. A compensable regulatory taking can occur when a governmental entity imposes restrictions that either deny a property owner all economically viable use of his property or unreasonably interfere with the owner's right to use and enjoy the property. Id. at 935.
A distinct category of regulatory taking occurs when the government conditions the approval of a permit or some other type of governmental approval on an exaction from the approval-seeking landowner. See Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 548, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005) (referring to "land-use exaction" taking theory); Dolan v. City of Tigard, 512 U.S. 374, 377, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) (permit to expand store and parking lot conditioned on dedication of portions of property for greenway and bicycle and pedestrian pathway); Nollan v. California Coastal Comm'n, 483 U.S. 825, 827, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) (permit to build larger residence on beachfront property conditioned on dedication of easement allowing public to traverse strip of property). Specifically, an exaction occurs if a governmental entity requires an action by a landowner as a condition to obtaining governmental approval of a requested land development. Town of Flower Mound v. Stafford Estates, L.P., 71 S.W.3d 18, 30 (Tex.App.-Fort Worth 2002), aff'd, 135 S.W.3d 620, 630 (Tex.2004) (citing Dolan, 512 U.S. at 377, 114 S. Ct. 2309 and Nollan, 483 U.S. at 827, 107 S. Ct. 3141).[3]
Here, Carrollton required RIHR to pay a portion of the wall remediation cost as a condition precedent to Carrollton's approval of RIHR's application for building permits for lots 19R and 20R. In its findings of fact, the trial court found that: lots 16R-21R of Josey Park Estates were platted before construction of a retaining wall running along the western and southern boundaries of lots 17R and 18R, and construction of the retaining wall was not a condition for the platting; the wall does not touch, abut or run along lots 19R and *450 20R; the wall and its failure had no effect on lots 19R and 20R; Carrollton's basis for denying RIHR's application for the building permits was RIHR's not reimbursing or paying Carrollton for remediation of the collapsed wall; and, Carrollton imposed an exaction as a condition to obtain its approval of the building permits.
These findings establish there was an ultimatum by Carrollton that RIHR pay a portion of the collapsed wall's remediation cost as a condition precedent to issuance of the requested building permits, even though the wall had no impact on or benefit to the RIHR Lots, either as the wall previously existed or as remediated. The wall was built prior to commencement of construction on the houses on the RIHR Lots and was not ever a condition precedent in any respect for that construction. Carrollton imposed the remediation cost and liens against lots 19R and 20R to recoup a portion of its expenses.
Based on the evidence, the trial court concluded that Carrollton's refusal to issue the building permits unless and until RIHR reimbursed or paid Carrollton for remediation of the collapsed wall was an unconstitutional exaction. The trial court further concluded that the liens filed by Carrollton against lots 19R and 20R were an improper and unlawful attempt to enforce that unconstitutional exaction.
Carrollton contends it only threatened an exaction. It asserts that no exaction occurred because the condition for issuing building permits was not enforced and because the building permits for lots 19R and 20R were granted without a payment from RIHR for a portion of the wall remediation costs. The record indicates that without the temporary injunction order requiring Carrollton to issue the building permits, Carrollton would have continued to deny the building permits unless and until RIHR paid Carrollton a portion of the wall remediation cost. Contrary to Carrollton's assertion, the record establishes that the condition was enforced; the building permits were issued by Carrollton only after and because the trial court's mandatory injunction order required Carrollton to do so.[4]See City of Houston v. Kolb, 982 S.W.2d 949, 955 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (record indicated city would continue to deny proposed subdivision plat until landowners agreed to give city a portion of their property for right-of-way).
Essentially Carrollton argues that because RIHR sought redress from the trial court prior to paying Carrollton's demand for reimbursement of the wall remediation cost, no exaction occurred. Carrollton has pointed to no case requiring the landowner to acquiesce in the required action or condition prior to seeking redress in the trial court for an unlawful exaction.[5] We have found no such controlling authority.[6] Further, *451 Carrollton's argument ignores the definition of exaction as set out in Flower Mound. An exaction occurs if the governmental entity requires an action by the landowner as a condition to obtaining governmental approval of the requested land development. Flower Mound, 135 S.W.3d at 630. In accord, Black's Law Dictionary defines an "exaction" as "1. The act of demanding more money than is due; extortion. 2. A fee, reward, or other compensation arbitrarily or wrongfully demanded." BLACK'S LAW DICTIONARY 641 (9th ed.2009) (emphasis added). Here, Carrollton demanded that RIHR pay a portion of the wall remediation cost as a condition precedent to Carrollton's approving RIHR's application for building permits. Carrollton's demand falls squarely within the definition of "exaction."
The United States Supreme Court utilizes a two-prong test to determine whether a compensable taking has occurred when the government conditions the granting of permit approval, plat approval, or some other type of governmental approval on an exaction from the party seeking the approval. Dolan, 512 U.S. at 391, 114 S. Ct. 2309; see also Nollan, 483 U.S. at 837, 107 S. Ct. 3141 (applying the first prong of the two-prong test articulated in Dolan). The two prongs of this test, referred to as "essential nexus" and "rough proportionality," were adopted, applied and explained by the Texas Supreme Court in Flower Mound:
[C]onditioning government approval of a development of property on some exaction is a compensable taking unless the condition (1) bears an essential nexus to the substantial advancement of some legitimate government interest and (2) is roughly proportional to the projected impact of the proposed development.
Flower Mound, 135 S.W.3d at 634.
The government must make an "individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." Id. at 633 (citing Dolan, 512 U.S. at 389-91, 114 S. Ct. 2309). Thus, the burden is on the government to prove that the condition imposed meets the test. Id. at 643-44; Sefzik, 198 S.W.3d at 891.
With regard to the first prong of the Dolan test, Carrollton did not demonstrate that an "essential nexus" existed between a legitimate government interest and the permit condition exacted. Even if the collapsed wall presented a condition adverse to public safety and Carrollton properly acted to eliminate the danger by remediating lots in which RIHR had no interest, there is no connection between remediation of the collapsed wall and Carrollton's exaction. The trial court found the collapsed wall was not on and did not affect the RIHR Lots. The record also reveals Carrollton's Director of Engineering believed it would be difficult to recoup wall remediation costs from the owner of the lots on which the wall was located and the remediation efforts occurred. The Director concluded that "[t]he only lots where the city may recoup some of its investment is [sic] the two lots that have homes [the RIHR Lots]." Based on the record before us, the exaction at issue was not related to and justified by the anticipated construction on the RIHR Lots.
Our analysis properly concludes with the first prong of the Dolan test and the sole test applied in Nollan. In other words, having determined that the exaction imposed by Carrollton was not related to a *452 legitimate government interest, we need not consider whether the exaction is roughly proportional to the projected impact of the proposed development. However, we note with regard to the "rough proportionality" prong of the Dolan test that Carrollton did not attempt to demonstrate a correlation between the wall remediation payment demanded from RIHR and the impact of the requested residential construction on lots 19R and 20R.
On this record, the trial court did not err in concluding that Carrollton's refusal to issue building permits unless RIHR provided funding for wall remediation is an unconstitutional exaction. We overrule Carrollton's first issue.
Damages Awarded
In its second issue, Carrollton asserts that the trial court applied an improper measure of damages. Whether the trial court applied an improper measure of damages is a question of law subject to a de novo review. Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).
Carrollton also contends there is no evidence of the reasonableness of payments RIHR made to third parties. An appellant attacking the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof must show there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). We view the evidence in the light favorable to the finding, crediting favorable evidence if a reasonable fact-finder could and disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Anything more than a scintilla of evidence is legally sufficient to support a challenged finding of fact. OAIC Commercial Assets v. Stonegate Village, L.P., 234 S.W.3d 726, 736 (Tex.App.-Dallas 2007, pet. denied).
The trial court concluded that RIHR was harmed by the exaction because it could not complete construction of the houses on lots 19R and 20R until the building permits were issued. Having concluded that a compensable injury occurred, the trial court further concluded that RIHR was entitled to recover necessary expenses associated with its ownership of the partially constructed houses for the exaction period (from Carrollton's improper refusal to issue the building permits, mid-May 2005, through issuance of the building permits, May 7, 2007). Carrollton asserts the damages awarded by the trial court constituted an improper measure of damages. We disagree.
Carrollton concedes there are differing measures of damages depending on the circumstances of the temporary loss of use of property. See City of Austin v. Teague, 570 S.W.2d 389, 392 (Tex.1978); Hall v. Robbins, 790 S.W.2d 417, 418 (Tex.App.-Houston [14th Dist.] 1990, no writ); United States v. Lee, 360 F.2d 449, 452 (5th Cir.1966). Carrollton also concedes there is authority for the proposition that "necessary expenditures" are appropriately recovered to compensate for loss of use. See Betts v. Reed, 165 S.W.3d 862, 872-73 (Tex.App.-Texarkana 2005, no pet.) (affirmed trial court's award of out-of-pocket expenses based on denial of access and loss of use of real property, including deer lease, additional time for employees traveling longer route, and personal time for owner's alternative route); San Antonio River Auth. v. Garrett Bros., 528 S.W.2d 266, 274 (Tex.Civ.App.-San Antonio 1975, writ ref'd n.r.e.) (for temporary taking or damage, landowner entitled to recover such sum as would compensate for loss of profits and necessary expenditures); see also Hart Bros. v. Dallas County, 279 *453 S.W. 1111, 1112 (Tex. Comm'n App.1926, judgm't adopted).
Carrollton relies on Hall for the argument that real estate taxes and accrued interest on a purchase money mortgage are not proper measures of damages for a temporary taking. In Hall, property owners brought an action to enjoin neighbors from interfering with access to their land and for compensation for the time the property owners were prevented from developing their property. Hall, 790 S.W.2d at 417. As here, the evidence the Hall plaintiffs presented related to accrued real estate taxes and accrued interest on the purchase money mortgage. Id. at 418. The trial judge determined that loss of the use of the property was the proper measure of damages under those circumstances. Id. The court of appeals affirmed, holding there was no evidence of loss of use before the court. Id. at 419.
Hall is distinguishable from the case at bar. In Hall, the land at issue was undeveloped, vacant land. Id. at 417, 419. Here, the property temporarily taken was not raw, undeveloped land. Each of the two lots at issue contained a residence on which construction was approximately ninety percent complete. After purchase of lots 19R and 20R, RIHR was unable to complete construction of the homes until the building permits were issued by Carrollton. RIHR seeks compensation for time-related expenses incurred during the period the building permits were withheld by Carrollton. Based on the facts and circumstances of this case, we conclude that the trial court properly determined that RIHR's out-of-pocket expenses incurred during the exaction period constituted an appropriate measure of damages.
Having concluded the trial court properly applied the measure of damages to the particular facts of this case, we next address Carrollton's argument that there is no evidence of the reasonableness of the damages.[7]
RIHR presented evidence concerning four categories of out-of-pocket expenditures it incurred during the exaction period: bank interest on notes collateralized by the houses on lots 19R and 20R, insurance premiums, real estate taxes, and miscellaneous maintenance items including mowing liens and repairs for the houses on lots 19R and 20R. The trial court found the following damages "reasonable and necessary as provided by the evidence and all reasonable inferences therefrom": $30,449.24 for taxes and mowing liens paid by RIHR during the time building permits were withheld by Carrollton; $70,939.63 for interest paid on interest-only bank notes as shown on bank statements; and, $17,811.28 paid for insurance premiums for insurance on the houses on lots 19R and 20R. The trial court's conclusions of law with regard to each of those damage amounts provide that RIHR met its burden of proof and that the trial court can take judicial notice with regard to each of those amounts. The trial court awarded RIHR $119,200.15 as damages for the unconstitutional exaction.
Michael Coker, president of RIHR, testified with regard to the damages sought by RIHR and to the spreadsheet and backup documents admitted in evidence at trial in support of RIHR's damage claim. Carrollton acknowledges RIHR's damage evidence contains "very thorough documentation." Carrollton did not examine RIHR's witness regarding the damages claimed or otherwise make an effort to disprove RIHR's just compensation evidence. "To the extent evidence supporting the damage award was not controverted, it *454 is sufficient." Foust v. Estate of Walters, 21 S.W.3d 495, 509 (Tex.App.-San Antonio 2000, pet. denied).
The evidence conclusively established that RIHR was not able to complete construction of the houses of lots 19R and 20R for the period of the exaction. RIHR presented more than a scintilla of evidence regarding its expenditures incurred during the exaction period, and that evidence supports the trial court's findings concerning damages. Property taxes, interest on the mortgage note, insurance premiums, and expenses associated with maintenance and repair while awaiting building permits to complete construction were all attendant to RIHR's ownership of the RIHR Lots.
Having reviewed the record and arguments presented, we cannot conclude the trial court erred in finding these expenses reasonable and necessary. We overrule Carrollton's second issue.
Attorney's Fees
In this lawsuit, RIHR asserted entitlement to a declaratory judgment and to recovery of attorney's fees under the Uniform Declaratory Judgments Act. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 37.003,.009 (Vernon 2008). In a declaratory judgment action, a "court may award costs and reasonable and necessary attorney's fees as are equitable and just." Id. at § 37.009. The trial court found that RIHR incurred reasonable and necessary attorney's fees in the amount of $69,752.87 through April 7, 2007, the date of issuance of the temporary injunction, and concluded RIHR is entitled to recover attorney's fees in that amount under a just and equitable standard.
In its third issue, Carrollton contends the trial court erred in awarding RIHR attorney's fees. Carrollton does not contest the reasonableness of the attorney's fees. Rather, Carrollton asserts the trial court's award of attorney's fees under the Uniform Declaratory Judgments Acts was error because, in an effort to obtain attorney's fees, RIHR utilized a declaratory judgment action to seek the same relief requested under its cause of action against Carrollton for an unconstitutional taking.
We review for abuse of discretion a trial court's award of attorney's fees under the Uniform Declaratory Judgments Act. Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex.2004). "The trial court abuses its discretion if its ruling that attorney's fees were recoverable was arbitrary or unreasonable." Cadle Co. v. Harvey, 46 S.W.3d 282, 289 (Tex.App.-Fort Worth 2001, pet. denied).
A party cannot use the Uniform Declaratory Judgments Act to obtain an otherwise impermissible attorney's fee. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex.2009). It is an abuse of discretion to award attorney's fees under the Uniform Declaratory Judgments Act when the statute is relied upon solely as a vehicle to recover attorney's fees. Tex. State Bd. of Plumbing Exam'rs v. Assoc. Plumbing-Heating-Cooling Contractors of Tex., Inc., 31 S.W.3d 750, 753 (Tex.App.-Austin 2000, pet. dism'd); see also City of Houston v. Texan Land & Cattle Co., 138 S.W.3d 382, 392 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (party may not use declaratory judgment action to seek same relief afforded under another of its causes of action to obtain otherwise impermissible attorney's fees).
RIHR asserts its declaratory judgment claim is an appropriate remedy because RIHR has an actual, justiciable issue concerning whether its constitutional rights have been violated, and the trial court could resolve that issue with a declaration that Carrollton's refusal to issue building permits unless RIHR paid for remediation *455 of the collapsed wall was an unconstitutional exaction. Therefore, RIHR asserts the plea for declaratory relief has a purpose apart from seeking attorney's fees.
RIHR's amended petition was filed after the trial court signed the temporary injunction order requiring Carrollton to, among other things, approve RIHR's application for building permits, issue those building permits, and release the liens against the RIHR Lots. In its amended petition, RIHR asserted a cause of action for damages resulting from an unconstitutional taking. RIHR also sought a declaratory judgment that Carrollton's denying the building permits to RIHR until ordered to do so by the trial court was an unconstitutional taking and Carrollton's liens against the RIHR Lots for the costs associated with remediating the collapsed wall were improper and unlawful. Here, the declaratory action had no greater ramifications than RIHR's cause of action for a compensable taking and merely duplicated the issues already before the trial court. Other than attorney's fees, RIHR sought no relief under the declaratory judgment pleading not associated with its cause of action alleging a compensable taking.
RIHR's declaratory action claims were subsumed within its cause of action against Carrollton for a compensable taking, and RIHR's use of the declaratory judgments statute was an improper vehicle for obtaining its attorney's fees. We conclude the trial court abused its discretion in awarding RIHR attorney's fees under the Uniform Declaratory Judgments Act. We sustain issue three as to RIHR's attorney's fees and reverse the trial court's award of attorney's fees to RIHR.
Conclusion
We reverse the award of attorney's fees and render judgment that RIHR take nothing on its claim for attorney's fees. In all other respects, the trial court's judgment is affirmed.
NOTES
[1] There was no permanent injunction because Carrollton issued the requested building permits.
[2] According to RIHR's January 17, 2008 trial brief, the houses were still for sale at the time of trial.
[3] We disagree with Carrollton's assertion that this case is more appropriately analyzed under Penn Central Transportation Company v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). As was stated in Sefzik:
The [Flower Mound] court specifically distinguished cases involving the "unreasonable regulatory interference" analysis employed in Penn Central from cases like Nollan and Dolan, which involved "exactions imposed by the government as a condition of its approval of land development.. . ." [T]his case is a development exaction takings case, not a regulatory interference takings case. Therefore, the tests stated in Penn Central and Mayhew do not apply here.
Sefzik, 198 S.W.3d at 898-99.
[4] Carrollton did not appeal the temporary injunction order.
[5] In Flower Mound, the court disagreed with the town's argument that the court should "adopt a standard that requires developers to seek to strike down conditions that they believe are unconstitutional before accepting the conditions and irreparably changing the status quo." Flower Mound, 135 S.W.3d at 628. The court stated, "[t]here is nothing in the statutory framework [regarding municipal regulation of subdivisions and property development] to suggest that the time for bringing an action like this one is constrained by anything other than the applicable statute of limitations.. . ." Id. at 628-29.
[6] Although the Dolan majority did not expressly address the argument that an exaction claim is not cognizable when the landowner refuses to agree to an improper request from the government resulting in denial of the permit, the argument was addressed by the dissent and, thus, implicitly rejected by the majority. Dolan, 512 U.S. at 408, 114 S. Ct. 2309 (Stevens, J., dissenting). The argument was also addressed and rejected in Parks v. Watson, 716 F.2d 646 (9th Cir.1983), a case upon which the Supreme Court relied in deciding Nollan. See Nollan, 483 U.S. at 839, 107 S. Ct. 3141; Parks, 716 F.2d at 652.
[7] Carrollton has not challenged the calculation of RIHR's damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578966/ | 281 S.W.3d 902 (2009)
STATE of Missouri, ex rel., Jeremiah W. NIXON, Missouri Attorney General, Appellant,
v.
Victor HUGHES, Respondent.
No. WD 69891.
Missouri Court of Appeals, Western District.
April 7, 2009.
*905 Robert D. Noland, Kansas City, MO, for Appellant.
Victor Hughes, New Madrid, MO, pro se.
Before: ALOK AHUJA, P.J., HAROLD L. LOWENSTEIN, J., and THOMAS H. NEWTON, C.J.
THOMAS H. NEWTON, Chief Judge.
The State appeals the circuit court's judgment granting Victor Hughes's motion for summary judgment on its petition, filed pursuant to §§ 217.825-.841, RSMo 2000, seeking reimbursement for the cost of his incarceration in the Missouri Department of Corrections. On appeal, the State raises two points. We reverse and remand.
Factual and Procedural Background
In 2005, Hughes was convicted of committing burglary in the second degree, forgery, and possession of a controlled substance. The circuit court sentenced him to serve a term of seven years in the department of corrections.
On October 18, 2007, the State filed a petition in the circuit court against Hughes seeking reimbursement for the cost of his incarceration. On October 25, 2007, the circuit court ordered Hughes to show cause why the circuit court should not enter judgment against him. Hughes did not answer the order. On January 22, 2008, the circuit court sua sponte dismissed the State's petition on the basis that Hughes had insufficient funds to reimburse the State for his incarceration. The State filed a motion to set aside the dismissal on the basis that the Attorney General needed only "good cause" to believe that Hughes had sufficient assets. The circuit court granted the State's motion on February 14, 2008.
*906 On February 13, 2008, Hughes filed a motion entitled "Memorandum in Support of Motion for Summary Judgment." On March 4, 2008, the State filed a motion for summary judgment with suggestions in support of the motion. On June 19, 2008, the circuit court entered summary judgment against the State on the basis that the Attorney General did not have good cause to believe that Hughes had sufficient assets to reimburse the State because the undisputed evidence established that all of Hughes's prior assets were gifts. This appeal follows.
Legal Analysis
In its first point on appeal, the State claims that the circuit court erred in granting summary judgment for Hughes because Hughes's motion for summary judgment violated Rule 74.04(c)[1] and was void. Specifically, the State claims that Hughes's motion for summary judgment violated Rule 74.04(c) because, in his motion, he failed to include a statement of uncontroverted facts, with specific references to any pleadings, discovery, exhibits, or affidavits to establish that he had a right to judgment as a matter of law. We agree.
In reviewing the circuit court's grant of summary judgment, our review is essentially de novo:
The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.
State ex rel. Nixon v. Watson, 204 S.W.3d 716, 718 (Mo.App.2006) (citation omitted). In reviewing the grant of summary judgment, we review the record in the light most favorable to the party against whom judgment was entered and accord him the benefit of all reasonable inferences from the record. Id. at 719.
"To be entitled to summary judgment, the movant must demonstrate that: (1) there is no genuine dispute as to the material facts on which he relies for summary judgment; and (2) based on those facts, he is entitled to judgment as a matter of law." Id. (citing Rule 74.04(c)(6)). "The right to judgment as a matter of law differs significantly depending upon whether the movant is a `claimant' or a `defending party'". Id. In this case, Hughes moved for summary judgment as the defendant. When the moving party is the defendant, he can establish summary judgment in one of three ways:
[A] prima facie case for summary judgment can be established by employing one or more of three means: (1) showing undisputed facts that negate any one of the plaintiff's required proof elements; (2) showing that the plaintiff, after an adequate period of discovery, has not produced and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of one or more of the plaintiff's proof elements; or (3) showing that there is no genuine dispute as to the existence of the facts necessary to prove the movant's properly pleaded affirmative defense. `Regardless of which of these three means is employed by the "defending party," each *907 establishes a right to judgment as a matter of law.'
Childress Painting & Assocs., Inc. v. John Q. Hammons Hotels Two, L.P., 106 S.W.3d 558, 561 (Mo.App.2003) (quoting ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993)).
The Missouri Incarceration Reimbursement Act (MIRA) allows the State to seek reimbursement from the offender for the cost of his incarceration. §§ 217.825-217.841; Watson, 204 S.W.3d at 719. Pursuant to MIRA, upon being sentenced to the department of corrections, an offender is required to complete a standard form regarding his assets. §§ 217.829.1-3. The director of the department is required to forward a report on each offender to the Attorney General. § 217.831.1. The report must include the completed form and any other available information regarding the offender's assets and cost of his incarceration. Id. The Attorney General may then investigate the offender's assets. § 217.831.2. If, after the completion of his investigation, the Attorney General has "good cause" to believe that the offender has sufficient assets for the State to recover at least "ten percent of the estimated cost of care of the offender or ten percent of the estimated cost of care of the offender for two years, whichever is less, or has a stream of income sufficient to pay such amounts within a five-year period," he "may seek to secure reimbursement." § 217.831.3. If the Attorney General has this belief, then he is authorized to file a petition in the circuit court to recover the cost of the offender's incarceration:
The attorney general may file a complaint in the circuit court for the county or city from which a prisoner was sentenced or in the circuit court in the county or city of the office of the director of the department, against any person under the jurisdiction of the department stating that the person is or has been an offender in a state correctional center, that there is good cause to believe that the person has assets, and praying that the assets be used to reimburse the state for the expenses incurred or to be incurred, or both, by the state for the cost of care of the person as an offender.
§ 217.835. Once the Attorney General files the petition, the circuit court is required to issue an order to the offender to show cause why the complaint should not be granted. § 217.835.2. At the hearing on the State's petition, the State, to establish its prima facie case, is required to show that (1) the offender is incarcerated in a state correctional facility, and (2) he has assets that could be used for reimbursement. See State v. Overmyer, 189 S.W.3d 711, 717 (Mo.App.2006) (outlining prima facie case for summary judgment for a MIRA petition).
The good cause provision of § 217.831.3, therefore, is not part of the State's prima facie case. While the Attorney General is required to have good cause to believe that the offender has sufficient assets before he is allowed to file the petition, the Attorney General is not required to prove, at the hearing, that the offender actually has those funds. State ex rel. Nixon v. Houston, 249 S.W.3d 210, 214 (Mo.App.2008). In fact, MIRA's statutory scheme makes it clear that there is no minimum amount that must be recovered. Id. at 213. The good cause requirement is not part of the State's prima facie case or a defense to the State's prima facie case because the General Assembly did not enact the good cause requirement to protect the offender by limiting the extent to which the State could deplete his assets. Watson, 204 S.W.3d at 720. Rather, it was "intended only as a check on the ability of *908 the Attorney General to bring suit for MIRA reimbursement in order to insure that there was a high probability of a financial gain to the State when its limited resources were expended by the Attorney General in prosecuting such actions." Id. Thus, so long as the Attorney General had good cause to file the petition, the court is required to adjudicate the proper amount regardless of the offender's actual assets. Houston, 249 S.W.3d at 212-13.
Although the good cause provision is not part of the State's prima facie case, it is still a condition precedent that the Attorney General must satisfy before he is allowed to file a MIRA petition. Id. at 214. Accordingly, if an offender raises a factual issue as to the existence of the Attorney General's good cause, the offender is entitled to an evidentiary hearing where the circuit court is required to determine whether or not the Attorney General had good cause to believe that the offender had sufficient assets. State ex rel. Nixon v. Peterson, 253 S.W.3d 77, 83-84 (Mo. banc 2008). If the circuit court determines that the Attorney General did not have good cause, then the State's petition is void. Houston, 249 S.W.3d at 214.
In his summary judgment motion, Hughes sought summary judgment because the State did not have good cause to believe that the State could recover sufficient assets to justify filing a reimbursement petition. To be entitled to summary judgment on this issue, Hughes was obligated to establish that (1) there was no genuine dispute as to the material facts on the good cause requirement and (2) based on those facts, he was entitled to judgment as a matter of law. Rule 74.04(c)(6).
In making his case for summary judgment, Rule 74.04(c)(1) required him to make specific references to the record:
A statement of uncontroverted material facts shall be attached to the motion. The statement shall state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts.
Attached to the statement shall be a copy of all discovery, exhibits or affidavits on which the motion relies.
Rule 74.04 requires the movant to set forth a specific basis for summary judgment and list specific references to the record to support the basis for summary judgment so the opposing party, the circuit court, and the appellate court are apprised of the movant's claim of entitlement to summary judgment. Miller v. Ernst & Young, 892 S.W.2d 387, 389 (Mo.App.1995). Because the underlying purpose of Rule 74.04 is directed toward helping the court expedite the disposition of case, compliance with the rule is mandatory. Id. To allow the circuit court or appellate court to enter summary judgment on a motion that failed to state with particularity the reasons why the movant is entitled to summary judgment would place the court in the position of performing the work of an advocate. Id. It is not the function of the circuit court or appellate court to sift through a voluminous record in an attempt to determine the basis for the motion. Id. Thus, a summary judgment motion that fails to set forth each material fact in separately numbered paragraphs and fails to specifically reference the record is legally defective and cannot serve as the basis for the circuit court's grant of summary judgment. Hanna v. Darr, 154 S.W.3d 2, 5 (Mo.App. 2004). Hence, given the statutory scheme of MIRA and the procedural law of summary judgment, to establish a prima facie *909 case for summary judgment, Hughes, in his motion, had to set out uncontroverted facts with specific references to the record that established that the Attorney General lacked good cause to believe that he had sufficient assets to justify the filing of a reimbursement petition.
Hughes's motion, which he entitled "Memorandum of Law In Support of Motion for Summary Judgment," stated:
COME NOW DEFENDANT, Victor Hughes # 347226, Pro Se, In support of his motion for summary judgment, and now motion to Quash, Motion to SET ASIDE Dismissal here by states:
1) The assets, pursuant to provisions, under R.S. Mo. §§ 217.825 to 217.841, claimed by the State of Missouri, which are deposits into inmates account of the DEFENDENT [sic], Victor Hughes. These deposits have been gifts from friends and family, as such, gifts are not "assets, belonging to" an offender, or due an offender. State ex rel. Nixon v. Worthy, [247 S.W.3d 8] 2008 Mo.App. LEXIS 38[(Mo.App. 2008)]. Where the State alleges a savings account, at the time of Defendents [sic] incarceration, the value of the "bank account" was approximately $100.00 (one hundred dollars). The current value is approximately $60.00. Therefore, the State has failed to show the assets of the Defendant to be not less than ten percent of the estimated cost of care of the offender, or ten percent of the estimated cost of care of offender for two years.
2) The Attorney General, knew, or should have known before filing, that the DEFENDENT [sic] was not, and is not receiving a "steady of income." The Defendent's [sic] income is only $7.50 a month from the state. The gifts from family and friends have stopped in December 2007. The gifts received were neither of the same amounts, nor were in any specific time frame.
WHEREFORE, the DEFENDENT [sic] requests that the court inter [sic] summary judgment in the favor pursuant to Rule 74.04 of the Missouri Rules of Civil Procedure.
In his motion, Hughes claims that he is entitled to summary judgment because the Attorney General did not have good cause to believe that Hughes had sufficient assets to reimburse the State for his incarceration because all of his assets in his account were gifts. Even a cursory glance at Hughes's motion, however, establishes that his motion violates Rule 74.04(c). In violation of Rule 74.04(c), Hughes's motion fails to include a statement of uncontroverted materials facts, which establish that he is entitled to judgment as a matter of law. Furthermore, while Hughes does allege that the assets in his account were gifts, he fails to include specific references to the pleadings, discovery, exhibits, or affidavits to support this assertion. Hughes's motion is so defective that the only way that the circuit court could have entered summary judgment for him on the basis that the Attorney General did not have good cause to believe that he had sufficient assets to reimburse the State for his incarceration was to sift through the record to find facts supporting Hughes's position, which, of course, it was not allowed to do. Miller, 892 S.W.2d at 389. Thus, because Hughes's motion was legally defective, it could not serve as the basis for the circuit court's grant of summary judgment. Hanna, 154 S.W.3d at 5. The circuit court, therefore, erred in entering summary judgment for Hughes.
Even assuming, however, that this was not a sufficient reason to reverse the circuit court's judgment, we would also reverse based on the State's second point. In its second point, the State claims that *910 the circuit court erred in granting summary judgment to Hughes on the basis that Attorney General lacked good cause because Hughes (1) failed to plead the correct facts in his motion and, even assuming that he did, (2) the State sufficiently carried its burden to place those facts in genuine dispute. We agree.
In his motion, Hughes claims that he is entitled to summary judgment because the only funds, besides his prison wages, that were deposited in his account were gifts. Hughes is correct that if the deposits in his account were gifts and the only funds to be deposited in his account in the future were likely to be gifts, then the Attorney General may not have had good cause to believe that an offender has sufficient assets or a stream of income to justify the filing of a reimbursement petition. See e.g. Peterson, 253 S.W.3d at 84 (offender entitled to evidentiary hearing to determine whether Attorney General had good cause because the offender alleged that the money in his account were gifts and the donors had no intention of giving him any more money); State ex rel. Nixon v. Bowers, 259 S.W.3d 594, 596 (Mo.App.2008) (offender entitled to evidentiary hearing when he alleged that his only income came from gifts, which could be cut off at any point). This is because the prospect of a future gift falls outside the definition of an asset. Section 217.827 defines asset as:
[P]roperty, tangible or intangible, real or personal, belonging to or due an offender or a former offender, including income or payments to such offender from Social Security, workers' compensation, veterans' compensation, pension benefits, previously earned salary or wages, bonuses, annuities, retirement benefits, or from any other source whatsoever, including ... [a] current stream of income[.]
(Emphasis added.) The courts have concluded that a hope of a future gift does not constitute an asset because the offender has no entitlement to it, and, therefore, it neither belongs to him nor is it due to him. State ex rel. Nixon v. Worthy, 247 S.W.3d 8, 14-15 (Mo.App.2008). Thus, if the offender's prior income or future income is comprised of gifts, then the attorney general may not have good cause to believe that the offender has sufficient assets to justify reimbursing the State for his incarceration. A mere allegation that his funds were gifts, however, is not sufficient to establish that the Attorney General lacked good cause to believe that he had sufficient assets.
As we noted above, before the Attorney General can file a reimbursement petition, he must have "good cause" to believe that the offender has sufficient assets to recover at least "ten percent of the estimated cost of care of the offender or ten percent of the estimated cost of care of the offender for two years, whichever is less, or has a stream of income sufficient to pay such amounts within a five-year period[.]" § 217.831.3. The General Assembly did not define good cause in § 217.831.3. When the General Assembly does not include a definition of a term but it has a common law meaning, we presume that the General Assembly intended that meaning. Morgan v. Gaeth, 273 S.W.3d 55, 59 (Mo.App.2008).
[Under the common law, t]he meaning of the concept of `good cause' appears to vary to some extent according to the context in which the issue arises. Good cause has been defined as `a cause or reason sufficient in law: one that is based on equity or justice or that would motivate a reasonable man under all the circumstances.' State v. Davis, 469 S.W.2d 1, 5 (Mo.1971) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY). Generally, *911 the term `good cause' necessarily implies reasonableness and good faith.
Id. (citation omitted); see also State ex rel. Nixon v. Koonce, 173 S.W.3d 277, 284 (Mo.App.2005) (holding that Attorney General can file a reimbursement petition if he has a reasonable belief that the offender has sufficient assets to justify using the State's resources to recover them). Thus, the Attorney General must have a good faith and reasonable belief that the offender has sufficient assets. The Attorney General does not need to prove that the offender actually has sufficient assets. Houston, 249 S.W.3d at 214.
Given this law, it was not enough for Hughes to allege facts establishing that the prior deposits were gifts. Rather, to establish his right to summary judgment, he would have to allege uncontroverted facts establishing that the Attorney General knew or should have known that the prior deposits to Hughes's inmate account were gifts and, thus, the Attorney General could not have had a good faith and reasonable belief that Hughes had sufficient assets to reimburse the State for his incarceration. In that regard, Hughes makes a conclusory allegation that "The Attorney General, knew, or should have known before filing, that the DEFENDENT [sic] was not, and is not receiving a `steady of income.'" He, however, does not allege any facts from which the court can infer that the Attorney General should have known that the prior deposits in his account were gifts. The circuit court, therefore, could not grant Hughes summary judgment on this issue on the basis that Hughes did not have sufficient assets because the only money deposited in his account were gifts.
Furthermore, even assuming that Hughes's motion can be construed as alleging that the Attorney General should have known that these assets were gifts, he was not entitled to summary judgment. Assuming that Hughes's motion adequately pleaded facts establishing that the Attorney General lacked good cause to believe that Hughes had sufficient funds because the Attorney General should have known that these funds were random gifts and Hughes had no expectation that he would continue to receive these gifts, the burden would merely shift to the State to place in genuine dispute one or more of the material facts on which Hughes relied. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 1993). A genuine issue exists when the record contains competent evidence of "two plausible, but contradictory, accounts of the essential facts." Id. at 382. If the movant requires an inference to establish his right to summary judgment, and the record supports a reasonable inference other than the movant's inference, then the movant is not entitled to summary judgment because a genuine issue exists. Id. For the non-moving party to dispute a fact sufficiently to defeat a prima facie case for summary judgment, he or she must support his or her factual allegations with specific references to the record. Rule 74.04(c)(2).
In that regard, in its motion for summary judgment and its answer to Hughes's motion for summary judgment, the State alleged that:
10. The records of the inmate treasurer showed that Victor Hughes received payments from sources other than wages and salary into his inmate account. Specifically, [since July 2007,] he received $1,275.00 ... from his ex-wife and power of attorney, Ramonia Black. ...
11. From this information related to the deposits into his inmate account, the Attorney General made the determination *912 that he has good cause to believe that Victor Hughes has sufficient assets or a sufficient stream of income to pay the State of Missouri at least $3,000 of his total incarceration [costs]. ...
As required by Rule 74.04(c), the State listed these facts and made specific references to the record.
As the State points out, from these facts, a person could conclude that the Attorney General had a reasonable basis for believing that, because Hughes had received $1,275 in six months, he had sufficient assets, or a sufficient stream of income, to pay at least $3,000 for his incarceration within a five-year period. The State also points out on appeal that, although Hughes claims that his ex-wife was giving him gifts, the Attorney General had a reasonable basis for believing that, because she was his ex-wife and attorney-in-fact, she was merely depositing Hughes's own money into his account. At the very least, the record supports two competing reasonable inferences so a genuine factual dispute appears in the record. Thus, the circuit court erred in entering summary judgment for Hughes. The judgment is reversed, and the case is remanded for the circuit court to hold a hearing on the issue of whether or not the Attorney General, at the time he filed the petition, had a reasonable and good faith belief that Hughes had sufficient assets to justify the filing of a reimbursement petition.
AHUJA, P.J., and LOWENSTEIN, J. concur.
NOTES
[1] All rule references are to Missouri Rules of Civil Procedure, 2008, unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2585280/ | 138 P.3d 1129 (2006)
In re the MARRIAGE OF Lyle C. KAHLE, Respondent/Cross-Appellant, and
Randolph S. Kahle, Appellant/Cross-Respondent.
No. 56102-2-I.
Court of Appeals of Washington, Division 1.
July 24, 2006.
*1130 Stephen Cummings Kelly, Attorney at Law, Bellingham, WA, for Appellant/Cross-Respondent.
Delney North Hilen, Attorney at Law, Seattle, WA, for Respondent/Cross-Appellant.
COX, J.
¶ 1 At issue is whether an "automatic periodic adjustment" of child support ordered in a decree is self-executing enforceable without further court order.[1] We hold that such a provision is only enforceable by court order. Accordingly, we affirm the judgment for unpaid child support and medical expenses based on the original decree and remand for further proceedings.
¶ 2 The marriage of Randolph Kyle and Lyle Kahle was dissolved by decree in 1992. The terms of the decree include a provision for support of the couple's two minor children and payment of health care costs, including medical insurance. The transfer payment from Randolph to Lyle is $814 per month.[2] The decree also provides for annual adjustments to the support amount and contributions to day care and extraordinary medical expenses, beginning in June 1993. The decree specifies the basis and procedures upon which adjustments are to be made.
¶ 3 Because Randolph had not finalized his tax returns for 1993 and 1994, the parties made no annual adjustments until 1995, when they exchanged tax returns for the preceding two years. Based on their respective returns, Randolph concluded that he had overpaid child support for 1994 and 1995. Based on his conclusion, he unilaterally reduced his support payments from $814 per month to $300 per month. Moreover, he offset his claimed overpayments in support against his obligation for medical expenses he appears to acknowledge were outstanding.
¶ 4 Lyle did not agree to the adjustment. Randolph did not seek court approval of the adjustment.
¶ 5 In January 2005, prior to the expiration of the applicable statute of limitations, Lyle moved for entry of judgment against Randolph for the arrearages.[3] A court commissioner granted the motion and awarded her attorney fees, entering judgment in Lyle's favor. A superior court judge denied Randolph's motion to revise.
¶ 6 Randolph appeals. Lyle cross-appeals what appears to be a scrivener's error in the amount of attorney fees awarded below.
PERIODIC CHILD SUPPORT ADJUSTMENTS
¶ 7 Randolph argues that the trial court erred as a matter of law when it entered judgment against him. Specifically, he maintains that the court ignored the plain language of RCW 26.09.100(2) when it held that a court order is required to implement the provisions of a decree that provides for periodic adjustment of child support. We disagree.
¶ 8 When construing a statute, "our primary goal is to give effect to the legislature's intent, [and] we derive such intent by construing the language as a whole, giving effect to every provision."[4] If a statute is unambiguous this Court is required to apply the statute as written and "`assume[] that the legislature means exactly what it says.'"[5] We derive a statute's plain meaning not only from the statute at hand, but also "all that the Legislature has said in the ... related *1131 statutes which disclose legislative intent about the provision in question."[6] Moreover, when "statutes relate to the same thing or class, they are in pari materia and must be harmonized if possible."[7]
Application of a statute to undisputed facts is a question of law that we review de novo.[8]
¶ 9 The provisions of the decree that are at issue here state:
...
3.3 D. TRANSFER PAYMENT ... The obligor parent shall pay $814 per month.
...
3.3 M. PERIODIC MODIFICATION. Husband will promptly reimburse Wife for his portion of costs incurred, after verification of monthly expenses.
Child support shall be adjusted as follows:
The base child support and contribution to day care and extraordinary medical expenses will be adjusted annually on June 1st beginning in 1993. The amount of child support shall be based on each parties' [sic] net income including employment, interest, dividends and rents but not including capital gains, sale of stock or exercise of stock options for the previous year, and shall be determined by the child support schedule then in effect in King County. For this purpose, each party shall submit tax returns and W-2 forms for the prior year by May 1st of each year.
...
3.3 O. MEDICAL INSURANCE.
Wife shall continue to provide dental and medical insurance for the children while they are dependent, to the extent it is available at no cost through her employer. If this becomes no longer available, the parties will make sure that insurance is provided for the children and share the costs of such insurance, 36% by the Wife and 64% by the Husband.
¶ 10 Randolph argues that these provisions of the decree "automatically" adjust the amount of his obligations for child support and other expenses without further court action. He maintains this position despite the fact that neither Lyle, the other party with a support obligation, nor the court agreed to any modification to his obligations under the terms of the original decree. He is mistaken.
¶ 11 RCW 26.09.100(2) provides:
The court may require automatic periodic adjustments or modifications of child support. That portion of any decree that requires periodic adjustments or modifications of child support shall use the provisions in chapter 26.19 RCW as the basis for the adjustment or modification. Provisions in the decree for periodic adjustment or modification shall not conflict with RCW 26.09.170 except that the decree may require periodic adjustments or modifications of support more frequently than the time periods established pursuant to RCW 26.09.170.[[9]]
¶ 12 Two things are clear from a reading of this statute as a whole. First, although the first sentence uses the undefined term "automatic periodic adjustments," nowhere does the statute state such adjustments are effective without court order. Second, this statute refers to RCW 26.09.170, another statute dealing with the same subject matter child support. Thus, in order to harmonize these two statutes, we look to the latter statute for guidance.
¶ 13 RCW 26.09.170(1)(a) provides:
[P]rovisions of any decree respecting maintenance or support may be modified: (a) Only as to installments accruing subsequent *1132 to the petition for modification or motion for adjustment except motions to compel court-ordered adjustments, which shall be effective as of the first date specified in the decree for implementing the adjustment; and, (b) except as otherwise provided in subsections ... (9) ... of this section, only upon a showing of a substantial change of circumstances.[[10]]
¶ 14 This statute sets forth the procedural mechanism by which child support obligations of "any decree" may be modified. That mechanism is either by petition or motion. In the latter case, the motion would include a motion for adjustment or motion to compel court-ordered adjustment. Nothing in this statute either expressly or impliedly permits a child support obligation imposed by a decree or other order to be unilaterally modified by either party with a duty of support. We shall not rewrite the statute to permit such a result.
¶ 15 We have no doubt that if the legislature had intended this type of self-help that Randolph argues is authorized, it could have done so. This is so particularly in view of the legislature's careful crafting of amendments recognizing that a court may order prospective periodic adjustments of support.[11] However, it did not state or remotely suggest that child support adjustments are to be effective without court order.
¶ 16 There is an additional practical problem with the construction of the statute that Randolph urges. Child support payments become judgments when they become due.[12] But if there is no court order to reflect what the amount of support is, chaos reigns. Whether the parties stipulate to the amount based on the criteria set forth in the decree or the matter is resolved by motion, a court order memorializing the periodic change in child support is required.
¶ 17 Accordingly, when we read the provisions of RCW 26.09.100(2) together with those of RCW 26.09.170(1)(a), we conclude that periodic adjustments are only effective upon order of a court. Because that was not done here, Randolph remained liable for the amounts established by the original decree.
¶ 18 Randolph relies primarily on dicta in In re Marriage of Abercrombie,[13] to support his mistaken view. Abercrombie involved a dissolution decree that provided that monthly support obligations "shall be adjusted annually... by an amount determined under the Washington State Support Schedule ... or by $50 per month, per child, whichever is greater."[14] This court noted that the clause was not self-executing and did not provide for automatic adjustments to child support simply because it used the word "shall." Thus, the husband was barred from seeking retroactive child support adjustments.[15] In passing, the court stated "[a] child support obligation does not change without court action, except where a decree provides specifically for an automatic periodic adjustment."[16] Randolph seizes on this text to support his position.
¶ 19 Abercrombie is not helpful here. The issue of construing the statutory amendments now before us was not before that court. This court also later distinguished Abercrombie in In re Marriage of Ayyad.[17] Construing a similar child support adjustment provision, the Ayyad court distinguished Abercrombie on the basis that "the decree in [Abercrombie] was entered before the Legislature adopted the automatic periodic adjustment provision contained in RCW 26.09.100(2)," the appellant had not relied on *1133 the statute and, more importantly, because neither party in that case had appealed an earlier ruling that the annual increase clause was unenforceable.[18] In short, the dicta in Abercrombie is not useful here. And we have not found any legislative history that is helpful to the specific issue before us.[19]
¶ 20 Randolph next maintains that the 1991 amendments to the statute were clearly intended to reduce costs to parties. He claims that in the absence of a dispute, neither party need engage counsel nor involve the court system. But the undisputed facts here illustrate the fallacies of this argument. There was a dispute here. Lyle never agreed to Randolph's unilateral reduction in the obligations imposed by the original decree. She finally was required to employ counsel to respond to his self-help approach to the matter. And he too decided to employ counsel during this appeal. We fail to see how his approach avoided the intervention of the courts in this matter, as he suggests his interpretation of the statute should.
¶ 21 We conclude that the trial court properly entered judgment against Ralph for the amount of his arrearages, as calculated by the provisions of the original decree.
ATTORNEY FEES
¶ 22 Lyle requests attorney fees on appeal under RCW 26.18.160, which provides in part that "[i]n any action to enforce a support or maintenance order under this chapter, the prevailing party is entitled to a recovery of costs, including an award for reasonable attorney fees."[20] We award her fees on appeal, subject to compliance with RAP 18.1.
¶ 23 Lyle also cross-appeals what appears to be scrivener's error in the judgment to the extent of the amount of attorney fees awarded to her below. The trial court should correct this error on remand. We remand this matter to the trial court for a determination of the amount of Lyle's fees on appeal and to correct the error in the judgment below.[21]
¶ 24 We affirm the judgment for the arrearages, award attorney fees to Lyle on appeal, and remand to the trial court for further proceedings.
WE CONCUR: SCHINDLER, A.C.J., and ELLINGTON, J.
NOTES
[1] RCW 26.09.100(2) (child supportapportionment of expensesperiodic adjustments or modifications).
[2] We refer to the parties by first name for clarity. We intend no disrespect.
[3] RCW 6.17.020; see In re Marriage of Watkins, 42 Wash.App. 371, 374, 710 P.2d 819 (1985) (Child support payments become vested judgments as the installments come due).
[4] State v. Costich, 152 Wash.2d 463, 470, 98 P.3d 795 (2004).
[5] In re Custody of Smith, 137 Wash.2d 1, 9, 969 P.2d 21 (1998) (quoting State v. McCraw, 127 Wash.2d 281, 288, 898 P.2d 838 (1995)).
[6] Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 11, 43 P.3d 4 (2002).
[7] Monroe v. Soliz, 132 Wash.2d 414, 425, 939 P.2d 205 (1997) (quoting King County v. Taxpayers of King County, 104 Wash.2d 1, 9, 700 P.2d 1143 (1985)); see also State v. Fairbanks, 25 Wash.2d 686, 690, 171 P.2d 845 (1946) ("It is a cardinal rule that two statutes dealing with the same subject matter will, if possible, be so construed as to preserve the integrity of both.").
[8] Heller v. McClure & Sons, Inc., 92 Wash.App. 333, 337, 963 P.2d 923 (1998).
[9] (Emphasis added.)
[10] (Emphasis added.)
[11] RCW 26.09.100(2) mandates use of the provisions of chapter 26.19 RCW as the basis for adjustments or modifications. Moreover, the provision for periodic adjustment shall not conflict with RCW 26.09.170 except the adjustments may be more frequent than the twenty-four months stated in RCW 26.09.170(10).
[12] RCW 6.17.020; see Marriage of Watkins, 42 Wash.App. at 374, 710 P.2d 819.
[13] 105 Wash.App. 239, 19 P.3d 1056, review denied, 144 Wash.2d 1019, 32 P.3d 284 (2001).
[14] Abercrombie, 105 Wash.App. at 240, 19 P.3d 1056.
[15] Id. at 243, 19 P.3d 1056.
[16] Id. (emphasis added).
[17] 110 Wash.App. 462, 471 n. 3, 38 P.3d 1033, review denied, 147 Wash.2d 1016, 56 P.3d 991 (2002).
[18] Ayyad, 110 Wash.App. at 471 n. 3, 38 P.3d 1033.
[19] 1991 Final Legislative Report, 52nd Wash. Leg., Engrossed Substitute S.B. 5996, at 264-65.
[20] RCW 26.18.160.
[21] RAP 18.1(i). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2591539/ | 223 P.3d 941 (2009)
2009-NMCERT-008
STATE
v.
DODSON.
No. 31,213 (COA 28,382).
Supreme Court of New Mexico.
August 11, 2009.
Writ Quashed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575265/ | 743 N.W.2d 700 (2007)
2007 WI App 255
STATE of Wisconsin, Plaintiff-Respondent[]
v.
Patrick C. CARTER, Defendant-Appellant.
No. 2006AP1811-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs June 13, 2007.
Opinion Filed November 1, 2007.
On behalf of the defendant-appellant, the cause was submitted on the briefs of *701 Richard D. Martin, assistant state public defender, Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the briefs of Warren D. Weinstein, assistant attorney general, and J.B. Van Hollen, attorney general.
Before HIGGINBOTHAM, P.J., VERGERONT and BRIDGE, JJ.
¶ 1 VERGERONT, J.
Patrick Carter appeals the circuit court's order denying him sentence credit for time spent in custody in Illinois as the result of both a Wisconsin fugitive warrant issued in this case and an arrest on Illinois charges. The circuit court imposed a sentence in this case concurrent to the Illinois sentence, which had already been imposed. The circuit court concluded that Carter was not entitled to sentence credit for any time confined in Illinois, but only after he was returned to Wisconsin for the charge in this case.
¶ 2 We conclude that, because Carter was arrested and confined in Illinois under a Wisconsin fugitive warrant issued in this case, he was entitled to sentence credit on this concurrent sentence from the date he was arrested in Illinois until the date he was sentenced on the Illinois charge. We reject the State's argument that, because he was not exclusively in custody on the Wisconsin charge, he was not entitled to sentence credit for the time he was in custody in Illinois. Accordingly, we reverse and remand with directions to the circuit court to grant 227 additional days of sentence credit.
BACKGROUND
¶ 3 The relevant facts are not disputed. A criminal complaint was issued in this case on July 23, 2003, in Milwaukee County Circuit Court. The complaint charged Carter with first-degree recklessly endangering safety in violation of WIS. STAT. § 941.30(1). On the same day, a felony warrant for Carter's arrest was issued, authorizing extradition from any location within the United States.
¶ 4 On December 14, 2003, Carter was taken into custody at the Cook County Jail in Illinois and a "hold" was placed on him for the Wisconsin "fugitive warrant" and for Illinois charges of armed robbery and driving while under the influence (DUI).[1] On December 16, 2003, he was "charged" with the Wisconsin fugitive warrant. He was given a seven-day sentence on the Illinois DUI conviction, which was completed on December 21, 2003. He continued in custody in the Cook County Jail. On March 11, 2004, a Wisconsin governor's warrant was served on him. On October 19, 2004, he was convicted on the Illinois armed robbery charge. On October 20, 2004, the extradition case based on the Wisconsin fugitive warrant was dismissed and that warrant was vacated. Carter remained in the Cook County Jail and on November 2, 2004, was sentenced to fourteen years on the armed robbery charge. On November 5, 2004, he was transferred to the Illinois prison system to begin serving his sentence.
¶ 5 On June 1, 2005, Carter made an initial appearance in this case, having been extradited to Wisconsin for this case while still serving the Illinois sentence. On August 30, 2005, he entered a guilty plea to the charge of first-degree reckless endangerment. *702 The court accepted the plea and sentenced him to twelve and one-half years, seven and one-half years of initial confinement and five years of extended supervision, to be served concurrently with the Illinois sentence; the court stated that this sentence could be served in either Illinois or Wisconsin.[2] Carter was given ninety-one days of sentence credit, from June 1, 2005 to August 30, 2005.[3]
¶ 6 Carter filed a postconviction motion seeking sentence credit under WIS. STAT. § 973.155 for 324 days, from December 14, 2003, when he was taken into custody in Illinois on the Wisconsin fugitive warrant as well as on the Illinois charges, until November 2, 2004, when he was sentenced on the Illinois armed robbery charge.[4] The circuit court decided that Carter was not entitled to sentence credit for that period of time, but only from May 26, 2005, when he "was arrested in connection with the Wisconsin charge . . ." (according to the Crime Information Bureau Final Disposition Report) to August 30, 2005, when he was sentenced in this case. Because the court used May 26 rather than June 1 as the beginning date, it ordered six more days of sentence credit for a total of ninety-seven days.[5] The court decided that before May 26, 2005, Carter was not in custody "in connection with the course of conduct for which [the Wisconsin] sentence was imposed," as required by § 973.155(1)(a). Based on its reading of State v. Demars, 119 Wis. 2d 19, 349 N.W.2d 708 (Ct.App.1984), the court rejected Carter's argument that the Wisconsin fugitive warrant and the Wisconsin governor's warrant resulted in custody in Illinois in connection with the course of conduct for which he was sentenced in this case. The court also stated that a defendant is not in custody in connection with the course of conduct for which the sentence is imposed until "his custody is surrendered to that jurisdiction," citing State v. Nyborg, 122 Wis. 2d 765, 768, 364 N.W.2d 553 (Ct.App.1985).
DISCUSSION
¶ 7 On appeal Carter contends that the circuit court erred in its analysis of Demars and Nyborg and that under State v. Ward, 153 Wis. 2d 743, 745 n. 3, 452 N.W.2d 158 (Ct.App.1989), he is entitled to sentence credit because his Illinois custody was "in connection with" the conduct for *703 which the concurrent Wisconsin sentence was imposed. The State in response does not endorse the circuit court's reading of Demars and Nyborg. Instead, the State argues that we should apply WIS JI CRIMINAL SM (Special Material) 34A at p. 5,[6] which states that a person is entitled to credit when detained in jail in another state "when that detention results exclusively from a Wisconsin warrant or detainer."[7] (Emphasis added.)
¶ 8 The determination of the proper amount of sentence credit requires that we apply WIS. STAT. § 973.155 and existing case law to undisputed facts. This presents a question of law, which we review de novo. State v. Tuescher, 226 Wis. 2d 465, 468, 595 N.W.2d 443 (Ct.App.1999).
¶ 9 WISCONSIN STAT. § 973.155(1)(a) entitles a convicted offender to "credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. . . ."[8] The State does not dispute that Carter was in custody in Illinois from December 14, 2003 to November 2, 2004, both because of the Illinois charges (after December 21 it was only on the armed robbery charge) and pursuant to the Wisconsin fugitive warrant.[9] There *704 is also no dispute that the sentence in this case is concurrent to the Illinois sentence. The dispute is whether Carter's custody in Illinois was "in connection with" his Wisconsin sentence. The parties appear to agree that there is no case that directly addresses whether a defendant is entitled to sentence credit in these circumstances.
¶ 10 Carter relies on Ward, in which we held that the defendant was entitled to credit for presentence incarceration against each concurrent three year sentence. 153 Wis.2d at 745, 452 N.W.2d 158. We reasoned that, if the credit was applied to only one of the concurrent sentences the defendant would, in effect, not receive the sentence credit to which he was entitled. Id.; see also State v. Rohl, 160 Wis. 2d 325, 330, 466 N.W.2d 208 (Ct.App.1991) (("credit for a single episode of jail time toward two (or more) sentences will be granted only for sentences which are concurrent")) (citing State v. Boettcher, 144 Wis. 2d 86, 100, 423 N.W.2d 533 (1988)).
¶ 11 The State does not address Ward or the statements in Boettcher and Rohl to the same effect. It relies on the portion of WIS JI CRIMINAL SM-34A which addresses the meaning of "in custody" under WIS. STAT. § 973.155. Section IIIA lists a number of situations in which a person is in "custody" including "detention in jail in another state when that detention results exclusively from a Wisconsin warrant or detainer," WIS JI CRIMINAL SM-34A at p. 5; and it lists a number of situations in which a person is not "in custody," including "detention in another state based on an offense committed in that state, even if a Wisconsin warrant or detainer has also been filed." Id. at p.6. "While the former "in custody" example may suggest that detention must result exclusively from a Wisconsin warrant or detainer, it is the latter "not in custody" example that expressly does so. Since both examples are numbered "4" we will refer to both collectively as "Section IIIA(4)."
¶ 12 An explanatory footnote to Section IIIA(4) provides:
Credit should be granted when, for example, a Wisconsin parolee is arrested in Illinois, solely because of a Wisconsin warrant. Credit should not be granted when a Wisconsin parolee, already in custody on Illinois charges, has a Wisconsin hold or warrant filed against him. This is consistent with the conclusion that filing a detainer against one already in custody in Wisconsin does not result in "custody" under § 973.155 on the charge which is the subject of the detainer.
Id. at p. 16 n. 8. This footnote then references Rohl, 160 Wis. 2d 325, 466 N.W.2d 208, and directs the reader to another footnote that cites Demars and Nyborg.[10]
¶ 13 Examining each of the three cases Demars, Nyborg, and Rohl we conclude that none supports the proposition that a person detained in jail in another state is not "in custody in connection with . . ." under WIS. STAT. § 973.155 unless the person is in custody exclusively pursuant to a Wisconsin warrant.
¶ 14 Demars, 119 Wis.2d at 21-22, 349 N.W.2d 708, addressed the effect on sentence credit of what the parties there called a "detainer" a request by the Winnebago County district attorney to the *705 Fond du Lac sheriff that, if the defendant should post bond on the charges for which he was then in jail in Fond du Lac County and if his probation hold should be lifted, the sheriff "detain" the defendant because a criminal complaint on other charges had just been issued against the defendant in Winnebago County. The defendant remained in the Fond du Lac jail but was brought to Winnebago County for the initial appearance, entry of pleas, and sentencing. Id. at 22 n. 4, 349 N.W.2d 708. The defendant argued that he should receive sentence credit on the Winnebago sentences for the time period between the date of the "detainer" and the date he was sentenced because he was in custody in connection with the course of conduct for which he was sentenced. Id. at 22, 349 N.W.2d 708.
¶ 15 We concluded the defendant was not entitled to sentence credit from the date of the "detainer." Id. at 26, 349 N.W.2d 708. We construed "custody" as used in WIS. STAT. § 973.155 to "necessarily result from the occurrence of a legal event, process, or authority which occasions, or is related to, confinement on the charge for which the defendant is ultimately sentenced," and we decided that what the parties called a "detainer" did not meet this definition. Id. We observed that there was no formal statutory procedure "governing the processing of inmates or prisoners detained in one county and charged with criminal offenses in another," because the statute on intrastate detainers had been repealed. Id. at 23, 349 N.W.2d 708. We also stated that, even in circumstances where a detainer is statutorily recognized such as interstate detainers, see, e.g., WIS. STAT. § 976.05, the detainer itself "carries no custodial mandate"; rather, its function "is to give notice to an institution where a subject is held that his [or her] custody is desired elsewhere and, also, to give notice to the subject of the other charges so that he [or she] might demand a speedy trial."[11]Id. at 24, 349 N.W.2d 708. In contrast, we listed the following examples of "lawful process or authority resulting in custody":
arrest with or without a warrant, arrest upon a capias or bench warrant, unsatisfied bail requirements resulting in confinement, sentence to confinement, temporary detention pursuant to sec. 968.24, Stats. [temporary stop for questioning based on reasonable suspicion], probation or parole holds, and periods of confinement imposed as a condition of probation.
Id. at 23, 349 N.W.2d 708.
¶ 16 Although rejecting credit based on the "detainer," we concluded in Demars that the defendant was entitled to sentence credit beginning with the date of his initial appearance on the Winnebago County charges. Id. at 26, 349 N.W.2d 708. On that date, we stated his "custody was surrendered to the Winnebago county authorities pursuant to the writ of habeas corpus ad testificandum" and cash bail was set on those charges. Id.
¶ 17 In Nyborg, 122 Wis.2d at 768, 364 N.W.2d 553, we simply applied Demars to *706 similar facts a detainer filed by one county in another county in which the defendant was confined without any additional analysis.
¶ 18 Section IIIA(4) read together with the footnote references to Demars and Nyborg suggests that the detainers in those cases did not trigger sentence credit because the defendants were already in custody. However, that is not correct. As we explained in Demars, a "detainer," even a statutorily authorized interstate detainer, does not trigger sentence credit because it does not "legally authorize custody"; it simply notifies the jurisdiction in which the defendant is confined that "his [or her] custody [is] desired elsewhere." 119 Wis.2d at 24, 349 N.W.2d 708. We specifically distinguished between a detainer and a warrant for an arrest (and other lawful means of arrest). Id. at 23, 349 N.W.2d 708. Thus, treating a "warrant" and a "detainer" the same, as does Section IIIA(4), is inconsistent with Demars. It is correct to say that, under Demars, if a person is placed in custody in another state under the lawful authority of that state and a Wisconsin detainer is filed against them, the person is not "in custody" by virtue of the Wisconsin detainer (assuming the detainer has the characteristics of the detainer described in Demars). However, there is nothing in either Demars or Nyborg that supports the proposition that, if a defendant is in custody in another state both because of an arrest under the law of that state and under a Wisconsin warrant, the defendant is not "in custody" under the Wisconsin warrant for purposes of WIS. STAT. § 973.155.
¶ 19 Rohl, 160 Wis. 2d 325, 466 N.W.2d 208, does not support that proposition either. Rohl concerned consecutive sentences, 160 Wis.2d at 329-30, 466 N.W.2d 208, and the State agrees with Carter that for this reason it is not applicable in this case. We discuss Rohl, however, because it is referred to as authority in Section IIIA(4).
¶ 20 In Rohl, 160 Wis.2d at 328, 466 N.W.2d 208, the defendant was released on parole in Wisconsin and given permission to go to California where his parole was to be supervised. Before the transfer of this parole was arranged, he was arrested and jailed for several criminal charges based on conduct in California. Id. Because of these charges, Wisconsin issued a parole violation warrant against him. Id. He was convicted of the California crimes, sentenced, and given credit against the California sentence for the time he was confined from the date of his arrest in California to the date of sentencing. Id. After he was released from the California prison system, he was returned to Wisconsin and his parole was revoked. Id. The hearing examiner ordered that a certain amount of his accumulated good time be forfeited and refused credit for the time spent in presentence confinement in California. Id. at 328, 466 N.W.2d 208.
¶ 21 In Rohl, we relied on State v. Boettcher, 144 Wis. 2d 86, 100, 423 N.W.2d 533 (1988), and held that Rohl was not entitled to sentence credit for the California confinement on the Wisconsin sentence because the sentences were consecutive, not concurrent. Id. at 330, 423 N.W.2d 533. Under Boettcher, we stated, when sentences are consecutive, credit is applied on a day-to-day basis against the total days of incarceration; it is only when sentences are concurrent that a defendant receives credit "for a single episode of jail time toward two (or more) sentences." Id. at 329-30, 466 N.W.2d 208. We reasoned that the defendant was not serving the Wisconsin sentence when he was sentenced in California because his Wisconsin sentence of confinement had been "conditionally *707 completed when he was paroled," and the prospect of serving additional prison time was "speculative." Id. at 331-32, 466 N.W.2d 208.
¶ 22 Rohl does not support the proposition that a defendant is not in custody in connection with a Wisconsin charge for purposes of WIS. STAT. § 973.155 if detained in another state "based on an offense committed in that state, even if a Wisconsin warrant or detainer has been filed." WIS JI CRIMINAL SM-34A at p.6. The reason sentence credit was denied in Rohl was that the California and the Wisconsin post-parole revocation sentences were not concurrent; the reason was not that confinement in California did not result "exclusively from a Wisconsin warrant or detainer."[12] WIS JI CRIMINAL SM-34A at p.5.
¶ 23 The State appears to acknowledge that none of the three cases Section IIIA(4) cites actually supports the proposition that a person detained in jail in another state is not "in custody" under WIS. STAT. § 973.155 unless the custody is exclusively pursuant to a Wisconsin warrant. Nonetheless, the State urges that we adopt this "exclusiveness requirement" because the special material is "persuasive authority."[13]See State v. Gilbert, 115 Wis. 2d 371, 379, 340 N.W.2d 511 (1983) (special material entitled to same weight as the criminal jury instructions committee pattern instructions, which the supreme court has viewed as "persuasive"). The supreme court and this court have acknowledged the qualifications and effort of that committee, see, e.g., Beets, 124 Wis.2d at 383 n. 7, 369 N.W.2d 382; State v. Harvey, 2006 WI App 26, ¶ 13, 289 Wis. 2d 222, 710 N.W.2d 482, and the committee's interpretation of the law as expressed in the special material is therefore given "careful scrutiny." See Beets, 124 Wis.2d at 383 n. 7, 369 N.W.2d 382. However, although we may choose to adopt the view of the law as expressed in the special material after giving it careful scrutiny, we do not do so when our analysis of the case law or of the statute at issue leads us to a different conclusion. See id.; see also Harvey, 289 Wis. 2d 222, ¶¶ 13-18, 710 N.W.2d 482.
¶ 24 The State does not provide us with a rationale for requiring that a defendant be in custody in another state "exclusively" on a Wisconsin warrant in order to receive sentence credit against a concurrent Wisconsin sentence; and we see none, either explicit or implicit, in the special material. As already noted, in treating a warrant and a detainer in the same way for purposes of custody, Section IIIA(4) is inconsistent with Demars. See ¶ 18 supra. In addition Section IIIA(4) merges the inquiry *708 of when a defendant is "in custody in connection with the course of conduct . . .," which Demars addressed, with the inquiry of whether the "connection" must be exclusive. These are two distinct requirements of WIS. STAT. § 973.155(1)(a). State v. Johnson, 2007 WI 107, ¶ 31, ___ Wis.2d ___, 735 N.W.2d 505. "Custody" for purposes of § 973.155(1)(a) is construed according to the statutory definition of "custody" in the escape statute, WIS. STAT. § 946.42(1)(a). See id., citing State v. Magnuson, 2000 WI 19, ¶ 15, 233 Wis. 2d 40, 606 N.W.2d 536.
¶ 25 Because Section IIIA(4) is either not supported by or is inconsistent with the case law it cites, we do not view it as persuasive authority for denying sentence credit to Carter solely because he was not in custody in Illinois exclusively on the Wisconsin warrant.
¶ 26 Turning our attention to the language of the statute, we focus on the phrase "in connection with the course of conduct for which [the] sentence is imposed." WIS. STAT. § 973.155. This phrase was recently construed and applied in Johnson, 2007 WI 107, 735 N.W.2d 505, which was decided after the initial briefing was completed in this case. In Johnson the issue was whether a juvenile who had been committed to a secure juvenile institution based on a prior adjudication was entitled to sentence credit for the time he spent in custody under the juvenile commitment or an extension thereof pending his conviction and sentencing on an adult battery charge for conduct that occurred during the commitment. Id., ¶ 2. The Johnson court applied Beets, 124 Wis. 2d 372, 369 N.W.2d 382,[14] to the period of custody from the time of the battery arrest to the time of the second commitment extension hearing because Johnson's commitment had been extended for this time period without regard to the battery, which had not yet occurred at the time of the first extension hearing. Id., ¶ 63, 369 N.W.2d 382. Thus, the court concluded, he was not entitled to sentence credit for that period. Id.
¶ 27 For the period after the second extension hearing, the court inquired how large a factor the adult offense was in the extension and, in that context, the court construed and applied the phrase "in connection with" from WIS. STAT. § 973.155. Id., ¶ 67, 369 N.W.2d 382. The court concluded that the phrase was ambiguous in the facts and circumstances of the case because it was subject to both a broad and a narrow interpretation. Id., ¶ 68, 369 N.W.2d 382. The broad interpretation is that the custody "must be, at least in part, the result of a legal status . . . stemming from the course of conduct for which sentence is being imposed." Id. (citing WIS JI CRIMINAL SM34A at IIIB (1995)).[15] The court concluded that this broad interpretation was inconsistent with Beets because *709 there the court held that, once Beets began serving the sentence on the prior charge, it was irrelevant that he was also awaiting trial on the new charge. Id., ¶ 69, 369 N.W.2d 382. The court decided that a narrower interpretation was suggested by Beets and appropriate in the case before it: whether the juvenile would have been in custody after the extension hearing even if he had not committed the adult offense. Id., ¶¶ 69-70, 369 N.W.2d 382. The court affirmed the circuit court's finding that the juvenile would have been in custody anyway. Id., ¶ 76, 369 N.W.2d 382. It therefore concluded the juvenile was not entitled to sentence credit for that period of confinement against the adult sentence. Id.
¶ 28 We asked the parties for supplemental briefing on the question whether Johnson applies to this case. Both Carter and the State contend it does not because Carter is not requesting credit for the time he was in custody serving his Illinois sentence. They both read the analysis in Johnson as limited to a situation like Beets, if not exactly like Beets in all respects. In addition, Carter contends that, logically, the Johnson court could not have intended that the narrow "even if" construction of "in connection with" apply to concurrent sentences because that would effectively deny sentence credit in all cases in which a defendant is in custody on two separate and unrelated charges. One could say, as to each charge, that, even if the person were not in custody on that charge, the person would still be in custody on the other charge. This would overrule Ward, in Carter's view, and the supreme court could not have intended to do so without even mentioning that case.
¶ 29 We agree with the parties, and, in particular, with Carter's analysis. We do not read Johnson to hold that a narrow "even if" construction of "in connection with" applies in every case. In particular, we do not read Johnson to hold that such a construction applies where a defendant is seeking credit on a concurrent sentence for time spent in custody on both charges. We conclude that the Johnson court did not intend to overrule Ward and the statements to the same effect in Boettcher and Rohl. It is evident that the broader construction underlies Ward, because the "even if" construction would have resulted in no sentence credit.
¶ 30 We further conclude that the principle applied in Ward and stated in Boettcher and Rohl applies in this case that when a defendant is in custody, presentence, on two separate charges and the sentences are concurrent, the defendant is entitled to sentence credit against each sentence. Although in Ward the sentences were imposed at the same time, the State has provided no reason, and we see none, why the same rationale does not apply when one sentence is imposed after the other, but is made concurrent to the first sentence. Nor do we see any reason why the fact that the custody is in another state makes a difference, as long as the defendant receives credit only for the time in custody on the Wisconsin charge against the Wisconsin sentence. The State has offered no authority or rationale for a distinction based on in-state or out-of-state custody, other than Section IIIA4, and we have concluded that is not persuasive. Finally, we observe, as both parties here recognize, that, consistent with Beets, there is no credit for time after the defendant begins to serve a sentence on the other charge.
CONCLUSION
¶ 31 We conclude that Carter is entitled to sentence credit for the days from December 14, 2003, when he was taken into custody in Illinois based on the charge in *710 this case, until November 2, 2004, when he was sentenced on the Illinois charge. We therefore reverse and remand to the circuit court with directions to the circuit court to grant 227 (324 minus 97) additional days of sentence credit.
Order reversed and cause remanded with directions.
NOTES
[] Petition for Review filed.
[1] The facts in this paragraph are taken from information provided to a Wisconsin investigator by the Cook County Illinois Police Extradition Unit and by the Cook County Department of Corrections, and we use the terminology employed by the Illinois agencies.
[2] With certain exceptions, courts may impose a sentence concurrent with or consecutive to any other sentence that is imposed at the same time or previously. WIS. STAT. § 973.15(2).
[3] On the date of sentencing, defense counsel and the prosecutor agreed to ninety-one days of sentence credit, beginning with June 1, 2005, (described on the computation form as "date of arrest") and ending on August 30, the date of sentencing. At sentencing, the amount of sentencing credit was not specifically discussed, although the court stated that "the time remaining on [Carter's] sentence [in this case] is the total length of [his] sentence less any time served in custody." We observe that, although the initial judgment of conviction shows in the text ninety-one days of sentence credit, the line for sentence credit says "0."
[4] Carter explained in his motion that he was entitled to sentence credit only until November 2, 2004, because under State v. Beets, 124 Wis. 2d 372, 379, 369 N.W.2d 382 (1985), the sentencing on the armed robbery charge "severed" the connection of his custody to the Wisconsin charges. There is no dispute between the parties that this is the end date for the period for which Carter is entitled to sentence credit if he is entitled to sentence credit while in custody in Illinois.
[5] We observe that the line for sentence credit in the resulting amended judgment of conviction still states "0," although the text of the judgment has been amended to ninety-seven days of sentence credit.
[6] The special material is prepared by the Criminal Jury Instructions Committee and "is a comprehensive study of the sentence credit statute with guidelines for its implementation in the trial court." State v. Gilbert, 115 Wis. 2d 371, 379, 340 N.W.2d 511 (1983).
[7] The heading of the State's argument is "The Circuit Court Erred When It Denied Carter Additional Sentence Credit." Carter's reply brief asserts that this is a confession of error. It is not. It is either a mistake or a restatement of Carter's argument to which the State is responding. The State's responsive argument and its request that we affirm the circuit court make clear that, although the State is not relying on the circuit court's analysis, it is advocating that we affirm its conclusion.
[8] WISCONSIN STAT. § 973.155(1) provides in full:
Sentence credit. (1)(a) A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. As used in this subsection, "actual days spent in custody" includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:
1. While the offender is awaiting trial;
2. While the offender is being tried; and
3. While the offender is awaiting imposition of sentence after trial.
(b) The categories in par. (a) and sub. (1m) include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 302.113(8m), 302.114(8m), 304.06(3), or 973.10(2) placed upon the person for the same course of conduct as that resulting in the new conviction.
[9] The State's recitation of facts says: "Cook County police arrested Carter on December 14, 2003, for robbery and DUI in Illinois and for `Extradition Cases.' On December 16, 2003, Carter was charged with Wisconsin Fugitive Warrant. . . ." In its supplemental brief, the State asserts that it is "possibly unclear" whether it was the arrest on December 14, 2003, . . . or the fugitive warrant on December 16, 2003, that sufficiently establishes that Carter was arrested in part based on the Wisconsin crime. However, the State describes this difference as "deminimis." Because the State does not argue that December 16, 2003 is the correct date, or that any ambiguity must be resolved against Carter, we use December 14.
As noted in the background section, the record shows that on October 19, 2004, the day after the conviction on the Illinois armed robbery charge, the extradition case based on the Wisconsin fugitive warrant was dismissed and that warrant was vacated. It is unclear from the record why this occurred and what this means regarding the Wisconsin governor's warrant. However, the State does not suggest that the time period between October 20, 2004 and November 2, 2004, should be treated differently from the time period between December 14, 2003 and October 20, 2004, with respect to the reasons Carter was in custody in Illinois. Therefore, we do not make such a distinction in our analysis.
[10] Although the reference is to footnotes 9 and 10, the correct footnotes appear to be 13 and 15.
[11] Our statement in State v. Demars, 119 Wis. 2d 19, 23, 349 N.W.2d 708 (Ct.App.1984), that the intrastate detainer statute, WIS. STAT. § 955.22 (1967) was repealed by 1969 Wis. Laws, ch. 255 and "no substitute or equivalent legislation has since been enacted" appears to be an error. Although § 955.22 was repealed by section 55 of that chapter, section 63 created WIS. STAT. § 971.11, "prompt disposition of intrastate detainers"; that statute is still in effect. However, this error does not affect our analysis. We observe that the description of the intrastate detainer statute in Demars is also true of § 971.11: it provides a procedure for an inmate of a state prison to request a district attorney to promptly dispose of a pending charge.
[12] A footnote to Section IIIA(4) summarizes State v. Rohl, 160 Wis. 2d 325, 466 N.W.2d 208 (Ct.App.1991), as follows:
In State v. Rohl, 160 Wis. 2d 325, 466 N.W.2d 208 (Ct.App.1991), the defendant claimed credit for time served in California while he was on Wisconsin parole. Rohl committed crimes in California, was detained prior to trial, and received full credit for that time on his California sentence before being returned to Wisconsin where his parole was revoked. The court of appeals held that sentence credit was not required in Wisconsin because Rohl had received full credit in California.
WIS JI CRIMINAL SM-34A at p. 16 n. 13. This is for the most part an accurate description of Rohl, except that it does not make clear that the reason the defendant was not entitled to credit against both the California sentence and the Wisconsin post-parole revocation sentence was that they were consecutive, not concurrent, sentences.
[13] As the State recognizes, the special material, like the criminal pattern jury instructions, are not binding on the courts. See State v. Harvey, 2006 WI App 26, ¶ 13, 289 Wis. 2d 222, 710 N.W.2d 482.
[14] In Beets, 124 Wis.2d at 373-74, 369 N.W.2d 382, the court concluded that when a person on probation is apprehended for the commission of a new crime and is revoked and sentenced on the prior crime, the person is not entitled to credit against the sentence for the new crime for the time served on the sentence for the prior crime while awaiting sentencing on the new crime.
[15] WISCONSIN JI CRIMINAL SM34A at IIIB (1995), titled "Custody in connection with the course of conduct," (underline in original) provides:
The requirement that custody be "in connection with" the course of conduct means simply that the custody must be, at least in part, the result of a legal status (arrest, bail, revocation hold, court order, etc.) stemming from the course of conduct for which sentence is being imposed. If the offender was under restraint for reasons related to the course of conduct, credit is required.
WIS JI CRIMINAL SM34A at p.6. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575269/ | 281 F. Supp. 650 (1968)
Ronald JOHNSON, Harry J. Bonner and James A. Cotter, Individually and on behalf of others similarly situated, Plaintiffs,
v.
Richard C. LEE, Individually and as Mayor of the City of New Haven, George R. Tiernan, Individually and as State's Attorney for the County of New Haven, Hon. Raymond J. Devlin, Individually and as Judge of the Superior Court for the County of New Haven, Francis V. McManus, Individually and as Chief of Police of the City of New Haven, Harold E. Hegstrom, Individually and as Connecticut State Jail Administrator, Leo J. Mulcahy, Individually and as Commissioner of State Police of the State of Connecticut, Robert K. Killian, Individually and as Attorney General of the State of Connecticut, John Doe, Individually and as Agent in Charge of the New Haven Office of the Alcohol Tax Unit of the United States Internal Revenue Service, and Richard Roe, Individually and as the Agent in Charge of the New Haven Office of the Connecticut Alcohol & Tobacco Tax Division, Defendants.
Civ. A. No. 12404.
United States District Court D. Connecticut.
February 14, 1968.[*]
*651 William M. Kunstler, New York City, Michael J. Kennedy, New York City, Jonathan W. Lubell, Westport, Conn., and Stephen L. Fine, Westport, Conn., for plaintiffs.
Thomas F. Keyes, Jr., Corp. Counsel, New Haven, Conn. (Roger J. Frechette, Asst. Corp. Counsel, New Haven, Conn., on the brief) for defendants Mayor Richard C. Lee and Chief of Police Francis V. McManus.
George R. Tiernan, State's Atty. for New Haven County, New Haven, Conn., defendant pro se.
Robert K. Killian, Atty. Gen., Hartford, Conn., defendant pro se and for defendants Hon. Raymond J. Devlin, Harold E. Hegstrom, Leo J. Mulcahy, and "Richard Roe".
John Cassidento and J. Daniel Sagarin, Asst. U. S. Attys., New Haven, Conn., for defendant "John Doe".
*652 TIMBERS, Chief Judge.
QUESTION PRESENTED
Plaintiffs, currently on trial in a criminal case in the Superior Court of the State of Connecticut, New Haven County, where they are charged with conspiring to injure persons and property by means of explosives, have filed a complaint in this Court seeking declaratory and injunctive relief to halt the state court criminal trial.
Plaintiffs' motions in this Court to convene a three-judge district court and for issuance of a temporary restraining order to enjoin the state court prosecution present the threshold question of this Court's jurisdiction over the subject matter of the action.
After a hearing at which counsel for all parties were fully heard and after considering plaintiffs' complaint, motions, affidavits and exhibits, and briefs by counsel for all parties, the Court concludes that it does not have jurisdiction over the subject matter of the action. Accordingly, plaintiffs' motions to convene a three-judge district court and for issuance of a temporary restraining order are denied, and the complaint is dismissed.
PLAINTIFFS' CLAIMS AND RELIEF SOUGHT IN THIS COURT
The verified complaint filed February 8, 1968 in this civil action seeks the convening of a three-judge district court pursuant to 28 U.S.C. §§ 2281 and 2284 to declare invalid and enjoin the enforcement of Conn.Gen.Stat. § 53-80 (Explosives Intended for Injury of Person or Property) and Conn.Gen.Stat. § 54-197 (Conspiracy) on the ground that these statutes are unconstitutional on their face and as applied to plaintiffs, and that prosecutions and threatened prosecutions pursuant thereto are causing irreparable harm to plaintiffs and those similarly situated. On the basis of this complaint and plaintiffs' motions to convene a three-judge court and to issue a temporary restraining order, the Court on February 9 ordered a hearing on February 12 to consider the motions and the threshold question of jurisdiction.
Plaintiffs Johnson and Bonner each alleges he is a "black citizen" of the United States residing in New Haven; plaintiff Cotter alleges he is a "white citizen" of the United States residing in New Haven. Each belongs to the Hill Parents Association, described by plaintiffs as an incorporated association "dedicated to the achievement of freedom, equality and a more abundant and fulfilling life for the residents of the black ghetto areas of the City of New Haven." Plaintiffs bring the instant action individually and on behalf of others similarly situated.
Plaintiffs and three others have been on trial since February 6, 1968 in the Superior Court of the State of Connecticut, New Haven County, for conspiring in violation of Conn.Gen.Stat. §§ 53-80 and 54-197, the laws which plaintiffs now attack. Specifically plaintiffs are charged in the Superior Court by written information dated January 2, 1968 as follows:
"that on divers days from November 2, 1967, to December 23, 1967, at the City of New Haven and other places in the County of New Haven and State of Connecticut, [they] did combine, conspire, confederate, and agree together and with divers other persons to cause injury to persons and property in the City of New Haven and divers other places in the County of New Haven by means of explosive materials and compounds which they acquired for said purposes aforesaid, in violation of Section 54-197 of the General Statutes."
Defendants are Richard C. Lee, Mayor of the City of New Haven; George R. Tiernan, State's Attorney for New Haven County; Hon. Raymond J. Devlin, Judge of the Superior Court of the State of Connecticut; Francis V. McManus, Chief of Police of the City of New Haven; Harold E. Hegstrom, Connecticut State Jail Administrator; Robert K. Killian, Attorney General of the State of *653 Connecticut; Leo J. Mulcahy, Commissioner of the Connecticut State Police; "John Doe", whose real identity is unknown to plaintiffs, Agent in charge of the New Haven Office of the Alcohol Tax Unit of the United States Internal Revenue Service; and "Richard Roe", whose real identity is unknown to plaintiffs, Agent in charge of the New Haven Office of the Connecticut Alcohol & Tobacco Tax Division. Each defendant is sued individually and in his official capacity.
Plaintiffs' complaint alleges jurisdiction in this Court pursuant to 28 U.S.C. §§ 1331(a), 1343(3) and (4), 2201, 2202, 2281 and 2284, and 42 U.S.C. §§ 1981, 1983 and 1985 and under the First, Fifth, Sixth, Thirteenth and Fourteenth Amendments to the Constitution of the United States. Plaintiffs also allege that the amount in controversy exceeds $10,000, exclusive of interest and costs.
Plaintiffs allege as a first cause of action that under color of Connecticut statutes defendants have embarked upon a common plan to deprive them and other members of the Hill Parents Association of their constitutional rights by prosecuting them pursuant to Conn.Gen.Stat. § 54-197 for conspiracy to violate Conn. Gen.Stat. § 53-80. Plaintiffs claim that the prosecutions are without any basis in fact and that the statutes are void and illegal on their face and as applied to plaintiffs because they violate the Constitution of the United States and in particular the First, Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments thereto. More particularly plaintiffs aver that the statutes violate the guarantees of free speech, press, assembly, the right to petition the government for redress of grievances, and the guarantee of due process of law in that they are vague and indefinite and fail to meet the requirement of certainty in criminal statutes. Plaintiffs contend that the sole purpose of defendants' threatening to enforce these statutes is to deter and prevent plaintiffs and others connected with the Hill Parents Association from exercising the aforementioned constitutional rights and from working to enforce freedom and equality under the law as guaranteed by the Thirteenth, Fourteenth and Fifteenth Amendments.
As a second cause of action, plaintiffs allege that they have not been afforded sufficient opportunity to obtain counsel of their choice in violation of the Sixth Amendment to the Constitution of the United States.
In addition to seeking injunctive and declaratory relief through the convening of a three-judge district court, plaintiffs seek a temporary restraining order pursuant to 28 U.S.C. § 2284(3) enjoining defendants from enforcing in any way against plaintiffs the provisions of Conn. Gen.Stat. §§ 54-197 and 53-80 or, in the alternative, continuing the trial of plaintiffs in the Superior Court for a reasonable period to permit them to obtain counsel of choice.
CLAIMS THAT STATE STATUTES ARE UNCONSTITUTIONAL ON THEIR FACE AND AS APPLIED TO PLAINTIFFS
Although 28 U.S.C. § 2283, prohibiting federal court injunctions of state court proceedings already in progress, would not bar or make inappropriate the granting of the declaratory relief here sought by plaintiffs,[1] and assuming without deciding that it also would not bar the granting of the injunctive relief sought,[2] the Court holds that plaintiffs' *654 complaint fails to raise a substantial federal question with respect to any state statutes and, therefore, the convening of a three-judge court must be denied and the complaint dismissed.
It is the function of this Court, in light of plaintiffs' demand for the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284, to determine whether a substantial constitutional question has been raised with respect to the state statutes under attack, whether the complaint sets forth any grounds for equitable relief, and whether the other requirements for a three-judge court are here met. Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715 (1962); Ex parte Poresky, 290 U.S. 30 (1933); Green v. Board of Elections, 259 F. Supp. 290, 292 (S.D.N.Y.1966), aff'd, 380 F.2d 445 (2 Cir. 1967). If the complaint fails to raise a substantial federal question with respect to a state statute, a three-judge court must be denied and the action dismissed. Swift & Co. v. Wickham, 382 U.S. 111, 115 (1965); California Water Service Co. v. City of Redding, 304 U.S. 252, 254-255 (1938); Ex parte Poresky, supra; Green v. Board of Elections, 380 F.2d 445, 448 (2 Cir. 1967); Offermann v. Nitkowski, 378 F.2d 22 (2 Cir. 1967); Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129, 130 (2 Cir. 1967); Powell v. Workmen's Compensation Board, 327 F.2d 131, 138 (2 Cir. 1964); Bell v. Waterfront Comm., 279 F.2d 853, 857-858 (2 Cir. 1960). The criterion for determining substantiality was set forth by the Supreme Court in California Water Service Co. v. City of Redding, supra, at 255: "The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject." Green v. Board of Elections, 380 F.2d at 448; Utica Mutual Insurance Co. v. Vincent, supra, at 131.
The Court is aware of the role of a federal court in insuring that free expression and other constitutionally protected rights are not destroyed or inhibited by unconstitutionally vague statutes or improper prosecutions or threats of prosecution. Zwickler v. Koota, supra note 1; Keyishian v. Board of Regents, 385 U.S. 589 (1967); Dombrowski v. Pfister, supra note 2; Baggett v. Bullitt, 377 U.S. 360 (1964). But the mere fact that people who happen to be members of a civil rights group are arrested does not automatically mean that the laws under which they are charged are unconstitutional for vagueness or other reasons, or that their arrest and prosecution are part of a scheme to discourage or prevent the exercise of protected rights.
The charge that the statutes here involved are unconstitutional on their face is clearly without any merit whatsoever.[3]*655 Plaintiffs are actually charged with violation of Conn.Gen.Stat. § 54-197 (Conspiracy) which provides in relevant part as follows:
"Any person who combines, confederates or agrees with another or others to accomplish any unlawful object by lawful means, or any lawful object by unlawful means, or any unlawful object by unlawful means, if one or more of such persons do any act in furtherance of such combine, confederation or agreement, shall be fined * * * or imprisoned * * * or both * * *"
This statute represents nothing more than a classic statement of the common law crime of conspiracy. To attack it as unconstitutional on its face, is to attack similar statutes of the states and of the United States. See e. g., 18 U.S.C. § 371. As the Supreme Court noted in Scales v. United States, 367 U.S. 203, 225 (1961), the concept of conspiracy "manifest[s] the more general principle that society, having the power to punish dangerous behavior, cannot be powerless against those who work to bring about that behavior." There can be no doubt as to the validity of this statute.
Of course, a conspiracy "is defined by its criminal purpose" so that plaintiffs have a right to call attention to the statute which defines the underlying substantive offense upon which the conspiracy charge rests. Id. at 229. That statute, Conn.Gen.Stat. § 53-80 (Explosives Intended for Injury of Person or Property), provides:
"Any person who manufactures, transports, has or disposes of any explosive material or compound, knowing, intending or having reason to believe that the same is to be used for the injury of any person or property, or, directly or indirectly, encourages, incites or advocates any such use of any explosive material or compound, or solicits or contributes money for any such purpose, or wilfully causes or attempts to cause any injury to person or property, by the use of any explosive compound, shall be fined * * * or imprisoned * * * or both."
It is difficult to conceive of a criminal statute with greater justification. Moreover, the use of the words "encourages", "incites", and "advocates" is entirely proper under the circumstances. See Turner v. LaBelle, 251 F. Supp. 443, 446 (D.Conn.1966). See also Barber v. Kinsella, supra note 2. The use of the word "indirectly" is also proper when read, as it must be, as synonymous with "in any manner" the phrase contained in Conn.Gen.Stat. § 53-44, the statute under consideration in Turner v. LaBelle. What was said by Judge Smith in that case is equally applicable, if not more applicable,[4] here:
"* * * the statute is neither overboard nor vague, nor does it, though precise, penalize constitutionally protected conduct. To encourage an assault on a policeman or individual is `likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest * * *.' Terminiello v. City of Chicago, 337 U.S. 1, 4-5, 69 S. Ct. 894, 896, 93 L. Ed. 1131 (1949); Feiner v. People of State of New York, 340 U.S. 315, 171 S. Ct. 303, 95 L. Ed. 267 (1951); Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S. Ct. 900, 84 L. Ed. 1213 (1940); Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942)." (pp. 446-447)
Merely alleging that statutes are unconstitutional on their face does not make *656 them so. Conn.Gen.Stat. §§ 53-80 and 54-197 are so clearly constitutional that no substantial federal question has been raised in this respect.
Although statutes may be constitutional on their face, it still may be necessary and proper for a three-judge court to intervene where these statutes are being unconstitutionally applied. Cameron v. Johnson, supra note 2; Dombrowski v. Pfister, supra note 2; Wolff v. Selective Service Local Board No. 16, 372 F.2d 817 (2 Cir.1967). But compare Moss v. Hornig, 214 F. Supp. 324 (D. Conn.1962), aff'd, 314 F.2d 89 (2 Cir. 1963). Plaintiffs make the broad allegations that their current state prosecutions are without any basis in fact and that the prosecutions are solely for the purpose of discouraging and preventing plaintiffs and other Hill Parents Association members from exercising their various constitutional rights, including their first amendment right of free expression. If these totally conclusory allegations were in any way supported by factual allegations, the "chilling effect" rationale of Dombrowski would merit the convening of a three-judge court to give further consideration to plaintiffs' complaint. But plaintiffs utterly fail to offer anything in the way of factual allegations or support.[5] In fact, plaintiffs' own complaint discloses that the warrants of arrest as well as the search warrants involved in the Superior Court proceedings were issued on the basis of sworn affidavits of Plassie Williams, of the Connecticut Alcohol and Tobacco Tax Division, and Philip Salafia, Jr., a member of the Connecticut State Police Department. These affidavits are particularly revealing, both to the extent that they refute plaintiffs' contentions and to the extent that they demonstrate how far this case is removed from the area of free expression and civil rights. The Salafia and Williams affidavits, each sworn to December 29, 1967, are attached hereto as Appendices A and B, respectively.[6]
In view of these affidavits, probable cause exists for the Superior Court proceedings in which plaintiffs are not merely charged with "encouraging", "inciting", or "advocating" the use of explosives to cause injury, but with actually conspiring so to use them.
Under all these circumstances the Court finds that plaintiffs have not raised a substantial federal question with respect to the validity or application of the Connecticut statutes here involved.
CLAIM OF INSUFFICIENT TIME TO OBTAIN COUNSEL
Plaintiffs, as a second cause of action, allege that the Superior Court trial judge has not afforded them sufficient opportunity to obtain counsel of their choice and, as a minimum, plaintiffs seek an order continuing the Superior Court trial until they have had such an opportunity. Claimed deprivation of adequate time to obtain counsel may under certain circumstances raise a substantial federal question under the Sixth Amendment and due process clause of the Fourteenth Amendment. United States v. McMann, 386 F.2d 611 (2 Cir. 1967), aff'g, 252 F. Supp. 539 (N.D.N.Y. 1966); United States v. Mitchell, 354 F.2d 767 (2 Cir. 1966). But as the Supreme Court has said in Ungar v. Sarafite, 376 U.S. 575, 589 (1964), "[t]he matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel." It is, however, unnecessary to decide whether plaintiffs' contentions with respect to this issue are so wholly devoid *657 of merit as to fail to present a substantial federal question. The action of the Superior Court judge in refusing to grant a continuance is entirely unrelated to the constitutionality of any state statute. Therefore, the requirement for the convening of a three-judge court pursuant to 28 U.S.C. § 2281, that the constitutionality of a state statute be brought into question, is not met.
Even if this question were addressed to the Court as a single judge,[7] the Court would find it necessary to abstain from interfering with the already commenced criminal proceedings in the Superior Court. Stefanelli v. Minard, 342 U.S. 117, 120 (1951); Douglas v. City of Jeannette, 319 U.S. 157, 163-164 (1943); Hall v. New York, 359 F.2d 26 (2 Cir. 1966), cert. denied, 385 U.S. 879 (1966). None of the circumstances noted in Zwickler v. Koota, supra note 1, and Dombrowski v. Pfister, supra note 2, exists in relation to this issue. No irreparable injury will occur to plaintiffs if the state judge has acted improperly; adequate remedy exists through the normal state appellate procedure and by eventual application to the United States Supreme Court if that becomes necessary and proper. As stated in Moss v. Hornig, 314 F.2d 89, 91 (2 Cir. 1963):
"Federal courts of equity have always been loathe to restrain criminal prosecutions by states, even on constitutional grounds, where all constitutional issues can be decided in the first instance as a matter of course by the state courts."
Moreover, the concluding language of the United States Supreme Court in Stefanelli v. Minard, supra, at 122-125, is particularly appropriate here:
"In Douglas v. City of Jeannette, supra, the Court, speaking through Chief Justice Stone, said:
`Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent; * * *.' Id., at 163.
No such irreparable injury, clear and imminent, is threatened here. At worst, the evidence sought to be suppressed may provide the basis for conviction of the petitioners in the New Jersey courts. Such a conviction, we have held, would not deprive them of due process of law. Wolf v. Colorado, [338 U.S. 25 (1949)].
If these considerations limit federal courts in restraining State prosecutions merely threatened, how much more cogent are they to prevent federal interference with proceedings once begun. If the federal equity power must refrain from staying State prosecutions outright to try the central question of the validity of the statute on which the prosecution is based, how much more reluctant must it be to intervene piecemeal to try collateral issues.
The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law with its far-flung and undefined range would invite a flanking movement against the system of State courts *658 by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.
Mr. Justice Holmes dealt with this problem in a situation especially appealing: `The relation of the United States and the Courts of the United States to the States and the Courts of the States is a very delicate matter that has occupied the thoughts of statesmen and judges for a hundred years and can not be disposed of by a summary statement that justice requires me to cut red tape and to intervene.' Memorandum of Mr. Justice Holmes in 5 The Sacco-Vanzetti Case, Transcript of the Record (Henry Holt & Co., 1929) 5516. A proper respect for those relations requires that the judgment below be
Affirmed."
The current vitality of Stefanelli was recognized by the Court of Appeals for this Circuit as recently as April 1, 1966 in Hall v. New York, supra, at 28.
For all these reasons plaintiffs' motion for the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284 and for issuance of a temporary restraining order pursuant to 28 U.S.C. § 2284 (3) must be denied, and the complaint dismissed.
ORDER
ORDERED that:
(1) Plaintiffs' motion to convene a three-judge district court is denied.
(2) Plaintiffs' motion for issuance of a temporary restraining order is denied.
(3) Plaintiffs' complaint is dismissed for lack of subject matter jurisdiction, but without costs.
APPENDIX A
STATE OF CONNECTICUT |
> ss New Haven, December 29, 1967.
COUNTY OF NEW HAVEN |
I, Philip Salafia, Jr., a member of the Connecticut State Police Department, being duly sworn, depose and say:-
On November 18, 1967, I was assigned in an undercover capacity by Lt. Wayne Bishop, to assist the New Haven Police Department in gathering information concerning a plot to blow up buildings in the New Haven area by use of explosives.
After conferring with Inspector Ahern and Detective Pastore of the New Haven Police Department on November 18, 1967, I checked into the New Haven Motor Lodge on November 20, 1967. Jimmy Cotter and Ronnie Johnson came to my room. Johnson said he wanted to see the machine gun that he believed I brought with me. He said he wanted to pay five (5) sticks of dynamite for one machine gun. Johnson looked over the machine gun and said he didn't want the stock of the machine gun because it made it too bulky. He said he wasn't going to make any buy until his man checked it. He said he had many responsible people in his organization and he wanted several machine guns. Johnson informed me of his plot; he was interested in the law and wanted to break the back of the law; that they were going to blow up The First New *659 Haven National Bank and The Second National Bank in New Haven. He said he was going to blow the police station sky high and he was going to kill some New Haven Police Officers. He said he was going to do this at the first big snowfall. He said that the banks and police station would be blown up simultaneously, and that the police would be busy enough with traffic and snow removal. Johnson said that he had the New Haven Police Department code and was going to use this information to complete the plot. Johnson wanted to take the machine gun with him so that his mechanic could check it over. I refused. He asked me if I could supply him with silencers for six (6) 38 caliber weapons.
On November 24, 1967, Agent Plassie Williams of the Alcoholic Tax Unit and myself, took residence in Cabin No. 14 of Stanley's Motel which is located on Route 1, Milford, near the Milford Shopping Center. Ron Johnson arrived with another colored male whom he introduced as Tip-Top; with them was Jimmy Cotter. Johnson and Tip-Top said that they had forty (40) sticks of dynamite with them and wanted to make a transaction for machine guns. They said that their plans to blow up the banks and police station remained the same. Johnson wanted to show us the dynamite so he sent Cotter out to the car to get one (1) stick. It was wrapped in brown paper and appeared to be packaged in sawdust, and had the words, "American Cyanamid 40%" printed on its surface. Agent Williams purchased five (5) sticks of dynamite for Fifteen Dollars ($15.00) which he handed to Tip-Top. Tip-Top gave Johnson $10.00 and put $5.00 in his own pocket.
/s/ Philip Salafia, Jr.
Philip Salafia, Jr.
Connecticut State Police Department
Subscribed and sworn to this 29th day of December, A. D., 1967, before me.
/s/ Catherine Marangell
Catherine Marangell
Notary Public
My Commission expires:
March 31, 1969.
APPENDIX B
STATE OF CONNECTICUT |
> ss New Haven, December 29, 1967.
COUNTY OF NEW HAVEN |
I, Plassie Williams, being a member of the Alcohol and Tobacco Tax Division for the past two (2) years, being duly sworn, depose and say:-
On November 24, 1967, 11:15 p. m., at a location in Milford, Connecticut, known as Stanley's Motel, Cabin No. 14, I met with persons known to me as Ronald Johnson, Buddy Bonner, and Jimmy Cotter. Also present was State Police Officer Philip Salafia, Jr. At this meeting, Johnson stated that he had thirty (30) sticks of dynamite to exchange for three (3) machine guns, and that Bonner was present as an expert on firearms. Salafia informed Johnson that he had no intention of selling three machine guns for thirty sticks of dynamite. Johnson went on to say that he had forty (40) sticks of dynamite in the car and would sell a few sticks at three dollars ($3.00) per stick. I then asked to see a stick of dynamite to which Johnson signalled Cotter to go outside. Cotter exited the premises for a few seconds and re-entered with one (1) forty percent (40%) gelatin stick of dynamite. A short time later Johnson and I agreed that I could purchase five (5) sticks for $15. Cotter again obtained the dynamite and placed four sticks on the bed. For the five sticks of dynamite I gave Bonner $15.00; *660 one ten dollar bill and one five dollar bill, of which he immediately gave the ten dollar bill to Johnson. As for plans in the New Haven area, Johnson stated that he and his followers plan to use the dynamite for blowing up stone and brick buildings; that they lack fuses and caps for the dynamite; that they have access to all the dynamite needed for their planned operation; that they have all the money necessary; that they have scientists and "everybody" to help in the operation; and that they would like to obtain as much plastic explosives as possible. Johnson stated that he would take care of me financially if I could provide the plastic type explosives.
November 29, 1967. On this date, at approximately 5:10 p. m., I met Ronald Johnson at the home of his sister Gail, at a location on Congress Avenue near Baldwin Street. At this time, Johnson and I went out to my car. Johnson at this time questioned me as to the extent that plastic explosives surpassed dynamite. He wanted to know exactly to what extent the plastic explosives would destroy big brick buildings. Johnson stated that he and his followers had sufficient help in their destruction plot. At this time, Johnson suggested that we take a drive. I followed his directions, driving to and parking on a side street near a residential area, near Sheffield Street. During this time, Johnson stated that he and his followers had gotten rid of the forty-six (46) sticks of dynamite which he had at our first meeting and had acquired forty (40) other sticks, and that they were about to obtain 75 percent gelatin sticks of dynamite in the near future. He further stated that "the bombing has been put off for awhile" and that although the Black people were in the minority race, they could still bring this country to its knees. Johnson exited the car stating that he would return in a few minutes and walked down Sheffield Street out of view. In approximately 15 minutes, he returned stating that he would be able to buy as much plastic explosives as I could supply.
December 22, 1967. At 8:05 p. m. I contacted Johnson by telephone informing him of the plastic explosives and machine gun which I had to exchange for dynamite. Johnson stated that he had one (1) case of dynamite which contained forty (40) sticks of the forty percent (40%) gelatin type and that he was expecting to get another case the following day. I informed him that he should bring the one case in his possession and some money for the proposed swap. Johnson agreed, stating that he would meet me in a couple of hours. I asked why so long, to which he replied he would have to make a number of telephone calls, get some help, and pick up a truck. This scheduled meeting never took place.
December 23, 1967 10:00 a. m. I again contacted Johnson by telephone informing him that if he wanted to trade, he should meet me right away. He stated he still wanted to trade and would meet me between 11:00 and 12:00 o'clock. At 12:20 p. m., I admitted Johnson to Room 102 of the New Haven Motor Inn. At this time I saw a man now known to me as Curtis Belton, waiting in a black and blue Plymouth. Johnson went immediately to the telephone and made a call. He informed his party to bring "the stuff on over." He then called Belton inside and asked me what I had to trade for. I informed him that I had a quantity of plastic explosives and a couple of machine guns. Johnson stated that the one case of dynamite would be there in about twenty (20) minutes. In addition to this, he had one hundred dollars ($100.00) in cash. Belton stated that if he had known I wanted dynamite, he would have obtained a couple of cases earlier. He went on to say that he is able to obtain dynamite from a guy who works construction; that depending upon what type dynamite the guy has, 40, 80, or 100 percent gelatin sticks he can get it, and that he could get a couple of cases later on in the evening. At this time, I asked Johnson what he actually needed and what were his plans for the New Haven area. He stated, "Let's forget the *661 plans; you bring what we need." He went on to say that he and his followers needed six (6) silencers for 38's and were willing to pay one hundred fifty dollars ($150.00) for them; that they needed all the machine guns I could gather because they had no guns on hand; that they needed a case of mace containers; that they needed a base radio for their headquarters, along with about six (6) walkie-talkies; and that they could do with blueprints for silencers if I could not provide the actual silencers. I then asked Johnson if he wanted this material right away, to which he stated, "We want everything we can get our hands on now because we may decide to do something right away." He further stated, "The bombing is off; too much pressure on a couple of us right now." At this time, I asked Johnson what the disturbance was about that prior week to which he stated the kids started things by breaking a few windows. He went on to say that the group's intentions were to finish up where the kids left off. Belton asked if I could provide him with a 32 pistol to carry on his person. He further stated that he at one time worked construction with "the guy" who is actually able to obtain dynamite, and that I could forget about obtaining the mace containers because he knew the formula for the solution. At approximately 1:00 p. m., Jimmy Cotter, along with a man now known to me as Alonzo Russell, entered the room, admitted by Johnson. Russell left the room, at which time I noted a blue panel truck parked in front. I asked Johnson if the panel truck is the one for which we were waiting. He stated, "Yeah, that's the truck and the stuff's inside." Russell then returned to the room followed by a man now known to me as Willis Brooks. Seconds later, Federal, State, and Local Officers entered the room and placed everyone under arrest. Shortly afterward, I saw Detective Nicholas Pastore open the rear door of the blue panel truck and obtain a cardboard box containing numerous sticks of dynamite.
/s/ Plassie Williams
Plassie Williams
Alcohol and Tobacco
Tax Division.
Subscribed and sworn to this 29th day of December, A.D., 1967, before me.
/s/ Catherine Marangell
Catherine Marangell
Notary Public
My Commission expires:
March 31, 1969.
NOTES
[*] Plaintiffs' motion for a stay denied by Court of Appeals for the Second Circuit on Feb. 19, 1968.
[1] Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967), holds that "a request for a declaratory judgment that a state statute is overbroad on its face must be considered independently of any request for injunctive relief against the enforcement of that statute" and "a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction."
[2] The prohibition of 28 U.S.C. § 2283 does not apply where another Act of Congress grants an exception. The question remains open whether the Civil Rights Act, 42 U.S.C. § 1983, here invoked by plaintiffs, authorizes such an exception. See Cameron v. Johnson, 381 U.S. 741 (1965). Cf. Dombrowski v. Pfister, 380 U.S. 479, 484, n. 2 (1965). In Cameron, the Supreme Court remanded the case to the District Court for a determination of the issue; and that decision, 262 F. Supp. 873 (S.D.Miss.1966), holding that 42 U.S.C. § 1983 does not authorize a federal court to enjoin state court proceedings then in progress, is currently on appeal to the Supreme Court where probable jurisdiction has been noted and the case transferred to the appellate docket. 389 U.S. 809 (1967). As pointed out by Circuit Judge Smith in Barber v. Kinsella, 277 F. Supp. 72, n. 5 (D.Conn. 1967), the Fourth Circuit also has held that 42 U.S.C. § 1983 does not provide an exception, Baines v. City of Danville, 337 F.2d 579 (4 Cir. 1964), cert. denied, 381 U.S. 939 (1965). The Third Circuit, however, has held that it does. Cooper v. Hutchinson, 184 F.2d 119 (3 Cir. 1950). The District Court in Ware v. Nichols, 266 F. Supp. 564, 569 (N.D.Miss.1967), avoided the problem when declaring a statute unconstitutional on its face by saying that it assumed that the state and county officials would not continue to prosecute under an unconstitutional statute. This latter approach appears to be in keeping with the Supreme Court's recent decision in Zwickler v. Koota, supra note 1. See also Baker v. Binder, 274 F. Supp. 658 (W.D.Ky.1967).
[3] At the hearing before this Court on February 12, 1968, plaintiffs' counsel said there is no "serious claim" that the statutes are unconstitutional on their face. In view of the allegations of the complaint, however, the Court believes it is incumbent upon it to rule on that claim.
[4] In Turner v. LaBelle, the Court found it necessary to read out of the statute the words "justifies" and "praises". No such language is contained in the instant statute.
[5] Contrast the situation in Dombrowski, 380 U.S. at 482, where appellants' complaint was accompanied by supporting affidavits and a written offer of proof.
[6] At the hearing before this Court on February 12, 1968, all counsel agreed that the Court should take judicial notice of all proceedings in the Superior Court criminal case, including the complete file therein.
[7] Here again it is assumed that 28 U.S.C. § 2283 would not preclude granting the relief sought. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918218/ | 730 So.2d 29 (1998)
Londa MOLDEN and April Avery
v.
MISSISSIPPI STATE DEPARTMENT OF HEALTH.
No. 97-CC-00454-SCT.
Supreme Court of Mississippi.
September 17, 1998.
Rehearing Denied December 3, 1998.
*31 Karl R. Steinberger, Stephen Walker Burrow, Pascagoula, Attorneys for Appellants.
Office of the Attorney General by George W. Neville, Attorney for Appellee.
Before SULLIVAN, P.J., and McRAE and SMITH, JJ.
SMITH, Justice, for the Court:
¶ 1. On January 16, 1995, Dorothy Gibson, a resident at Chateau Deville Nursing Home, was administered a whirlpool bath by Certified Nurse Aide Londa Molden which resulted in Gibson receiving burns to her lower extremities. Molden was assisted by Certified Nurse Aide April Avery in transporting Gibson from her room to the whirlpool bath and back to her room. After an initial investigation, the Department of Health found allegations of neglect against Molden and Avery to be valid, and an administrative hearing was requested by both Molden and Avery. On August 10, 1995, an administrative hearing was conducted before Hearing Officer Arthur C. Sharpe, Jr., and on March 29, 1996, Hearing Officer Sharpe found the charges of neglect to be valid and revoked Molden's and Avery's nurse aide certification. Molden and Avery were removed from the Certified Nurse Aide Roster and permanently placed on the State Nurse Aide Abuse Roster.
¶ 2. Molden and Avery appealed the hearing officer's decision to the Jackson County Chancery Court, and the court affirmed the hearing officer's decision. Molden and Avery now appeal to this Court and allege: (1) that the regulations adopted by the Department of Health violate the United States and Mississippi Constitutions; (2) that the hearing officer erred in denying Molden's and Avery's motion to compel the Department of Health to disclose all documents in its files regarding this case; (3) that the hearing officer erred in denying Molden's and Avery's motion to permit access to witnesses testifying on behalf of the Department of Health; and (4) that affirming the adverse findings against Avery was arbitrary and capricious. The Department of Health argues: (1) that the regulations adopted are constitutional; (2) that discovery is not required in administrative hearings; (3) that access to witnesses is not required and full cross-examination was allowed at the administrative hearing; and (4) that affirming the adverse findings against Avery was not arbitrary and capricious.
FACTS
¶ 3. On January 16, 1995, Dorothy Gibson, a long-term resident at Chateau Deville Nursing Home in Moss Point, was administered a whirlpool bath by Certified Nurse Aide Londa Molden, and as a result, Gibson received second degree burns to her lower extremities. Molden was assisted by Certified Nurse Aide April Avery in transporting Gibson from her room to the whirlpool room for her whirlpool bath. After placing Gibson in the whirlpool bath, Avery departed from the room. Molden then filled the bath with water while testing the temperature with her double-gloved hands. After discovering that there was no soap in the whirlpool room, Molden left Gibson unattended and went across the hall to retrieve some soap. Molden returned one to two minutes later and completed giving Gibson her bath. Avery returned to the whirlpool room to assist in transporting Gibson back to her room after the bath and noticed that Gibson's toe was bleeding. Molden and Avery then noticed that the skin on Gibson's legs was beginning to peel. Avery stated to Molden that she should report this to the treatment nurse, and Molden stated that she would report the change in Gibson's condition. However, after returning Gibson to her room, neither Molden nor Avery reported the change in Gibson's condition to the treatment nurse, but instead, Molden reported to Cynthia Harrison, LPN and treatment nurse, that Gibson was ready for her dressings.
¶ 4. Harrison proceeded to Gibson's room to administer the treatment for Gibson's decubitus when she discovered that Gibson's legs were very red and had blisters on them. Harrison then notified two of the charge nurses about Gibson's condition, and Gibson was transported to the Singing River Hospital where she was diagnosed with second degree burns to her legs. Both Molden and Avery were questioned about the change of *32 Gibson's condition by their supervisors, and they responded that they noticed the change in Gibson's condition after the whirlpool bath but did not report the change in condition although Avery believed that Molden would report the change in Gibson's condition.
¶ 5. After Thomas Miller, Administrator of Chateau Deville Nursing Home, filed a written report of the incident, Mary Lou Vozzo, Nurse Aide Surveyor, Mississippi State Department of Health (hereinafter "the Department"), Division of Health Facilities Licensure and Certification, was assigned to conduct an investigation of the incident on February 13 and 14, 1995. On March 1, 1995, after an investigation of the complaint, the Department determined that the allegations of neglect against Molden and Avery were valid and informed Molden and Avery of their right to an administrative hearing. Molden and Avery were further informed that if they did not request a hearing, or if the complaint was proven, that their names would be removed from the Certified Nurse Aide Roster and placed permanently on the State Nurse Aide Abuse Roster. Molden and Avery each requested an administrative hearing, and on August 10, 1995, a hearing was held before Hearing Officer Arthur C. Sharpe, Jr.
¶ 6. On March 29, 1996, Hearing Officer Sharpe found that the findings of the staff of the Division of Licensure and Certification were valid and supported by an overwhelming quantum of credible evidence. Hearing Officer Sharpe specifically found that
the failure to properly ascertain that the temperature of the water did not exceed a safe level before lowering the resident into it, and thereafter leaving the resident in scalding water constitutes resident neglect on the part of Molden. Failing to report so that immediate palliative, mitigating or curative measures could have been instituted constitutes resident neglect on the part of both Avery and Molden.
Hearing Officer Sharpe then ordered that the certification of Molden and Avery should be permanently revoked, that Molden and Avery be removed from the Certified Nurse Aide Roster, and that Molden and Avery be permanently placed on the State Nurse Aide Abuse Roster.
¶ 7. Molden and Avery then appealed the adverse findings of the hearing officer to the Jackson County Chancery Court, and the chancery court affirmed the decision of the Department and Hearing Officer Sharpe holding that the Department's findings were supported by substantial credible evidence and that the Department's decision was not arbitrary or capricious, did not violate the Constitutional rights of Molden and Avery, and did not constitute an abuse of discretion. Aggrieved by the chancery court's decision, Molden and Avery appeal to this Court and raise the following issues:
I. WHETHER THE MISSISSIPPI DEPARTMENT OF HEALTH'S REGULATIONS REGARDING THE REMOVAL OF NURSE AIDES FROM THE REGISTRY VIOLATE THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.
II. WHETHER THE HEARING OFFICER ERRED IN DENYING MOLDEN'S AND AVERY'S MOTION TO COMPEL THE DEPARTMENT OF HEALTH TO DISCLOSE ALL DOCUMENTS IN ITS FILES REGARDING THIS CASE.
III. WHETHER THE HEARING OFFICER ERRED IN DENYING MOLDEN'S AND AVERY'S MOTION TO PERMIT ACCESS TO WITNESSES TESTIFYING ON BEHALF OF THE DEPARTMENT OF HEALTH.
IV. WHETHER THE CHANCERY COURT'S AFFIRMANCE OF THE ADVERSE FINDINGS AGAINST AVERY WAS ARBITRARY AND CAPRICIOUS OR ALTERNATIVELY LACKED SUBSTANTIAL EVIDENCE.
STANDARD OF REVIEW
¶ 8. This Court "has generally accorded great deference to an administrative agency's construction of its own rules and regulations and the statutes under which it *33 operates." Mississippi State Tax Comm'n v. Mask, 667 So.2d 1313, 1314 (Miss.1995). See, e.g., Melody Manor Convalescent Ctr. v. Mississippi State Dep't. of Health, 546 So.2d 972, 974 (Miss.1989); General Motors Corp. v. Mississippi State Tax Comm'n, 510 So.2d 498, 502 (Miss.1987). Review by the trial court and this Court of orders of a state agency are limited by the arbitrary and capricious standard. Mask, 667 So.2d at 1314-15 (citing Mississippi State Tax Comm'n v. Dyer Inv. Co., 507 So.2d 1287, 1289 (Miss. 1987)). An appeal of an order of an administrative agency "should be to determine whether or not the order of the administrative agency `(1) was supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party.'" Id. at 1315 (quoting Mississippi State Tax Comm'n v. Vicksburg Terminal, Inc., 592 So.2d 959, 961 (Miss.1991)).
DISCUSSION OF LAW
I. WHETHER THE MISSISSIPPI DEPARTMENT OF HEALTH'S REGULATIONS REGARDING THE REMOVAL OF NURSE AIDES FROM THE REGISTRY VIOLATE THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.
A. Nurse Aide Regulations
¶ 9. Molden[1] and Avery first contend that the Department's adoption of Nurse Aide Regulations pursuant to a federal mandate violates traditional principles of federalism and is therefore unconstitutional. Molden and Avery rely on the recent United States Supreme Court opinions in New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), and Printz v. United States, 521 U.S. 98, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), in alleging that the Department adopted the regulations, i.e., Regulations Related to the Removal of Nurse Aides from the Registry, pursuant to a Congressional mandate which violated traditional principles of federalism. However, Molden and Avery do not challenge the constitutionality of the federal regulations, but rather, they challenge the Department's own regulations on the grounds that (1) the Department lacked statutory authority to adopt the regulations and (2) the regulations represent an unconstitutional implementation of the federal government's own policies. The Department, however, contends that the regulations regarding nurse aides were voluntarily adopted pursuant to a contract with the United States Department of Health and Human Services, Health Care Financing Administration and, thus, that the Department was not mandated by the federal government to enact a federal regulatory scheme. As a result, the Department asserts that its implementation of the regulations does not violate traditional principles of federalism.
¶ 10. In New York v. United States, the State of New York and two of its counties challenged, on Tenth Amendment grounds, federal legislation which required the States under certain conditions to take title to lowlevel radioactive waste generated within their borders. New York v. United States, 505 U.S. 144, 154, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). The Supreme Court framed the issue in the case as regarding "the circumstances under which Congress may use the States as implements of regulation; that is, whether Congress may direct or otherwise motivate the States to regulate in a particular field or a particular way." New York, 505 U.S. at 161, 112 S.Ct. 2408. The Court concluded that:
Because an instruction to state governments to take title to waste, standing alone, would be beyond the authority of Congress, and because a direct order to *34 regulate, standing alone, would also be beyond the authority of Congress, it follows that Congress lacks the power to offer the States a choice between the two.... Either way, "the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program," an outcome that has never been understood to lie within the authority conferred upon Congress by the Constitution.
Id. at 176, 112 S.Ct. 2408 (emphasis added) (citation omitted).
¶ 11. The Supreme Court in Printz v. United States expanded on the issue of the power of Congress relative to the States. Printz was an action brought by two county sheriffs to challenge the constitutionality of a portion of the Brady Act which required the chief law enforcement officer (CLEO) of certain localities "to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme." Printz v. United States, 521 U.S. 98, 117 S.Ct. 2365, 2369, 138 L.Ed.2d 914 (1997). The Supreme Court summarized the requirements of the Brady Act as follows:
Regulated firearms dealers are required to forward Brady Forms not to a federal officer or employee, but to the CLEOs, whose obligation to accept those forms is implicit in the duty imposed upon them to make "reasonable efforts" within five days to determine whether the sales reflected in the forms are lawful. While the CLEOs are subjected to no federal requirement that they prevent the sales determined to be unlawful (it is perhaps assumed that their state-law duties will require prevention or apprehension), they are empowered to grant, in effect, waivers of the federally prescribed 5-day waiting period for handgun purchases by notifying the gun dealers that they have no reason to believe the transaction would be illegal.
Printz, 117 S.Ct. at 2369. The Supreme Court, relying on its holding in New York, stated:
We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the State's officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.
Id. at 2384. However, Justice O'Connor, in her concurring opinion, stated:
Our holding, of course, does not spell the end of the objectives of the Brady Act. States and chief law enforcement officers may voluntarily continue to participate in the federal program.... Congress is also free to amend the interim program to provide for its continuance on a contractual basis with the States if it wishes, as it does with a number of other federal programs.
Id. at 2385 (O'Connor, J. concurring). Thus, where a State voluntarily enters into a contractual arrangement with the Federal Government to adopt and carry out federal regulations, the States are not compelled to enact or enforce a federal regulatory program, and thus, traditional notions of federalism are not violated.
¶ 12. In the instant case, Congress amended the Federal Medicare and Medicaid statutes in the Omnibus Reconciliation Act of 1987 seeking to improve the quality of nursing home care around the country. Some of these amendments, referred to as the Nursing Home Reform Law, required Mississippi and the other States to:
1) specify, evaluate and approve training programs for nurse aides, and create a registry of nurse aides who have completed a state approved training program;
2) create and maintain an appeals process for patient transfers and discharges;
3) create standards regarding the qualifications of, and also certify, skilled nursing facility administrators;
*35 4) certify the compliance of skilled nursing facilities with applicable federal statutes and regulations;
5) conduct periodic programs to educate staff and residents on current federal regulations and policies;
6) investigate allegations of resident abuse or neglect by a nurse aide; and
7) investigate possible violations of federal regulations by skilled nursing facilities. See generally 42 U.S.C. § 1395i-3 (1994). 42 U.S.C. § 1395aa provides for the Federal Government to enter into contractual agreements with the States whereby the States perform the above functions and the Federal Government pays the States in advance or by way of reimbursement for the reasonable costs of performing the specified functions. 42 U.S.C. § 1395aa(b) (1994). Thus, the States perform the federal objectives through voluntary agreements entered into with the Federal Government and are not compelled by the Federal Government to enforce a federal regulatory program. Here, the Department voluntarily adopted its own set of regulations similar to the federal regulations governing the establishment of a nurse aide registry in order to carry out its contractual agreement with the Federal Government. Therefore, we hold that the Department's adoption of Nurse Aide Regulations does not violate traditional notions of federalism.
¶ 13. Molden and Avery further assert that the Department did not possess the statutory authority to adopt the regulations in question. However, to the contrary, Miss. Code Ann. § 41-3-15(4)(e) provided the Department with the following authority: "The State Board of Health shall have the authority:... To enter into contracts or agreements with any other state or federal agency, or with any private person, organization or group capable of contracting, if it finds such action to be in the public interest." Miss. Code Ann. § 41-3-15(4)(e) (1993). Thus, the Department clearly has the authority to enter into contracts with a federal agency and adopt regulations to carry out its contractual obligations where it finds such action to be in the public interest. As a result, this issue is without merit.
B. Evidentiary and Procedural Standard
¶ 14. Molden and Avery contend that the evidentiary and procedural standards applied by the Department's regulations violated their due process and equal protection rights guaranteed by the United States and Mississippi Constitutions. Molden and Avery first allege that adversary findings were made against them before they were afforded due process, i.e., (1) notice of the allegations which have been made and (2) an opportunity for a hearing to rebut those allegations. The Department, however, contends that Molden and Avery were afforded due process because they were given notice and a hearing before the adverse findings against them were made final by the hearing officer and their names were placed on the Nurse Aide Abuse Roster.
¶ 15. This Court has held that "an administrative [agency] must afford minimum procedural due process under the Fourteenth Amendment to the United States Constitution and under Art. 3, § 14 of the Mississippi Constitution consisting of (1) notice and (2) opportunity to be heard." Booth v. Mississippi Employment Sec. Comm'n, 588 So.2d 422, 428 (Miss.1991) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985); Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). With respect to the investigation of allegations of resident neglect and abuse and misappropriation of resident property, federal law, pursuant to its agreement with the States under 42 U.S.C. § 1395aa, provides:
The State shall provide, through the agency responsible for surveys and certification of nursing facilities under this subsection, for a process for the receipt and timely review and investigation of allegations of neglect and abuse and misappropriation of resident property by a nurse aide of a resident in a nursing facility or by another individual used by the facility in providing services to such a resident. The State shall, after providing the individual *36 involved with a written notice of the allegations (including a statement of the availability of a hearing for the individual to rebut the allegations) and the opportunity for a hearing on the record, make a written finding as to the accuracy of the allegations. If the State finds that a nurse aide has neglected or abused a resident or misappropriated resident property in a facility, the State shall notify the nurse aide and the registry of such finding. If the State finds that any other individual used by the facility has neglected or abused a resident or misappropriated resident property in a facility, the State shall notify the appropriate licensure authority. A State shall not make a finding that an individual has neglected a resident if the individual demonstrates that such neglect was caused by factors beyond the control of the individual.
42 U.S.C. § 1395i-3(g)(1)(C) (Supp. I 1996). Thus, the Department's regulations provide the following procedure for when information is received or the licensing agency has cause to believe that a nurse aide has abused, neglected or misappropriated the property of a long term care resident:
A. Whenever information is received, or when the licensing agency has cause to believe that an aide has abused, neglected, or misappropriated the property of a long term care resident in his or her care, the licensing agency shall investigate same. Documentation of said investigation shall be made including, but not limited to, the nature of the allegation and the evidence that led the licensing agency to conclude that an allegation was valid or not.
B. Once a finding[2] is confirmed, the licensing agency shall send a "Notice of Right to Hearing" to the aide in question both by certified and regular mail, return receipt requested.... This notice will inform him/her of the alleged violation(s) and his/her conduct constituting the violation and confirm the findings by the investigator. It shall inform the aide that he/she has the right to request an administrative hearing via accompanying "Request for Hearing Form" and that the request for hearing must be in writing and must be received or postmarked within twenty (20) days of the date of notification of the findings and that failure to do so will be interpreted as a waiver of his/her right to such hearing. The notice will advise the aide that notice of the pending allegations will be sent to his/her employer as will the final outcome of same. Furthermore, should any prospective employer, or others, check the aide's status on the roster, they will be advised of any pending allegations and/or final decision. The aide will be advised that whether he/she requests a hearing or not, he/she has the right to submit written statement disputing the allegations if he/ she chooses to do so. The aide will also be advised that should an adverse decision be rendered against the aide by the Hearing Officer that the aide's name shall be placed on the Nurse Aide Abuse Roster (Registry) permanently, that he/she will be unemployable by any long-term care facility as a nurse aide, and that adverse findings against the aide shall be removed only if: (1) the findings were made in error, (2) an individual has been found not guilty in a court of law, or (3) the State is informed of the individual's death.
Mississippi State Dept. of Health, Licensure and Certification, Regulations Related to the Removal of Nurse Aides from the Registry, §§ II(A)-(B) (hereinafter "Regulations"). Molden and Avery contend that the findings made by the investigator constitute adversary findings made against them prior to notice being given and an opportunity to be heard. However, it is clear from the procedural guidelines afforded in the Department's regulations that the licensing agency's decision is to confirm whether the allegations are valid and whether a hearing should be held before a hearing officer. The findings by the licensing agency do not constitute final findings but merely amount to pending allegations awaiting a final determination by the hearing officer before a nurse aide's *37 name can be removed from the Certified Nurse Aide Registry.
[F]ederal law dictates:
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. This notice must be of such nature as reasonably to convey the required information and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied.
Booth, 588 So.2d at 427 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). In the instant case, Molden and Avery were each given notice of the licensing agency's findings that the allegations were valid and were given the opportunity for an administrative hearing in which they had the right to be represented by counsel, the right to be heard and to present evidence and witnesses, and the right to cross-examine witnesses. Thus, we find that Molden and Avery were afforded notice of the pendency of the action and an opportunity to present their objections, and as a result, their due process rights were not violated.
¶ 16. Molden and Avery also assert that the evidentiary standard applied by the hearing officer violated their due process rights. In the instant case, the Department's regulations provided that the licensing agency's decision had to be supported by "substantial evidence," but the hearing officer required the Department to prove the allegations by an "overwhelming weight" of the evidence. Molden and Avery assert that the appropriate evidentiary standard that should have been applied was to require the licensing agency to prove the allegations by "clear and convincing evidence." Molden and Avery contend that regardless of whether the evidentiary standard applied by the hearing officer was the "substantial evidence" standard or the "overwhelming weight of the evidence" standard that application of either was reversible error.
¶ 17. The Department, however, contends that application by the hearing officer of an "overwhelming weight of the evidence" standard rather than "clear and convincing evidence" is mere semantic in nature. The Department asserts that the "overwhelming weight of the evidence" standard clearly expressed the heightened evidentiary standard in licensure and related actions and that the standard does not in any way violate the due process rights of Molden and Avery. The Department admits that the hearing officer incorrectly expressed the evidentiary standard the agency had to reach, but the Department contends that it is apparent the hearing officer held the agency to a level appropriate for a quasi-criminal matter since the language used by the hearing officer is the appellate standard used for reviewing criminal convictions.
¶ 18. This Court has held that "in administrative proceedings against professionals licensed by the state, the disciplinary board or agency is charged to demand clear and convincing evidence of the offense." Riddle v. Mississippi State Bd. of Pharmacy, 592 So.2d 37, 41 (Miss.1991) (citing Mississippi Real Estate Comm'n v. White, 586 So.2d 805, 808 (Miss.1991); State Bd. of Psychological Exam'rs v. Hosford, 508 So.2d 1049, 1054 (Miss.1987); Hogan v. Mississippi Bd. of Nursing, 457 So.2d 931, 934 (Miss. 1984)). "On judicial review, the Chancery Court does not proceed de novo, nor does this Court. Rather, the disciplinary agency's decision is insulated from judicial disturbance where it is supported by substantial evidence and is neither arbitrary nor capricious." Riddle, 592 So.2d at 41 (citations omitted). The Riddle Court expressed the scope of judicial review as follows: "The judicial eye looks to see whether a fair-minded fact finder might have found the evidence clear and convincing that the offense had occurred, and, where that may be said, we will not disturb the Board's judgment." Id.; see also Nelson v. Mississippi State Bd. of Veterinary Med., 662 So.2d 1058, 1060-61 (Miss. 1995).
*38 ¶ 19. In the case sub judice, Molden and Avery challenged the evidentiary standard before the hearing officer. The hearing officer found no error in the Department's recital of its evidentiary standard, but the hearing officer stated that he held the Department to a higher standard by requiring the Department to "prove its case by the overwhelming weight of the evidence, not merely support its allegations by substantial evidence." The chancellor, however, recognized the erroneous legal standard applied by the hearing officer and stated "that disciplinary proceedings against a professional, i.e. Nurse Aide, require that proof must be clear and convincing and supported by substantial evidence." The chancellor further found that the statements made by the hearing officer regarding the overwhelming weight of the evidence did not violate the due process rights of Molden and Avery. The chancellor then determined that the Department, irrespective of the hearing officer's statement, proved by clear and convincing evidence that Molden and Avery neglected Gibson. We find that although the hearing officer applied an incorrect evidentiary standard for the revocation of Molden's and Avery's licenses, any such error was cured by the chancellor in his application of the requisite judicial review stated in Riddle and determination that the Department proved neglect by clear and convincing evidence. As a result, we hold that Molden and Avery were afforded the constitutional requisite minimum procedural due process by the Department before final adverse findings were made against them.
C. Excessive Punishment
¶ 20. Molden and Avery contend that the sole penalty of having a nurse aide's name placed on the Nurse Aide Abuse Roster if having been found guilty of abusing, neglecting, or misappropriating the property of a long term care resident results in excessive punishment in violation of the United States and Mississippi Constitutions since such action would result in permanent prohibition from being employed by a nursing home. The Department contends that the punishment is not excessive and is further mandated by federal law.
¶ 21. At the time that Molden and Avery were found to have neglected Gibson, federal law provided:
The registry ... shall provide (in accordance with regulations of the Secretary) for the inclusion of specific documented findings by a State ... of resident neglect or abuse or misappropriation of resident property involving an individual listed in the registry, as well as any brief statement of the individual disputing the findings.
42 U.S.C. § 1395i-3(e)(2)(B) (1994). The federal regulations further provided that the following information on each individual certified as a nurse aide be included in the registry:
(i) The individual's full name;
(ii) Information necessary to identify each individual;
(iii) The date the individual became eligible for placement in the registry through successfully completing a nurse aide training and competency evaluation program or competency evaluation program or by meeting the requirements of § 483.150; and
(iv) The following information on any finding by the State survey agency of abuse, neglect, or misappropriation of property by the individual:
(A) Documentation of the State's investigation, including the nature of the allegation and the evidence that led the State to conclude that the allegation was valid;
(B) The date of the hearing, if the individual chose to have one, and its outcome; and
(C) A statement by the individual disputing the allegation, if he or she chooses to make one; and
(D) This information must be included in the registry within 10 working days of the finding and must remain in the registry permanently, unless the finding was made in error, the individual was found not guilty in a court of law, or the State is notified of the individual's death.
42 C.F.R. § 483.156(c)(1) (1994). Furthermore, the federal regulations provided that a nursing facility could not employ nurse aides *39 who had been found to have neglected a long term care resident as follows:
(c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property.
(1) The facility must ...
(ii) Not employ individuals who have been
(A) Found guilty of abusing, neglecting, or mistreating residents by a court of law; or
(B) Have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property....
42 C.F.R. § 483.13(c)(1) (1994). Thus, the effect of the federal statute and regulations was to render a nurse aide who had been found to abuse, neglect, or misappropriate the property of a long term care resident and had her name placed permanently on the abuse roster to be unemployable by a nursing facility.
¶ 22. However, on August 5, 1997, Congress amended 42 U.S.C. § 1395i-3 so as to require the States to adopt a procedure that would permit a nurse aide to petition to have her name removed from the abuse roster. 42 U.S.C. § 1395i-3(g)(1)(D) now provides:
(i) In general
In the case of a finding of neglect under subparagraph (C), the State shall establish a procedure to permit a nurse aide to petition the State to have his or her name removed from the registry upon a determination by the State that
(I) the employment and personal history of the nurse aide does not reflect a pattern of abusive behavior or neglect; and
(II) the neglect involved in the original finding was a singular occurrence.
(ii) Timing of determination.
In no case shall a determination on a petition submitted under clause (i) be made prior to the expiration of the 1-year period beginning on the date on which the name of the petitioner was added to the registry under subparagraph (C).
42 U.S.C. § 1395i-3(g)(1)(D) (Supp. II 1997). Thus, the amendment of the federal statute renders Molden and Avery's contention that the penalty imposed on them is an excessive penalty as moot whereby States are now required to provide a procedure for a nurse aide found to have neglected a long term care resident to petition the removal of her name from the abuse roster and be employable by a nursing facility again. As a result, this issue is without merit.
D. Vagueness
¶ 23. Molden and Avery next contend that the chancellor erred in not finding the standard of conduct for the charge of neglect against nurse aides is unconstitutionally vague and, thus, violates their due process rights. Molden and Avery assert that the neglect standard is vague and unconstitutional because it requires nurse aides to make judgments about their conduct which is not within their knowledge and training, as well as the common knowledge and intelligence of ordinary persons. The Department, however, contends that the standard of conduct defining neglect in the regulations is clear and unambiguous and does not approach the level of being vague and over broad in violation of Molden's and Avery's due process rights.
¶ 24. The United States Supreme Court has held that "[i]t is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Furthermore, the Supreme Court, in Roth v. United States, stated that "lack of precision is not itself offensive to the requirements of due process." Roth v. United States, 354 U.S. 476, 491, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The Roth Court further stated that the "`Constitution does not require impossible standards'; all that is required is that the language `conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices....'" Roth, 354 U.S. at 491, 77 S.Ct. 1304 (quoting United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 91 *40 L.Ed. 1877 (1947)). This Court has followed the same analysis in determining whether statutes and guidelines provide sufficient warning as to the proscribed conduct. See Gardner v. State, 531 So.2d 805, 809 (Miss. 1988) (applying vagueness test set forth in Roth); Cassibry v. State, 404 So.2d 1360, 1368 (Miss.1981) ("`The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.'") (quoting Jordan v. DeGeorge, 341 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (1951)).
¶ 25. The Department's regulations define the term "neglect" as "the failure to supply the long term care resident with the care, food, clothing, shelter, health care, supervision or other services which are necessary to maintain his mental and physical health." Regulations § I(C)(12). We find that while the Department's definition of neglect is broad and general and does not provide any specific examples of what actions may constitute neglect, the definition does provide a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. We further find that the definition of neglect adopted by the Department is clearly sufficient to give one warning that leaving a long term care resident unattended in a whirlpool bath with scalding water and then not reporting the change in the resident's condition to the nurse in charge would amount to neglect. As a result, we hold that the standard of conduct for a charge of neglect adopted by the Department is not unconstitutionally vague, and thus, this issue is without merit.
II. WHETHER THE HEARING OFFICER ERRED IN DENYING MOLDEN'S AND AVERY'S MOTION TO COMPEL THE DEPARTMENT OF HEALTH TO DISCLOSE ALL DOCUMENTS IN ITS FILES REGARDING THIS CASE.
¶ 26. Molden and Avery contend that the hearing officer erred in denying them discovery of all the documents maintained by the Department regarding the investigation and allegations against Molden and Avery. Molden and Avery assert that given the highly penal nature of the proceeding and the potential retribution they face, their federal and state due process rights demand they be given prior access to all documents and any other evidence or information in the State's possession relating to the charges against them. The Department, however, asserts that the hearing officer did not err in denying Molden's and Avery's request for discovery because the full panoply of pleadings and processes or discovery provided for fullfledged litigants in law and equity courts is not available for use before an administrative board.
¶ 27. In State Oil & Gas Board v. McGowan, this Court stated that "[t]he general rule ... is that rules of civil procedure do not apply to administrative proceedings unless the rules specifically so provide." State Oil & Gas Bd. v. McGowan, 542 So.2d 244, 247 (Miss.1989). The McGowan Court stated:
There appears to be no authority for transplanting the Mississippi Rules of Civil Procedure into administrative proceedings. The scope of the rules, found in Rule 1, M.R.C.P., govern procedures in the circuit courts, chancery courts, and county courts in all suits of a civil nature. Administrative hearings are not included within their purview as the State Oil & Gas Board is not a circuit, chancery or county court.
McGowan, 542 So.2d at 247. Likewise, the State Department of Health is not a circuit, chancery, or county court, and thus, the Mississippi Rules of Civil Procedure, including the rules of discovery, were not applicable to the administrative hearing before the hearing officer. Id.
¶ 28. In the case sub judice, Molden and Avery filed a motion to compel discovery before the hearing to require the Department to produce any and all documents or other evidence, whether incriminating or exculpatory, in its possession regarding the pending charges against them, and the hearing officer denied the motion except that he allowed Molden and Avery to be provided those documents that the Department would introduce into evidence. The Department's *41 regulations governing the administrative hearings held with regard to the removal of nurse aides from the registry provide:
C. If a hearing is requested, the same shall be held within sixty (60) days of the request. A Notice of hearing shall be sent to all parties stating the date, time, and place of the hearing.
1. The aide may appear with or without counsel and shall have the right to cross-examine all witnesses, present evidence/testimony, either written or oral, on his or her own behalf, and to refute any testimony or evidence presented.
2. A hearing officer shall be appointed by the Director.
3. Formal rules of evidence and procedure will not apply, but a record of said hearing shall be made. The licensing agency shall present its case, and the aide will then present his or her case. In order for the licensing agency's decision to be upheld, the facts constituting the violation must be proved by substantial evidence.
Regulations § II(C). Thus, since the regulations do not provide that the formal rules of evidence and procedure are applicable at the hearing, we hold that the hearing officer did not err in denying Molden's and Avery's motion to compel discovery as to all documents possessed by the Department. See McGowan, 542 So.2d at 247. As a result, this issue is without merit.
III. WHETHER THE HEARING OFFICER ERRED IN DENYING MOLDEN'S AND AVERY'S MOTION TO PERMIT ACCESS TO WITNESSES TESTIFYING ON BEHALF OF THE DEPARTMENT OF HEALTH.
¶ 29. Molden and Avery contend that the hearing officer erred by denying their motion to permit access to the witnesses testifying on behalf of the Department. Molden and Avery contend that given the highly penal nature of the proceedings against them that they should be afforded the same right to interview the Department's witnesses as criminal defendants are permitted to interview prosecution witnesses. See URCCC 9.04(D). The Department, however, asserts that the proceedings are not criminal and, furthermore, that there is no requirement that nurse aides be allowed to interview witnesses prior to an administrative hearing.
¶ 30. As stated above, "[t]he general rule... is that rules of civil procedure do not apply to administrative proceedings unless the rules specifically so provide." State Oil & Gas Bd. v. McGowan, 542 So.2d 244, 247 (Miss.1989). In the instant case, the Department's regulations do not provide nurse aides with the right to be allowed to interview the Department's witnesses prior to the administrative hearing, but the record does reveal that Molden's and Avery's attorneys were provided with summaries of the witness statements. However, the Department's regulations do provide for the cross-examination of the Department's witnesses at the administrative hearing. See Regulations § II(C)(1). Thus, Molden and Avery had no right to conduct interviews or take depositions of the Department's witnesses before the administrative hearing, and furthermore, Molden and Avery fail to show any prejudice they suffered by the hearing officer's denial of this request where they had the opportunity to fully cross-examine the Department's witnesses at the evidentiary hearing. As a result, we find that this assignment of error is without merit.
IV. WHETHER THE CHANCERY COURT'S AFFIRMANCE OF THE ADVERSE FINDINGS AGAINST AVERY WAS ARBITRARY AND CAPRICIOUS OR ALTERNATIVELY LACKED SUBSTANTIAL EVIDENCE.
¶ 31. Avery contends that the chancery court's affirmance of adverse findings against her was arbitrary and capricious or, alternatively, lacked substantial evidence because the uncontradicted facts show she reasonably and justifiably relied upon Molden to report the changes in Gibson's skin condition. The Department contends that the adverse findings made against Avery were not arbitrary and capricious and supported by substantial evidence.
¶ 32. In the case sub judice, the facts are uncontradicted that Gibson was the patient of Molden and was her primary responsibility. *42 The testimony reveals that April Avery assisted Molden in transporting Gibson from her room to the whirlpool room in order for Molden to administer to Gibson a whirlpool bath. After assisting Molden with transporting Gibson to the whirlpool room, Avery departed from the room. Molden then proceeded to administer the whirlpool bath to Gibson. Avery returned to the whirlpool room after Molden finished administering the whirlpool bath to Gibson to assist in transporting Gibson back to her room. Avery first noticed that Gibson's toe was bleeding and informed Molden of this condition. Then, Molden and Avery noticed that the skin of Gibson's legs was beginning to peel. Avery stated to Molden that she should report this to the treatment nurse, and Molden stated that she would report the change in Gibson's condition. Molden and Avery returned Gibson to her room, but neither Molden nor Avery reported the change in Gibson's condition to the treatment nurse. Rather, Molden reported to Cynthia Harrison that Gibson was ready for her dressings. Thus, the only contact that Avery had with Gibson was during the time that she assisted Molden in transporting her to the whirlpool room and back to her room.
¶ 33. Avery asserts that the adverse findings made against her are arbitrary and capricious because she reasonably and justifiably relied upon Molden to report the changes in Gibson's skin condition. The hearing officer, however, with regard to the actions of Avery, stated:
I find that the conduct of Avery is likewise inexcusable. She assisted Molden in removing the resident from the whirlpool, thus knowing that Molden had been the one who gave the resident the bath. When the dramatic skin changes started appearing, she in fact called Molden's attention to the fact. Molden stated that she [Molden] would report the incident. But Avery knew that Molden had given the whirlpool treatment to the resident. Avery saw Molden's reaction. Avery knew or should have known that Molden, being the one who caused the injury, might not report the incident, and should have done so herself;
I specifically find that the conduct of Avery and Molden is the exact, specific type of egregious conduct which the Mississippi Legislature and the Congress intended to address and deter when they enacted the Vulnerable Adults Act and the Certified Nurse Aide Program. At best the conduct can be characterized as reckless, at worst, as callous disregard for the resident's safety and well-being. Then, on appeal to the chancery court, the chancellor entered his order affirming the hearing officer's decision and stated:
The Appellants have requested the Court to reverse the decision of the Board because there was no substantial evidence presented to place Avery on the Nurse Aide Abuse Roster. The Court finds from the testimony that Avery, as a Nurse Aide, was under certain duties, and responsibilities which included, but was not limited to reporting to a Charge Nurse any change in the condition of a patient observed by her. It is clear from the record, including the testimony of Avery, that she did, in fact, see changes in the condition of Gibson, at the conclusion of the whirlpool bath, and did not, in fact, report the same to a nurse in charge or to anyone. The Court considers the above rule to be very important and necessary in caring for the needs of patients in long-term facilities. The patients involved in long-term facilities are mostly elderly individuals, and cannot care for themselves, and rely on the Nurse Aides to administer to their needs.
It is clear from the job description of Avery that she was required to report her observations of Gibson to a nurse in charge, and not relegate that responsibility to Molden. Molden was not a nurse in charge, but was a Nurse Aide, as was Avery.
¶ 34. This Court has held that "[t]he decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary and capricious; was beyond the agency's scope or powers; or violated the constitutional or statutory rights of the aggrieved party." Board of Law Enforcement Officers Standards & Training v. Butler, *43 672 So.2d 1196, 1199 (Miss.1996) (citing Sprouse v. Mississippi Employment Sec. Comm'n, 639 So.2d 901, 902 (Miss.1994); Mississippi Comm'n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993); Melody Manor Convalescent Ctr. v. Mississippi State Dep't. of Health, 546 So.2d 972, 974 (Miss. 1989)). This Court has discussed the meaning of the terms "arbitrary" and "capricious" as follows:
The terms "arbitrary" and "capricious" are open-textured and not susceptible of precise definition or mechanical application....
"Arbitrary" means fixed or done capriciously or at pleasure. An act is arbitrary when it is done without adequately determining principle; not done according to reason or judgment, but depending upon the will alone,absolute in power, tyrannical, despotic, non-rational,implying either a lack of understanding of or a disregard for the fundamental nature of things.
"Capricious" means freakish, fickle, or arbitrary. An act is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles....
Mississippi State Dep't. of Health v. Southwest Mississippi Reg'l Med. Ctr., 580 So.2d 1238, 1240 (Miss.1991) (quoting In re Hous. Auth. of City of Salisbury, 235 N.C. 463, 70 S.E.2d 500, 503 (1952)). Included within Avery's job description was a duty to "[r]eport any changes observed in the patients condition to the charge nurse." Avery observed changes in Gibson's condition, reported her observations to Molden, and informed Molden that she should report to the charge nurse the change in Gibson's condition, but Avery did not actually report herself the changes in Gibson's condition to the charge nurse. We find that Avery was not reasonably justified in relying on Molden to report Gibson's changes in condition where Avery was fully aware that Molden was administering the whirlpool bath to Gibson and was primarily responsible for the changes in Gibson's condition. Thus, we find that Avery's failure to report the changes in Gibson's condition resulted in the neglect of Gibson. Therefore, we hold that the agency's decision to permanently revoke the certification of April Avery, remove her name from the Certified Nurse Aide Roster, and to permanently place her name on the State Nurse Aide Abuse Roster was not arbitrary and capricious.
CONCLUSION
¶ 35. We affirm the Department's decision to permanently revoke the certification of Londa Molden and April Avery and have their names permanently placed on the State Nurse Aide Abuse Roster. We further observe that Molden's appeal is moot as a result of the constitutional validity of the Department's adoption of its Regulations Related to the Removal of Nurse Aides from the Registry and Molden's plea of nolo contendere to the misdemeanor abuse of a vulnerable adult which, per the regulations, automatically places her name on the State Nurse Aide Abuse Roster.
¶ 36. AFFIRMED.
PRATHER, C.J., SULLIVAN and PITTMAN, P.JJ., and BANKS, McRAE, JAMES L. ROBERTS, Jr., MILLS and WALLER, JJ., concur.
NOTES
[1] All issues in this appeal regarding Londa Molden are moot upon the finding that the regulations in question are constitutional and within the authority of the State Department of Health to adopt. The record reveals that on February 14, 1996 Molden was convicted in the Jackson County Circuit Court on a plea of nolo contendere to a charge of misdemeanor abuse of a vulnerable adult pursuant to Miss.Code Ann. § 43-47-19(1). As a result, pursuant to the Department's regulations, Molden's name was to be automatically removed from the Registry and placed on the Nurse Aide Abuse Roster upon a finding of guilty in a court of law or a nolo contendere plea. Mississippi State Dept. of Health, Licensure and Certification, Regulations Related to the Removal of Nurse Aides from the Registry, §§ II(B)(3).
[2] The Department's regulations, § I(C)(6), defines finding as follows: "`Finding' shall mean a determination made by the licensing agency that validates allegations of abuse, neglect or misappropriation against a long-term care resident." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918225/ | 730 So.2d 1179 (1999)
Iris Gay ETHERIDGE
v.
STATE of Alabama ex rel. A. Robert OLSON.
1971223.
Supreme Court of Alabama.
April 2, 1999.
*1180 L.P. Sutley and Spencer E. Davis, Jr., of Murchison & Sutley, Foley, for appellant.
H. William Wasden and J. Robert Turnipseed of Pierce, Ledyard, Latta & Wasden, P.C., Mobile, for appellee.
HOUSTON, Justice.
Iris Gay Etheridge appeals from a summary judgment for the State of Alabama ex rel. A. Robert Olson revoking her certificate of election. Exercising jurisdiction under Ala.Code 1975, § 6-6-598 (authorizing the contest of an election in a quo warranto action only if the election cannot be contested in another statutory proceeding), the trial court revoked Ms. Etheridge's certificate because she had failed to comply with the filing requirements of the Fair Campaign Practices Act ("FCPA"), Ala.Code 1975, § 17-22A-1 et seq.[1] The summary judgment declared vacant Ms. Etheridge's position on the Orange Beach City Council. We reverse and remand.
The parties disagree over whether the State could have contested Ms. Etheridge's election under Ala.Code 1975, § 11-46-69, which, in pertinent part, provides:
"(a) The election of any person declared elected to any office of a city or town may be contested by any person who was at the time of the election a qualified elector of such city or town for any of the following causes:
". . . .
"(2) The person whose election to office is contested was not eligible thereto at the time of such election;
". . . .
"(b) Any contest of such an election must be commenced within five days after the result of the election is declared...."
According to Ms. Etheridge, the trial court lacked subject-matter jurisdiction over this quo warranto action under § 6-6-598 because, she says, the State could have contested her election under § 11-46-69. See Ala. Code 1975, § 17-15-6, which states in part:
"No jurisdiction exists in or shall be exercised by any judge, court or officer exercising chancery powers to entertain any proceeding for ascertaining the legality, conduct or results of any election, except so far as authority to do so shall be *1181 specially and specifically enumerated and set down by statute...."
See also Harvey v. City of Oneonta, 715 So.2d 779 (Ala.1998).
Citing City of Talladega v. Pettus, 602 So.2d 357 (Ala.1992), the State takes the position that it had no way of challenging Ms. Etheridge's election under § 11-46-69. In Pettus, two Justices, construing § 17-22A-21 (part of the FCPA), stated that a certificate of election already issued to any person elected to a municipal office could not be judicially revoked for noncompliance with the FCPA. Five Justices concurred in the result reached in Pettus. The record indicates that the Orange Beach City Council, in accordance with § 11-46-55(a), declared Ms. Etheridge elected and issued her a certificate of election at a meeting of the council on October 1, 1996. According to the State, it was not until a decision was announced on February 7, 1997, in Ex parte Krages, 689 So.2d 799 (Ala.1997), that it had a statutory basis for challenging Ms. Etheridge's election under the FCPA. In Krages, three Justices purported to overrule Pettus, stating that a certificate of election to a municipal office already issued could be revoked. Five Justices concurred in the result reached in Krages, three of them dissenting as to the reasoning of the lead opinion. The State points out that the five-day limitations period for filing an election contest under § 11-46-69 had expired by the time Krages was announced; therefore, it argues, a quo warranto action provided its only statutory basis for challenging Ms. Etheridge's election and revoking her certificate of election.
Although the parties have ably framed their issue as being whether the State could have filed an election contest under § 11-46-69, we see a more fundamental issue that needs to be addressedwhether the trial court had jurisdiction to revoke Ms. Etheridge's certificate of election in any proceeding, whether in an election contest under § 11-46-69 or in a statutory quo warranto action. In this respect, we note that neither Pettus nor Krages has any precedential value. See Harvey, supra.[2] Therefore, we are not constrained by the doctrine of stare decisis, and we take this opportunity to revisit the issue whether § 17-22A-21 authorizes the revocation of a certificate of election to a municipal office.[3]
The lead opinion in Pettus, which addressed this issue for the first time, reads in pertinent part as follows:
"A court does not have the jurisdiction to interfere in an election result, unless a statute authorizes it to do so. Ala.Code 1975, § 17-15-6, divests courts of such jurisdiction. That statute provides, in pertinent part:
"`No jurisdiction exists in or shall be exercised by any judge, court or officer exercising chancery powers to entertain any proceeding for ascertaining the legality, conduct or results of any election, except so far as authority to do so shall be specially and specifically enumerated and set down by statute ...'
"This Court, in Turner v. Cooper, 347 So.2d 1339, 1346 (Ala.1977), said that `[c]ontests of elections are statutory creations, except insofar as we have noted, and the statutory requirements must be strictly complied with' (citations omitted).
"Is a trial court authorized, by statute, to revoke a certificate of election issued to a winning candidate in a municipal election? We think not. A court can prevent the issuance of a certificate of election to a municipal office, but, once the certificate is issued, the court is without authority to revoke it. Section 17-22A-21 states:
*1182 "`A certificate of election or nomination shall not be issued to any person elected or nominated to state or local office who shall fail to file any statement or report required by this chapter. A certificate of election or nomination already issued to any person elected or nominated to state or county office who fails to file any statement or report required by this chapter shall be revoked.'
"(Emphasis added [in Pettus].)
"The first sentence in the statute gives the Court the express power to prevent the issuance of a certificate of election to any person nominated to a `state or local office,' which is defined by § 17-22A-2(7) as `[a]ny office under the constitution and laws of the state, except circuit, district or legislative offices, filled by election of the registered voters of a single county or municipality, or by the voters of a division contained within a county or municipality,' but the second sentence of § 17-22A-21 omits the term `local office' and substitutes instead the term `county office.' It seems clear that the legislature deliberately made no provision for the revocation of a certificate of election in a municipal election. This Court, therefore, has no alternative but to hold that the legislature intentionally did not authorize the revocation of a municipal certificate of election."
602 So.2d at 359-60. (All emphasis in Pettus.)
In Krages, three Justices concluded that § 17-22A-21 was ambiguous and that Pettus's interpretation of that section was contrary to legislative intent. The lead opinion in Krages states:
"In short, Pettus's construction of § 17-22A-21 is unworkable. Therefore, to the extent it construes the second sentence of § 17-22A-21 as excluding municipal offices, Pettus is overruled."
689 So.2d at 806. (Emphasis original.)
After carefully reexamining Pettus and Krages, we conclude that Pettus interpreted § 17-22A-21 in the only way that it could be interpreted without violating the separation-of-powers doctrine and judicially legislating. As was noted in Pettus, § 17-22A-2(7), part of the "Definitions" section of the FCPA, provides this definition:
"LOCAL OFFICE. Any office under the constitution and laws of the state, except circuit, district or legislative offices, filled by election of the registered voters of a single county or municipality, or by the voters of a division contained within a county or municipality."
The second sentence of § 17-22A-21 states:
"A certificate of election or nomination already issued to any person elected or nominated to state or county office who fails to file any statement or report required by this chapter shall be revoked."
(Emphasis added.) Section 17-22A-21 is not ambiguous. It means what it says, and the term "local office" is specifically defined in the definitions section of the FCPA. The word "county," instead of the defined term "local office," is used in the second sentence of § 17-22A-21. The number of counties and their names are set out in Ala.Code 1975, § 11-1-1; "the City of Orange Beach" is not among them.
Therefore, consistent with the rationale of the lead opinion in Pettus, we hold that a certificate of election to a municipal office is not subject to revocation for failure of the person elected to comply with the FCPA and, therefore, that the trial court had no jurisdiction to revoke the certificate of election issued to Ms. Etheridge.
We note again, as we have done on previous occasions, that a court does not have jurisdiction to interfere in an election result unless a statute authorizes it to do so. The Legislature has made this abundantly clear. See § 17-15-6. We strongly urge the Legislature to reexamine § 17-22A-21. If in enacting that provision the Legislature meant for the term "county office" to mean "local office," it can, and should, amend § 17-22A-21 by substituting the word "local" for the word "county" in the second sentence. We also urge the Legislature to reexamine the first sentence of § 17-22A-21 in conjunction with § 11-46-69(a)(2). The first sentence of § 17-22A-21 states:
"A certificate of election or nomination shall not be issued to any person elected or *1183 nominated to state or local office who shall fail to file any statement or report required by this chapter."
This provision indicates that the Legislature envisioned a workable procedure whereby the qualification of a candidate for a municipal office could be contested based on noncompliance with the FCPA and the issuance of a certificate of election to that candidate could be enjoined. However, given the fact that a municipal election can be contested under § 11-46-69 only after the challenged candidate has been declared, by the municipal governing body acting in accordance with § 11-46-55(a), to have been elected, there is usually a very narrow window of opportunity (if an opportunity exists at all) in which a contest can be filed and an injunction obtained to prevent the issuance of a certificate of election.[4] It appears that § 11-46-55(a) contemplates that the municipal governing body will forthwith issue a certificate of election to the person declared elected. As previously noted, the city council declared Ms. Etheridge elected and issued a certificate of election to her at the same council meeting. Rejecting language to the contrary in Pettus, this Court held in Harvey, supra, that a trial court has no jurisdiction over a declaratory-judgment action filed before an election in an attempt to enjoin the issuance of a certificate of election to a candidate who has not complied with the FCPA. It seems, therefore, that § 11-46-69(a)(2) would be available to contest a candidate's qualification under the FCPA only in specific instances where the municipal governing body declared a candidate elected and then delayed issuing its certificate of election to that candidate. However, in those instances where there is insufficient time following the declaration of election to obtain an injunction against the issuance of the certificate of election, there would appear to be no practical means of redress under § 11-46-69(a)(2). This, of course, raises the question, which we leave for another day, whether, under the existing statutory framework, the trial court would have jurisdiction over a quo warranto action filed immediately after the election, but before the municipal governing body had declared a winner, challenging the qualifications of a candidate under the FCPA and seeking to enjoin the issuance of a certificate of election.
For the foregoing reasons, the judgment is reversed and the case is remanded.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, SEE, LYONS, and BROWN, JJ., concur.
COOK, J., concurs in the result and dissents from the rationale.
COOK, Justice (concurring in the result; dissenting from the rationale).
I agree with the majority that the trial court erred in revoking the certificate of election of Iris Etheridge to the office of councilperson for the City of Orange Beach. However, I respectfully, but earnestly, disagree with the opinion to the extent it rejects Ex parte Krages, 689 So.2d 799 (Ala.1997), and rehabilitates City of Talladega v. Pettus, 602 So.2d 357 (Ala.1992), which is ill-reasoned and unworkable and which three Justices in Krages correctly sought to overrule.
I particularly disagree with the majority when it states: "After carefully reexamining Pettus and Krages, we conclude that Pettus interpreted [Ala.Code 1975,] § 17-22A-21 in the only way that it could be interpreted without violating the separation-of-powers doctrine and judicially legislating." 730 So.2d at 1182 (emphasis added). While the words "judicially legislating" may be currently *1184 in vogue, the rule of omitted words has a history of some length and experience. See Pace v. Armstrong World Industries, Inc., 578 So.2d 281 (Ala.1991); Walker v. Kilborn, 46 Ala.App. 695, 248 So.2d 736 (Ala.Civ.App. 1971); State v. Calumet & Hecla Consol. Copper Co., 259 Ala. 225, 66 So.2d 726 (1953). I do not believe a court's use of recognized rules of statutory construction to implement legislative intent rises in any regard to the level of "judicial legislation."
As this court stated in State v. Calumet & Hecla Consol. Copper Co., supra, 259 Ala. at 232, 66 So.2d at 729 (quoting 59 C.J. 992-93):
"Words Omitted. Where it appears from the context that certain words have been inadvertently omitted from a statute, the court may supply such words as are necessary to complete the sense, and to express the legislative intent, but it cannot supply words purposely omitted, and should supply an omission only when the omission is palpable and the omitted word plainly indicated by the context; and words will not be added except when necessary to make the statute conform to the obvious intent of the legislature or prevent the act from being absurd; and where the legislative intent cannot be accurately determined because of the omission, the court cannot add words so as to express what might or might not be intended."
I concurred in the main opinion in Krages because I believed, based on the context of the statute in question, the Legislature intended to include a "local office" within the term "county office." The legislative intent in this case becomes clear when, in addition to applying the rule of omitted words, we apply that rule of statutory construction providing that when "`a statute is susceptible of two constructions, one of which is workable and fair and the other unworkable and unjust the court will assume that the legislature intended that [construction] which is workable and fair.'" See Ex Parte Krages, supra, 689 So.2d at 805 (quoting earlier cases). Pettus is particularly unworkable and unfair in its construction of § 17-22A-21 and, in addition, it grants power to the circuit court in derogation of the statute.
Pettus purports to hold that a trial judge has the power to order election officials not to perform ministerial duties clearly required of them by the Legislature. Specifically, Ala. Code 1975, § 11-46-55(a), provides:
"Not later than 12:00 noon on Wednesday after the election as required in this article the municipal governing body shall proceed to open the envelopes addressed to such governing body which have been delivered by the several returning officers to the municipal clerk, canvass the returns and ascertain and determine the number of votes received by each candidate and for and against each proposition submitted at such election. If it appears that any candidate or any proposition in such election has received a majority of the votes cast for that office or on that question, the municipal governing body shall declare said candidate elected to such office or said question carried, and a certificate of election shall be given to such persons by the municipal governing body or a majority of them, which shall entitle the persons so certified to the possession of their respective offices immediately upon the expiration of the terms of their predecessors as provided by law."
(Emphasis added.) As the emphasized portions of this statute illustrate, the "municipal governing body" has no discretion to refuse to issue a certificate of election to a municipal officer-elect.
The lead opinion in Krages properly acknowledged this legislative mandate, stating:
"The legislature, itself, sought to ensure the strict performance of this duty through the imposition of criminal sanctions for its nonperformance. Specifically, Ala.Code 1975, § 11-46-59(c), subjects to a minimum fine of $100 `[a]ny mayor or other chief executive [municipal] officer ... who willfully and knowingly neglects, fails or refuses to perform any of the duties prescribed.' However, because the certification of municipal election winners is a clearly defined, nondiscretionary duty, performance may also be compelled by a writ of mandamus....
"What may not be compelled judicially, however, is the nonperformance of the *1185 duty mandated by § 11-46-55(a). In other words, the judiciary may not order a municipal governing body to disobey or disregard its clearly expressed, statutory duty."
689 So.2d at 805 (emphasis in original).
Amazingly, the lead opinion in Pettus flouts this legislative mandate. It states that a circuit court can, in fact, prevent municipal election officials from issuing "a certificate of election to a municipal office." Pettus, 602 So.2d at 359.
The Pettus opinion arrives at this result through a stilted, arcane construction of Ala. Code 1975, § 17-22A-21. That section provides:
"A certificate of election or nomination shall not be issued to any person elected or nominated to state or local office who shall fail to file any statement or report required by this chapter. A certificate of election or nomination already issued to any person elected or nominated to state or county office who fails to file any statement or report required by this chapter shall be revoked."
(Emphasis added.) Under the guise of "strict construction," the lead opinion in Pettus and now, the majority in this case insists that the Legislature deliberately created an anomaly by substituting "county office" in the second sentence for "local office" in the first sentence, even though such a change would bring § 17-22A-21 into direct conflict with § 11-46-55(a).
The anomaly thus created is that, if, as the majority insists, the term "local office" does not include a "county office," then the first sentence of § 17-22A-21 does not address county offices and the second sentence does not address local offices. Actually, a "county office" is expressly included within the definition of a "local office" in Ala.Code 1975, § 17-22A-2(7), which defines a "local office" as "[a]ny office under the constitution and laws of the state, ... filled by election of the registered voters of a single county or municipality, or by the voters of a division contained within a county or municipality." Under this definition, "a `local office' is not necessarily a `county' office, [but] a `county' office is a local office, as defined in § 17-22A-2(7)." Ex parte Krages, 689 So.2d at 804 n. 2 (emphasis in original). The conflict created by the construction given § 17-22A-21 in the lead opinion in Pettusand now given that section by today's majorityis that § 11-46-55(a) requires municipal-election officials to do that which § 17-22A-21, under that construction, forbids them to do, namely, promptly to certify the election.
Unlike the majority, I understand § 17-22A-21 as though it read:
"A certificate of election or nomination shall not be issued to any person elected or nominated to state or local office, as defined in this chapter, who shall fail to file any statement or report required by this chapter. If a certificate is issued, and it be found in a contest conducted pursuant to § 11-46-69 of this Code, to have been erroneously issued, because of the failure of a person elected or nominated to state or local office, as defined in this chapter, to file any statement or report required by this chapter, the certificate shall be revoked."
This construction would eliminate the anomaly and the conflict created by the lead opinion in Pettus, and it would be consistent with the intent of the Legislature in enacting the Fair Campaign Practices Act. See Krages, 689 So.2d at 806.
It is axiomatic that legislative intent is the "`polestar' of statutory construction." Richardson v. PSB Armor, Inc., 682 So.2d 438, 440 (Ala.1996); see also Jones v. Conradi, 673 So.2d 389, 394 (Ala.1995); Weems v. Jefferson-Pilot Life Ins. Co., 663 So.2d 905, 912 (Ala.), cert. denied, 516 U.S. 971, 116 S.Ct. 434, 133 L.Ed.2d 348 (1995); Ex parte Jordan, 592 So.2d 579, 581 (Ala.1992). Thus, contrary to the majority's implications, the Justices joining the lead opinion in Krages were not "legislating" when they construed an ambiguous statute in a manner consistent with the intent of the Legislature.
Additionally, I must also take issue with the majority when it says: "Section 17-22A-21 is not ambiguous." 730 So.2d at 1182. Of course, it is ambiguous, and the majority admits as much, when, a few lines later in its opinion, it "strongly urge[s]" the Legislature *1186 to "reexamine" it "in conjunction with" §§ 11-46-55 and -69.
In short, of the lead opinions issued in the two cases Krages and Pettus, the one in Krages is by far the better reasoned and the more faithful to the doctrine of separation of powers. The Legislature "did not intend for the courts of this state to order municipal governing bodies to disregard the legislature's statutory mandates." Krages, 689 So.2d at 806. Therefore, the lead opinion in Pettus, not the one in Krages, should be rejected. For these reasons, I concur in the result of today's opinion, but dissent from the rationale.
NOTES
[1] The election was held on August 27, 1996, and a run-off election was held on September 17, 1996. Ms. Etheridge failed to timely file preelection disclosure forms that are required by the FCPA.
[2] Krages has been cited in only two casesHarvey and Derryberry v. Sanders, 695 So.2d 1180 (Ala.1997). Derryberry did not involve the issue with which we are concerned in this case.
[3] This Court normally will not reverse a judgment on a point not argued by the parties. See Smith v. Equifax Services, Inc., 537 So.2d 463 (Ala.1988). However, lack of subject-matter jurisdiction may not be waived by the parties, and it is the duty of an appellate court to consider lack of subject-matter jurisdiction ex mero motu. Ex parte Smith, 438 So.2d 766 (Ala.1983). Furthermore, because of the confusion that has resulted from Pettus and Krages, and because of the importance of the basic issue presented (whether a popularly elected city official could be removed from office approximately 10 months after the election), we believe it would be imprudent for us not to reexamine those decisions.
[4] The Legislature has the power, within constitutional limitations, to provide for the manner in which the result of an election shall be determined and declared. Where the Legislature has so provided, the election is not complete until the legislative mandate is obeyed. The declaration of the result of an election is an indispensable part of the election process. The declaration furnishes the first authentic evidence of what the choice of the people is and by which the person elected can know that he is entitled to the office. See 26 Am.Jur.2d Elections § 400 (1996).
We note that an election contest under § 11-46-69 was filed in Krages, supra, which involved the same municipal election at issue here. However, the specific issue whether the trial court had jurisdiction over that contest (which was filed before the results of the election were declared by the city council) was not presented to or addressed by this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918228/ | 730 So.2d 858 (1999)
Deborah ATWELL, Appellant/Cross-Appellee,
v.
George W. ATWELL, Appellee/Cross-Appellant.
Nos. 98-600, 98-1888 and 98-2507.
District Court of Appeal of Florida, First District.
April 30, 1999.
Laura E. Keene and Ross A. Keene, of Beroset & Keene, Pensacola, for Appellant/Cross-Appellee.
E. Jane Brehany, Pensacola, for Appellee/Cross-Appellant.
PER CURIAM.
Deborah Atwell challenges a judgment that annulled her marriage to George Atwell, who cross-appeals orders on child support and attorney's fees. We reverse the annulment and, for reasons set out below, we do not address the cross-appeal.
The facts are these: Deborah Atwell was married in California in 1974 to Thomas Gary Favara. In 1978, she commenced divorce proceedings against Mr. Favara in California, and, pursuant to stipulation, received an interlocutory judgment of dissolution of marriage on August 6, 1980. This judgment was not final and would not become final until one of the parties made a proper motion. Neither party took any action at that time.
Deborah Favara and George Atwell had been dating during the pendency of her divorce proceedings, and were married in Pensacola, his home town, on April 9, 1981. Shortly after their wedding, they returned to *859 California, where George Atwell, then a U.S. Navy physician, was stationed.
Almost immediately upon her return to California, Mrs. Atwell became involved in a legal dispute with Mr. Favara and his girlfriend, and hired legal counsel. Her lawyer discovered that the interlocutory dissolution had never been made final, and moved the California court to enter the final dissolution of the Favara marriage nunc pro tunc, pursuant to a California statute.[1] The California court entered an order April 28, 1981, but made it nunc pro tunc to November 6, 1980.
For 14 years, Dr. and Mrs. Atwell lived together, purchased and owned property by the entireties and filed joint income tax returns. Dr. Atwell adopted Mrs. Atwell's child from her marriage to Mr. Favara, and the couple had two other children. In 1995 Dr. Atwell instituted dissolution of marriage proceedings, and approximately one year later filed a petition for annulment, contending that Deborah Atwell was not yet divorced at the time she married him, so they were never legally married.
The trial court ultimately agreed with Dr. Atwell and granted the annulment.[2] The court ruled that, while the parties believed that they were entering into a valid marriage in Florida, their marriage was void because Mrs. Atwell had not yet moved the California court to make final her dissolution from Mr. Favara.
After granting the judgment annulling the marriage, the trial court took up the issues of child support and alimony. The parties had previously entered into a mediated agreement that called for Dr. Atwell to pay $2,100 per month in child support and $4,300 monthly in alimony should the trial court not grant the annulment. In the event of an annulment, only the property division and child support would be binding.
The trial court ruled it was "precluded" from awarding alimony to Mrs. Atwell because of the mediated agreement and also because she was not entitled to alimony, as she was still married in California at the time she was married in Florida and could "not be designated an innocent party." The trial court did, however, increase the child support from $2,100 monthly, ultimately setting it at $3,177.38 monthly (the recalculation was due, in part, to the fact that Mrs. Atwell would not be receiving alimony).
The court also awarded Mrs. Atwell attorney's fees for an appeal, ordering $9,000 to be paid to Mrs. Atwell's attorney.
Mrs. Atwell challenges the annulment, arguing that the trial court erred in not granting full faith and credit to the California nunc pro tunc judgment and pointing to the negative consequences of annulling a 16-year marriage, which include the fact that it illegitimizes the two children born of their marriage, casts doubt on the validity of the adoption (which was premised on Dr. Atwell being married to the child's mother), and could have serious tax and military benefit ramifications. Dr. Atwell cross-appeals the orders setting child support and awarding attorney's fees. Because we agree with Mrs. Atwell that the trial court erred in not giving full faith and credit to the California judgment of dissolution of marriage, and therefore erred in granting the annulment, we decline to address the cross-appeal.
The trial court analyzed the issue of whether the marriage was valid by inappropriately *860 applying Florida law without regard to the action of the California court. It reasoned that Mrs. Atwell would not have been considered divorced under Florida law, and was therefore legally incapable of entering into a valid marriage at the time.
By concluding that Mrs. Atwell could not have received a nunc pro tunc divorce under Florida law, the trial court overlooked the main point, which is that in fact and by law California had declared Mrs. Atwell's first marriage dissolved as of November 6, 1980. Under the United States Constitution, state courts are bound to give full faith and credit to valid judgments rendered in other states, irrespective of whether the law of the forum state would have permitted the same result.
The Constitution states the proposition quite succinctly: "Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State." U.S. Const. art. IV, § 1. To give full faith and credit to a foreign judgment is to give it the same effect that the foreign state would have given it. See Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945). As noted by the 11th Circuit, Williams established "a two-stage analysis" for applying the Full Faith and Credit clause. Fehlhaber v. Fehlhaber, 669 F.2d 990, 994 (5th Cir.1982).
First, the full faith and credit clause does not take effect if the original court lacked personal or subject matter jurisdiction. But a collateral examination of possible jurisdictional defects cannot be made, according to federal principles of res judicata, if these issues were litigated or could have been litigated in the original proceeding. At the second stage of analysis, assuming the full faith and credit clause does come into play, a state court is required to give a prior sister state court's judgment only "the same credit, validity, and effect... which it had in the state where it was pronounced."
Id. at 994 (citations omitted).
Under that analysis, it is clear that full faith and credit should have been given the California judgment and official records, which show that the marriage of Deborah and Thomas Gary Favara was dissolved as of November 6, 1980, some five months prior to the Atwells' marriage in Florida. California had jurisdiction over the subject matter and over the parties (it is undisputed that the Favaras were domiciled there) and California courts would recognize the Favara divorce as being effective on November 6, 1980. Therefore, the courts of this state and all others must recognize that as the official date. See, e.g. Estate of Storer, 14 Wash.App. 687, 544 P.2d 95 (1975)(giving full faith and credit to California judgment of divorce granted nunc pro tunc).
Moreover, it appears that Mrs. Atwell's situation was precisely that which the California law was intended to address. One California court expressed the rationale of permitting nunc pro tunc divorces as follows:
The purpose was to validate otherwise void marriages and thus relieve the parties to such marriages from the stigma and other consequences of bigamous relationships into which they might innocently fall by reason of oversight or neglect to have a final decree entered. Mere entry of the nunc pro tunc judgment acts retroactively to restore them to the status of single persons and at the same time gives them and their later acquired spouses legal married status. It is all strictly artificial, but so is the semidivorced status occupied by the holders of an interlocutory decree.
In Re Hughes' Estate, 80 Cal.App.2d 550, 182 P.2d 253, 256 (1947).
This matter is very simple when considered in light of the official records of California and Florida, which show that Deborah Atwell was married to Mr. Favara in 1974, was divorced from him in 1980, and was married to George Atwell in 1981. The trial court should have looked no further than that.
It is axiomatic that a valid dissolution of marriage, granted by a court of competent jurisdiction, removes legal incapacity to marry. The marriage of Deborah and George Atwell thus was valid as a matter of law, and this cause must be remanded for the trial court to take up the dissolution action.
*861 Upon remand, the trial court will have to readdress the questions of alimony and child support. The rationale for denying alimony was that the parties had never been validly married. Obviously, our holding that their marriage was valid has the effect of vitiating that rationale. Moreover, if Mrs. Atwell is to receive alimony, her income may be substantially changed and the calculations regarding child support may need to be readdressed. Thus, we leave it to the trial court to determine the effect of the parties' mediated settlement agreement.
As to the cross-appeal on attorney's fees, we note that Dr. Atwell's argument is premised on the now unsupportable position that fees were inappropriate because the marriage was not valid. Moreover, we note that such an order is permitted under section 61.16, Florida Statutes. However, in light of the fact that our decision may change the parties' financial status, and not wishing to intrude on the discretion of the trial court, we decline to reach this issue, as well.
The judgment below is reversed and the matter is remanded for proceedings consistent with this opinion.
JOANOS, MINER and DAVIS, JJ., CONCUR.
NOTES
[1] The entry of nunc pro tunc orders of divorce apparently is a longstanding practice in California. Presently, it is expressed in California Family Code section 2346(a), which states in pertinent part:
If the court determines that a judgment of dissolution of the marriage should be granted, but by mistake, negligence, or inadvertence, the judgment has not been signed, filed, and entered, the court may cause the judgment to be signed, dated, filed, and entered in the proceeding as of the date when the judgment could have been signed, dated, filed, and entered originally....
Subsection (d) provides, in pertinent part: "Upon the entry of the judgment, the parties have the same rights with regard to the dissolution of marriage becoming final on the date that it would have become final had the judgment been entered upon the date when it could have been originally entered."
[2] The court below employed a curious procedure wherein it granted Dr. Atwell's motion for summary judgment on the petition for annulment, and then held an evidentiary hearing to consider Mrs. Atwell's defenses. It entered a Final Judgment of Annulment after this hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4184960/ | FILED
NOT FOR PUBLICATION
JUL 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT SCHUTZA, No. 15-55631
Plaintiff-Appellant, D.C. No.
3:14-cv-02576-BAS-DHB
v.
COURTESY CHEVROLET CENTER, a MEMORANDUM*
California Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted February 6, 2017**
Pasadena, California
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
We vacate the district court’s dismissal of this action, and we remand for
reconsideration in light of Karczewski v. DCH Mission Valley, LLC, No.
15-55633.
VACATED and REMANDED. Costs on appeal awarded to Plaintiff.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
FILED
Schutza v. Courtesy Chevrolet Ctr., No. 15-55631
JUL 10 2017
BYBEE, Circuit Judge, acquiescing dubitante: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I acquiesce dubitante for the reasons articulated in my separate opinion in
Karczewski v. DCH Mission Valley, LLC, No. 15-55633. | 01-03-2023 | 07-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1575240/ | 308 S.W.3d 205 (2010)
Jeffrey M. WALSON (Judge, 25th Judicial Circuit of Kentucky), Appellant,
v.
The ETHICS COMMITTEE OF the KENTUCKY JUDICIARY, Appellee.
No. 2009-SC-000623-OA.
Supreme Court of Kentucky.
April 22, 2010.
*206 OPINION AND ORDER
I. INTRODUCTION AND FACTUAL SUMMARY.
The Ethics Committee of the Kentucky Judiciary was asked to determine if the Kentucky Code of Judicial Conduct (Code), set forth at Rules of the Supreme Court (SCR) 4.300, prohibits a Kentucky justice or judge from serving as a member of the board of directors or on an advisory board of a financial institution. Revising some of its past opinions, the Committee issued Formal Judicial Ethics Opinion (JE) 118 stating that no justice or judge may serve as either an advisor or member of the board of directors of a financial institution, unless that justice or judge "has invested personal funds in a banking company...."
This Court has reviewed JE-118 under SCR 4.310(4) at the request of Jeffrey Walson, a family court judge in the 25th Judicial Circuit of Kentucky. Judge Walson serves on the advisory board of a bank. We conclude that in JE-118, the Committee correctly determined that no member of the state judiciary may serve as an advisor or director for a financial institution. But we further conclude that the Committee erred in JE-118 by making an exception for members of the judiciary who have a personal financial stake in the financial institution they serve.[1]
II. ANALYSIS.
This case presents two questions. First, may a justice or judge, serving at any level of the Kentucky Court of Justice, be a member of the board of directors or of an advisory board of a financial institution? We agree with JE-118 that the answer is no. Having reached that conclusion, we must then decide whether JE-118 correctly made an exception, which allows a justice or judge to serve on a board of a financial institution in which the justice or judge has a personal financial stake. We agree with Judge Walson that the exception is improper.
A. The General Prohibition Applies to All Members of the Judiciary.
Canon 2 of the Code plainly says that a judicial officer "may properly lend the prestige of the judge's office to advance the public interest in the administration of justice[,]" but a judge "shall not lend the prestige of judicial office to advance the private interests of the judge or others...." Closely related is Canon 4 D(3), which permits a judicial officer to serve as an officer, director, etc., of a business entity, unless that business entity, among other things, is "likely to be *207 engaged in proceedings that would ordinarily come before the judge, or ... [is] likely to be engaged frequently in adversary proceedings in the court of which the judge is a member ...." Canon 4 D(3)(a)(ii)-(iii).
Banks and other financial institutions are frequent litigants at all levels of the courts of this Commonwealth. And the Canons make no distinction related to the court on which the judicial officer serves. So it would appear beyond dispute that district, circuit (including family court), and appellate judicial officers are all prohibited from serving as officers, directors, etc., for financial institutions.[2]
Of course, we do not believe that any of our conscientious judicial officers across the Commonwealth intentionally lends the prestige of office to the financial institutions on whose boards they serve. But we agree with the Committee's general conclusion that judicial officers are prohibited by the Canons from serving as directors or advisors of financial institutions because those judicial officers' service does unquestionably lend the prestige of the judicial offices to those financial institutions.
So we decline to disturb JE-118's conclusion that the Canons contain a general prohibition against judicial officers serving as advisors, directors, and the like on behalf of financial institutions. Judge Walson seems to accept the existence of that general prohibition; but he argues that family court judges and, as we understand his point, only family court judges should be exempt from that general prohibition. We disagree.
As Judge Walson notes in his motion for review, financial institutions themselves are not likely to be frequent litigators in family court. But we consider a special exception for family court judges improper for two reasons. First, although not themselves parties, financial institutions will frequently have some interest in the outcome of family court proceedings by virtue of being the repositories of the funds or the holders of debt of the family court litigants.[3] Second, and more importantly, adopting Judge Walson's position would require us to engage in an impermissible and arbitrary division of the offices of circuit judge and family court judge.
Section 109 of our Kentucky Constitution states, in relevant part, that "[t]he judicial power of the Commonwealth shall be vested exclusively in one Court of Justice which shall be divided into ... a trial court of general jurisdiction known as the Circuit Court...." And a circuit court division designated as a family court "shall retain the general jurisdiction of the Circuit Court and shall have additional jurisdiction *208 as may be provided by the General Assembly." Ky. Const. § 112(6). So, in simple terms, family court judges are circuit judges. And as we recently noted, "[c]onstitutionally speaking, Kentucky has but one circuit court and all circuit judges are members of that court and enjoy equal capacity to act throughout the state." Baze v. Commonwealth, 276 S.W.3d 761, 767 (Ky.2008). There is no constitutional basis, therefore, to treat family court judges differently from other circuit court judges. Judge Walson's argument asks us to divide the indivisible.
The constitutional provisions referenced in this opinion plainly lead to a conclusion that there is also no basis under the Code for us to adopt an arbitrary distinction between circuit judges exercising general jurisdiction and circuit judges exercising family court jurisdiction. Canon 4 D(3)(a)(iii) prohibits a judicial officer from serving as an officer, director, etc., for any business entity "likely to be engaged frequently in adversary proceedings in the court of which the judge is a member...." Family court judges are members of the circuit court, and it is indisputable that financial institutions are frequent litigants in circuit court. So the contention that family court judges and only family court judges may serve the interests of financial institutions is contrary to both Kentucky's Constitution and the Code of Judicial Conduct.
The Committee concluded that it was "unable to ascertain any purpose to an Advisory Board other than to lend the judge's name to enhance the prestige of the institution to enable it to draw more business." (Internal quotation marks omitted.) Judge Walson takes issue with this conclusion, arguing that it "stems from either a lack of understanding, consideration, or imagination." We agree that the Committee appears to have used unfortunately broad language in this section of its opinion. It is certainly possible that a judicial officer's education, training, or previous practice or employment experience could make the judicial officer well qualified to serve as an advisor or director for a financial institution. But Judge Walson has not cited to anything specific, apart from his own personal experience, to support his presumption that judicial officers are invariably chosen to serve financial institutions for reasons that have nothing to do with the high offices they hold. Although we do not embrace the broad language used by the Committee, we must reluctantly agree with its conclusion that, at least sometimes, judicial officers are placed on bank boards primarily because they are judicial officers who are popularly elected in the community from which the financial institution draws its customer base.
Although our focus must primarily be upon Kentucky law, we have also examined authority in other state judicial systems for guidance. Unfortunately, there are few reported decisions on this subject. But our conclusion that service as a judicial officer generally precludes simultaneous service as a director or similar officer of a financial institution is in accord with decisions from both the Oklahoma Judicial Ethics Advisory Panel[4] and the Supreme Court of Louisiana.[5]
*209 Finally, we are compelled to note that adoption of Judge Walson's arguments would permit judicial officers to serve the interests of typically for-profit financial institutions while, by contrast, judicial officers are prohibited by JE-117 from serving as a member of the board of trustees of a public university.[6] It is unnecessary in this opinion to expound on the reasons underlying JE-117, and we intend no criticism of that decision. Instead, we merely point out that adoption of Judge Walson's arguments would lead to a seemingly incongruous juxtaposition between what a judicial officer (or at least a family court judge) could permissibly do on behalf of a presumably for-profit financial institution with what a judicial officer may not do on behalf of a non-profit public university. That juxtaposition seems illogical and arbitrary and, potentially, could undermine the public's confidence and trust in the judiciary.
B. No Exception for Having a Personal Financial Stake.
Although we reject his conclusion regarding a special exception for family court judges, we do agree with Judge Walson's argument that the Committee erred in JE-118 by holding that a judicial officer is permitted to serve a financial institution merely because the judicial officer holds stock, or has a similar financial interest, in the financial institution being served. To the contrary, Canon 2 D explicitly forbids such a conclusion because it unquestionably prohibits judicial officers from "lend[ing] the prestige of judicial office to advance the private interests of the judge or others...." Additionally, the Ethics Committee's conclusion seems to run afoul of Canon 4 D(4), which requires a judicial officer to "manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified."
Obviously, any director or advisor to a financial institution must seek to further the interests of that financial institution. Babineaux, 341 So.2d at 400. ("The petitioners' contention that a directorship is a neutral position is untenable. It overlooks the fact that a director owes a fiduciary duty to the corporation. In practical terms, this means a duty to efficiently manage its affairs and promote its business."). We fail to see how merely owning at least one share of stock in a financial institution overrides the Code so as to function as a virtual free pass for a judicial officer to advance the private pecuniary interests of that financial institution. In other words, there is no distinction in the Canons between being an owner or nonowner of stock in the financial institution; and the Committee erred by grafting such an unwarranted exception onto the Code.
III. CONCLUSION.
We emphasize that we cast no aspersions on Judge Walson or any similarly situated judicial officer who is currently serving as a director or advisor for a financial institution. To the contrary, we trust that Judge Walson and all the judicial officers of this Commonwealth strive scrupulously to follow the requirements of the Code. But our construction of the Code and the Kentucky Constitution leads us to the inescapable conclusion that judicial officers, *210 regardless of their benign intentions, are prohibited from accepting these types of positions with financial institutions. We agree with the Supreme Court of Louisiana that such a prohibition:
serves to reduce the possibility that a judge would, or would seem to, use the prestige of his judicial office to attract business for the financial institution, to eliminate the potential conflict between a director's fiduciary duty to the corporation and his judicial duties, and to lessen the possibility of conflict of interest for the judge revolving around litigation before the court.
In re Babineaux, 346 So. 2d 676, 679-80 (La.1977).
We agree with the Committee that no judicial officer, family court or otherwise, may serve as an advisor, director, or the like for financial institutions. We reject the Committee's conclusion that a judicial officer may serve as a director or advisor of a financial institution if the judicial officer has a financial stake in that financial institution.
All sitting. MINTON, C.J.; ABRAMSON, CUNNINGHAM, NOBLE, SCOTT, and VENTERS, JJ., concur.
SCHRODER, J., dissents by separate opinion.
ENTERED: April 22, 2010.
/s/ John D. Minton, Jr.
SCHRODER, J., DISSENTING.
Because I believe that the language of the Code of Judicial Conduct should be applied to the individual judge and the individual business at issue, I respectfully dissent. I take a broader view of the language of Canon 4 D(3), and read it to be permissive in nature.
This case involves the application of the Code of Judicial Conduct (SCR 4.300). The question asked was whether a Kentucky Judge or Justice, consistent with the Code of Judicial Conduct, could serve as a director on the board of directors or on the advisory board of a financial institution. Governing this situation is SCR 4.300, Canon 4, which states: "A judge shall so conduct the judge's extra-judicial activities as to minimize the risk of conflict with judicial obligations." Canon 4 D addresses "Financial Activities" and provides, in pertinent part:
(1) A judge shall not engage in financial and business dealings that:
(a) may reasonably be perceived to exploit the judge's judicial position, or
(b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.
(2) A judge may, subject to the requirements of this Code, hold and manage investments of the judge and members of the judge's family, including real estate, and engage in other remunerative activity.
(3) A judge may serve as an officer, director, manager, general partner, advisor or employee of any business entity subject to the following limitations and the other requirements of this Code:
(a) A judge shall not be involved with any business entity
(i) generally held in disrepute in the community, or
(ii) likely to be engaged in proceedings that would ordinarily come before the judge, or
(iii) likely to be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction *211 of the court of which the judge is a member.
(b) A judge involved with any business entity may assist such a business entity in planning fund-raising and may participate in the management and investment of the entity's funds, but shall not personally participate in the solicitation of funds, the raising of capital or the selling of stock in such a manner as to use or permit the use of the prestige of judicial office for promotion of the business entity.
The question before us was previously presented to the Ethics Committee under the former code and answered in JE-67 and JE-78. In JE-67, the Ethics Committee was asked whether a judge may ethically "serve as a member of an advisory board of a local financial institution." The Ethics Committee recognized that "[t]he Kentucky Judicial Code of Ethics does not absolutely prohibit judges from serving on the boards of banks." The Ethics Committee acknowledged that Kentucky has taken a more lenient approach than the ABA Code of Judicial Conduct, and "has not chosen to strictly prohibit judges from being involved in certain businesses such as banks...."
Nevertheless, the Committee decided that other provisions of the Code prohibited service on this advisory board. Canon 5 F (now Canon 4 G) prohibited judges from giving legal advice, and Canon 5 B(2) and Canon 5 C(1) (now Canon 2 D and Canon 4 D) forbade the judge from allowing the prestige of his or her office to be used to draw more business. The Committee was, therefore, "unable to determine any purpose the judge could serve on an advisory board other than lending his name to enhance the prestige of the institution to enable it to draw more business." Hence, the Committee advised that "a judge may not serve as a member of [an] Advisory Board of a local financial institution."
A variation of the question came back to the Ethics Committee when they were asked, "May a district judge serve as director of a local bank?" Responding with JE-78, the Ethics Committee answered a "Qualified yes." Pointing out that the district judge must be careful not to lend the prestige of his office to advance the interest of the bank, the Ethics Committee advised that a district judge could serve as a bank director because a local bank is not often in district court. The Committee noted that in the event the bank was in district court, the judge would have to disqualify himself. Apparently, the fact that this was not merely an "advisory" board was distinguishing, and the bank had other reasons (other than using the prestige of his office) to want to have the judge on its board of directors.
JE-118 was issued by the Ethics Committee as a result of the Supreme Court's request that the Ethics Committee review all existing Judicial Ethics Opinions. The purpose of JE-118 was to address "a possible contradiction between" JE-67 and JE-78. Accordingly, the Ethics Committee stated the question as "May a Kentucky Judge or Justice, consistent with the Code of Judicial Conduct, serve as a director on the board of directors or on the advisory board of a financial institution?" The Ethics Committee answered a "Qualified No."
The Committee recognized that the express language of Canon 4 D(3) seemingly permits such participation in a business, but that the Commentary cautions that such service may be prohibited by other provisions of the Code. In this regard, the Committee looked to Canon 2 D, which provides that "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others," and to Canon 4 D(3)(iii) which provides *212 that a judge shall not be involved with any business entity "likely to be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member."
The Committee identified banks per se as a business to avoid because "banks are engaged in litigation much more frequently than other businesses." With regard to Canon 2 D, the Committee withdrew the distinction in circuit and district judges it made in JE-78. The Committee was unable to ascertain any purpose to any judge, irrespective of level of judicial service, serving on an advisory board or board of directors, other than to lend the judge's name to enhance the prestige of the institution to enable it to draw more business. The Committee decided to eliminate even the mere risk. Recognizing, however, "the right of a judge to have and maintain investments", the Committee carved out an exception that a judge may serve on the board of directors of a banking company in which the judge owns stock.
Movant is currently a circuit judge in the family court division, and he serves on the advisory board of a local bank. Standing is not an issue, nor is any actual conflict alleged between his office as judge and his position with the bank. Movant contends that JE-118 is far too narrow an interpretation of Canon 4 D of the Code of Judicial Conduct, and that such interpretation arbitrarily and unnecessarily restricts the non-judicial activities of judges and justices.
My interpretation of the language of Canon 4 D(3) is that it is permissive in nature and does not except out banks or other financial institutions. The clear wording of Canon 4 D(3) provides: "A judge may serve as an officer, director, manager, general partner, advisor or employee of any business entity subject to the following limitations and the other requirements of this Code...." (Emphasis added.) The language is permissive,[7] with no distinctions related to the court in which the judge serves, in the type of business, the position held (director or an advisor), nor requirement that the judge own stock in said business to be either a director or advisor. Only after this permissive language does the Canon qualify this permissive language to exclude businesses that are:
(i) generally held in disrepute in the community, or
(ii) likely to be engaged in proceedings that would ordinarily come before the judge, or
(iii) likely to be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.
Canon 4 D(3)(a).
Here again, the exclusionary language of Canon 4 D(3) does not single out any business per se, nor distinguish between being a director or an advisor. There is no distinction between being an owner or nonowner of stock in the business. Further, when an individual is named without the title of "Judge," I would like to presume the purpose of having the judge serve on an advisory board or board of directors has something to do with his or her knowledge of the subject matter, although it could be shown otherwise and contrary to Canon 2 D. The language of *213 the Canons must be applied to the individual business in the community and to the individual judge.
I agree with Movant that this particular business (a bank or financial institution) is not likely to come before this particular judge (a family court judge). Occasional conflicts, if any, can be dealt with through the judge's disqualification or recusal. To the extent that JE-118 opines otherwise, it conflicts with the clear wording of Canon 4 Dall. I would vacate JE-118 to that extent.
NOTES
[1] Because the issue is not properly before us, we express no binding opinion at this time as to whether a judicial officer may serve as an advisor or director to a business entity other than a financial institution.
[2] Thus, the Committee properly withdrew its formal opinion in JE-78, which had held that district court judges were permitted to serve as directors of banks.
[3] See, e.g., Steven Lubet, Regulation of Judges' Business and Financial Activities, 37 EMORY L.J. 1, 28 (1988) ("It should be apparent, however, that certain institutions are more litigation sensitive' than others. Banks, insurance companies, and utilities may often be affected by the outcome of litigation even where the particular entity is not a party to the particular proceeding. ... Similarly, financial institutions may have an interest in lawsuits concerning general banking law, securities, pension regulation, trusts, and a host of other subjects. Thus, a judge who sits on the board of directors of an insurance company will be faced with many more actual and potential conflicts of interest than will a judge who operates a hardware store. The conflicts are no less troubling because they are inchoate or general rather than being tied to specific litigation. The same holds true for virtually all of the heavily regulated industries, but banks, insurance companies, and utilities are among those that are the most closely involved with state government and state law.") (emphasis added and footnote omitted).
[4] In re Judicial Ethics Opinion 2004-4, 103 P.3d 84 (Okla.Jud.Eth.2004) (answering in the affirmative the question of whether "appointment to the Bench and assuming office necessitate or require the judge to resign as a Director of a Federal Credit Union[.]").
[5] Babineaux v. Judiciary Commission, 341 So. 2d 396, 403 (La.1976) (finding constitutional a canon of judicial ethics prohibiting judicial officers from serving on the board of directors of financial institutions).
[6] JE-117 was rendered in April 2009 and is available to the public at http://courts.kv.gov/NR/rdonlyres/50756AF1-2DA5-4B29-98C2-24471F5C0A98/0/JE117.pdf.
In May 2009, a majority of this Court declined to review JE-117 in case no. 2009-SC-000242-OA, In re Honorable Jeff S. Taylor. The public may view the stepsheet, which summarily reflects our decision to decline review of JE-117 by entering the appropriate case information at http://apps.courts.ky.gov/supreme/sc_dockets.shtm.
[7] See SCR 4.300, Kentucky Code of Judicial Conduct, pmbl., which provides, in part, "[w]hen `may' is used, it denotes permissible discretion or, depending on the context, it refers to action that is not covered by specific proscriptions." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3350969/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT
The plaintiff, Southern Connecticut Gas Company, has moved for summary judgment in two related cases. The issue common to both cases is whether the tax assessor of the City of Bridgeport possessed legal power in November of 1992 and May of 1993 to alter the municipal grand lists of October 1, 1989, 1990 and 1991, by increasing the value of the plaintiff's property listed on each list. This court concludes the assessor's authority to alter the list had expired. For the reasons stated below, the motions for summary judgment are granted.
In the first proceeding, the Southern Connecticut Gas Companyv. City of Bridgeport, CV93-0304579S, the plaintiff (Southern) appeals pursuant to General Statutes § 12-117a from the action of the Board of Tax Review. The following allegations in Southern's appeal-application have been admitted by the City of Bridgeport: Southern is the owner of personal property located in Bridgeport. Southern included the personal property in the lists of property it filed with the assessor of the City of Bridgeport for October 1, 1989, October 1, 1990, and October 1, 1991. The assessor included said personal property in the name of Southern in each of its grand lists of personal property for October 1, 1989, October 1, 1990, and October 1, 1991. Tax bills were rendered to Southern for taxes levied with respect to each of such grand lists. The tax bills have been paid in full except for the second half of taxes for the grand list of October 1, 1991. On or about November 2, 1992, Southern received notice of changes in assessment from the assessor for its personal property listed on the grand lists of October 1, 1989, 1990, and 1991. On or about November 2, 1992, the tax CT Page 9986 collector of the City of Bridgeport delivered to Southern bills for personal property taxes in respect to the new assessments. The changes in the assessments retroactively increased Southern's tax liability for the three years at issue in the amount of $157,846.46. Southern appealed to the Board of Tax Review for the City of Bridgeport. On March 30, 1993, the Board of Tax Review denied the relief requested by Southern. On or about May 17, 1993, the Tax Assessor sent additional notices of change in assessment to Southern for the grand lists of 1989, 1990, and 1991, along with tax bills for additional taxes.
The following additional facts have been proven by affidavit and are uncontroverted by the City: For the grand lists of October 1, 1989, 1990, and 1991, the Bridgeport Tax Assessor assessed Southern's personal property for tax purposes at the value stated in the applicable declarations submitted by Southern. At no time prior to making assessments for those tax years did the Bridgeport Tax Assessor claim or state to Southern that the lists submitted by Southern contained insufficient information to permit the assessor to determine the value of the listed property. At no time prior to making assessments for those tax years did the Bridgeport Tax Assessor claim or state to Southern that any personal property had been omitted from the declarations of personal property submitted by Southern. Southern timely paid all bills for taxes on personal property on the grand lists of October 1, 1989, 1990, and 1991, up to the end of October of 1992. In October of 1992, and again in May of 1993, Bridgeport issued Southern bills for additional taxes, penalties and interest. The Bridgeport Tax Assessor did not at any time identify any machinery or equipment, or any footage of gas main property, that was omitted by Southern on the declarations originally filed for the grand lists of October 1, 1989, 1990, or 1991. Southern did not omit any items of personal property from the lists it originally submitted to Bridgeport for the October 1, 1989, 1990, and 1991 grand lists. When the assessor revalued Southern's personal property and calculated the amount of personal property tax due from Southern for those years, the assessor claimed Southern previously undervalued its property at the time it filed its declarations of taxable property.
In the second proceeding, the Southern Connecticut Gas Companyv. Bridgeport, et al, CV93-0309319S, Southern seeks various forms of equitable relief against the City of Bridgeport, the Tax Assessor, the Tax Collector, the Finance Director, and Century Financial Associates, LTD. Century was hired by the City of Bridgeport to audit personal property lists submitted by tax CT Page 9987 payers. In the second count of the complaint filed in this equitable proceeding, Southern brings a claim under General Statutes § 12-119. Southern alleges the reassessments were manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property.
The plaintiff seeks summary judgment in both cases. In the first case, it requests that its tax appeal be granted. In the second case, it seeks judgment on the second count of its complaint.
Pursuant to Practice Book § 384, summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . .and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact."Suarez v. Dickmont Plastics Corp. , 229 Conn. 99, 105, 639 A.2d 507
(1994).
I. City's Request for Continuance
The city and municipal defendants claim they are unable to oppose the motion for summary judgment because Southern possesses information they need to contest the motion. Southern objects to a continuance. It claims the defendants have had ample time to conduct discovery but have failed to do so. In addition, Southern argues the defendants have failed to specifically identify the information they need and the questions of fact which might be addressed by such information.
To obtain a continuance under Practice Book § 382, the opposing party must show by affidavit the facts which are within the exclusive knowledge of the moving party and what steps the opposing party has taken to attempt to acquire these facts. SeeDorazio v. M.B. Foster Electric Co., 157 Conn. 226, 230 (1968). The defendants have not made such a showing. Southern's motions for summary judgment are premised upon the contention that the tax assessor lacked authority to alter the grand lists. If Southern's contention is correct, its interpretation of the statutory law is CT Page 9988 dispositive of these cases. The defendants have not explained how information in Southern's possession would aid the court in determining whether the assessor was authorized by statute to alter the grand lists.
II. Tax Appeal
Southern's tax appeal is brought to this court pursuant to General Statutes § 12-117a. Southern contends the tax assessor's authority to alter the grand lists of October 1, 1989, 1990, and 1991, had expired by the time the assessor altered the lists in 1992 and 1993. An assessor is required pursuant to General Statutes § 52-55 to complete and file the annual grand list by the thirty-first day of January, i.e. the Bridgeport tax assessor was required to complete and file the grand list of October 1, 1989, by January 31, 1990; the grand list of October 1, 1990, by January 31, 1991; and the grand list of October 1, 1991, by January 31, 1992. Our Supreme Court has stated that "[t]he power of assessors to alter assessments exists only during the lawful period for the performance of their duties, before the [municipal grand] lists are completed and filed. . . ." National CSS, Inc. v. Stamford, 195 Conn. 587,593-94, 489 A.2d 1034 (1985). The assessor altered the 1989, 1990 and 1991 grand lists after the period for completing and filing each grand list had expired and after the municipality had levied and collected taxes on each grand list. Because the time period had expired, Southern claims the assessor lacked statutory authority to alter the lists.
The City of Bridgeport contends the assessor was authorized to alter the grand lists by General Statutes § 12-53, as revised in 1986 by P.A. No. 86-84. Section 12-53 allows an assessor to add to a person's list of taxable property any taxable property belonging to the person which the person omitted from the list of taxable property given in by the person. The 1986 amendments to this section created an ambiguity in the statute.
Subsection (b) of § 12-53 provides for a discovery hearing with respect to the ownership and valuation of property. The 1986 amendments increased the time period during which an assessor may give notice of such a hearing to the property owner. If taxable property is discovered at such hearing, the assessor may add the omitted property to the owner's list. Subsection (c) was also amended in 1986. Before the 1986 amendments, subsection (c) required the assessor to give a person notice whenever the assessor added property to the person's list. The 1986 amendment to CT Page 9989 subsection (c) now requires notice whenever the assessor or board of assessors add property "or increase or decrease the valuation of any property under the provisions of subjection (b) . . . ." The ambiguity in § 12-53 arises because subsection (b) does not authorize the assessor or board of assessors to increase or decrease the valuation of property after the grand list has been completed and filed. Subsection (b) only authorizes the addition of omitted property to a person's list of taxable property.
Because § 12-53 involves the imposition of a tax, the court "must strictly construe any ambiguity in the statute against the taxing authority and in favor of the taxpayer." AirKaman, Inc. v.Groppo, 221 Conn. 751, 756 607 A.2d 410 (1992). "Municipalities have no powers of taxation except those expressly given to them by the legislature. . . . Their powers of taxation can be lawfully exercised only in strict conformity to the terms by which they were given . . . . When a taxing statute is being considered, ambiguities are resolved in favor of the taxpayer. . . ." Security Mills, Inc. v.Norwich, 145 Conn. 375, 377 (1958). Since § 12-53 is ambiguous, this court must construe the statute in favor of the taxpayer. This court therefore concludes the assessor lacked authority in November of 1992 and May of 1993 to alter the grand lists of October 1, 1989, 1990 and 1991.
This court finds that Southern's documentary evidence and the City's admissions demonstrate that Southern is aggrieved by the action of the Board of Tax Review in denying Southern's appeal for a reduction in the assessed valuation of its property. The appeal to this court is sustained. The valuation of Southern's personal property set forth on Bridgeport's grand lists for October 1, 1989, October 1, 1990 and October 1, 1991 must be reduced to those valuations which existed prior to the increases made in November of 1992 and May of 1993.
III. Equitable Action
In the equitable action, Southern seeks as relief, inter alia, an injunction against the collection of taxes pursuant to the November 1992 and May 1993 tax bills. In the second count of its complaint, Southern relies on General Statutes § 12-119. This statute is directed to relief against the collection of an illegal tax while section 12-117a is directed to bringing about a change in the assessment list. Tucker v. Hartford, 15 Conn. App. 513, 517
(1988). General Statutes § 12-119 provides two possible grounds for recovery. "The first category in the statute embraces CT Page 9990 situations where a tax has been laid on property not taxable in the municipality where it is situated . . . ." Wilson v. Kelley,224 Conn. 110, 119 (1992). "The second category consists of claims that assessments are `(a) manifestly excessive and (b) . . . could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of the property.' . . ." Id. The second category affords relief where there has been a manifest and flagrant disregard of statutory provisions;Connecticut Light Power Co. v. Oxford, 101 Conn. 383, 392 (1924); or where there was misfeasance or nonfeasance by the taxing authorities. L.G. DeFelice Sons, Inc. v. Wethersfield, 167 Conn. 509,512-13 (1975).
Because this court has just concluded that the grand lists of October 1, 1989, October 1, 1990, and October 1, 1991, were illegally altered in November of 1992 and May of 1993, it follows that the additional taxes based upon the increased assessments are not justly due. The increased assessments are manifestly excessive and were arrived at by disregarding the provisions of the statutes. Accordingly, this court concludes the City of Bridgeport, the assessor, the tax collector, and the finance director must be enjoined from collecting taxes from Southern pursuant to the November 1992 and the May of 1993 tax bills which were issued in connection with the November 1992 and May 1993 alterations of the 1989, 1990 and 1991 grand lists.
Conclusion
Based upon the foregoing, Southern's tax appeal to this court,Southern Connecticut Gas Company v. City of Bridgeport, CV93-0304579S, is sustained. In the equitable action, SouthernConnecticut Gas Company v. City of Bridgeport, CV93-0309319S, judgment is entered in favor of the plaintiff on the second count in accordance with the third prayer for relief.
THIM, JUDGE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1005944/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4129
DWAYNE DELESTON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-99-751)
Submitted: November 9, 2001
Decided: November 30, 2001
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Seth Whipper, WHIPPER LAW FIRM, North Charleston, South
Carolina, for Appellant. Scott N. Schools, United States Attorney,
Miller W. Shealy, Jr., Assistant United States Attorney, Charleston,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. DELESTON
OPINION
PER CURIAM:
Dwayne Deleston appeals his conviction and 240-month sentence
after his conditional guilty plea to possession with intent to distribute
crack cocaine, in violation of 18 U.S.C.A. § 2 (1994) and 21 U.S.C.
§ 841(a)(1) (1994). Deleston argues the district court erred in denying
his motion to suppress evidence seized from the vehicle he was driv-
ing because the officers lacked probable cause to make the traffic
stop. He avers that the court should have relied upon records offered
to show that he was using his cell phone at the time his vehicle was
stopped to reject testimony that the officers’ actions were legitimately
prompted by a reasonable belief that Deleston was violating a local
noise ordinance. We affirm.
We review a district court’s factual findings underlying its denial
of a motion to suppress for clear error, while reviewing its legal con-
clusions de novo. United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992). In addition, in reviewing the denial of a motion to suppress,
we review the evidence in the light most favorable to the government.
United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). Under
these standards, we conclude the district properly found the police
officers’ stop of Deleston’s car was not pretextual and properly
denied Deleston’s motion to suppress evidence discovered in a con-
sensual search of his vehicle.
For these reasons, we affirm Deleston’s conviction and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not significantly aid in the decisional process.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918180/ | 272 So. 2d 919 (1973)
Ada GAINES
v.
STATE of Mississippi.
No. 47149.
Supreme Court of Mississippi.
February 5, 1973.
John B. Gee, Vicksburg, for appellant.
A.F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
*920 RODGERS, Presiding Justice.
The appellant Ada Gaines was indicted, tried and convicted in the Circuit Court of Warren County, Mississippi for the crime of murder. The jury fixed appellant's punishment at life imprisonment in the state penitentiary, and she was so sentenced.
The defendant has appealed to this Court and now complains that she did not get a fair trial in the circuit court for the following reasons. First it is contended that the court erroneously permitted one Cicero Perkins to testify against her, because it was said that he was her common-law husband. The record does not sustain this claim for several reasons: Perkins had a living wife and could not contract another marriage; there is nothing in the record to show that the appellant and Perkins agreed to be man and wife under the common-law rule; and, moreover, common-law marriages had been abolished before the appellant began to cohabit with the witness Perkins. See Section 465.5, Mississippi Code 1942 Annotated (1956).
It is next argued that the trial court committed reversible error in granting an instruction to the jury for the state on the issue of manslaughter. The testimony introduced by the state shows that the appellant shot the deceased Haywood Bracey at a time when she was obviously shooting at Cicero Perkins, her paramour, as the result of an argument. She denied that there was any cause for shooting at Perkins. In fact, she denied shooting her pistol. She claims that Haywood Bracey attacked her, tore her clothing and beat her head against the floor, but she said she did not shoot him. If the manslaughter instruction is considered erroneous, it is clearly an error in favor of the defendant Ada Gaines.
The defendant made no objection to the manslaughter instruction given in her favor; nor did she request instructions on the subject. Since this case was tried after the effective date (June 1, 1971) of Rule 42, Mississippi Supreme Court Rules, we will not consider instructions given by the trial court unless specific objection is made to the trial court at the time the instruction is granted. Clark v. State, 260 So. 2d 445 (Miss. 1972).
*921 The appellant mentions, but does not argue, the objection made to the testimony of Donald Ates, Criminologist, employed by the State of Mississippi Crime Laboratory. The objection was made as to the identity of a bullet, upon the ground that the equipment used in making a comparison of the fatal bullet and one fired from the pistol, was not brought into court. This objection is not well taken, because the tools used by the witness were large and unwieldy. The water tank alone had fourteen feet of water in it. It was not necessary for the witness to demonstrate before the jury the equipment used in order to testify as an expert witness.
We find no reversible error in the record of this case; therefore, the judgment and life sentence entered in the trial court will be affirmed.
Affirmed.
PATTERSON, INZER, SMITH and ROBERTSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575368/ | 458 S.W.2d 159 (1970)
Kenneth DUDGEON, Appellant,
v.
Delois DUDGEON, Appellee.
Court of Appeals of Kentucky.
September 25, 1970.
Robert M. Spragens, Jr., Lebanon, for appellant.
Barry Bertam, Campbellsville, for appellee.
REED, Judge.
In this divorce action, the trial judge awarded the custody of the parties' two infant children to the mother. The sole issue presented by the father's appeal is whether that decision was so clearly erroneous as to constitute an abuse of discretion. We have concluded that we are unable to find an abuse of the discretion vested in the trial judge, and we affirm his judgment.
Kenneth Dudgeon, the appellant-husband, and Delois Dudgeon, the appellee-wife, after some years of unhappy marriage, separated in July, 1969. Two children were born to the marriage, one of whom is now seven years old, and the other is four years old. The older child is a boy and the younger child is a girl. Since no issue is made on this appeal concerning the judgment as it relates to the questions of divorce and alimony, we find it unnecessary *160 to detail the evidence relating to those matters. The trial judge granted each of the parties a divorce from the other; he awarded lump sum alimony and child support payments and the custody of the children to the wife.
Several months prior to the separation, Delois became acquainted with a married man who lived near the Dudgeon home. This man began to visit her at night while Kenneth was at work. After the parties were separated and while the divorce action was in progress, the relationship between Delois and her married neighbor, who is now divorced, blossomed into a full-fledged affair. The neighbor began to visit the Dudgeon home nearly every night after the children went to bed. On one such occasion, Kenneth returned to the house, ostensibly to see his children, and found Delois and the neighbor in an extremely compromising situation. The children were in bed asleep in another room.
Delois admitted that she had engaged in sexual intercourse with the neighbor. There is no proof that Delois associated wrongfully with any other man either during her marriage to Kenneth or afterwards. Kenneth admitted that Delois had been a good mother to the children. Delois admitted her intimacy with the man after her separation from Kenneth. She stated that she and this man were considering marriage but that her children had never seen him and that she would not marry him if the children would be unhappy in that event.
Kenneth testified that if the custody of the children were awarded to him, he would keep them in the home of his parents. Their home, although clean and comfortable, is somewhat crowded and alteration of it would be necessary to accommodate the children. The evidence establishes that, except for this indiscretion, Delois has been a good mother and makes adequate provision for the children.
The trial judge stated that in his opinion the children would be much better off and that it was "in their best interest and welfare" that they be in the custody of their mother with right of visitation in their father.
The judge further noted that at a conference between the parties and their counsel with the court he had stated that the custody of children was a continuing thing and such an award lasted only until further orders of the court, and if the conduct of Delois should continue it might cause her to give up custody.
Appellant concedes that the trial judge's discretion in determining the best interest and welfare of the children when making a custody award is indeed broad. He also concedes that this court has continually refused to establish rigid guidelines which a trial court should follow when determining questions of child custody. Appellant urges, however, that where the mother admits to immoral behavior in her own home while the children are located therein; where the father has not been shown to be an unfit parent; and where the mother has not married the man with whom the immoral acts took place, the trial judge's broad discretion ends. Appellant maintains that custody in such situation must be awarded to the father. He construes the remark of the trial judge concerning the conduct of the mother to mean that Delois' present conduct is so reprehensible as to make her unfit.
We have reviewed our case law concerning the issue presented by this appeal and find that it is consistent in stating the obvious proposition that courts, both trial and appellate, are presented with no problem of greater complexity than the delicate and awesome responsibility of adjudicating the custody of children. We find it apparently inconsistent in reaching appellate results when one particular circumstance is overemphasized in reviewing an award of custody as compared with other relevant circumstances. We do find it consistent, however, in its advocacy of the general proposition that the issue is best *161 determined by the trial judge and that a very clear and substantial showing of manifest error on his part is required before an appellate court should undertake to substitute its judgment for his. This attitude is influenced, and properly so, by the system which vests trial judges with continuing supervision so that they may by process of reexamination achieve the best result practicable within the limitations of the system and within the limitations inherently created by the tragic occurrence itself as it affects the lives of the innocent children.
We do not condone Delois' conduct, nor did the trial judge. The question remains, however: On balance what result will promote the best interest of the children concerned regardless of the human shortcomings or strengths of the adults involved?
In Jones v. Sutton, Ky., 388 S.W.2d 596 (1965), we said in a case involving the custody of two infant children that where a woman had been indiscreet with a man, in order to brand her as so morally depraved and unfit as to be disentitled to the custody of infant children on that ground alone there must be evidence of promiscuity. Promiscuity is defined in that case not to be an isolated incident of sexual relations with one particular person but denotes an indiscriminate grant of physical favors to persons of the opposite sex without any requirement of love.
We recognized the requirement of promiscuity in Kelien v. Kelien, Ky., 273 S.W.2d 360 (1954). In that case the mother had been sexually indiscreet with another man. The trial judge awarded the custody of the infant children to the mother, nevertheless. We refused to disturb his conclusion, because on balance there was evidence that, despite the mother's fault, the children's best interest would be best served by leaving them with her rather than by adopting the alternative of vesting custody in the father; or at least there was evidence supporting such a conclusion by the trial judge.
In Wilcox v. Wilcox, Ky., 287 S.W.2d 622 (1955), the mother was sexually indiscreet. In that case, we pointed out that the evidence showed, so far as her relationship with children was concerned, that she was an excellent mother. We noted the lack of promiscuity on her part. We also noted that the alternative proposed by the father would not provide the children with as acceptable an environment as they would enjoy in the custody of their mother; or at least the evidence could induce the trial judge to so believe.
In Morris v. Morris, Ky., 439 S.W.2d 317 (1969), the father complained that after the separation the mother allowed a married man to remain all night in her apartment on occasions and that this demonstrated that custody of two infant children should be transferred to him. The mother's evidence was that she was properly taking care of the children and the trial judge decided to leave the children with the mother and this court again reemphasized its reluctance to disturb the finding of the trial judge in this type of case. We pointed out therein the better position of the trial judge to assess and continually supervise the matter. We could not characterize his decision as clearly erroneous.
Finally, in Bickel v. Bickel, Ky., 442 S.W.2d 575 (1969), we pointed out again our reluctance to disturb the conclusion of the trial judge as to proper custody of infant children in divorce actions. We pointed out the trial judge's continuing supervision and his right to assess the custodial parent's demonstration of fitness or lack of it after the award of custody.
In the case before us, these children have continuously been in the custody of their mother. There is no showing that she has neglected them, but on the contrary the evidence is without contradiction that she has been an interested and loving mother.
It is true, as appellant points out, that many of our former opinions discussing *162 this problem of the sexually indiscreet mother appear to place emphasis on whether she marries the man with whom she has been indiscreet. We think the emphasis is misplaced. It may very well be relevant to a determination of whether or not she is promiscuous, but so far as the determination of custody is concerned, she might provide a better environment for the child in conceivable situations if she concluded not to marry the man than in those instances where marriage takes place. This is but another illustration of what we think is inescapable: We cannot create cubicles labeled "promiscuity," "marriage to the man," or "nonmarriage to the man," and then in computer-like fashion attempt to cram the fate of innocent children into one cubicle or the other to reach a result. The issue must be resolved by careful and conscientious trial judges who weigh all relevant factors; make a difficult decision; then are available and vigilant to supervise the result. This is simply the best we can do with the means available. Appellate review must confine itself in changing determination of the custody of infants in divorce cases to those situations where there is a clear and substantial showing that the manifest error was committed. We cannot say that in this case.
The judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575493/ | 458 S.W.2d 312 (1970)
STATE of Missouri, Respondent,
v.
James Robert SHIVERS, Appellant.
No. 55077.
Supreme Court of Missouri, Division No. 2.
October 12, 1970.
*313 John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
Latney Barnes, Mexico, for appellant.
PRITCHARD, Commissioner.
By the verdict of a jury appellant was convicted of burglary in the first degree, as charged, he "did break and enter into said dwelling house by forcibly breaking and bursting the outer door with the felonious intent to make and commit an aggravated and felonious assault upon a person therein, one Lavenia McKinnon, by feloniously and on purpose intending to make an assault upon said Lavenia McKinnon by striking, beating and wounding said Lavenia McKinnon with a bottle and with hands and feet with the intent then and there to do great bodily harm and injury to the aforesaid Lavenia McKinnon." See § 560.040, RSMo 1959, V.A.M.S. It was alleged that appellant was a second offender, which the court found outside the hearing of the jury. Appellant's sentence was assessed and adjudged by the court to be seven years imprisonment in the Department of Corrections.
On January 29, 1969 Lavenia McKinnon, the victim of the alleged assault, was in the home of Marlene Valatta Herndon at 1204 E. Lafayette in Mexico, Missouri. According to Marlene appellant came to her home about 12:30 or 1:00 a.m., at which time Lavenia, Marlene, her three children and appellant were present. At that time appellant wanted to talk to Lavenia but she did not want to talk to him. The two started fighting upstairs where appellant had followed Lavenia, and he then hit her over the head with a Walker's DeLuxe bottle. She started bleeding, and after that they started fighting downstairs in the front room. Appellant told Lavenia "that he would just as soon kill her if she would mess with him like that." Appellant then left, and Marlene and Lavenia went to the kitchen where they sat down to play cards. The front door was then closed and locked, and in about five minutes after he left appellant pushed in the front door. A photographic exhibit shows the door was "tore down." On this second entry, appellant and Lavenia started fighting in the front room and then in the kitchen where he hit her over the head with a 7-Up bottle. Marlene ran out the back door and called the police. Thereafter, Lavenia was lying on the kitchen floor with appellant standing over her trying to get her to go to the hospital, but she would not go. The police came and appellant ran out the back door. Marlene denied that one Robert Scott was there in appellant's presence that night.
Lavenia's version of the occurrence was that about 12:00 o'clock appellant came into the house and said he wanted to talk to her. She told him she did not want to talk to him and that she wanted him to leave her alone. He then said, "If I can't have you, nobody else is going to have you." Lavenia then took a blanket and went to the upstairs bedroom and locked the door. Appellant shortly pushed upon the bedroom door, came in and said he would just as soon kill her and picked up a bottle and hit her on the head with it. Her arm started bleeding from the cut by the glass of the bottle and she stepped on a piece of it. She went to the bathroom to wash off the blood and Marlene asked appellant to leave, which he did. In a few minutes they heard a knock on the door and appellant "come busting in the door and he said: `I said if I can't have you, well, nobody else is going to have you.'" Marlene asked appellant to go home, and she and Lavenia sat at the table with appellant walking back and forth. He asked for a drink, and said he would drink his *314 own if they would give him none of theirs, he having some wine in his pocket. Lavenia got up to go to the couch to sit down and appellant grabbed her in the chest and pushed her against the wall. There was a 7-Up bottle on the table which Lavenia threw. Marlene left to call the police and appellant picked up the 7-Up bottle and hit Lavenia on the head with it, "then he hit me again with the other bottle, then he knocked me down." After they got through fighting he told her he would take her to the hospital. Lavenia described her injuries as being a knot (indicating), a little gash where he hit her with the whiskey bottle. "He kicked me with his feet on my legs and on my stomach and on my backI had bruises on my armI got a cut on my shoulder on this side (indicating)."
On cross-examination it was elicited from Lavenia that appellant, on his second entry, sat in the front room and then walked about five times from there to the kitchen where Lavenia and Marlene were playing cards. He flicked his cigarette ashes into a bottle on the table as he walked by. On the table were two 7-Up bottles and a Pepsi or Coke bottle. Marlene and Lavenia each had a cap full of the Walker's DeLuxe, chasing it with 7-Up, and appellant drank a little wine after which he sat down at the table and wanted to play a hand of cards. Lavenia got up and he grabbed her. She then weighed about 190 pounds and was twenty years of age.
About 2:20 a.m. on the night in question Lt. Delbert Sanders received a radio call and went to 1204 E. Lafayette where they met other officers. They then went looking for appellant and saw him walking up the sidewalk to his home on Holt Street. Appellant ran into his mother's home, and she opened the door for the officers after appellant had slammed it in their faces and had said, "I'm not going with any cops anywhere." Appellant had a wooden fork, and the officers told him he was under arrest for breaking and entering at 1204 Lafayette Street. Appellant's brother tried to reason with him and take the fork from him, and the officers retreated. Appellant grabbed a butcher knife and brandished it "in a threatening manner," and refused to go with the officers. Appellant went into the bedroom and knelt behind a bed and said, "I have a gun and I will use it." Sanders sprayed him with chemical mace, after which appellant was taken into custody and handcuffed. Sanders described Lavenia's physical appearance: she had a bump on her head, but was not bleeding; she had a "place on her leg," but it did not appear to him that she needed either a physician or hospital assistance. Other officers testified similarly as to the facts of the arrest.
Robert Payne Scott testified for appellant that he was present in the Herndon home in the late part of the night of January 29. Lavenia and Marlene were there and appellant arrived somewhere between 12:00 and 12:30, and was admitted by Marlene. They all sat and talked awhile and Robert wanted to go home and went to get his coat. He could not find it and Marlene told him she threw it outside. He went outside to look for it and Marlene shut the door on him. He pushed against the door and heard it crack as though the frame came loose. Up to that time there nad not been any "fracas" between appellant and Lavenia, who then went upstairs. Robert heard them arguing as they came back downstairs, appellant said something and Lavenia grabbed him. He kept asking her to let go and she kept pushing him, and finally they just started fighting. Robert stayed a few minutes and left as the police came. On cross-examination Robert testified that it was he who broke the front door, but not intentionally. It was Lavenia who was pressing the fight appellant struck her and she struck him with a bottle.
Appellant testified that he did go to the Herndon home about 12:15 or 12:30 on the night of January 29th or 30th and knocked on the door and one of the girls let him in. He had been staying there nights. Robert Scott, Lavenia and Marlene were there and *315 they all sat down and talked forty-five or fifty minutes. Robert went out to look for his coat and Lavenia closed the door on him, "the door closed and [he] hit it and busted the door." Robert came in and asked where his coat was, and appellant started to tell him, and then Lavenia got mad, started upstairs and was cussing appellant. Appellant went upstairs to talk to her and "she run back out with a half a pint, getting ready to hit meI tried to grab it and she dropped itshe went to reach down for it and I tried to kick it out of the way and she started scratching me in my face and on my arms and I picked up the bottle and without thinking, I hit her." Then they went back downstairs and talked. Lavenia told appellant she wouldn't see him anymore and he told her he did not care. She got mad, grabbed him and pushed him against the wallfrom the kitchen to the front door. He asked her about six times to turn him loose, and he tried to pull away. He got back to the kitchen where she reached for a bottle on the table. She picked up one bottle, threw it and it broke. She reached for another bottle and appellant grabbed it and hit her. Appellant denied that when he entered the house he had any intent of having a fight or trouble with either of the girls.
Under the foregoing state's evidence, a submissible case was made. That evidence is that appellant broke in the locked door to gain re-entry into the Herndon home. This satisfies the words of the statute that the entry of a dwelling house, wherein there is at the time a human being, be accomplished "First, by forcibly bursting or breaking the wall or outer door, * * * or the lock or bolt of such door, * * *." (§ 560.040, supra.) There remained for the jury the question of appellant's intent to commit a felony therein, here as charged, intent to do great bodily harm to Lavenia. The jury could infer from appellant's prior reference in the first altercation that he would just as soon kill her, and from his statement at the time he broke in the door that if he could not have her no one else was going to have her, that he possessed an ill will toward Lavenia. These facts, accompanied by the events taking place shortly thereafter (according to the state's evidence viewed in its most favorable light), justified the jury in concluding that appellant possessed the intent to commit the assault upon Lavenia. See State v. Horn, 209 Mo. 452, 108 S.W. 3, 6, holding that in a first degree burglary case, based upon an intent to commit some felony (an assault with a deadly weapon) in the dwelling after breaking and entering it, the jury could consider all that defendant said and did both before and after he actually entered the home as a part of the res gestae. Compare the burglary-rape cases of State v. Kirkpatrick, Mo., 428 S.W.2d 513; State v. Terry, Mo., 325 S.W.2d 1; and State v. Eddings, 71 Mo. 545.
The Second Amended Information here first stating that appellant "willfully and feloniously committed the offense hereinafter stated" goes on to set forth the acts charged in the language of the statute. Its meaning is clear and appellant could not have been misled as to the charge against him. Appellant's attack on the initial words of the information is thus without merit. State v. Taylor, 136 Mo. 66, 37 S.W. 907, State v. Miller, 359 Mo. 327, 221 S.W.2d 724.
According to the state's evidence, appellant struck Lavenia with a 7-Up bottle and with his hands and feet during the second altercation. Appellant admitted the striking with a bottle, but under the circumstances described by him. Apparently the charge of the felony committed in connection with the charge of forcibly breaking and entering the outer door of the Herndon residence is laid under § 559.190, RSMo 1959, V.A.M.S., which requires an assault with intent to do great bodily harm. § 559.220 defines common assault, a misdemeanor. Appellant's Point IV presents as claimed reversible error the failure of the court to give his requested Instructions Nos. 6 and 7, both dealing with his intent merely to make a common *316 assault upon Lavenia at the time he burst the door and entered the dwelling. As noted, appellant denied any intent of having a fight with either of the girls at the time he entered the home. Scott's description was that Lavenia was the aggressor and finally a fight ensued between appellant and Lavenia, both striking each other. The evidence was that Lavenia received no injuries which would require the services of a physician or hospitalization, i.e., no great bodily harm to her was actually rendered by appellant, as the jury could find. In State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774, although involving a charge under what is now § 559.180 (assault with a deadly weapon, with malice aforethought, and an intent to kill), it was said, loc. cit. 204 S.W.2d 779 [9]: "But in general all agree that the classification of such weapons as `deadly' may depend in part on the effect produced by them, and the strength of the assailant who wields them. And we think it can be further affirmed that the strength and vitality of the victim of the assault also may be considered." If the effect produced by a weapon and the strengths of the assailant and the victim may be considered by the jury on the issue of whether a deadly weapon was used, it should also be considered on the lesser offense of whether there was an intent to do great bodily harm or whether that intent related merely to a common assault. In State v. Shipley 174 Mo. 512, 74 S.W. 612, 614, a case of felonious assault (apparently brought under the "deadly weapon" statute), it was held that an instruction on simple assault should have been given because "It was for the jury alone to find whether the rock which defendant was charged to have thrown at Ritter was a deadly or dangerous weapon. If it was not, the offense may have well been found to have been common assault only." See also State v. Reynolds, 126 Mo. 516, 29 S.W. 594, where the state's evidence was that defendant made an assault upon the victim with rocks, and finally struck at him with a knife, but the evidence was conflicting as to whether defendant used a knife, and there was no evidence that the rocks were of a deadly and dangerous nature. It was held error to refuse to instruct on assault with intent to kill without malice aforethought and on common assault.
Instruction No. 2, embodying the state's theory, submitted only a felonious intent to do great bodily harm by the assault. The jury was limited to that submitted issue in its determination of whether burglary in the first degree was committed. Appellant's point and argument do not set forth with particularity the reasons why the court erred in refusing his requested instructions on the subject of intent only to commit a common assault. He says merely that Instruction No. 2 did not provide the safeguards included in his requested Instructions Nos. 6 and 7. He does not say that the requested instructions submitted a defense supported by the evidence. It is clear, however, that the "safeguards" consisted of having the jury consider a defense not included in Instruction No. 2. The jury could have found, considering all of the conflicting testimony, the relative sizes of the parties (Lavenia weighed 190 pounds), Lavenia's resultant injuries inflicted by the use of the 7-Up bottle (its nature as an instrument likely to produce great bodily harm being also for consideration), that appellant possessed only an intent to commit common assault, a misdemeanor. Thus if appellant were found not to have had an intent to commit a felony, he could not be guilty of burglary in the first degree. A defendant is entitled to an instruction on any theory the evidence tends to establish. State v. Stallings, 326 Mo. 1037, 33 S.W.2d 914, 917 [5-7, 8]; State v. Bartley, 337 Mo. 229, 84 S.W.2d 637, 640 [6, 7] and cases cited; and State v. Drane, Mo., 416 S.W.2d 105, 107 [1, 2].
For error in refusing Instructions No. 6 and No. 7, the judgment is reversed and the case is remanded for new trial. Other claimed errors may not recur on retrial and need not be discussed.
*317 BARRETT, and STOCKARD, CC., concur.
PER CURIAM:
The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.
All of the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576055/ | 743 N.W.2d 511 (2007)
2007 WI App 272
STATE of Wisconsin, Plaintiff-Respondent,
v.
Jeffrey L. TORKELSON,[] Defendant-Appellant.
No. 2007AP636-CR.
Court of Appeals of Wisconsin.
November 14, 2007.
*512 On behalf of the defendant-appellant, the cause was submitted on the briefs of Tim Provis, Port Washington.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, Attorney General, and David J. Becker, Assistant Attorney General.
Before HOOVER, P.J., PETERSON and BRUNNER, JJ.
¶ 1 PETERSON, J.
Jeffrey Torkelson appeals a judgment of conviction for repeated sexual assault of a child and an order denying his motion for postconviction relief. Torkelson argues a statement he made prior to receiving his Miranda[1] warnings should have been suppressed, and a charging error by the State entitles him to a new trial. We disagree and affirm.
BACKGROUND
¶ 2 In January 2004, the State filed a complaint charging Torkelson with three crimes: repeated sexual assault of a child by a caregiver, exposing genitals or pubic area, and child enticement. See WIS. STAT. §§ 948.02(1), 948.10(1), 948.07(1).[2] The *513 complaint alleged Torkelson had showered with and performed oral sex on his six-year-old daughter on three or more occasions during November and December 2003. In March 2004, the State filed an Information containing the same charges.
¶ 3 Torkelson moved to suppress a statement he made to Nathan Walrath, a Lincoln County sheriff's deputy. At the suppression hearing, Walrath testified he had been on duty beginning at 10 p.m. on December 29, 2003. At the beginning of his shift, he was told Torkelson was expected at the sheriff's department to discuss an alleged sexual assault. Torkelson, accompanied by his wife Carrie,[3] arrived at the sheriff's department while Walrath was on patrol. Walrath returned to the sheriff's department and found Torkelson and Carrie seated in the lobby.
¶ 4 Walrath testified he passed through the lobby to collect the office supplies he needed to take statements. When he returned, Carrie was alone in the lobby. Carrie said Torkelson was in the bathroom taking "all of" his medication. Walrath knocked on the bathroom door and heard the sounds of water running and vomiting coming from inside. Walrath and another deputy opened the door with a key and found Torkelson drinking water from the sink. Walrath testified he asked Torkelson to back away from the sink, and observed an empty pill bottle fall to the ground when Torkelson did so. Walrath then asked Torkelson to remove his jacket, step out of the bathroom, and sit down in the lobby. Torkelson complied.
¶ 5 The deputies examined the pill bottle and determined that Torkelson could possibly have taken a large dose of a prescription narcotic. The deputies summoned an ambulance. Before the ambulance arrived, Walrath sat down in the lobby next to Torkelson and said he wanted to talk about the reason Torkelson had come to the sheriff's department. Torkelson said it was difficult to talk about. Walrath asked Carrie to step outside, which she did. After some additional questions, Torkelson admitted performing oral sex on his daughter. Walrath testified that while Torkelson was at the sheriff's office, Torkelson was not told he had to wait for the ambulance, was not told he was under arrest, was not handcuffed, and was not physically restrained in any way. Walrath said the lobby where the conversation took place was unlocked and open to the public.
¶ 6 When the ambulance arrived, Torkelson was taken to a local hospital. It does not appear from the record that any officer accompanied Torkelson to the hospital. The deputies did, however, ask the hospital to call them when it was ready to release Torkelson so he could be placed in protective custody. The hospital did so, but Torkelson left the hospital before police arrived to place him in custody. He was taken into custody under WIS. STAT. ch. 51 while walking away from the hospital.
¶ 7 The circuit court concluded Torkelson was not in custody while in the station lobby, and denied the motion to suppress:
What is clear is that he was not in custody at the time, and that there was no effort to handcuff him. He was not placed under arrest. He was not told . . . he had to wait for the E.M.T.'s, not told that he had to go with the E.M.T.'s. . . . It would appear that he was free to walk out the door if he wished, at least ostensibly from the testimony. *514 The Court does not find that to be a custodial situation.
¶ 8 The case was tried to a jury, and the State's evidence included Walrath's account of Torkelson's confession. The jury found Torkelson guilty on all counts.
¶ 9 Torkelson filed a postconviction motion alleging the State was statutorily barred from pursuing counts two and threeexposing genitals and child enticementin the same action as the sexual assault count. See WIS. STAT. § 948.025(3). He argued he was therefore entitled to dismissal of either the sexual assault count or the two other counts. He argued if the sexual assault count stood, he was entitled to a new trial or resentencing on that count.
¶ 10 The State conceded counts two and three were statutorily barred, but argued the remedy was simply to dismiss those counts and the concurrent sentences imposed on them. The circuit court agreed with the State, dismissed the second two counts, and denied the remainder of Torkelson's motion.
DISCUSSION
I. Torkelson's admission to Walrath
¶ 11 Torkelson first argues his statement to Walrath should have been suppressed under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Under Miranda, police may not interrogate a suspect in custody without first advising the suspect of his or her constitutional rights. Id. at 444, 86 S. Ct. 1602. Statements obtained in violation of Miranda must be suppressed. Id. When reviewing a circuit court's decision on a motion to suppress, we will uphold the circuit court's findings of fact unless clearly erroneous. State v. Mosher, 221 Wis. 2d 203, 211, 584 N.W.2d 553 (Ct.App.1998). Whether those facts show a violation of Miranda is a question of law reviewed without deference. Mosher, 221 Wis.2d at 211, 584 N.W.2d 553.
¶ 12 Here, the State concedes Torkelson's statement was made prior to any Miranda warnings and as a result of questioning by Walrath. The only remaining question, then, is whether Torkelson was in custody at the time. We conclude he was not.
¶ 13 Custody is determined from the perspective of a reasonable person in the suspect's position. State v. Pounds, 176 Wis. 2d 315, 321, 500 N.W.2d 373 (Ct. App.1993). A suspect is in custody when the suspect's freedom to act is restricted to a "degree associated with formal arrest." Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (citation omitted).
¶ 14 Berkemer involved a motorist who made incriminating statements during a routine traffic stop. Id. at 423, 104 S. Ct. 3138. The motorist argued his statements should have been suppressed because he was not given Miranda warnings when he was stopped. The Court disagreed. It first noted that Miranda warnings were a safeguard intended (1) to "ensure that the police do not coerce or trick captive suspects into confessing," and (2) to "relieve the inherently compelling pressures generated by the custodial setting itself. . . ." Berkemer, 468 U.S. at 433, 104 S. Ct. 3138 (citation omitted).
¶ 15 The Court concluded neither of these concerns were present in a routine traffic stop. Unlike a stationhouse interrogation, a traffic stop is "presumptively temporary and brief." Id. at 437, 104 S. Ct. 3138. The questioning associated with a traffic stop is also "quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators *515 the answers they seek." Berkemer, 468 U.S. at 438, 104 S. Ct. 3138.
¶ 16 In addition, the "circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police." Id. A motorist is typically stopped in a public place and accosted by only one or two officers. This "both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse." Id. The Court concluded traffic stops are therefore comparatively "nonthreatening" and "noncoercive," and do not render a motorist "in custody" for Miranda purposes. Berkemer, 468 U.S. at 440, 104 S. Ct. 3138.
¶ 17 Courts following Berkemer have developed a list of factors to consider when determining whether a suspect's freedom to act is restricted to a degree associated with formal arrest. See State v. Morgan, 2002 WI App 124, ¶ 12, 254 Wis. 2d 602, 648 N.W.2d 23. These factors include the suspect's freedom to leave, the purpose, place, and length of the interrogation, and the degree of restraint. Id. The degree of restraint includes "whether the suspect is handcuffed, whether a weapon is drawn, whether a frisk is performed, the manner in which the suspect is restrained, whether the suspect is moved to another location, whether questioning took place in a police vehicle, and the number of officers involved." Id.
¶ 18 This test is not, however, a matter of simply determining how many factors add up on each side. Rather, these factors are reference points that help to determine whether Miranda safeguards are necessary. In other words, we use the factors relevant in a given case to determine whether the circumstances present a risk that police may "coerce or trick captive suspects into confessing," or show that a suspect is subject to "compelling pressures generated by the custodial setting itself." Berkemer, 468 U.S. at 433, 104 S. Ct. 3138 (citation omitted).
¶ 19 In this case, none of the concerns Miranda warnings are intended to address are present. First, Walrath testified the ambulance had to cover only a "short distance" to get to the sheriff's department. He "only had a short period of time to speak" with Torkelson "because the ambulance was coming and his safety was going to take precedence over my investigation." The questioning here, like that in a traffic stop, was therefore "presumptively temporary and brief." See Berkemer, 468 U.S. at 437, 104 S. Ct. 3138. In addition, because of the time constraints, Walrath had little time to do more than ask Torkelson why he came to the police station and whether he came because of his daughter. Under those circumstances, Walrath simply was not in a position to "coerce or trick [Torkelson] into confessing," even if he had wanted to. See id. at 433, 104 S. Ct. 3138.
¶ 20 In the same way, Torkelson was not placed in a coercive or police dominated atmosphere. He was questioned by only one officer in an area open to the public.[4] No officer gave him any orders, made any show of force, or even told him he was required to wait for the ambulance. He was not handcuffed, was not physically restrained, and was not placed in an interview room or office. While Walrath did control the situation to some degree by asking Torkelson to sit down in the lobby *516 and asking Carrie to step outside, his actions were similar to the control an officer would typically exercise over a motorist in a routine traffic stop. In short, like the motorist in Berkemer, Torkelson was not subject to "compelling pressures generated by the custodial setting itself." See id. Based on all the facts and circumstances here, a reasonable person in Torkelson's position would not believe his freedom was restricted to a "degree associated with formal arrest." See id. at 440, 104 S. Ct. 3138.
¶ 21 Torkelson lists several factors he contends show he was in fact in custody. He first argues his decision to come to the police station in the first place was not voluntary because he came in response to an "ultimatum" from his wife Carrie. However, the fact that a decision was made while facing personal pressure, such as pressure from a family member, does not mean the decision was involuntary. Craker v. State, 66 Wis. 2d 222, 229, 223 N.W.2d 872 (1974). Nothing in Carrie's demand would lead a reasonable person in Torkelson's position to believe he was in the custody of the State while at the police station.[5]
¶ 22 Torkelson next argues the interrogation took place in a "police dominated atmosphere," especially after Walrath asked Carrie to step outside. However, as discussed above, the level of police control over the situation was no greater than that associated with a routine traffic stop. And while Walrath did ask Carrie to step outside, this was not done to "deprive [Torkelson] of any outside support." See Miranda, 384 U.S. at 455, 86 S. Ct. 1602. Instead, Walrath asked Carrie to leave because she was upset and was interfering by attempting to get Torkelson to confess and berating him for attempting suicide. Under the circumstances, removing Carrie from the room likely diminished, not enhanced, the pressure on Torkelson to confess.
¶ 23 Finally, Torkelson argues he was in custody because Walrath never told him any differently. However, as explained above, under the totality of the circumstances a reasonable person in Torkelson's position would not believe he was in custody. While an explicit statement might have been a further indication that Torkelson was not in custody, it was not necessary.
II. The dismissed charges
¶ 24 Torkelson next argues he is entitled to a new trial[6] because the State charged him with exposing genitals or pubic area and child enticement in the same proceeding as a violation of WIS. STAT. § 948.025. Charging the three offenses in the same proceeding was contrary to § 948.025(3). We conclude Torkelson is not entitled to a new trial, for two reasons.
¶ 25 First, Torkelson failed to make a timely objection to the additional charges, and therefore failed to preserve this issue for review. To preserve an alleged error for review, "trial counsel or the *517 party must object in a timely fashion with specificity to allow the court and counsel to review the objection and correct any potential error." State v. Nielsen, 2001 WI App 192, ¶ 11, 247 Wis. 2d 466, 634 N.W.2d 325. Here, Torkelson argues the court erred by submitting counts two and three to the jury. Both counts were included in the original complaint and Information, and Torkelson therefore had every opportunity to object prior to trial. By not objecting, he failed to bring this issue to the attention of the circuit court in time to allow the court to correct the error. See id.
¶ 26 Second, Torkelson does not cite any authority for his proposed remedy, and we find none. WISCONSIN STAT. § 948.025(3) simply prohibits the State from charging certain enumerated offenses in the same action as a violation of § 948.025. Nothing in the statute indicates the remedy for a violation is anything other than dismissal of the prohibited charges.[7] In addition, Torkelson does not refute the State's argument that all of the evidence produced on the dismissed counts would have been admissible to prove the sexual assault count. Under these circumstances, Torkelson is not entitled to a new trial.
Judgment and order affirmed.
NOTES
[] Petition for Review Filed.
[1] See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[3] Torkelson's wife's name is variously spelled "Carey," "Cary," and "Carrie" in the record. "Carrie" is the spelling used in the transcript of the suppression hearing. For clarity, we refer to Jeffrey Torkelson as "Torkelson" and Carrie Torkelson as "Carrie" throughout this opinion.
[4] A second officer was present when Torkelson was asked to leave the bathroom, but the record does not indicate the second officer asked any questions or was present during the questioning.
[5] Torkelson relies on Yarborough v. Alvarado, 541 U.S. 652, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004). However, Yarborough involved a minor brought to the police station by his parents. Id. at 656, 124 S. Ct. 2140. This made "the extent of [the minor's] control over his presence unclear." Id. at 665, 124 S. Ct. 2140. Torkelson argues a marriage is similar because "one ignores the ultimatums of one's wife at one's peril." However, a parent-child relationship is hierarchical, while a marriage involves two adults with equal authority relative to one another. Torkelson's attempt to analogize Carrie's "ultimatum" to demands by police is also unavailing, for the same reason.
[6] Torkelson has apparently abandoned his argument that the charging error entitles him to resentencing.
[7] Torkelson argues dismissing the charges is an inadequate remedy because it will not deter prosecutors from presenting statutorily barred charges to the jury. However, the barred charges would only reach the jury in cases where defense counsel failed to object. We doubt the legislature had such an unlikely scenario in mind when it drafted WIS. STAT. § 948.025(3). We also doubt it intended to punish the State so severely for an error attributable to both the State and defense counsel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918287/ | 101 B.R. 944 (1989)
In re WASHINGTON MANUFACTURING COMPANY, Washington Industries, Inc. and KSA, Inc., Debtors.
Bankruptcy Nos. 388-01467, 388-01468 and 388-01469.
United States Bankruptcy Court, M.D. Tennessee, Nashville Division.
June 23, 1989.
*945 *946 *947 William J. Rochelle, III, Kronish, Lieb, Weiner & Hellman, New York City, James R. Kelley, Dearborn & Ewing, Nashville, Tenn., for debtors.
Russell H. Hippe, Jr., Trabue, Sturdivant & DeWitt, Nashville, Tenn., for Unsecured Creditors Committee.
Frank Childress, U.S. Trustee, Nashville, Tenn.
Ronald W. Hanson, Latham & Watkins, Chicago, Ill., Bradley A. MacLean, Farris, Warfield & Kanady, Nashville, Tenn., for Citicorp North America, Inc.
Craig V. Gabbert, Jr., Harwell, Bar, Martin & Stegall, Nashville, Tenn., for Chapter 11 Trustee.
MEMORANDUM OPINION AND ORDER ON KRONISH, LIEB'S APPLICATION FOR FINAL ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES AND ON THE OBJECTIONS FILED
WILLIAM H. BROWN, Bankruptcy Judge, Sitting by Designation.
This core proceeding[1] was initiated by the filing of an "Application Of Kronish, Lieb, Weiner & Hellman, Attorneys For The Debtors In Possession, For Final Allowance Of Compensation and Reimbursement Of Expenses." The application was heard with the comments or objections filed by the Unsecured Creditors' Committee, by the Assistant United States Trustee for Region VIII and by the Chapter 11 Trustee, and with oral statements of counsel. At the hearing a briefing schedule was established and, after extensions, the final memoranda have now been filed. Having considered the entire record related to this application, comments, objections, oral hearing, exhibits and legal memoranda, the Court makes the following findings of fact and conclusions of law, pursuant to Bankruptcy Rule 7052.
HISTORY OF CASE
Three voluntary chapter 11 cases were filed by the debtors on March 1, 1988, which cases are being jointly administered. On March 15, 1988, upon application dated March 1, 1988, this Court entered an order approving the employment of the New York law firm of Kronish, Lieb, Weiner & Hellman ("Kronish, Lieb") and the Nashville law firm of Dearborn & Ewing to represent the debtors in possession. On *948 March 18, 1988, with the consent of the debtors, the Court appointed a Chapter 11 Trustee, Timothy L. Finley, after which time the role of debtors' counsel diminished. The cases have continued in Chapter 11, with a liquidation being conducted by the Trustee.
ISSUES
The issues presented are not necessarily unique but are numerous. The primary issues are whether the Kronish, Lieb firm will be allowed to charge at its customary rates or will be limited to Nashville, Tennessee rates and whether the Kronish, Lieb firm will be allowed an expense charge for work requested by the law firm but performed by another professional entity, Kalliste Corporation ("Kalliste"). Related to the first issue is a question of whether the debtors should have retained counsel outside the Nashville area. Further, issues of duplication of services, unnecessary charges, overhead charges, and value of the services are presented. Because the requested charges and expenses are relatively large, and because the issues are important for their potential impact upon future fee applications in this District as well as in the Western District of Tennessee,[2] the Court will address each issue separately in this opinion.
DEBTORS' RETENTION OF NONLOCAL COUNSEL
Underlying the objections to the allowance of charges higher than the normal Nashville, Tennessee rates for bankruptcy practitioners is an issue of whether these debtors had good cause to seek out and retain counsel from outside the Nashville area. It was argued by the Chapter 11 Trustee that local counsel existed with adequate ability to represent these debtors. The Court has no doubt that is true; however, there has been no showing that local counsel existed who were in a position to represent these debtors. The debtors' local counsel, Dearborn & Ewing, correctly believed that it should not serve as primary debtors' counsel in the bankruptcy cases because one of its partners had served as a director of one of the debtor corporations and therefore would not have been "disinterested" as required by 11 U.S.C. § 101(13)(D) and § 327(a). The creditors and other interested parties should not, as a general rule, be able to dictate the debtors' choice of its counsel. In re Microwave Products of America, Inc., 94 B.R. 971 (Bankr.W.D.Tenn.1989); In re Hecks, Inc., 83 B.R. 410, 17 B.C.D. 542 (S.D.W.Va.1988); 2 King, COLLIER ON BANKRUPTCY, ¶ 327.03-2 (15th Ed.1989). Section 327(a) of the Bankruptcy Code provides that the debtor in possession[3] "with the court's approval, may employ one or more attorneys." The Kronish, Lieb firm promptly filed an application for its employment, which was approved by the entry of the Court's Order, and no objection was made to that employment until the fee application was filed.
It might be argued that the objectors had waived their objections to the employment of nonlocal counsel by not timely moving that the Court set aside its order approving the employment of Kronish, Lieb, and the Court notes that immediately upon the filings of these cases, there was activity before the Court in which Kronish, Lieb's participation was made known to the objecting parties. However, it is not necessary for a waiver to be imposed because the Court finds that there was good cause for these debtors to choose a nonlocal firm. Not only was the debtors' local counsel unable to serve as general counsel, that same local counsel was involved in the initial meeting between the debtors' chief operating officer and Mr. Rochelle of the Kronish, Lieb firm. It certainly may be inferred that the Dearborn & Ewing firm played a role in the selection of the Kronish, *949 Lieb firm. It is also logical that Dearborn & Ewing, a Nashville firm, would be in position to advise the debtors of local counsel to consider. Neither this Court, creditors, the case trustee nor the U.S. Trustee were in a position, nor should they be, to make such a choice for these debtors. See, e.g., In re Hecks, Inc., supra; In re Allard, 23 B.R. 517, 7 C.B.C.2d 854 (E.D. Mich.1982). Rather, if the choice is inappropriate for any reason, a party in interest should promptly bring that to the Court's attention by a motion seeking to set aside or to terminate the employment of the debtor-in-possession's choice of professional persons.
Further, both representations made in support of the pending fee application, as well as the case history before the Court, indicate that these were not "simple" nor "local" cases. As represented in one of Kronish, Lieb's memoranda, "[t]he debtor had approximately 3,800 employees and gross sales as high as $158,000,000. The matrix lists creditors in more than 27 states." The Chapter 11 Trustee's counsel argued that the joint case was not "national" in scope but rather was limited in significant impact to a 150 mile radius of Nashville. That is negated by the fact that within four days of the Chapter 11 filing, this Court conducted an emergency hearing involving a national manufacturer and its North Carolina attorneys. An emergency hearing was also conducted before the United States District Court for the Middle District of Tennessee involving the debtor, national manufacturers and the United States Department of Labor. Other hearings have been held throughout the case which involved entities outside of Nashville or the Middle Tennessee area. The Chapter 11 Trustee has paid in excess of seventeen million dollars in administrative and operating expenses. The primary secured creditor filed a proof of claim for in excess of $39 million. While this may not be a "national" case, it is obviously not a local or routine one.
The size and nature of the cases demanded rapid response to critical needs of the debtors. As is typical, cash collateral was an immediate problem, and the debtors' primary lender was Citicorp North America, Inc. ("Citicorp"), which has been represented by Chicago and Nashville counsel. The underlying reality is that a debtor in a crisis environment may not enjoy the luxury of shopping extensively for counsel, even locally. Rather, rapid decisions are required. This Court does not choose to adopt a policy of requiring potential bankruptcy debtors to exhaust the local attorney pool before hiring nonlocal counsel, and the Court will not preface this opinion with any assumption that there is something inherently wrong with debtors retaining nonlocal attorneys or other professionals. See, In re Public Service Co. of New Hampshire, 86 B.R. 7, 17 B.C.D. 673 (Bankr.D.N.H.1988) (hereinafter "Public Service"). Rather, on a case by case basis a decision must be made, ultimately by the Court if necessary, as to whether the debtors' choice of counsel is proper. One of the considerations certainly may be the level and nature of the bankruptcy experience of the nonlocal firm. William Rochelle, a partner in the Kronish, Lieb firm, represented to this Court that one of the reasons for his firm's selection as debtors' counsel was the experience of both the firm and of Mr. Rochelle in similar cases, as well as in "national" bankruptcy cases. As a general concept, this Court sees no justification for a blanket rule prohibiting nonlocal counsel and the Court doubts that debtors generally will search for nonlocal counsel in the typical case. On the other hand, in a case with more than a local impact, nonlocal counsel certainly is not unusual.
Discouraging nonlocal counsel in this case would be an anomaly since the primary secured creditor has both local and Chicago counsel and especially since the case trustee is not local. With the advice and consent of creditors, the Court appointed, prior to the effective date of the U.S. Trustee for this Region, a chapter 11 Trustee from North Carolina. That Trustee has obtained approval of the Court to employ counsel both in Nashville and in North Carolina. Several creditors and affected entities have been represented by out-of-state *950 counsel. Further, because it was necessary for a nonlocal bankruptcy judge to be designated by the Sixth Circuit, some hearings on emergency matters have been conducted in Memphis, Tennessee, as well as in Nashville, thereby rendering all counsel in the case nonlocal.
LOCAL VS. NONLOCAL RATES
Closely related to the issue of the debtors' choice of nonlocal counsel is the rate at which that counsel will be permitted to charge for legal services performed for the debtor. While it is difficult to separate this issue from the examination of the over-all benefit to the estate by the professional work performed, the Court will address first the question of whether Kronish, Lieb will be permitted to charge at its regular New York rates rather than at the lower, prevailing Nashville rates. Then, the Court will examine whether there must be any adjustments in the charges to account for weighing the benefits derived.
The beginning point is 11 U.S.C. § 330(a) which provides the authority for the Court to award
(1) reasonable compensation for actual, necessary services rendered by such . . . professional person, or attorney, . . . and by any paraprofessional persons employed by such . . . professional person, or attorney, . . . based on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and
(2) reimbursement for actual, necessary expenses.
The following billing rates are sought by the Kronish, Lieb firm:
Richard Lieb $325 per hour (9.4 hours)
Peter J. Mansbach $305 per hour (13.1 hours)
Joe Lewittes $280 per hour (4.0 hours)
Lawrence J. Kaiser $250 per hour (28.0 hours)
William J. Rochelle, III $250 per hour (134.5 hours)
Martha J. Rix $180 per hour (184.2 hours)
Lisa Soloman $160 per hour (12.8 hours)
Nancy L. Kourland $110 per hour (86.3 hours)
David A. Rosenzweig $110 per hour (34.3 hours)
William Coleman (paralegal) $65 per hour (4.8 hours)
Further, the firm's prepetition work began on February 20, 1988 with a telephone conference from Mr. Jim McElroy of the Dearborn & Ewing firm and the work continued through June 14, 1988, involving a total of 506.6 hours of post-petition professional's time and 4.8 hours of paraprofessional time. The firm did not bill for time related to preparation of its fee petition nor has the firm yet requested allowance for its time in defending its fee application.
The Court has the "authority and responsibility to determine the reasonableness of all fee requests, regardless of whether objections are filed." In re Temple Retirement Community, Inc., 97 B.R. 333, 336 (Bankr.W.D.Texas, 1989) (hereinafter "Temple Retirement"), quoting Matter of Pothoven, 84 B.R. 579, 583 (Bankr.S.D. Iowa 1988). As the Temple Retirement Court observed, this judicial duty can be seen in the wording of 11 U.S.C. § 330(a)(1). Temple Retirement, 97 B.R. at 336. In this case, there were objections, both written and oral. Awarding of fees is discretionary, "bounded by (1) whether the compensation is reasonable and (2) whether the services were actually rendered and were necessary." Temple Retirement, 97 B.R. at 336, citing In re Nucorp Energy, Inc., 764 F.2d 655, 658, 13 B.C.D. 435, 12 C.B.C.2d 1463 (9th Cir.1985). Ultimately, protection of the estate from undue expense, protection of creditors from overreaching by professionals, and protection of the public interest in the integrity and fairness of the bankruptcy system is more important than protection of the professionals involved from reduction in their requested fees. See e.g., Temple Retirement, supra; In Matter of Consolidated Bancshares, Inc., 785 F.2d 1249, 14 B.C.D. *951 401 (5th Cir.1986); In re United Merchants and Manufacturers, Inc., 674 F.2d 134, 6 C.B.C.2d 321 (2d Cir.1982); In re Bain, 527 F.2d 681 (6th Cir.1975); In re Gulf Consolidated Services, Inc., 91 B.R. 414 (Bankr.S. D.Tex.1988). The Sixth Circuit recognized and adopted by dicta at least these general principles in a Bankruptcy Act case, in which that Court recognized the "economic spirit of frugality" underlying bankruptcy administration, the benefit to the estate test, as well as the "time spent," the "difficulties or intricacies," the "skill required and experience of counsel in similar cases," "the results accomplished," the total amount requested for compensation, "the size of the estate," the length of time over which the work was performed, and "the contingency or certainty of compensation." Cle-Ware Industries, Inc. v. Sokolsky, 493 F.2d 863, 867-69 (6th Cir.1974); cert. den. sub. nom. Sokolsky v. Cle-Ware Industries, Inc., 419 U.S. 829, 95 S.Ct. 50, 42 L.Ed.2d 53 (1974).
However, as the Temple Retirement Court pointed out, the Bankruptcy Code altered a too-strict view of merely looking to administrative economy, in that the Code recognizes that bankruptcy specialists may be entitled to higher compensation than they would by simple measurement against a standard of absolute economy. See Temple Retirement, 97 B.R. at 340, n. 9, citing H.R.Rep. No. 595, 95th Cong.2d Sess 329-330 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6286; see also 11 U.S.C. § 330(a)(1); In re Manoa Finance Co., Inc., 853 F.2d 687, 689, 18 B.C.D. 295, 19 C.B.C.2d 574 (9th Cir.1988). Bankruptcy practitioners are compensated in part by consideration of "comparable" nonbankruptcy work. 11 U.S.C. § 330(a)(1); compare Pennsylvania v. Delaware Valley Citizens' Council for Clear Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). "The true point of departure from pre-Code law is the directive to assure comparability, while still retaining sufficient control to prevent excessive fee awards." Temple Retirement, 97 B.R. at 342; see also In re Jensen-Farley Pictures, Inc., 47 B.R. 557, 12 B.C.D. 978 (Bankr.D.Utah 1985).
Therefore, as to the hourly rate to be allowed, the appropriate question to ask may be "What is the range of rates charged by attorneys of comparable competence for comparable services in the comparable community or marketplace?" Temple Retirement, 97 B.R. at 342. As the Temple Retirement Court observed, for normal civil litigation, this leads to a consideration of the "local community in which the services are rendered." Id. But, "[m]any bankruptcy cases are often more regional or even national than they are local in scope, so that looking solely to the local community's range of rates would impose an unnecessarily parochial cap on the case." Id.; see also Public Service, 86 B.R. at 11.
As the Temple Retirement and Public Service Courts recognized, a debtor may be justified in bringing in outside counsel either because the case is unique or because local counsel is not available or is not sufficiently specialized, and in such cases, the professionals may be entitled to charge for services at their normal rather than local rates. Temple Retirement, 97 B.R. at 342-43: Public Service, 86 B.R. at 11; see also In re Frontier Airlines, Inc., 74 B.R. 973, 976-77, 16 B.C.D. 107 (Bankr.D.Colo. 1987). Compare In re S.T.N. Enterprises, Inc., 70 B.R. 823, 843, 15 B.C.D. 871, 16 C.B.C.2d 1355 (Bankr.D.Vt.1987) (recognizing that in complex, "national scope" cases, nonlocal rates may apply). This concept has been recognized in this Circuit by bankruptcy courts. In Matter of Baldwin-United Corp. 36 B.R. 401, 403, 10 C.B.C.2d 273 (Bankr.S.D. Ohio 1984); In re Atlas Automation, Inc., 27 B.R. 820, 823, 10 B.C.D. 118, 8 C.B.C.2d 236 (Bankr.E.D. Mich.1983); In re Southern Industrial Banking Corp., 41 B.R. 606 (Bankr.E.D. Tenn.1984). This Court, sitting in Memphis, has also recognized this concept in an unpublished opinion. In re Beale Street Landing, unpub., BK No. 86-24872-B (Bankr.W.D.Tenn. May 8, 1989). In Beale Street, this Court allowed Chattanooga counsel to charge at their normal Chattanooga rates rather than at lower Memphis rates, due to the expertise of the specific *952 Chattanooga counsel in the particular type of chapter 11 involved.
The Sixth Circuit has also generally recognized the concept of looking to a national marketplace for comparable fees, saying that "courts are free to look to a national market, an area of specialization market, or any other market . . . appropriate to fairly compensate particular attorneys in individual cases." Louisville Black Police Officers Organization, Inc. v. City of Louisville, 700 F.2d 268, 278 (6th Cir.1983) (a civil rights case interpreting Northcross v. Board of Education of Memphis, 611 F.2d 624 (6th Cir.1979), cert. denied 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980)).
In an appropriate case, the prevailing rates of nonlocal counsel or the rate prevailing in the case locality should be merely factors, not self-limiting ones, in the court's determination of the reasonableness of the over-all charges made and sought. Temple Retirement, 97 B.R. at 10; Public Service, 86 B.R. at 10. Ultimately, the allowable rate "is what the court perceives to be the reasonable value of the services in the market place [however small or expansive that may be under the circumstances of each case], with due deference to the cost of comparable services." In re Gulf Consolidated Services, Inc., 91 B.R. at 420 n. 4.
Here, the Court is satisfied that sufficient reason existed for the debtors' retention of the Kronish, Lieb firm so that this Court will not limit its fee award to the Nashville rates. See In re Wilson Foods Company, 36 B.R. 317, 321, 11 B.C.D. 722 (Bankr.W.D.Okla.1984); but cf., In re Pacific Express, Inc., 56 B.R. 859, 13 B.C.D. 1343, 14 C.B.C.2d 157 (Bankr.E.D.Cal.1985). The specialization of the Kronish, Lieb firm in bankruptcy reorganizations of this type, the participation in that decision by the debtors' local counsel, the urgencies of the debtors' financial condition, the regional nature of the debtors' holdings and creditors, the fact that the primary creditor was a national lender, the locale of some large unsecured creditors in New York, and the involvement of nonlocal counsel for several creditors all support the reasonableness of the debtors' selection of Kronish, Lieb. There is in fact no showing that Kronish, Lieb was inappropriately retained.
Perhaps, as was followed in Public Service Company of New Hampshire, supra, the prudent course for nonlocal counsel would be to move the bankruptcy court for approval of its regular rates prior to that counsel's devotion of significant time to the case. However, this Court will not retroactively require that of Kronish, Lieb, nor will this Court adopt a general rule of such a requirement. In fact, because of the urgencies usually accompanying a bankruptcy filing, debtor's counsel may find it difficult to obtain court approval of the rates to be charged prior to significant work being done. Further, if pre-approved, the "regular hourly rates [would not] become ipso facto final fee awards" by the Court. Public Service, 86 B.R. at 11. Rather, upon the filing and noticing of a fee application, the Court will review the total fee award in the light of the case, the results rendered and other appropriate factors.
Having conducted such a review, this Court, being satisfied of the circumstances justifying the retention of Kronish, Lieb, and not being persuaded that Kronish, Lieb's hourly rates are unreasonable in light of the attorneys' experience, will approve the New York rates charged by Kronish, Lieb for work performed in this chapter 11 case. See generally, In re Atlas Automation, Inc., 27 B.R. at 823; Temple Retirement, supra. Compare In re Southern Industrial Banking Corp., 41 B.R. at 612-13.
REASONABLENESS OF TOTAL FEE REQUEST
This brings the Court to consider whether the total fees, as requested by Kronish, Lieb, should be approved or whether reductions should be made in the overall fee request. First, the Court has no quarrel with the detail given by Kronish, Lieb other than the Court would encourage less "lumping" of multiple tasks under a singular time description. See, e.g., In re NRG *953 Resources, Inc., 64 B.R. 643, 654 (W.D.La. 1986). The Kronish, Lieb application has attached to it an exhibit of computerized billing memorandum, which contains a descriptive diary of each attorney's activity on a daily basis. It is certainly true that the descriptions may always be more detailed; however, this billing memorandum meets the requirements of In re Tolan, 41 B.R. 751 (Bankr.M.D.Tenn.1984) that the application be supported by specificity. See also Bankruptcy Rule 2016; In re Rhoten, 44 B.R. 741, 12 B.C.D. 561, 11 C.B.C.2d 1033 (Bankr.M.D.Tenn.1984); Cle-Ware Industries, Inc. v. Sokolsky, supra. Ultimately, the itemization of professional services must only "be sufficiently detailed so as to permit identifying the project or tasks performed, the person performing the task and the hours spent by each" professional. In re Frontier Airlines, Inc., 74 B.R. at 976, quoting Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir.1983).
As Kronish, Lieb observed in its legal memorandum filed in support of its application, it should not be penalized by a rigid use of the U.S. Trustee's guidelines for fee applications, since the U.S. Trustee for this Region did not become certified until after these cases were filed, and the Court must apply discretion in determining how specific time records must be. In a complex case, professionals must provide detailed diaries of their work; however, the Court is mindful that counsel could easily spend too much time and paper explaining the details of a sixteen hour work day, as was spent by Mr. Rochelle on March 2, 1988. As Kronish, Lieb stated, "Good-looking time records do not mean that work actually was done or that the work was productive. However the time records look, the Court must form a judgment as to whether the amount of recorded time was in proportion to the demands of the case. In short, time records are only one element in the allowance of compensation." Kronish, Lieb Memorandum, p. 36. That is not to excuse the need for cogent detail, and the Court does not wish to encourage too hastily prepared fee records, but the Court also does not hesitate to encourage concise time and expense records. If the records are not sufficient, the Court will require more detail, but in the present application, the detail is sufficient for the Court to compare the attorneys' description of the work to the results seen by the Court. The Court does not doubt that the work billed by Kronish, Lieb was actually performed. Both the time records and the pleadings filed support that the work was performed.
Further, a comparison of the Kronish, Lieb time records shows comparable detail and explanation to those submitted by the Trustee's counsel, which the Court has approved without significant objection from the U.S. Trustee. However, the Court notes that the Trustee's counsel did not "lump" multiple tasks.
The application for compensation excludes travel time, by an amendment to that application; therefore, the Court does not need to discuss in this opinion whether travel time is compensable. See generally, In re Frontier Airlines, Inc., 74 B.R. at 978-79[4].
Duplicative work is asserted in the U.S. Trustee's comments, with specific time entries pointed out by that office as evidence that more than one attorney worked on the same matter. However, simply because two or more professionals work on the same pleading or matter does not mean that the work is duplicative. In a complex case, especially one in which debtors' counsel is immediately faced with emergency pleadings and hearings, it may be necessary to allocate various portions of one pleading or matter to two or more attorneys. See, e.g., In re N-Ren Corporation, 71 B.R. 488, 490-91 (Bankr.S.D.Ohio 1987) (In a case of magnitude it is not unreasonable to have two experienced attorneys "familiar with and involved in the representation."). The very fact that a law firm has multiple attorneys available may be one of the reasons and the justification for a debtor's choice of that firm to handle a complex bankruptcy case. See e.g., In re Frontier *954 Airlines, Inc., 74 B.R. at 977. In this case, the Court recognizes that Kronish, Lieb was required to quickly get "up to speed" on a case in which they had apparently had no previous involvement and that it is difficult, by hindsight, to evaluate how much time was needed to accomplish the tasks under emergency conditions.
However, the Court does not mean to suggest that work performed by more than one attorney will routinely be approved as compensable. Rather, the Court must look again at whether the total work performed was reasonably necessary. The examination of Kronish, Lieb's application reveals that much time was devoted to pleadings which the firm, based upon its expertise, would not need to extensively research. For example, within six days from March 4, 1988, to March 9, 52.3 hours were spent on research, pleadings and memoranda concerning the appointment of a trustee. Several attorneys spent numerous hours reviewing or revising the trustee memorandum and issues. However, the appointment of a trustee in these cases was not routine but was crucial given that management was no longer effectively in place to perform such duties as the timely filing of schedules. No one was available to run the business, and moving for the appointment of a trustee, in hindsight, was the correct decision by Kronish, Lieb.
The Court recognizes that what may appear to be a routine matter is not always routine in the context of a given case, and also the Court recognizes that the descriptions of work done will not always explain the exigencies of a particular matter. Moreover, the Court is well aware of the expertise and competence of the Kronish, Lieb attorneys. Therefore, in an effort to give them "the benefit of the doubt," the Court will not reduce this fee request because of what in retrospect may appear to be excessive or duplicative work for routine matters. However, the Court suggests that in the future, counsel spend more time justifying what may appear to be excessive time for what may appear to be routine work. That is the only way the Court and other parties in interest may have to distinguish the requested time charges for actual services from the routine.
This case is not one in which the attorneys duplicated services by having two or more attorneys present at the same conferences or hearings. See, e.g., In re NRG Resources, Inc., supra. Rather, Kronish, Lieb divided work, which needed to be quickly performed, among several attorneys. The Court finds this proper and necessary in a case such as this. See generally In re Frontier Airlines, Inc., 74 B.R. at 977-780. An absence of duplication is illustrated by the fact that Kronish, Lieb sent only one attorney to court hearings.
In the Chapter 11 Trustee's brief in support of his objection, it is asserted that an overall fee reduction is called for because, inter alia, "a substantial portion of the postpetition services . . . rendered to debtors, . . . consist of continued negotiations with CNA [Citicorp]" for the "primary purpose" of allowing debtors to use cash collateral and these negotiations were unsuccessful while the Trustee's negotiations, approximately three weeks later, resulted in an agreed order for the debtors' use of cash collateral. Therefore, according to the Trustee, any services rendered by the Kronish, Lieb attorneys in an attempt to obtain the use of cash collateral resulted in no benefit to the estate. In comparison to this assertion by the Trustee, Kronish, Lieb sets forth its activities and position with regard to the cash collateral issue on page 12 of its "Memorandum of Law . . ." submitted February 10, 1989, as follows:
From its experience in obtaining the use of cash collateral over the lenders' objection in the Beker case, [In re Beker Industries, Corp., 58 B.R. 725 (Bankr.S. D.N.Y.1986)] Kronish, Lieb determined that, in all likelihood, it could file a motion and conduct a trial in the Bankruptcy Court which would result in an authorization to use cash collateral despite objection from CNA. Even though Kronish, Lieb already had prepared the cash collateral motion that was ready for filing, the firm determined that filing the motion was not in the best interest of creditors of the estate. Specifically, *955 Washington did not seem to have a viable business plan that would have returned the company to economic health. On the other hand, the facts seem to indicate that using cash collateral to continue operations would have resulted in staggering losses and the ultimate, total collapse of the company. Cognizant of its responsibilities to all creditors (including CNA), Kronish, Lieb advised management not to pursue the continuation of operations on a full scale basis.
Many reorganizations fail and many debtors terminate operations after several months in chapter 11. Through its experience, Kronish, Lieb was able to see into the future and advise an early termination of operations. The result of Kronish, Lieb's advice was the savings of millions of dollars that would have been lost if operations had continued even for a few weeks.
This position is reiterated at page 29 of the February 10, 1989 Memorandum,
[i]n the Washington case, the orthodox strategy would have been to make a knee-jerk motion for cash collateral. But, Kronish, Lieb made a calculated decision not to obtain the order. Not accepting representations of fact at face value, Kronish, Lieb discovered after extensive work that the debtor was literally incapable of operating. In short, there was no structure to support a cash infusion. The firm made a hard decision that was in the long-term best interest of the estate.
From these statements, it appears that Kronish, Lieb's efforts were not directed at obtaining a cash collateral order but, rather, at determining what the debtors' circumstances actually were and making good faith recommendations based on those determinations.
While the Court agrees that a cash collateral order has been necessary in these cases and that the Trustee and his counsel performed admirably in procuring such, it cannot conclude that Kronish, Lieb's services resulted in no benefit to the estate because such an order was not immediately pursued. Rather, the Court is favorably impressed that Kronish, Lieb did not burden the Court, estate and creditors with wasteful pleadings and hearings. Kronish, Lieb's strategic decisions should not be penalized by deprivation of fees. If the time spent by Kronish, Lieb were excessive, the Court would not hesitate to reduce the total fee award. See, e.g., In re Crabtree, 45 B.R. 463 (Bankr.E.D.Tenn.1984). However, excessiveness is relative to the total circumstances of each case, and this Court does not find excessiveness simply because $60,482.00 is requested for post-petition services or because those fees were generated over a relatively short period of time.[5] Most of the firm's post-petition work was performed in the time-demanding critical period just after the chapter 11 filing.
The Court has considered the amount of time in light of what was occurring at the time.[6] In retrospect, it appears to the Court that perhaps the most significant and beneficial undertaking in these cases, aside from the chapter 11 filings, was the appointment of Mr. Timothy Finley as case trustee. This was initiated by Kronish, Lieb in that it was Kronish, Lieb attorneys who convinced management of the need for such and so moved the Court. Further, Kronish, Lieb's early strategic decisions appear to have saved the estate considerable expense.
Moreover, the time records submitted by Kronish, Lieb, the memoranda filed, the testimony at the hearing on this matter, and the statements of counsel reflect that Kronish, Lieb worked to protect the estate's assets in their communications with creditors, both secured and unsecured; in their representation of the debtors in labor negotiations and in a temporary restraining order action filed by the U.S. Department of Labor; and in their representation of the debtors in defense of a manager trainee who was criminally charged and arrested in *956 Kentucky for the debtors' failure to pay pre-petition wages.
The Court is not inclined to engage in overly critical retrospection "or to `second guess' actions and decisions undertaken by attorneys in good faith as the situation appeared to them at the time such actions or decisions were necessary." Public Service, 86 B.R. at 12. Rather, the Court is inclined to determine any benefit, or lack thereof, to the estate based upon a totality of circumstances. The following observation, in pertinent part, by Judge Yacos in his Public Service Co. of New Hampshire opinion, Id., has application here.
The Court is well aware of the uncertain world of fact and law in which the reorganization lawyer must dwell under the pressure of time and expense of moving forward . . . It is a shadowy realm of incomplete facts and unformed legal issues that must be mastered quickly under manifold time pressures. What seems crystal clear and simple in hindsight . . . is seldom presented as such in the heat of battle. However, in the last analysis, final fee awards necessarily must take into account all the circumstances of a particular case.
Taking into account all the circumstances of these cases, the Court finds that the services rendered by Kronish, Lieb were of significant benefit to the estate. Consequently, the Court is satisfied that no reduction in the overall fee request is necessary and that the request is reasonable within the meaning of § 330(a).[7]
EXPENSES
In addition to compensation for services rendered, Kronish, Lieb seeks reimbursement of expenses in the amount of $20,371.05. Specifically, reimbursement is requested for: meals, $248.55; local transportation, $648.00; telephone and telegrams, $715.09; photocopies, $479.00; secretarial overtime, $238.00; postage, $16.08; travel, $4,747.07; filing fees, $120.00; court reporting, $187.60; word processing, $2,407.99; messenger services, $158.50; courier services, $25.75; proofreading, $93.24; Westlaw and Lexis, $348.75; and Kalliste Corporation, $9,937.36.
Of these expense items, "Kalliste Corp." and "word processing" are objected to by the U.S. Trustee, the Chapter 11 Trustee, and the Unsecured Creditor's Committee. The Chapter 11 Trustee additionally objects to "secretarial overtime" while the Unsecured Creditors' Committee additionally objects to "excessive travel." The U.S. Trustee additionally objects to "secretarial overtime," "messenger service," "courier service," and "proofreading" along with "word processing" as "nonreimbursable, overhead expenses." Moreover, the U.S. Trustee asserts in a memorandum of law filed January 6, 1989, that reimbursement for the expenses of "meals, local transport, travel, filing fees, and court reporting" should be denied because insufficient detail to determine the reasonableness or necessity is provided in the application.
The gist of the objections raised to reimbursement for the Kalliste Corporation expense is that the services for which Kalliste Corporation seeks to be paid were professional services performed without authorization of the court pursuant to § 327.
Section 330(a)(2) of the Code authorizes the court to award to professionals "reimbursement for actual, necessary expenses." In applying this section, the courts generally require that the expenses incurred were actually necessary for the proper representation of the particular client from whom reimbursement is sought. See, e.g., In re National Paragon Corp., 76 B.R. 73 (E.D. Pa.1987); In re Wildman, 72 B.R. 700 (Bankr.N.D.Ill.1987). Moreover, the expense, in order to be reimbursable, must be incurred by a "professional person employed under section 327 or 1103." 11 U.S.C. § 330(a). As with the award of fees for services, this reimbursement of expenses is entitled to be paid as an administrative *957 expense priority. 11 U.S.C. § 503(b)(2); § 507(a)(1).
KALLISTE CORPORATION
Turning first to the issue of the Kalliste Corporation (hereinafter "Kalliste") expense, it is the Court's initial determination that compensation for Kalliste is not allowable as an expense claim of Kronish, Lieb given the very language of § 330(a) and the circumstances here. As quoted above, the statute provides that the Court may award to duly employed professionals "reimbursement for actual, necessary expenses." 11 U.S.C. § 330(a)(2). (Emphasis added) The evidence here does not support and in fact is contrary to a finding that Kalliste's claim is or was an actual expense of the Kronish, Lieb firm. According to the Memorandum of Law submitted by Kronish, Lieb, on February 10, 1989,
[t]here is no agreement between Kalliste or Kronish, Lieb to share or pay any compensation with or to Kalliste. Having brought Kalliste into the case, Kronish, Lieb has a moral obligation to ask the Court's authorization to compensate Kalliste.
p. 49, n. 25.
In light of this statement, the Court must conclude that the compensation claim of Kalliste is not an "actual" expense of Kronish, Lieb. See, e.g., In re Midland Capital Corp., 82 B.R. 233, 241 (Bankr.S. D.N.Y.1988). Obviously, the opposite conclusion could potentially result in a finding that § 504 of the Code, which prohibits fee sharing, had been violated.
Having made this determination, the question becomes whether Kalliste is entitled to payment of its claim for compensation as an administrative expense. Section 507 of the Code establishes the priority for payment of claims in a bankruptcy case. Pursuant thereto, first priority is given, inter alia, to claims which qualify as "administrative expenses" under § 503(b). For our purposes, the pertinent provisions of § 503(b) are (1)(A) and (2) which state:
(b) [a]fter notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under section 502(f) [involuntary gap] of this title, including
(1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case:
(2) compensation and reimbursement awarded under section 330(a) of this title. (Emphasis added.)
This language coupled with the Court's earlier determination that Kalliste's claim is not reimbursable as an actual expense clearly call for a determination whether Kalliste's claim constitutes an actual, necessary cost of preserving the estate arising after commencement of the case or an award of compensation and reimbursement under § 330(a).
From the facts presented, there is no apparent dispute as to whether Kalliste actually performed the services for which compensation is sought, nor does there appear to be any dispute that the services, except for one and one-half days, were performed prepetition. Moreover, it is clear that no court approval for Kalliste's employment was sought or obtained. According to the Memoranda filed in this proceeding and the statements of counsel at the hearing on this matter, because the debtors' major secured creditor would not agree to provide a retainer for payment of Kalliste's services, Kalliste performed no services after the day following the filing of the chapter 11 petitions. Consequently, there was not enough time to obtain court authorization for their employment. However, according to the statement of counsel and testimony of Mr. Rochelle, even if there had been time, such authorization was not necessary because the principals of Kalliste had been appointed Chief Executive Officer and Chief Financial Officer of the debtor corporations by their Board of Directors.
As discussed above, compensation is awarded pursuant to § 330(a) only to those individuals and entities "employed under section 327 or 1103" of the Code. 11 U.S.C. § 330(a). Because Kalliste was not employed under either of these sections, its *958 claim clearly does not qualify as an award of compensation under § 330(a) and therefore does not qualify as an administrative expense claim pursuant to § 503(b)(2).
Next, the Court must consider whether Kalliste's claim qualifies as an administrative expense pursuant to § 503(b)(1)(A). In order to do so, it must constitute an actual and necessary expense of preserving the estate and be for services rendered after the commencement of the case. According to the Sixth Circuit Court of Appeals,
[t]he test for whether a claim qualifies for payment as an administrative expense is set forth in In re Mammoth Mart, Inc., 536 F.2d 950 (1st Cir.1976). In Mammoth Mart, the Court stated that a claimant must prove the debt (1) arose from a transaction with the debtor-in-possession as opposed to the preceding entity (or, alternatively, that the claimant gave consideration to the debtor-in-possession); and (2) directly and substantially benefited the estate. Id. at 954.
In re White Motor Corporation, 831 F.2d 106, 110, 17 C.B.C.2d 1077 (6th Cir.1987). In the White Motor case, a creditor asserted that his claim for post-petition expenses which arose from a pre-petition obligation to the debtor were entitled to administrative expense priority under § 503(b)(1)(A). The Court disagreed and in so holding reasoned that the general policy of the Bankruptcy Code is to distribute all assets equitably, and priority may only be granted pursuant to this policy. Id. at 110. Moreover, that Court concluded that the purpose of § 503 plainly requires that the claims of third parties who are induced to supply services to the debtor-in-possession be afforded priority. Id., citing In re Jartran, Inc., 732 F.2d 584, 586, 11 B.C.D. 1181, 10 C.B.C.2d 1069 (7th Cir.1984).
In the proceeding sub judice it is clear that Kalliste was employed by the prepetition debtors, and it is equally clear that the majority of the services performed for these debtors were performed prepetition. Therefore, to the extent that its claim is for prepetition services contracted by the prepetition debtors, it does not qualify as an administrative expense claim pursuant to § 503(b)(1)(A). Thus, the only potential for Kalliste's prepetition claim to be classified as an administrative one lies with the possibility that it can be shown to at least partially be comprised of "wages, salaries, or commissions for services rendered after commencement of the case."[8]
This of course brings us to the issue of whether the services performed by Kalliste may be classified as the services of newly appointed management or as the services of "professionals" acting without requisite Court authorization. In a recent decision by the Honorable Leif M. Clark, Bankruptcy Judge for the Western District of Texas, the following passage was relied upon for a determination of whether a consultant employed by a case trustee should be compensated as a nonprofessional or as a professional. That Court concluded that the consultant was a professional within the meaning of § 327:
Persons who offer services normally performed by professionals, such as appraisals or management consultants, have been designated as professionals, while persons who are involved in the mechanics of a debtor's business have been found not to be within that category of persons. In re Carolina Sales Corp., 45 B.R. 750 (Bankr.E.D.N.C.1985); U.S. ex rel. Kraft v. Aetna Casualty & Surety Co., 43 B.R. 119 (M.D.Tenn.1984). Factors considered by the courts involve not only the nature of the services performed, but also the effect of such person's services upon the administration of the bankruptcy case and how central that role is to the reorganization proceedings. [citations omitted.] If the person seeking to be appointed . . . actually impacts on the administration of the debtor's estate, that person may be a professional person regardless of the label to its [sic] *959 function. In re Johns Manville Corp., 60 B.R. 612, 620 (Bankr.S.D.N.Y.1986).
In re Aladdin Petroleum Co., 85 B.R. 738, 740, 17 B.C.D. 771 (Bankr.W.D.Tex.1988).
In the instant proceeding, Kalliste would have the Court believe that although it acted as management consultants, and thus "designated professionals" pursuant to the above cited passage, the employees of Kalliste were also "involved in the mechanics of [the] debtor's business" once Kalliste was appointed by the Board of Directors. In support of this contention, Mr. Rochelle and Mr. Costich testified that the Board of Directors of the debtor corporations appointed Mr. Costich and Mr. Ris Chief Executive Officer and Chief Financial Officer immediately preceding the chapter 11 filings. Mr. Rochelle further testified that the appointment was made on February 29, 1988. (The Chapter 11 petitions were filed on March 1, 1988). In addition, the "time sheets" of the employees of Kalliste were submitted as an exhibit at the September 7, 1988 hearing on this matter. These records reflect a total of 142 hours of services performed by four individuals between February 28 and March 4, 1988. Although no proof was made of a Board resolution appointing Kalliste as the new management team per se, both Mr. Ris and Mr. Costich include time entries on March 1 and 2, respectively, which involve developing plans for and discussing "management transition." Mr. MacLean, Nashville counsel for the debtors' primary secured creditor, Citicorp, testified that on March 1, 1988 (the date the petition was filed) he understood that the "Kalliste Group" had been appointed to "run the company." He further testified; however, that on March 2, he was told that Mr. Costich and Mr. Ris had never accepted positions as managers of the company. Moreover, according to Mr. MacLean, Kalliste demanded a $50,000.00 retainer at the outset without which it would not assume management of the debtors. Citicorp would not agree to the retainer absent a proposed budget and projections. Upon cross-examination, although he insisted they were later appointed to management positions, Mr. Costich testified that when he and his associates "came to Nashville on Sunday [February 28], they were consultants." This conclusion is supported by the testimony of the Chapter 11 Trustee, Mr. Finley, himself a consultant, who reviewed the Kalliste bill and its attached description of services and found the bill to be one for consulting services.
In considering the evidence and testimony presented, the Court recognizes that Kalliste performed substantial services for these debtors and although the Court is reluctant to deny compensation for such an obvious expense, it cannot ignore the fact that regardless of the "label" or purported appointed position, Kalliste Corporation is a professional organization engaged in the business of providing business and financial consultation to financially distressed businesses. As such, it is subject to the requirements of § 327. In a situation such as this, the Court is "tempted to make a pragmatic finding of `no harm no foul,' then to enter an order sanctioning the services after the fact. To succumb to such a temptation however invites circumvention of section 327." In re Aladdin Petroleum Co., 85 B.R. at 740. Although it is well settled that the Bankruptcy Court is a court of equity, its equitable powers may only be exercised "within the confines of the Bankruptcy Code." In re G. Weeks Securities, Inc., 89 B.R. 697, 713, 18 B.C.D. 162, 19 C.B.C.2d 737 (Bankr.W.D.Tenn. 1988), quoting Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 108 S.Ct. 963, 968-69, 99 L.Ed.2d 169 (1988). Under these circumstances, exercise of the Court's equitable powers would contravene the clear requirements of the Code. Therefore, Kalliste will be permitted to file a general unsecured claim for its compensation and reimbursement but Kalliste's claim may not be paid as an administrative expense along with Kronish, Lieb's expenses.
OTHER EXPENSES
With respect to Kronish, Lieb's remaining expense claims, the Court is satisfied that they have been adequately documented. This is so particularly in light of the detailed statement submitted on February 10, 1989, subsequent to the U.S. Trustee's *960 comments filed on January 6, 1989. See, e.g., In re Crabtree, 45 B.R. 463 (Bankr.E. D.Tenn.1984); In re Cumberland Bolt & Screw, 44 B.R. 915 (Bankr.M.D.Tenn.1984). Moreover, the Court is satisfied that most of these expenses were actual and reasonably necessary. In re National Paragon Corp., supra. However, the Court will address the gravamen of the objections raised by the parties in interest here that although "actual and necessary," several of the expenses for which reimbursement is sought constitute "overhead."
Previously allowed to other counsel in this case, without serious objection, have been reimbursements for mileage, long distance telephone charges, courier services, photocopies, extraordinary postage, telecopy charges and travel. In addition, court reporter charges which are customarily attributable to a particular client have been allowed by this Court, as have filing fees. Expenses incurred for meals while travelling for a particular client, if reasonable in amount, also warrant reimbursement. In re Kreidle, 85 B.R. 573 (Bankr.D.Colo. 1988); In re Prairie Central Ry. Co., 87 B.R. 952 (Bankr.N.D.Ill.1988); In re Wildman, supra. The Court is satisfied that the reimbursement sought for these items by the present application are reasonable.
As to the charges for computer research services, this Court finds the charges to be reasonable and compensable. In re UNR Industries, Inc., 72 B.R. 796, 801-02 (Bankr.N.D.Ill.1987). Like the other expenses discussed in the preceding paragraph, the Court is familiar with the established practice of attorneys' charging for computer research to the affected client. In re Wildman, 72 B.R. at 732. These charges are allowed. But see contra, In re Cuisine Magazine, Inc., 61 B.R. 210, 218 (Bankr.S.D.N.Y.1986).
The U.S. Trustee objects to Kronish, Lieb's request for "proofreading" expenses of $93.24 as a nonreimbursable overhead expense. This objection has been countered by Kronish, Lieb's explanation that the firm employs individuals to act as proofreaders at the rate of $22.00 per hour. The idea, according to Kronish, Lieb, is to provide the service to specific clients in need of proofreading services and accordingly "bill them" at those rates rather than at more expensive attorney rates. In addition, the use of "proofreaders" allows the attorneys more time for attention to more important matters. With this explanation, Kronish, Lieb has described a "practice" of billing specific clients for this particular service. In re Prairie Central Ry. Co., supra; In re Wildman, supra. Moreover, such a practice demonstrates a significant savings to the estate when the hourly rate of proofreaders are compared to those of the attorneys. Such economy should not be thwarted despite the fact that the proofreading time was obviously small. The expense claims for secretarial overtime and word processing also are objected to as "overhead expense" items. Again, Kronish, Lieb has responded that these items are reserved for and billed to the particular clients who need such services. Notwithstanding this response, and the apparent split in authority on the issue, the Court is inclined to follow the precedent established in this district that such items as proofreading, secretarial overtime and word processing are nonreimbursable overhead expenses. See, e.g., In re Westwood Asphalt Paving, Inc., 45 B.R. 111 (Bankr.E.D.Mich. 1984) (Paine, J., sitting by designation); In re Cumberland Bolt & Screw, Inc., 44 B.R. at 917; see also In re Bonds Lucky Foods, Inc. No. 1, 76 B.R. 664 (Bankr.E.D. Ark.1986); In re Command Services Corp., 85 B.R. 230, 20 C.B.C.2d 287 (Bankr. N.D.N.Y.1988). But see, contra, In re Kreidle, supra; In re First Software Corp., 79 B.R. 108 (Bankr.D.Mass 1987); In re UNR Industries, Inc., 72 B.R. at 802.
The distinction between allowing reimbursement of expenses for copies, extraordinary postage, travel, telephone or courier, and disallowing overhead such as secretarial overtime, proofreading or word processing is an admittedly fine line. But a rational distinction does exist. The Court understands and appreciates the argument that all of these "expenses" are intended by the law firm to be borne by its clients. See, e.g., In re Gulf Consolidated Services, *961 Inc., 91 B.R. at 415. Also, the Court appreciates Kronish, Lieb's argument that disallowance may result in law firms' increasing the hourly rate charged by attorneys. However, at least in this Court's experience, secretarial overtime, proofreading and word processing charges have not been shown to be customarily charged to clients. Further, no proof was put before the Court that these expenses are customarily charged to clients as a general practice by law firms or other professionals. On the other hand, this Court has routinely observed practitioners charge for copying, telephone, extraordinary (as opposed to routine) postage, travel, computer research and delivery expenses. As stated, this Court has approved the latter expenses in this case for the Trustee's counsel. Before this Court will begin to approve secretarial overtime, proofreading and word processing expenses as non-overhead items, the applicant must carry the burden of proof. 11 U.S.C. § 330(a); In re S.T.N. Enterprises, Inc., 70 B.R. at 832. Kronish, Lieb put forth no proof other than its firm policy. This Court would require proof of at least a local, if not regional, practice of professionals, both in bankruptcy and other fields. In addressing photocopying, postage and travel, one court distinguished those expenses from overhead "because they are incurred on behalf of a particular client, and accordingly, have traditionally been expenses which are billed to that client." In re National Paragon Corp., 76 B.R. at 74. (Emphasis added). Kronish, Lieb relies upon its billing to a particular client. The Court recognizes that a tradition must begin somewhere but it may not begin in this Court without proof that there is a justification for the birth of a tradition. The Court has no doubt that billing for secretarial overtime, proofreading or word processing is traditional at Kronish, Lieb. But proof must demonstrate that it is an accepted professional practice. Compare, In re Cuisine Magazine, Inc., 61 B.R. at 218 ("A bald assertion that the billing of staff overtime is [a] `standard practice' was not adequate.").
Moreover, based on the hourly rates of the applicants here, as compared to Nashville "local rates," the Court is satisfied that they are sufficient to cover secretarial overtime, proofreading or word processing items as overhead expenses of the applicants. See e.g., In re Kreidle, supra.
From the above findings and conclusions, IT IS HEREBY ORDERED that:
1. The request for compensation is granted in its entirety, $60,482.00, after a voluntary reduction of $3,500.00 for travel time.
2. The expense claims for meals, local transportation, telephone, telegrams, photocopies, postage, travel, filing fees, court reporting, messenger and courier services, and computer research are allowed.
3. The expense claims for secretarial overtime, word processing, proofreading and Kalliste Corporation are denied.
SO ORDERED.
NOTES
[1] 28 U.S.C. § 157(b)(2)(A) and (B).
[2] Judge William Houston Brown normally presides in the United States Bankruptcy Court for the Western District of Tennessee but was designated to preside over these jointly administered cases by the United States Court of Appeals for the Sixth Circuit by Order dated March 2, 1988.
[3] At the time of application for employment of debtors' counsel, the debtors were debtors in possession, with the authority of a trustee under 11 U.S.C. § 1107(a).
[4] The fee application was voluntarily reduced by $3,500.00 for necessary travel by Mr. Kaiser, travel time which this Court would have been inclined to allow.
[5] The Court has compared Kronish, Lieb's application to those applications, previously approved, on behalf of the Trustee's counsel.
[6] "Hard choices in difficult situations demand adequate compensation." Kronish, Lieb's Rebuttal Memorandum, p. 24.
[7] Kronish, Lieb carried its "burden of proof as to the entitlement to and reasonableness of the fees sought." In re Four Star Terminals, Inc., 42 B.R. 419, 429, 12 B.C.D. 197, 11 C.B.C.2d 47 (Bankr.D.Alaska 1984).
[8] Even if it can be shown that Kalliste Corporation was in essence an employee of the debtor rather than a professional and thus entitled to compensation as such, its claim for prepetition management activities would at best qualify as an unsecured claim entitled to priority pursuant to § 507(a)(3). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918291/ | 101 B.R. 194 (1989)
In re BUTLER INDUSTRIES, INC. Debtor.
Bankruptcy No. LA 89-06281-SB.
United States Bankruptcy Court, C.D. California.
June 13, 1989.
*195 Herb Wolas, Wolas, Soref & Ickowicz, Los Angeles, Cal., interim Chapter 7 trustee.
Davis von Wittenberg, Los Angeles, Cal., U.S. Trustee.
OPINION RE APPOINTMENT OF COUNSEL FOR TRUSTEE
SAMUEL L. BUFFORD, Bankruptcy Judge.
I. INTRODUCTION
This motion for reconsideration raises the issue of whether a Chapter 7 trustee's own law firm is eligible for appointment as counsel for the trustee, and the circumstances under which such appointment is permitted.
The Court holds that a trustee must make a showing of cause to justify the appointment of his or her own law firm as the trustee's legal counsel. In this case the trustee has not made a sufficient showing. In consequence, the motion to reconsider the Court's prior denial of appointment of the law firm is denied.
II. FACTS
Four creditors of Butler Industries, Inc. ("Butler") filed an involuntary case against Butler under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701 et seq. (1979 & Supp.1989), on March 27, 1989. Herbert Wolas was appointed as interim Chapter 7 trustee for the debtor's estate on March 30, 1989. Butler failed to file opposition to the involuntary petition, and an order for relief was entered on April 21, 1989.
Pursuant to the procedures under Guideline No. 6 of the guidelines promulgated by the United States Trustee for the Central District of California, Wolas lodged an application to employ counsel with the United States Trustee on April 10, 1989. This application sought the employment of Wolas, Soref & Ickowicz ("WSI"), a professional corporation of which the trustee is a member. The application stated that the trustee needs legal counsel for four purposes: (1) to collect more than $2.5 million in outstanding accounts receivable; (2) to assist in the drafting of documentation for the sale of some $12 million in assets; (3) to file actions to set aside preferential transfers and fraudulent conveyances, and to attack other transactions subject to the trustee's avoiding powers; and (4) to negotiate with the principal secured and unsecured creditors in connection with the disposition of the assets.
The trustee gave very little support in his application for the appointment of his own law firm, as opposed to the employment of unrelated counsel. In the application he stated:
The employment of this firm will avoid duplication of services rendered to the estate which would be in the best interest of the estate in that charges for fees and services will be minimized.
No evidence was offered to support this allegation.
After the United States Trustee indicated no objection to the application, it was lodged with the Court on April 11, 1989. On the following day the application was denied by the Court, by order entered on April 17, 1989.
In his motion to reconsider, the trustee states that he selected his own firm as counsel, "inasmuch as employment of the firm would avoid duplication of services, result in a smoother administration of the estate at a reduced cost to the estate than might otherwise be the case through the employment of other counsel."
III. ANALYSIS
Bankruptcy Code § 327(a), 11 U.S.C. § 327(a) (1979), authorizes the trustee to employ legal counsel:
Except as otherwise provided in this section, the trustee, with the court's approval, may employ one or more attorneys . . . that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent . . . the trustee in carrying out the trustee's duties under this title.
The propriety of the trustee's employment of legal counsel in this case is clear.
*196 The trustee contends, without citing any authority, that "employment by the trustee of his own law firm should not be denied, absent compelling reasons." This is not the law. While the trustee generally has wide latitude in choosing his or her own attorney, subject to appointment by the court, the trustee must meet a higher standard when the trustee seeks to appoint himself or his own law firm as attorney.
The appointment of a trustee as legal counsel for the estate is governed by section 327(d), which provides:
The court may authorize the trustee to act as attorney . . . for the estate if such authorization is in the best interest of the estate.
Bankruptcy Rule 2014(b) specifies the consequence to a trustee's law firm of the appointment of the trustee as counsel:
If, under the Code and this rule . . . a named attorney . . . is employed, any partner . . . or regular associate of the . . . individual may act as attorney . . . so employed, without further order of the court.
Under this rule, the appointment of a trustee as counsel for the estate is the functional equivalent of the appointment of the trustee's law firm.
The legislative history of section 328(b)[1], which prohibits double payment to a trustee acting as his or her own counsel, states:
The purpose of permitting the trustee to serve as his own counsel is to reduce costs. It is not included to provide the trustee with a bonus by permitting him to receive two fees for the same service or to avoid the maxima [for trustees fees] fixed in section 326.
H.R.Rep. No. 595, 95th Cong., 1st Sess. 329, reprinted in 1978 U.S.Cong. & Admin. News 5963, 6285; S.Rep. No. 989, 95th Cong., 2d Sess. 39, reprinted in 1978 U.S. Code Cong. & Admin.News 5787, 5825.
Apparently the only opinion to address the limitations imposed by "the best interest of the estate" is In re Michigan Interstate Railway Co., 32 B.R. 325 (Bankr.E.D. Mich.1983), where the court was asked to appoint the trustee's law firm as counsel to the trustee in a Chapter 11 railroad reorganization. The court denied appointment of the trustee's law firm because neither the trustee nor his firm had any expertise in bankruptcy reorganization.
In analyzing section 327(d) in that opinion Judge Bernstein reasoned that the practice of appointing a trustee or the trustee's law firm as counsel for the trustee "must . . . be severely limited so as to prevent abuse and the appearance of impropriety." Id., at 326. Judge Bernstein further reasoned:
In a major and difficult case such as a railroad reorganization, this Court is of the opinion that appointing a trustee's firm as his own counsel is a very questionable practice.
There is good reason to require a bankruptcy trustee to employ unrelated counsel, absent unusual circumstances. One of the responsibilities of a trustee is to monitor all legal fees in the bankruptcy case, including those of the trustee's own legal counsel. The trustee has a statutory duty to object to any fee application where the fees requested are not appropriate. Bankruptcy Code § 704(5), 11 U.S.C. § 704(5) (Supp. 1989). However, where the trustee's own law firm is appointed as his legal counsel, he is interested in obtaining the largest fee recovery on behalf of his firm. This presents an actual conflict of interest for the trustee.
An additional complication arises when a trustee is appointed as his or her own attorney. An attorney is entitled to compensation only for legal services, as opposed to administrative duties of the trustee. Bankruptcy Code § 328(b), 11 U.S.C. § 328(b) *197 (1979); In re McKenna, 93 B.R. 238, 240-42 (Bankr.E.D.Cal.1988); In re King, 88 B.R. 768, 770 (Bankr.E.D.Va.1988); In re Taylor, 66 B.R. 390, 392-94 (Bankr.W.D. Pa.1986); In re Wilmon, 61 B.R. 989, 990 (Bankr.W.D.Pa.1986). Where the trustee or the trustee's law firm is appointed as the trustee's own attorney, there is a substantial temptation for the trustee to charge administrative duties as legal services, and thereby to attempt to obtain double compensation.[2]Michigan Interstate Railway, supra, at 326. On marginal matters, at least, the trustee would tend to classify the services as legal rather than managerial. Id. It is less likely that an outside law firm will undertake administrative duties for a trustee, and shoulder the risk of disallowance of its fees for these services. While the appointment of outside counsel for a trustee does not eliminate this problem, it reduces the problem substantially.
In light of the foregoing considerations, and bearing in mind the severe limitation to be placed on the use of section 327(d), the Court holds that a trustee must show "cause" to justify the appointment of the trustee or the trustee's law firm as counsel under section 327(d).
While each appointment application must be considered on its own merits, there are certain situations where cause may usually be shown for the appointment of the trustee's own law firm as his or her counsel. One typical situation arises where the estate's assets consist principally in causes of action, such as for preferences and fraudulent conveyances, and legal counsel would have to look to the recovery for payment of fees. A second typical situation is where there is relatively little legal work to perform, which does not merit the effort and expense of hiring an outside law firm. See, Michigan Interstate Railway, supra, at 326. A third situation arises where substantial legal action must be taken immediately, and the trustee cannot wait for the completion of the appointment process for outside counsel. A fourth is where the trustee can demonstrate that such appointment will result in a substantial reduction of costs to the estate. The trustee has not shown that this case involves any of these situations.
Because of the policy to limit severely the appointment of a trustee as counsel for the estate, creditors and other parties in interest should be given notice and an opportunity to be heard before such an appointment is made. In consequence, any trustee seeking his or her own appointment (or the appointment of his or her law firm) as counsel for the estate should make a motion on notice to all creditors,[3] pursuant to local motion practice.[4]
IV. CONCLUSION
In this case the trustee has not made an adequate showing of cause for the appointment of his law firm as his legal counsel. Accordingly, the motion to reconsider is denied.
NOTES
[1] Bankruptcy Code § 328(b), 11 U.S.C. § 328(b) (1979), provides:
If the court has authorized a trustee to serve as an attorney or accountant for the estate under section 327(d) of this title, the court may allow compensation for the trustee's services as such attorney or accountant only to the extent that the trustee performed services as attorney or accountant for the estate and not for performance of any of the trustee's duties that are generally performed by a trustee without the assistance of an attorney or accountant for the estate.
[2] The temptation to charge administrative services as legal expenses, where the trustee employs his or her own law firm, is not merely theoretical. The Court has recently denied fees for another trustee's law firm, where it appeared that all of the services performed by the law firm were administrative in nature.
[3] In appropriate circumstances a trustee may apply for an order limiting notice.
[4] If the trustee needs interim counsel before the motion can be heard, the trustee may apply for the appointment of interim counsel pending court action on the motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918192/ | 272 So.2d 60 (1973)
Fred KNIGHTEN
v.
AM AMUSEMENT COMPANY.
No. 5260.
Court of Appeal of Louisiana, Fourth Circuit.
January 15, 1973.
*61 Frank S. Bruno and Carl J. Ciaccio, New Orleans, for plaintiff-appellant.
Montgomery, Barnett, Brown & Read, Daniel Lund, New Orleans, for defendant-appellee.
Before SAMUEL, CHASEZ and BOUTALL, JJ.
SAMUEL, Judge.
Plaintiff filed this suit against his employer for total and permanent disability benefits under the Louisiana Workmen's Compensation law. He alleges he sustained a hernia in the course and scope of his employment and acute prostatitis and cystitis which developed as a result of the hernia repair. Following trial on the merits, judgment was rendered in favor of the defendant, dismissing plaintiff's suit at his cost. Plaintiff has appealed.
The hernia developed following a work connected accident on May 13, 1969. Plaintiff underwent the hernia repair on July 19, 1969 and workmen's compensation was paid until September 2, 1969, following his discharge by treating physicians as able to return to work. All of the medical experts agree that plaintiff is presently suffering from acute prostatitis and cystitis.
Plaintiff's claim is based primarily on those ailments and a question presented is whether or not the accident and/or operation aggravated a preexisting prostatitis and cystitis or caused that condition. The trial court found plaintiff had failed to sustain his burden of proving either that there was any causal connection between his present condition and the accident and/or operation or that his previous condition was aggravated thereby. Pertinent testimony was given by plaintiff himself (it was stipulated his wife would testify likewise), the defendant's manager, and four medical experts.
Plaintiff testified he was injured while loading a 500 pound pool table on a truck on May 13, 1969. The company sent him to Dr. Richard A. Faust who operated on July 8, 1969. He remained in the hospital five or six days. Four weeks later he was unable to urinate and Dr. Faust sent him to a urologist (Dr. Robert Prosser Morrow, Jr.) who treated him for that condition. *62 He returned to work six or seven weeks after the operation. He is still under medical care because he has to urinate frequently. Although during his testimony he stated he did not have problems of urinary frequency prior to the operation, he later admitted that on September 27, 1967 he had a prior hernia repair and suffered the similar postoperative urinary problems. Since the accident he was seen by Dr. Louis Ensenat, who told him he was unable to work. Defendant paid him compensation until September, 1969 when Dr. Morrow said he could return to work.
The defendant company's manager testified plaintiff returned to work in September, 1969 and left his employment October 3, 1969. He "just left" on the October date without complaining of any inability to perform the same work he was doing at the time of the accident.
The four medical experts who testified were: Dr. Richard A. Faust, a general surgeon and the operating and treating physician, Dr. Ronald W. Martz, an expert in internal medicine, and Dr. Robert Prosser Morrow, Jr., a specialist in the field of urology, who testified on behalf of defendant, and Dr. Louis Ensenat, a general surgeon, who testified on behalf of plaintiff.
Dr. Faust first saw plaintiff May 20, 1969 relative to his injury on the 13th. Examination disclosed a left inguinal hernia. The doctor was of the opinion plaintiff was born with the hernia but the straining maneuver resulting from supporting the weight of a 500 pound pool table caused its appearance. Plaintiff was sent to Dr. Martz for a preoperative examination which indicated he was in satisfactory condition to tolerate surgery. He gave no history of any preexisting urinary or prostrate problems, although he disclosed he had prior hernia surgery. A urinalysis was normal and negative. The operation was performed on July 9, 1969. Following the operation plaintiff had no significant genital urinary problems. Catheterization was not necessary and plaintiff passed urine normally with no complaints preoperatively or postoperatively for several weeks thereafter.
Plaintiff first complained of soreness in both testicles on August 6, 1969. Examination was negative. He was advised to soak in hot water. On August 16, plaintiff complained of urinary problems. A urinalysis was ordered and he was referred to the urologist. On August 26, Dr. Faust examined plaintiff, found the repair was solid, and advised him he could return to work. He was discharged following a final examination on September 2.
Dr. Faust was of the opinion plaintiff's urinary problem and prostatitis were unrelated to the accident or surgery because they did not occur sooner than five weeks after the accident and because of an absence of catheterization during hospitalization. He was of the further opinion that neither the hernia repair nor the chronic prostatitis would disable plaintiff from performing as a laborer and that he could return to the same work he had previously performed. He felt the surgery had been completely successful, had strengthened the groin area and that there was only a 1% chance of a recurrence of the hernia. He reviewed plaintiff's records at Charity Hospital and found them replete with urinary problems prior to the operation. Plaintiff had been seen in the urology clinic frequently and as far back as 1942.
Dr. Ronald Martz performed a preoperative examination of plaintiff to determine his fitness for surgery and his testimony was concerned only with that examination. He took a medical history, performed a physical examination and had laboratory tests made consisting of an electrocardiogram, chest x-ray and urinalysis. Plaintiff had no complaints of urinary disease, infection or problems nor did he disclose any history of prostatitis. Dr. Martz certified him as fit for surgery.
Dr. Robert Prosser Morrow, Jr., the urologist, saw plaintiff August 20, 1969 on referral from Dr. Faust. The chief complaint *63 was urinary frequency and dysuria (painful urination). Plaintiff told Dr. Morrow he had no urinary trouble before his present illness. The doctor took a history and performed a rectal examination, extracting secretion from the gland and examining it under a microscope, which he stated is the only way to test for prostatitis. He found plaintiff had acute prostatitis and acute lower urinary tract infection. Plaintiff was treated until October, 1969, when the urine and prostate had cleared up. The doctor was of the firm opinion these troubles were not connected with the hernia repair. He testified there probably has never been a case of prostatitis caused by hernia repair without catheterization or instrumentation; there is no physical connection between the area of the prostate gland and the area of the incision to repair the hernia. The doctor felt the fact that plaintiff's symptoms did not begin until five weeks after the operation was additional evidence of the absence of any such causal connection. The doctor was also of the opinion a hernia repair would not, and in this case did not, aggravate a preexisting condition.
Dr. Louis A. Ensenat, who testified for plaintiff, first took his history and examined him on August 21, 1970. In his opinion plaintiff suffered from chronic prostatitis resulting from improper preparation for the herniorrhaphy of July 9, 1969, with complications thereafter resulting from delayed referral to a urologist and a too early return to work. He stated plaintiff was unable to perform heavy manual labor due to the two hernia operations and to the recurrence of acute prostatitis.
The doctor saw plaintiff on two other occasions, two or three weeks after his initial examination, and thereafter on November 29, 1970, the day before the trial, a total of four times. He did not perform a rectal examination because he considered it unnecessary, nor did he have a urinalysis made. He was of the opinion the urinalysis performed prior to the operation should have alerted defendant's doctor that further work was needed as there were indications of a chronic kidney infection.
In this court plaintiff contends the trial court erred in: (1) failing to allow an amendment to the pleadings; (2) not resorting to lay testimony when there was a conflict in the medical testimony; and (3) refusing to hold that plaintiff is permanently disabled either as a result of the accident and/or operation, or as a result of aggravation of his condition by the accident and/or operation.
Relative to the first contention, plaintiff's original petition did not plead aggravation of a preexisting condition and the trial court did refuse to allow such amendment offered for the first time during the trial while the defense was presenting its case. However, testimony at the trial adequately covered that possibility and in arriving at his conclusion, as do we, the trial judge did consider such testimony as indicated in his reasons for judgment. Thus, even assuming but not deciding, the amendment should have been allowed, plaintiff has not been damaged by its refusal.
Nor do we find any merit in plaintiff's second contention relative to lay testimony. The only lay witnesses who testified about plaintiff's physical condition were the defendant manager, plaintiff himself and, by stipulation, the latter's wife. The trial court did have the advantage of this testimony. We are satisfied he gave it due consideration, as do we, in arriving at a conclusion.
Relative to plaintiff's third contention, the trial court had the benefit of testimony from the three lay witnesses and the four medical experts. The treating physician and a treating specialist in the field of urology, the specific specialty with which we are here concerned, both agree plaintiff's present condition is not due to his accident, his operation, or to any aggravation by the accident or operation of his preexisting condition. They are further of the *64 opinion he can return to the work he was doing prior to the accident.
The only adverse medical testimony is that of Dr. Ensenat who did not examine plaintiff until more than a year after the surgery and who never treated him. Dr. Ensenat's opinion is based upon a urinalysis performed prior to the accident. The other doctors indicated the results of that urinalysis were within normal limits. Dr. Ensenat was of the further opinion that plaintiff's postoperative condition was aggravated by delay of referral of the patient to a urologist. However, as has been said, Dr. Faust testified plaintiff was referred to a urologist the day he made the complaint relative to those problems, and Dr. Faust, Dr. Martz and Dr. Morrow testified plaintiff never gave a history of prior urinary problems.
The established rule is that in compensation cases, as in other cases, plaintiff bears the burden of proving his claim with legal certainty by a preponderance of the competent evidence. Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286; Dobard v. R. Theriot Liquor Stores Inc., La.App., 195 So.2d 350. It is also generally true that the testimony of a specialist as to matters which fall within his field of specialization is entitled to greater weight than that of another practitioner who is not a specialist in that field. Blue v. Kinney Company, La.App., 256 So.2d 145; Davis v. Lesnack, La.App., 205 So.2d 77; Prier v. Massman Construction Company, La. App., 205 So.2d 109; Manning v. Herrin Transportation Company, La.App., 201 So. 2d 314. It is further generally true that the testimony of a physician who examines and treats the injured party is entitled to greater weight than that of a physician who only examines the party at a later date. Lotz v. Jamerson Hardware Store, La. App., 211 So.2d 391; Vidrine v. United States Fidelity & Guaranty Co., La.App., 205 So.2d 178; Treadway v. State Farm Insurance Company, La.App., 204 So.2d 609; Meche v. Maryland Casualty Company, La.App., 204 So.2d 719.
Here the testimony of the treating physician and the testimony of the specialist are not in conflict and were accepted by the trial judge. We cannot say he committed error in accepting their testimony and rejecting that of Dr. Ensenat. Accordingly, we find no error in his conclusion that plaintiff has failed to sustain his burden of proof.
For the reasons assigned, the judgment appealed from is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918195/ | 272 So.2d 1 (1972)
Sylvia SALAS and Ramon Salas, Individually, and As Guardian of Sylvia Salas, a Minor, Petitioners,
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY, a Foreign Corporation Authorized to Do Business in the State of Florida, Respondent.
No. 41279.
Supreme Court of Florida.
December 13, 1972.
Rehearing Denied February 7, 1973.
*2 Guilmartin, Gaine & Gaine, and Jeanne Heyward, Miami, for petitioners.
Law Office of Richard E. Hardwick, Coral Gables, and Sam Daniels, Miami, for respondent.
ADKINS, Justice.
By petition for certiorari, we have for review a decision of the District Court of Appeal Third District (Salas v. Liberty Mutual Fire Insurance Company, Fla.App., 247 So.2d 528), which allegedly conflicts with a decision of this Court (Hodges v. National Union Indemnity Company, Fla., 249 So.2d 679), and other decisions on the same point of law. Fla. Const., art. V, § 4, F.S.A.
This was an action brought by Liberty Mutual Fire Insurance Company seeking a declaratory judgment determining its rights under an automobile insurance policy.
Petitioner Sylvia Salas, the minor daughter of the named insured, Ramon M. Salas, and a resident of her father's household, was involved in an automobile accident while riding as a passenger in an uninsured vehicle owned and operated by her brother, Raymond M. Salas, Jr., who was also a resident of his father's household. The other vehicle involved in the accident was owned by Marian C. Kees and operated by Richard Kees. The Kees' vehicle was insured by Allstate Insurance Company.
The insurance policy issued by respondent Liberty Mutual Fire Insurance Company to the father provided uninsured motorist coverage and described the following persons as insured under the policy:
"Persons Insured.
"* * *
"Under the Uninsured Motorist Coverage, the following are insureds:
"(a) the named insured and any relative,
"(b) any other person while occupying an insured automobile,
"(c) any person with respect to damages he is entitled to recover because of bodily injury to which this coverage applies sustained by an insured under (a) or (b) above."
Petitioners made a claim under the uninsured motorist provision of Liberty Mutual's policy alleging gross negligence on the part of Raymond M. Salas. After the arbitration hearing had been scheduled, Liberty Mutual instituted the present action alleging in its complaint for declaratory judgment that it was not liable under the uninsured motorist provision of its policy because of the following exclusion:
"(g) To bodily injury to an insured while occupying a highway vehicle (other than an insured automobile) owned by the named insured or by any person resident in the same household who is related to *3 the named insured by blood, marriage or adoption, or through being struck by such a vehicle; ..."
Petitioners answer alleged that the vehicle owned and operated by Raymond M. Salas, Jr., was uninsured at the time of the accident, and sought a declaratory judgment determining that Liberty Mutual was obligated under its policy. Attorneys' fees were requested.
The trial court upheld the validity of the family-household exclusion and entered a summary final judgment in favor of Liberty Mutual.
Upon appeal, the trial court was affirmed on the authority of National Union Indemnity Company v. Hodges, 238 So.2d 673 (Fla.App.3d 1970). Subsequently, the decision of the District Court of Appeal in National Union Indemnity Company v. Hodges, supra, was quashed by this Court. Hodges v. National Union Indemnity Company, supra.
The above-quoted "family-household" exclusion patently attempts to narrow or limit the uninsured, motorist coverage, contrary to the purpose and intent of Fla. Stat. § 627.0851, F.S.A.
In Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla. 1971), Shelby Mullis had been issued two policies by State Farm covering a 1963 Ford and 1967 Ford, which policies provided coverage to the insured, his spouse, and their relatives resident in his household (which included Richard Lamar Mullis) for bodily injury caused by the negligence of an owner or operator of an uninsured automobile. Richard Lamar Mullis, the son, was injured while he was operating a Honda motorcycle, which was not covered by the policy issued by State Farm. The son was injured by the negligent operation of an automobile by Marion William Smith, an uninsured motorist. The Honda motorcycle was owned by Richard Lamar Mullis' mother, the wife of Shelby Mullis. When arbitration was refused by State Farm, suit for declaratory judgment was instituted and summary judgment was entered in favor of State Farm, pursuant to its defense that its two policies by their terms excluded the uninsured motorist coverage claimed by the plaintiffs. The exclusion provision reads as follows:
"(b) to bodily injury to an insured while occupying or through being struck by a land motor vehicle owned by the named insured or any resident of the same household, if such vehicle is not an `insured automobile';"
The Court in its opinion said:
"To summarize, the policies provide for uninsured motorist family protection for the members of the Mullis family household, subject to the exclusion that this coverage is not applicable if the bodily injury caused by the negligence of an uninsured motorist occurs while the injured member of the family is occupying another motor vehicle owned by Shelby Mullis or an insured member of his household that is not covered by said automobile liability policies issued to Shelby Mullis.
"* * *
"The question to be decided is whether the described exclusion of Richard Lamar Mullis from uninsured motorist coverage is legally permissible under Florida law.
"* * *
"The recited exclusion is contrary to F.S. Section 627.0851, F.S.A., and the uninsured motorist protection contemplated therein." (252 So.2d 229, pp. 231-232)
Fla. Stat. § 627.0851, F.S.A., establishes the public policy of Florida to be that every insured, as defined in the policy, is entitled to recover under the policy for damages he would have been able to recover against the negligent motorist if that motorist had maintained a policy of liability insurance. Davis v. United States Fidelity & Guaranty Company of Baltimore, Maryland, 172 So.2d 485 (Fla.App.1st, 1965); *4 Travelers Indemnity Company v. Powell, 206 So.2d 244 (Fla.App.1st, 1968); First National Insurance Co. of America v. Devine, 211 So.2d 587 (Fla.App.2d, 1968); Hodges v. National Union Indemnity Company, supra.
It can also be argued that a second exclusionary clause might be applicable in the present case:
"This policy does not apply: ...
"Under the Liability Coverage, ...
"(j) to bodily injury to
"(1) any person, if such person is related by blood, marriage or adoption to and is a resident of the same household as
"(i) the insured or
"(ii) the person for whose use of the automobile or trailer the insured is legally responsible, or
"(2) the named insured."
The language adopted by this Court in Mullis v. State Farm Mutual Automobile Insurance Co., supra, in seeking uniformity in application of Fla. Stat. § 627.0851, F.S.A., treats the insureds
"[A]s `if the uninsured motorist had carried the minimum limits' of an automobile liability policy." (252 So.2d 229, p. 238)
The argument continues that if Raymond M. Salas, Jr., the driver of the automobile, had been covered by insurance, Sylvia Salas, his sister and passenger, would have been excluded by the above-noted family exclusion clause. Likewise, Sylvia would have been excluded under the uninsured motorist protection because the driver would no longer have been uninsured.
Thus, an exception to Mullis could be urged on the basis that an accident involving an "intra-family," multi-car situation such as presented in the case sub judice presents a different question when the negligence is charged against a member of the family.
Such an interpretation of Fla. Stat. § 627.0851, F.S.A., would be contrary to the intention of the Legislature, as interpreted by earlier decisions of this Court, to create a broad protection of insureds from the negligence of uninsured motorist's negligence.
In Hodges v. National Union Indemnity Company, supra, we said:
"The fine print of an insurance policy ... should not be read to exclude coverage unless it plainly and with certainty `brings home' in unambiguous language to the insured that he is not protected in a certain particular... . And especially is this so when it is recalled that it has been repeatedly held that uninsured motorist coverage provided pursuant to F.S. Section 627.0851, F.S.A., ordinarily protects a named insured under all circumstances and locations when he is injured by an uninsured motorist as `if the uninsured motorist had carried the minimum limits' of an automobile liability policy." (249 So.2d 679, p. 681)
The use of the language utilized in the argument under consideration in the context of Hodges indicates that the phraseology was intended to create greater liability coverage, not to create exemptions.
Likewise, in Mullis v. State Farm Mutual Automobile Insurance Co., supra, we said:
"Whenever bodily injury is inflicted upon named insured or insured members of his familly by the negligence of an uninsured motorist, under whatever conditions, locations, or circumstances, any of such insureds happen to be in at the time, they are covered by uninsured motorist liability insurance issued pursuant to requirements of Section 627.0851." (252 So.2d 229, p. 233)
*5 Thus, the intention of the Legislature, as mirrored by the decisions of this Court, is plain to provide for the broad protection of the citizens of this State against uninsured motorists. As a creature of statute rather than a matter for contemplation of the parties in creating insurance policies, the uninsured motorist protection is not susceptible to the attempts of the insurer to limit or negate that protection.
A direct attempt of the insurer to limit the applicability of uninsured motorist protection, such as is contained in the policy under consideration here, has already been rejected as struck down by us in Mullis. Why, therefore, should we create such an exception, obviously not in the contemplation of either party, indirectly? We feel that we should not.
The decision of the District Court of Appeal is quashed and the cause is remanded with instructions to further remand same to the trial court for further proceedings consistent with the views herein expressed.
It is so ordered.
ERVIN, CARLTON, BOYD and McCAIN, JJ., concur.
ROBERTS, C.J., dissents.
DEKLE, J., dissents with opinion.
DEKLE, Justice (dissenting).
I must respectfully dissent.
There is a distinction in the present case which would be consistent with our holdings in Hodges v. National Union Indemnity Co., 249 So.2d 679 (Fla. 1971), and Mullis v. State Farm Mutual Automobile Ins. Co., Supreme Court Opinion filed July 1, 1971. In Mullis, at p. 237-238 this Court held:
"In sum, our holding is that uninsured motorist coverage prescribed by Section 627.0851 is statutorily intended to provide the reciprocal or mutual equivalent of automobile liability coverage prescribed by the Financial Responsibility Law... . To achieve this purpose, no policy exclusions contrary to the statute of any of the class of family insureds are permissible since uninsured motorist coverage is intended by the statute to be uniform and standard motor vehicle accident liability insurance for the protection of such insureds thereunder as `if the uninsured motorist had carried the minimum limits' of an automobile liability policy... ." (Emphasis added)
The italicized portion of the above quotation from Mullis clearly states as predicate for the holding, that uninsured motorist coverage is to be provided on the basis and to the extent, that the insured would have been protected had the uninsured motorist carried liability insurance. This statement in Mullis is as clear as a statement of law could be made, but by the decision in the present case we are extending uninsured motorist protection beyond the protection which the insured would have if the uninsured motorist had bought ordinary liability coverage. If Ramon M. Salas had bought the appropriate minimum liability policy, (our predicate) Sylvia Salas would not have been able to recover under that liability policy because of the traditional family exclusion clause.[1] Nor would she have been able to recover under the uninsured motorist provision since Ramon M. Salas would have been "insured" under this test.
Therefore, we are giving greater coverage under the uninsured motorist provision *6 than the insured would have received "if the uninsured motorist had carried the minimum limits." This result directly contradicts our ruling in Mullis, supra. It is a strange result that provides an incentive NOT to purchase insurance for additional cars within the family and thus obtain coverage that would not otherwise obtain.
We should recognize here a distinction in the Mullis rule to avoid this paradox, i.e., in an "intra-family," multi-car situation such as exists here, there could be no recovery under uninsured motorist coverage. This would be consistent with Mullis which allowed this type of recovery upon the reasoning that recovery should be "as if the uninsured motorist had carried the minimum limits of an automobile liability policy." In applying this criterion we (fictitiously) "issue" such a liability policy to "brother" (Ramon Salas) but then we find that under that policy there could be no recovery by "sister" (Sylvia Salas) as a passenger in her brother's now "insured" car (Ramon Salas) under Liability Coverage, since such coverage would be expressly excluded.[2]
For these reasons, and for those reasons discussed in my dissent in Hodges v. National Union Indemnity Co., supra, I must respectfully dissent.
NOTES
[1] "This policy does not apply: ...
"Under the Liability Coverage, ...
"(j) to bodily injury to (1) any person, if such person is related by blood, marriage or adoption to and is a resident of the same household as (i) the insured or (ii) the person for whose use of the automoble or trailer the insured is legally responsible, or (2) the named insured."
[2] See Note 1, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918210/ | 101 B.R. 206 (1989)
In re FIRST INDEPENDENT TRUST COMPANY, a California Corporation, Debtor.
Bankruptcy No. 289-03511-C-11.
United States Bankruptcy Court, E.D. California.
May 24, 1989.
Wilbur H. Haines, III, Law Offices of Jon D. Smock, Sacramento, Cal., for debtor.
Frederick D. Holden, Jr., Brobeck, Phleger & Harrison, San Francisco, Cal., for Harold D. Doyle, Acting Superintendent of Banks, as such and as liquidator of First Independent Trust Co.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CHRISTOPHER M. KLEIN, Bankruptcy Judge:
The question is whether First Independent Trust Company is eligible to be a debtor under the Federal Bankruptcy Code. I conclude that it is ineligible by virtue of 11 U.S.C. § 109(b)(2).
FINDINGS OF FACT
1. First Independent Trust Company is a corporation organized under the laws of the State of California and engages in the trust business.
2. It receives funds in trust pursuant to specific trust agreements with its various trustors and administers those trust accounts in accordance with ordinary trust principles.
3. The various trust accounts fall into three separate categories.
4. The first category is the so-called purely "conventional trust account" in *207 which the corpus is invested in the type of assets that traditionally are the subject of trusts. There are 418 such trust accounts, whose holdings total approximately $20,575,000.
5. The second category is the so-called purely "trust rate account." Funds in trust rate accounts are used for purposes of making loans to students. Such an account is created when the customer delivers funds and executes a "declaration of trust" naming the customer as beneficiary directing First Independent Trust Company to invest the corpus of the trust in student loans.
6. First Independent Trust Company uses the funds in the trust rate accounts to make loans to students, which loans are supposed to be eligible for the loan guarantees of various governmental entities. After a period of time, usually several weeks, the loans are sold into the secondary market. The proceeds of the sale are used (1) to reimburse the individual trust rate account for the amount that was loaned, (2) to make the promised interest payment, based on the 90-day treasury bill rate plus 1 percent, and (3) to pay the surplus to First Independent Trust Company as its compensation.
7. There are 507 purely trust rate accounts, whose holdings total approximately $17,882,000.
8. The third category of account is the so-called "mixed account," in which some or all of the corpus of conventional trust accounts with conventional trust customers is invested in trust rate accounts, i.e. student loans. There are 530 such mixed accounts, whose holdings total approximately $23,444,000, in which a portion of the corpus is invested in trust rate accounts. In addition, there are 440 mixed accounts, whose holdings total approximately $4,912,000, in which all of the corpus is invested in trust rate accounts. First Independent Trust Company regards the contents of these trust rate accounts as "special deposits" or "trust deposits."
9. First Independent Trust Company has referred to itself as "the in trust bank." Such references have been made to the public.
10. The State Superintendent of Banks, purporting to exercise his powers under chapter 17, California Financial Code, seized First Independent Trust Company on May 19, 1989, changed the locks, and installed physical security, preventing the further operation of First Independent Trust Company. The Superintendent of Banks has scheduled a hearing for 2:30 p.m., May 23, 1989, in California Superior Court seeking approval of the sale of the purely conventional trust accounts to another financial institution.
11. First Independent Trust Company filed a chapter 11 petition at 4:00 p.m. on May 22, 1989. A hearing was held the morning of May 23, 1989, on the Superintendent of Banks' motion for relief from automatic stay to permit it to proceed with the sale of the conventional trust accounts that it proposed to make under the supervision of the California Superior Court.
12. Division 1 of the California Financial Code (sections 100-3904) applies to all corporations engaging in commercial banking or the trust business. Cal.Fin.Code § 100(a).
13. The word "bank" as used in division 1 of the California Financial Code means "any incorporated banking institution which shall have been incorporated to engage in commercial banking business or trust business." Cal.Fin.Code § 102.
14. "Banks" are divided into two classes: commercial banks and trust companies. Cal.Fin.Code § 103.
15. The California Superintendent of Banks is responsible for liquidation of banks pursuant to chapter 17 of division 1, California Financial Code §§ 3100-3240. The Superintendent of Banks' power to take possession of a bank is governed by California Financial Code § 3100. The term "bank" whenever used in chapter 17 of division 1, California Financial Code, includes trust companies. Cal.Fin.Code § 3100(h).
*208 DISCUSSION
Federal courts are courts of limited jurisdiction and are obliged to be faithful to the statutes governing their jurisdiction. It is appropriate for the court, sua sponte, to consider the question of subject matter jurisdiction at the outset where there is an articulable question about jurisdiction. This case poses such a question.
The Congress provided in the Federal Bankruptcy Code that certain institutions are not eligible for relief under the bankruptcy laws. The limitation pertinent here is the list of ineligible entities set forth at 11 U.S.C. § 109(b)(2):
a domestic insurance company, bank, savings bank, cooperative bank, savings and loan association, building and loan association, homestead association, credit union, or industrial bank or similar institution which is an insured bank as defined in section 3(h) of the Federal Deposit Insurance Act (12 U.S.C. 1813(h)).
If First Independent Trust Company is not eligible to be a debtor under the Federal Bankruptcy Code, then this court lacks jurisdiction, and the case should be dismissed without reaching the question of whether to grant relief from the automatic stay as requested by the Superintendent of Banks.
In deciding questions of eligibility under 11 U.S.C. § 109(b)(2), there are two recognized tests: the state classification test and the independent classification test. In re Cash Currency Exch., Inc., 762 F.2d 542, 548 (7th Cir.), cert. denied, 474 U.S. 904, 106 S.Ct. 233, 88 L.Ed.2d 232 (1985); 2 L. King, Collier on Bankruptcy § 109.02 (15th ed.) 1988.
It does not appear that the Ninth Circuit has specified the test that governs in this circuit. Accordingly, I will address both tests.
The state classification test focuses upon the status of the entity under the law of the state of incorporation, here, California. If California law classifies First Independent Trust Company as an entity that is specifically excluded from being a debtor by virtue of 11 U.S.C. § 109(b)(2), the inquiry is over. If California law does not so classify the entity, then the court must determine whether the entity is the substantial equivalent of any of those institutions that are listed at section 109(b)(2).
The inquiry into California law begins, and in this case ends, with the California Financial Code. It is agreed that the debtor is in the trust business. Being in the trust business, the debtor is subject to division 1 of the California Financial Code relating to banks. The term "bank" as used in that division includes banking institutions that are engaged in the trust business. Cal.Fin.Code § 102. Trust companies are one class of bank. Cal.Fin.Code § 103. The banks that the Superintendent of Banks has the power to take possession of and liquidate includes trust companies. Cal.Fin.Code § 3100.
It is inescapable that California classifies First Independent Trust Company as a "bank," and that in view of the express inclusion of bank in section 109(b)(2), under the state classification test, First Independent Trust Company is ineligible to be a debtor under the Federal Bankruptcy Code.
Under the independent classification test, the court construes section 109(b)(2) itself. Thus, I consider whether First Independent Trust Company is a bank in the generic sense. A common denominator of the financial institutions that are listed at section 109(b)(2) includes the ability to accept deposits. See In re Cash Currency Exch., Inc., 762 F.2d at 552.
It has long been recognized that a bank, for purposes of exclusion from federal bankruptcy statutes, is,
a business which [is] based primarily on the receipt of deposits (general or special), which deposits [are] used by the bank for loans, discounts, buying and selling commercial paper, and other business purposes. . . . The prime incentive in engaging in the business [is] the profit to be made, directly or indirectly, from the use of deposits.
Gamble v. Daniel, 39 F.2d 447, 450 (8th Cir.), cert. denied, 282 U.S. 848, 51 S.Ct. 27, 75 L.Ed. 752 (1930) (prior law). The authority to receive savings deposits, but not *209 demand deposits, was sufficient to make an institution a banking corporation that was ineligible for relief under the former Bankruptcy Act. First American Bank & Trust Co. v. George, 540 F.2d 343 (8th Cir.), cert. denied, 429 U.S. 1011, 97 S.Ct. 634, 50 L.Ed.2d 620 (1976).
First Independent Trust Company concedes that it receives deposits but insists that they are merely "special deposits" rather than "general deposits." In analyzing the deposits that it accepts, I focus particularly on the so-called "trust rate accounts." In those accounts, special deposits are received from the various trustors who authorize First Independent Trust Company to invest in student loans. First Independent Trust Company promises that the depositors will receive the 91-day treasury bill rate plus 1 percent. Any surplus that First Independent Trust Company is able to generate is purely for the profit of First Independent Trust Company.
First Independent Trust Company has held itself out to its customers as "the in trust bank." Customers anticipate that their funds are safe and comparatively liquid. They do not regard themselves as making investments that entail substantial risk. Thus, the deposits make First Independent Trust Company look like a bank.
The fact that the trust rate accounts include a trust-type instrument (which is conceded not to create a conventional trust under California law) does not change the conclusion that the funds in trust rate accounts constitute deposits for purposes of determining the status of First Independent Trust Company under section 109(b)(2).
Further light on conventional understanding of the term deposit also is shed by a key federal statutory definition. For the purposes of the Federal Deposit Insurance Corporation, the term "deposit" means trust funds (i.e. funds held in a fiduciary capacity) received or held by a bank, whether held in the trust department or held or deposited in any other department of such bank. 12 U.S.C. § 1813(l)(2). This supports the conclusion that the trust rate accounts are deposit, and that First Independent Trust Company has essential attributes of a bank.
Thus, I conclude, under the independent classification test, First Independent Trust Company is a bank.
Considerations of the public interest also affect the analysis. The State of California has a comprehensive scheme for rapid control and transfer of deposit accounts and liquidation of banks and trust companies. Federal nonbankruptcy laws similarly provide comprehensive schemes for institutions that are covered by those statutes. The Federal Bankruptcy Code prescribes different procedures and times that are founded upon policies that are not fully consistent with the policies underlying the various state and federal bank liquidation statutes. First American Bank & Trust, 540 F.2d at 348 n. 4; Woolsey v. Security Trust Co., 74 F.2d 334, 337 (5th Cir.1934).
The trustors, trust beneficiaries, and depositors dealing with First Independent Trust Company rely upon the existence and the integrity of those bank liquidation schemes. They act on the assumption that they will receive prompt administration of the assets in the trusts and trust rate accounts and will receive prompt access in accordance with the terms of the trusts and the trust rate accounts without the worry of having to deal with the various requirements of the Federal Bankruptcy Code.
CONCLUSIONS OF LAW
First Independent Trust Company is a bank for purposes of California law and, applying the state classification test, is ineligible to be a debtor under the Federal Bankruptcy Code.
First Independent Trust Company is a bank for purposes of the independent classification test and is ineligible to be a debtor under the Federal Bankruptcy Code.
Since First Independent Trust Company is ineligible to be a debtor, this court lacks jurisdiction over First Independent Trust Company, and the bankruptcy case will be dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918214/ | 101 B.R. 289 (1989)
In re PERDIDO MOTEL GROUP, INC., Debtor.
Bankruptcy No. 88-05976(11).
United States Bankruptcy Court, N.D. Alabama.
June 19, 1989.
*290 Thomas J. Knight, Anniston, Ala., for debtor.
Robert Rubin, Birmingham, Ala., for Florida Nat. Bank.
MEMORANDUM OF OPINION ON ORDER DENYING CONFIRMATION OF CHAPTER 11 PLAN
L. CHANDLER WATSON, Jr., Bankruptcy Judge.
Introduction
The above-styled case is pending before the Bankruptcy Court under title 11, chapter 11, United States Code, having been commenced by the debtor's voluntary petition filed on June 22, 1988. This case came before the Court for a hearing on confirmation of the debtor's plan of reorganization on April 4, 1989, at Anniston, Alabama. After consideration of the plan, objections thereto by Florida National Bank, and the oral testimony and other evidence concerning confirmation of the plan, the Court took the debtor's request for confirmation of the plan of reorganization under advisement.
On June 1, 1989, the Court having concluded that confirmation should be refused, an order denying confirmation of the debtor's plan of reorganization was entered. This memorandum is a recitation of the Court's conclusions in that regard.
There are no findings of fact, as all of the matters on which the Court's decision rests appear of record, i.e., the debtor's amended disclosure statement, the debtor's plan of reorganization, and the debtor's written report to the Court concerning confirmation of the plan.
Opinion of the Court
By the express terms of 11 U.S.C. § 1129(a), the Court is to "confirm a plan only if all of the following requirements are met . . .," as set forth therein but subject to the exception provided by subsection (b). Here, the Court is forbidden to confirm the debtor's plan of reorganization because the following three requirements of section 1129(a) are not met:
(1) The plan complies with the applicable provisions of this title.
. . . . .
(8) With respect to each class of claims or interests
(A) such class has accepted the plan; or
(B) such class is not impaired under the plan.
. . . . .
(10) If a class of claims is impaired under the plan, at least one class of claims that is impaired under the plan has accepted the plan, determined without including any acceptance of the plan by any insider.
Subsection (a)(1)
Section 1123 of title 11, United States Code, describes both required attributes or provisions of a plan of reorganization and those which are not mandatory but are permissible, with the mandatory provisions set forth in subsection (a). Part (6) of (a) requires that the plan "provide for the inclusion in the charter of the debtor, if the debtor is a corporation, . . . of a provision prohibiting the issuance of nonvoting equity securities. . . ." In this case, the debtor is a corporation, and the plan does not contain such a provision. As a consequence, it cannot be found by the Court that the "plan complies with the applicable provisions of . . . title [11]," and the plan fails the test of section 1129(a)(1).
Subsection (a)(8)
The debtor's report to the Court on confirmation of the plan includes the following information:
1. "Class V" is an impaired class of unsecured claims;
*291 2. "Class V" includes the $3,740,000 claim of Florida National Bank, which voted against the debtor's plan; and
3. Claims in "Class V" held by creditors voting to accept the plan total less than ten thousand dollars.
The debtor's confirmation report to the Court blithely ignores the absence of any "request of the proponent of the plan," as provided for in subsection (b) of section 1129, and as blithely asserts that "with respect to each Class of claims that is impaired [the plan] is fair and equitable," as required for a plan to be confirmed pursuant to subsection (b). Not blithely, but for the sake of a resolution of this "fair and equitable" requirement, the Court will pass over the absence of a formal request for confirmation under subsection (b) by the debtor.
In short, section 1129(a)(8) requires that each class of impaired claims accept a plan, in order for the plan to be confirmed by the Court. Here, impaired "Class V" has not "accepted" the plan.[1] The negative vote by Florida National Bank, with a claim in "Class V" of $3,740,000, precludes any serious consideration of whether "two-thirds in amount" of the claims voted in this class were held by creditors who accepted the plan.
Subsection (b) of section 1129, however, contains provisions which when properly invoked permit subsection (a)(8) to be disregarded, if the requirements of subsection (b) are met. Thus, it is conceivable that the failure of the debtor's plan to be "accepted" by the creditors holding claims in "Class V" may not be fatal to the plan. This result would require among other requirements that the plan be "fair and equitable, with respect to" claims in "Class V."[2]
Subsection (b)(2)(B), in essence, requires that a plan, to be found to be "fair and equitable" with respect to a class of unsecured claims, must provide "that each holder of a claim of such class receive or retain on account of such claim property of a value, as of the effective date of the plan, equal to the allowed amount of such claim . . .," or the plan must comply with the "absolute priority" requirement set out in part (ii). Northwest Bank Worthington v. Ahlers, 485 U.S. 197, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988). The plan proposed to pay $15,000, divided into 120 monthly installments, on the several million dollars of unsecured claims, precluding any thought that the plan might provide payment of the allowed amounts of the claims in dissenting "Class V."
Thus, if the plan were susceptible of confirmation under subsection (b) notwithstanding the absence of plan acceptance by the impaired "Class V" the plan would have to meet the "absolute priority" test of § 1129(b)(2)(B)(ii), in order to be found to be "fair and equitable." The plan indirectly fails the "absolute priority" test but fails it nevertheless.
This corporate debtor was organized for the purpose of building and operating a two-story 100-room motel in the Florida Panhandle, which was built near but not on the Gulf beaches. The construction and equipping of the motel were financed with the proceeds from the sale of $4,400,000 of Florida "industrial development" bonds. Florida National Bank is trustee for the bondholders and holds a first mortgage on or security interest in the motel property to secure payment of the bonds, payment of which by the debtor is in hopeless default. The large unsecured claim of Florida National Bank represents the excess of the debtor's debt on the bond issue over the value of the motel property. The debtor's corporate stock is solely owned by two brothers.
The plan proposed to leave no property for the two stockholders, by having the debtor transfer all of the debtor's propertypractically all of which is the motel property to Comfort Inn of Perdido, Inc., *292 a corporation organized in September, 1988, in consideration for the promise of the new corporation to perform the financial obligations of the plan. The debtor's two stockholders were neither to have nor obtain any interest in the new corporation. It is on these facts that the debtor represented to the Court that the "absolute priority" test was met by the insolvent debtor's plan and, therefore, was "fair and equitable," as required by section 1129(b).
The debtor's narrative and conclusion take no notice of the fact that the sole stockholders of the new corporation are James L. Deupree, Sr. and Ann H. Deupree, parents of James L. Deupree, Jr. and Charles A. Deupree, the debtor's sole stockholders. Perhaps the family ties of these persons do not expressly appear on the face of the record in this case, but they are a fact which the debtor will not gainsay and of which judicial notice could be taken. The record does show that the new corporation was organized on the basis of $1,000 total authorized capital stock and that the new corporation began "business" with this $1,000 as its paid-in capital. There is no indication of any change in the structure of the new corporation.
The Court's earlier conclusion that the debtor's plan fails the "absolute priority" test "indirectly" should now be clear, as should the reason why the Court rejects the debtor's conclusions on this test. A complete disregard for the principles set out in Ahlers and in Case v. Los Angeles Lumber Products Co., 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110 (1939)[3] would be required to find that this arrangement meets the "absolute priority" test. This arrangement for the stockholders of the debtor to pass to their parents the property of the estate for a $1,000 guarantee of performance of the plan is, by indirection, a retention of control of the debtor's property, and the Court is unable and unwilling to find that the prospects for future financial gain from control of the motel property as a going business can be sold for $1,000 and called a quid pro quo. From all appearances, the debtor's two stockholders would retain an interest in the debtor's property an appearance not dispelled by the debtor and for the Court to confirm this plan, if not a shame, would be to "cram down" a sham.
The Court notes that Justice White's opinion in Ahlers suggests that Congress may have drawn a shroud over the quid pro quo qualification of the "absolute priority" rule.[4] If this plan is to be confirmed, the debtor must convert its case to one under chapter 12 and its pool area to hydroponics, raise not only its rates but tomatoes, and seek confirmation under 11 U.S.C. § 1225.[5]
Subsection (a)(10)
In its conclusions as to the qualification of this plan for confirmation, the debtor misapplies subsection (a)(10). The debtor's position is that the tax claims in "Class III" are impaired, that both of the governmental entities having claims in "Class III" have accepted the plan, and, therefore, that the requirement of subsection (a)(10), that "at least one class of claims that is impaired under the plan has accepted the plan," has been met.
The debtor's error lies in its equating the two tax claims in "Class III" with the term "class of claims that is impaired" used in subsection 1129(a)(10).[6]
*293 In In re Snedaker, 32 B.R. 29 (Bankr.S. D.Fl.1983), the court agreed with a debtor's contention that a priority tax claim was not impaired, because of the preferred treatment mandated for the claim by subsection 1129(a)(9)(C). The preferred treatment for priority tax claims (described in 11 U.S.C. § 507(a)(7)) is "deferred cash payments, over a period not exceeding six years after the date of assessment of such claim, of a value, as of the effective date of the plan, equal to the allowed amount of the claim," provided that the claimant may, of course, agree to a less favorable treatment. This minimum treatment appears quite "unimpairing" when it is contrasted with a proposal to pay less than one percent on common, unsecured claims.
The writer, however, does not agree that a plan which provides the preferred treatment, under subsection (a)(9)(C), to section 507(a)(7) tax claims, leaves the claims "unimpaired."[7] The Snedaker holding is based upon an unwarranted inference from Circuit Judge Anderson's opinion in Matter of Southern States Motor Inns, Inc., 709 F.2d 647 (11th Cir.1983). In the context here, "impairment" is not a question of how favorably a claim is treated by the plan but is a statutory question under 11 U.S.C. § 1124. Aside from the provisions of Part 2. (dealing with the reinstatement of a defaulted claim), that section provides that a class of claims is "impaired" unless (1) each claim is to be paid in cash on the effective date of the plan or (2) each creditor's "legal, equitable, and contractual rights" are left "unaltered" by the plan. The installment payment of the tax claims eliminates the cash-payment provision, and it alters the tax claimant's legal rights to levy upon or put tax liens against the debtor's property in pursuit of an earlier payment of the tax claim.
The debtor's position that the tax claims are impaired, although offered the preferential treatment required by section 1129(a)(9)(C), is indisputable, but the galling question for the debtor is whether the tax-priority claims constitute a "class" as that word appears in the term "impaired class" in subsection (a)(10). They do not constitute an "impaired class." This is fatal to the debtor's conclusion that an impaired class has accepted its plan, thereby opening to it an otherwise-closed gate which bars its entrance into the land of greater promise of subsection 1129(b), where it might "cram-down" its plan its plan to pay less than 1¢ on the dollar upon the claims of Florida National Bank and others in "Class V."
As stated in the beginning of this discussion, section 1123(a) sets out those provisions which must be included in a confirmable plan of reorganization.[8] The first mandatory provision is that the plan: "(1) designate . . . classes of claims, other than claims of a kind specified in section 507(a)(1), 507(a)(2), or 507(a)(7) of [title 11]. . . ."
Regarding this provision, Collier says:
It is not clear from the language of the statute nor [sic] from its legislative history whether section 1123(a)(1) prohibits the classification of section 507(a)(1), (a)(2) and (a)(7) claims or merely makes such classification permissive. The reason that it is unnecessary to classify section 507(a)(1), (a)(2) and (a)(7) claims is that a majority of a class composed of claimants holding such priority claims cannot bind the minority to treatment at variance with section 1129(a)(9).
. . . .
5 Collier on Bankruptcy ¶ 1123.01[1][b] (15th ed. rel. 17 12/85).
To the Court, however, it is clear enough that a plan may not, in a literal sense, designate a class of claims consisting of tax claims given priority under section 507(a)(7) and thus entitled to the preferential treatment required by section 1129(a)(9)(C). This, at least, is a permissible reading of the language of section *294 1123(a)(1), and it is by far the most obvious one, when the statute is as it must betaken in its context. While section 1123(b)(5) permits in a confirmable plan ". . . any other appropriate provision not inconsistent with the applicable provisions of [title 11]," this license is neutral as an argument for or against a different interpretation of section 1123(a)(1), and no other permissible provision in subsection (b) gives any hint that section 507(a)(7) tax claims may be classified.
None of this is to say that, for sake of reference and convenience, claims given priority under section 507(a)(7) or 507(a)(1), 507(a)(2) cannot be put into categories. The designation of "classes of claims," as section 1123(a)(1) uses that term, is a different matter. The purpose of classification is to state the treatment by the terms of the plan of a particular claim or of associated claims. The "treatment" of the above-mentioned priority claims is fixed by statute, i.e., section 1129(a)(9). The term "classes of claims," as used in the section 1123(a)(1) directive to "designate . . . classes of claims, other than claims of a kind specified in section 507(a)(1), 507(a)(2), or 507(a)(7)," is a "word of art."
A reading of section 1123(a)(1), so as to make permissible a classification of section 507(a)(7) tax claims, creates the evil of having to find contrary to section 1124 that the tax claims, when given the very favorable treatment required by section 1129(a)(9)(C), are a class which is not impaired. The latter error is forced by such a reading because anyone can see that, if an affirmative vote by such a favored class can satisfy the requirement of subsection (a)(10), for acceptance of the plan by at least one impaired class (when any class is impaired), the provisions of (a)(10) become so lukewarm as to be no requirement at all. If (a)(10) is to have any real role of offering some protection to holders of impaired claims in chapter 11 cases, the acceptance of a plan by holders of highly-favored tax claims does not constitute acceptance by a "class" of impaired claims. A different view ascribes to the Congress an intent to waste paper and printer's ink, which, at least in this context, the Court is not prepared to find.
Courts, of course, should not ignore statutes, including section 1124 of title 11. The irresistible desire to do so is avoided by reading section 1123(a)(1) as an implied prohibition of "classification" (in a literal sense) of the priority claims mentioned there. It is thus, that the Court concludes that the plan also fails the test of section 1129(a)(10).
The order denying confirmation of the debtor's plan of reorganization, therefore, was mandated by the plan's terms and the statute.
NOTES
[1] Broadly speaking, a class of claims has accepted a plan if it has been accepted by creditors "that hold at least two-thirds in amount and more than one-half in number of the allowed claims of such class held by creditors" that voted on the plan. See 11 U.S.C. § 1126(c).
[2] 11 U.S.C. § 1129(b)(1).
[3] See also Northern Pacific R. Co. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931 (1913).
[4] "Even if Congress meant to retain the Los Angeles Lumber exception [308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110 (1939)] to the absolute priority rule when it codified the rule in Chapter 11 a proposition that can be debated . . . it is clear that Congress had no intention to expand that exception any further. . . ." 485 U.S. 197, ___, 108 S.Ct. 963, 968.
[5] The debtor, however, should note that the requirement that a plan must have "been proposed in good faith" is an obstacle to confirmation of this plan, under either section 1129(a)(3) or 1225(a)(3) of title 11.
[6] Prior to the 1984 amendment 11 U.S.C. § 1129(a)(10) only required that "one class of creditors has accepted the plan," rather than the present requirement that, if a class is impaired, at least one impaired class has accepted. The Bankruptcy Reform Act of 1978, Pub.L. 95-598; Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. 98-353.
[7] But see In re Distrigas Corporation, 66 B.R. 382 (Bankr.D.Ma.1986) (dictum); In re Toy & Sports Warehouse, Inc., 37 B.R. 141 (Bankr.S.D.N.Y. 1984) (dictum); cf. In re Polytherm Industries, Inc., 33 B.R. 823 (W.D.Wi.1983) (dictum).
[8] 11 U.S.C. § 1129(a)(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918216/ | 101 B.R. 426 (1989)
In re MMS BUILDERS, INC., Debtor.
Civ. No. 89-2152 (CSF).
United States District Court, D. New Jersey.
June 19, 1989.
*427 Ravin, Greenberg & Zacklin, Bruce J. Wisotsky, Roseland, N.J., for VLJ Construction Corporation.
Vernon & Aaron, James G. Aaron, Shrewsbury, N.J., for Peter Costanzo Auctioneers.
St. John, Oberdorf, Williams, Edington & Curtin, Bruce S. Edington, Newark, N.J., for Chemical Bank.
Markowitz & Zindler, Roberta DeAngelis, Lawrenceville, N.J., for Stewart Tile Company.
Meyner and Landis, Linda Snyder, Newark, N.J., for National Westminister Bank N.J.
OPINION
CLARKSON S. FISHER, District Judge.
This is an appeal from a bankruptcy court order awarding compensation and expenses to Peter Costanzo Auctioneers and Appraisers, Inc. ("Costanzo Auctioneers"), the auctioneer appointed by the court to conduct a public auction of certain real property which was the subject of the bankruptcy proceeding. National Westminster Bank N.J. (formerly known as The First Jersey National Bank) ("NatWest") has appealed that portion of the order directing it to pay a pro-rata share of the award to the auctioneer. The appeal is opposed by Costanzo Auctioneers, secured creditors Chemical Bank, New Jersey, National Association (formerly known as Horizon Bank, National Association) ("Chemical") and VLJ Construction Corporation ("VLJ"), and Stewart Title Agency of Middlesex ("Stewart Title"), an interested party. For the reasons stated below, the decision of the bankruptcy court is affirmed.
On October 13, 1987, an involuntary Chapter 7 bankruptcy petition was filed against MMS Builders, Inc. ("MMS"). The Chapter 7 proceeding was converted to one under Chapter 11 upon application by MMS on October 15, 1987. At the time of the filing, MMS was involved in the construction of two residential projects in Holmdel, New Jersey. One of the projects, a multilot subdivision known as Hickory Hills, was financed by NatWest and was in the early stages of construction. Eight of the lots, however, were under contract of sale. The second project was called Raven's Nest and was financed by Chemical. The construction on the lots at Raven's Nest ranged anywhere from 25 to 90 percent complete.
On February 8, 1988, the bankruptcy court issued an order granting NatWest, Chemical and VLJ partial relief from the automatic stay provisions of 11 U.S.C. § 362 to allow these creditors to proceed with state foreclosure actions to judgment only. The stay continued in place with regard to sale of the properties involved. David P. Michaels was appointed as Trustee.
On September 7, 1988, the bankruptcy judge signed a consent order acknowledging NatWest's status as a secured creditor under 11 U.S.C. § 506 and fixing its perfected first mortgage lien at $2,715,904.28 as of July 31, 1988. The automatic stay was further lifted so that the Trustee could proceed to sell four of the Hickory Hills lots to the original contract purchasers, with the net proceeds to be applied to the outstanding balance due NatWest. The Trustee was allowed an additional 120 days to market, on an exclusive basis, the remaining Hickory Hills lots;[1] however, at the expiration of the 120 days, NatWest would be granted complete relief from the automatic stay to proceed with a foreclosure sale on any lots which remained. In the event that the Trustee sold the property, the order provided that NatWest pay administrative costs and expenses based on the following schedule:
5. That the Trustee retain $10,000 of the proceeds from the sale of the four lots towards administrative expenses.
. . . . .
*428 8. That in the event the Trustee sells the remaining seven lots, the proceeds thereof shall be paid to [NatWest] in the following amounts:
(a) If the total net proceeds paid to [NatWest] from the sale of the 11 Hickory Hill lots exceeds $2,700,000, the Trustee shall retain a total of $20,000 towards administrative expenses (including the $10,000 set forth in paragraph 5);
(b) If the total net proceeds paid to [NatWest] from the [sale of] the 11 Hickory Hill lots exceeds $2,800,000, the Trustee shall retain a total of $30,000 towards administrative expenses (including the $10,000 set forth in paragraph 5);
(c) If the total net proceeds paid to [NatWest] from the [sale of] the 11 Hickory Hill lots exceeds $2,900,000, the Trustee shall retain a total of $40,000 (including the $10,000 set forth in paragraph 5);
(d) If the total net proceeds paid to [NatWest] from the [sale of] the 11 Hickory Hill lots exceeds $3,000,000, the Trustee shall retain a total of $50,000 (including the $10,000 set forth in paragraph 5).
On November 4, 1988, the bankruptcy court issued an order allowing the sale, by auction, of 11 of the Raven's Nest lots to the highest bidder.[2] The order also provided that the sale was to be financed by Chemical, VLJ, Stewart Title and James Yacenda (a guarantor of the Chemical Bank loan) in accordance with an agreement reached among the parties. The court directed the four parties to advance the costs of marketing and advertising, up to $15,000.00, to the auctioneer.
After three of the contract purchasers for the Hickory Hills lots failed to close title, the bankruptcy judge entered an amended consent order on December 14, 1988, modifying the September 7, 1988, consent order. The December 14, 1988, consent order provided for the sale of the sole remaining Hickory Hills lot under contract. Again, the Trustee was permitted to retain $5000 of the proceeds for this one sale and $5000 from the sale of the first three of the ten remaining lots, to be applied towards administrative expenses. Under the December 14, 1988, consent order, the Trustee was given until January 7, 1989, to market the ten remaining lots exclusively and, in addition, was given the authority to sell the property, by auction, in accordance with the court's November 4, 1988, order.[3]
In the event that the Trustee was successful in selling the Hickory Hills property, the December 14, 1988, consent order contained the identical provisions regarding payment of administrative expenses to the Trustee as did the September 7, 1988, consent order. The amount of administrative expenses to be paid by NatWest to the Trustee was again based on the total net sales price of the lots; however, the December 14, 1988, consent order expressly provided:
8. That any costs incurred in connection with the marketing, advertising and auctioning of the remaining ten Hickory Hills lots will be the responsibility of the Trustee and not [NatWest].
It is undisputed that the Raven's Nest creditors were not parties to this consent order and were not aware of its provisions.
A public bid was conducted by Costanzo Auctioneers, and the highest bulk bid received on the Hickory Hills property was $2,408,000.00. The sale was confirmed by order of the bankruptcy court on January 31, 1989, and a closing on the sale was held in May 1989. The net proceeds for the sale, by auction, of the Hickory Hills lots was $2,381,392.90. The closing on the sale of the single lot to the original contract purchaser had occurred prior to the auction, on December 8, 1988, and resulted in net proceeds of $231,184.33. NatWest received $226,189.33 from that sale following the deduction of $5,000 for administrative expenses for the Trustee. Thus, the total net sales from the Hickory Hills property amounted to $2,612,577.23.
*429 On January 30, 1989, Costanzo Auctioneers filed a motion for an order compelling the Trustee to pay over the auctioneer's allowance from the proceeds of the closings of the auctioned real property and to apportion the allowance against the secured parties, who were to receive the proceeds of the funds. The auctioneer sought $71,370.00 in commissions from the auction and an additional $6,048.86 to cover marketing and advertising expenses incurred over the $15,000.00 already advanced by Chemical, VLJ, Stewart Title and James Yacenda. Two hearings were held, one on February 27, 1989, and another on March 8, 1989, regarding the amount of fees requested and the sources from which payment would be made.
On March 27, 1989, following the hearings, the bankruptcy court issued an order granting the auctioneer's allowance and compelling apportionment and payment among the secured creditors. That same day, the court amended its order. The final amended order approved the full amount of the commission requested by the auctioneer ($71,370.00), as well as the additional fees sought for expenses or unreimbursed costs ($6,048.86), for a total expense allowance of $21,048.86. The court allocated 40% of the expense costs, or $8,419.86, to NatWest for the sale of the Hickory Hills property and 60% of the expense costs, or $12,629.00, to the Raven's Crest secured creditors. Since the Raven's Crest group had already advanced $15,000.00 to the auctioneer for the auction's marketing expenses, the court determined that the group was entitled to a credit of $2,371.00, payable by NatWest.
With regard to the auctioneer's commission, the court charged 60%, or $40,451.31, to the Raven's Nest sale. Of this amount, the court allocated the sum of $13,483.77 to the Trustee, and the balance of $26,967.54 to Chemical and VLJ. The court charged the remaining 40% of the auctioneer's commission, or $30,918.69, to the Hickory Hills sale. The court allocated $20,612.46 to NatWest and $10,306.23, to the Trustee.[4] It is from this order that NatWest appeals.
NatWest advances two arguments in support of its request that this court reverse the bankruptcy court's March 27, 1989, order. First, it asserts that the decision of the bankruptcy court to apportion the auctioneer's commission and marketing expenses pro rata among the secured parties, notwithstanding a prior consent order entered into between NatWest and the Trustee which limited NatWest's responsibility for administrative expenses to $10,000.00, was arbitrary and capricious. Specifically, NatWest contends that no legal basis existed under Fed.R.Civ.P. 60(b) for the court's modification of its prior order. Second, NatWest argues that, even absent the existence of the consent order, Costanza Auctioneers would still be unable to look to NatWest for payment of its fees, because no benefit was conferred on NatWest by the auction, as required by 11 U.S.C. § 506(c).
With the sole exception of Chemical, all of the parties in the instant case have proceeded on the premise that the disposition of the first issue presented by NatWest is controlled by Federal Rule of Civil Procedure 60(b). Rule 60(b) sets forth six grounds on which a party may seek relief from a judgment or order of the court. In part, it provides:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order or proceeding for the following reasons . . . (emphasis added).
The language of the rule explicitly restricts its application to final judgments or orders. A "final order is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). To be final, the order must be more than "`just a provisional disposition of the issues'" or a "`step towards final disposition on the merits.'" New York v. United *430 States Metals Ref. Co., 771 F.2d 796, 799 (3d Cir.1985) (quoting Rodgers v. United States Steel Corp., 508 F.2d 152, 159 (3d Cir.), cert denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975)).
The court concludes, at the outset, that the amended consent order entered by the bankruptcy court on December 14, 1988, was not a final order, but was interlocutory in nature. In addition to setting a payment schedule for administrative expenses, the order lifted § 362's automatic stay, permitting the Trustee to market the debtor's Hickory Hills property for a limited time. If the Trustee was unsuccessful in selling the property within this time frame, the court authorized him to abandon it, and NatWest, as a secured creditor with a first mortgage on the property, would then be allowed to conduct a foreclosure sale. The sale of the property, however, was always subject to the court's approval and continuing supervision. Moreover, the possibility always existed that a sale of the property would realize greater funds than the amount covered by NatWest's lien, requiring further adjudication of any claims held by general creditors. Clearly, this order did not adjudicate the rights of all the parties who had claims with regard to the Horizon Hills land. Hence, the court holds that the December 14, 1988, amended consent order was an interlocutory order entered during the pendency of a bankruptcy proceeding and, as a result, not subject to the procedure outlined in Rule 60(b) for modification of final judgments and orders.
The Federal Rules of Civil Procedure do not expressly address modification of interlocutory orders;[5] however, Fed.R.Civ.P. 54(b) does provide:
[a]ny order . . . which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order . . . is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Furthermore, it is well settled that a federal court which enters an interlocutory order has the inherent power to reconsider or revise the order in the interest of justice. John Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 88, 42 S.Ct. 196, 198, 66 L.Ed. 475 (1922); United States v. Jerry, 487 F.2d 600, 604-05 (3d Cir.1973); Schering Corp. v. Schering Aktiengesellschaft, 667 F.Supp. 175, 185 (D.N.J.1987); Advisory Comm. Notes to Fed.R.Civ.P. 60(b) ("interlocutory judgments are not brought within the restrictions of [Rule 60(b)], but rather are left subject to the complete power of the court rendering them to afford such relief from them as justice requires").
Moreover, it is immaterial that the interlocutory order modified by the court was entered by consent. A consent decree is no less a judgment within the control of the court than a judgment entered on the merits following litigation. United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932); United States v. City of Miami, Florida, 664 F.2d 435, 439 (5th Cir.1981); Webster Motor Car Co. v. Zell Motor Car Co., 234 F.2d 616, 619 (4th Cir.1956). Thus, the contractual aspects of an interlocutory consent decree do not prevent a court from exercising its equitable power to modify it to the extent necessary to administer justice prior to the entry of a final judgment. See United States v. Swift & Co., 286 U.S. at 114-15, 52 S.Ct. 460, 76 L.Ed. 999; Webster Motor Car Co. v. Zell Motor Car Co., 234 F.2d at 619.
It is clear that these same principles apply with equal force to a bankruptcy court sitting in equity. In re Lintz West Side Lumber, Inc., 655 F.2d 786, 789 (7th Cir. 1981); In re Meter Maid Indus., Inc., 462 F.2d 436, 439 (5th Cir.1972); In reMonsour Medical Center, 5 B.R. 715, 717 (Bankr.W. D.Pa.1980). In the instant case, if the December 14, 1988, amended consent order, with its $10,000.00 cap on administrative expenses, were allowed to stand, the other secured parties would be forced to bear the *431 burden of paying the auctioneer's commission and marketing expenses for the auction and sale of property they had no interest in. At the time the November 4, 1988, order was entered allowing the sale, by auction, of the Raven's Nest property, the secured creditors were unaware that the Hickory Hills property would later be included in the auction. Furthermore, the Raven's Nest secured creditors had not been put on notice of the consent order prior to its entry.
The bankruptcy judge immediately recognized the inequity inherent in allowing a consent order to stand which affected the rights of third parties who were not signatories to the order, and exercised his plenary power to modify the interlocutory consent order. In doing so, the bankruptcy judge was not bound by Rule 60(b)(5)'s strict standard of "changed circumstances," as NatWest contends, but instead, had the discretion to apply general equitable principles in making his determination. See Huk-A-Poo Sportswear, Inc. v. Little Lisa, Ltd., 74 F.R.D. 621, 623 (S.D.N.Y. 1977). Thus, the contention that the bankruptcy court was without authority to modify its prior order has no merit.
Having resolved that it was well within the bankruptcy court's discretion to vacate that part of the December 14, 1988, consent order, which provided for a fee arrangement regarding administrative expenses between NatWest and the Trustee, the court must next address whether NatWest is responsible, under 11 U.S.C. § 506(c) for payment of the costs associated with the sale of the property by the auctioneer. Section 506(c) of the Bankruptcy Code provides:
(c) The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.
11 U.S.C. § 506(c) (emphasis added).
It is well settled that the general administrative expenses of a reorganization cannot be charged against a secured creditor, but are the responsibility of the debtor's estate. In re Flagstaff Food Serv. Corp., 739 F.2d 73, 76 (2d Cir.1984); In re Trim-X, Inc., 695 F.2d 296, 301 (7th Cir. 1982); In re Perrett, 63 B.R. 978, 984 (Bankr.N.D.N.Y.1986). Notwithstanding this rule, a secured creditor can be compelled under 11 U.S.C. § 506(c) to pay the reasonable and necessary costs of sale of the property securing its claim to the extent the expense was incurred for the benefit of the secured creditor. In re Trim-X, Inc., 695 F.2d at 296; In re Stanton Indus. Inc., 75 B.R. 699, 702 (Bankr.E.D.Mich. 1987); In re Codesco, Inc., 18 B.R. 225, 228 (Bankr.S.D.N.Y.1982); In re Truitt, 15 B.R. 169, 171 (Bankr.N.D.Ga.1981).
NatWest presents substantially the same arguments here as were presented to the bankruptcy court. Essentially, NatWest asserts that it derived no benefit from the auction because the entire amount of its lien vas not realized, and the alternative route of sale by a sheriff's foreclosure was available to NatWest after January 7, 1989, under the consent order. Thus, NatWest argues, the auctioning of Hickory Hills was undertaken not for NatWest's benefit, but in an attempt to obtain a sale price greater than NatWest's lien and thereby benefit the general creditors. The bankruptcy court, noting the extensive time and effort put forth by the auctioneer and the unusually high number of people who attended the auction and placed bids,[6] seriously questioned NatWest's ability to obtain a sale price equal to or greater than that realized by the auction by utilizing a sheriff's foreclosure sale, and rejected NatWest's arguments.
11 U.S.C. § 506(c) is a codification of the bankruptcy law in existence at the time of its enactment. In re Codesco, 18 B.R. at 228 (citing House Report No. 95-595, 95th Cong., 1st Sess. (1977) 357; Senate Report No. 95-989, 95th Cong., 2d Sess. (1978) 68, U.S.Code Cong. & Admin.News 1978, pp. 5787, 5854, 6313). In those instances where part of the proceeds from the sale of *432 the encumbered property was sought under the old Bankruptcy Act, benefit was equated with the costs associated with preserving and/or selling the property. See In re Truitt, 15 B.R. at 171, and the cases cited therein. These costs were usually measured by the actual foreclosure costs saved by the lienholder by allowing the property to be sold through the debtor's estate. In re Codesco, 18 B.R. at 229; In re Truitt, 15 B.R. at 171. Thus, NatWest should bear at least the reasonable and necessary costs of selling the Hickory Hills property which it would have incurred in recovering and selling the property through a foreclosure proceeding and a subsequent sheriff's foreclosure sale. In re Perrett, 63 B.R. 978, 985 (Bankr.N.D.N.Y.1986).
At the time of the auction, NatWest had already proceeded with a state court foreclosure action to the point of judgment; however, NatWest still faced the prospect of a sheriff's foreclosure sale and the costs normally associated with it. Pursuant to N.J.Stat.Ann. § 22A:4-8, a sheriff who conducts a foreclosure sale is entitled to charge a fee equal to 4% of any sum not exceeding $5000.00, and 2½% on any amount recovered in excess of $5000.00.[7] Thus, even if NatWest could have sold the Hickory Hills property by foreclosure for the same amount recovered by auctioning the lots through bulk bidding, the fees charged by the sheriff for the foreclosure would have run approximately $60,000, a substantially higher fee than that charged to NatWest for the cost of the auction.
Moreover, the court agrees with the bankruptcy judge's assessment of NatWest's ability to obtain the same return on a sheriff's foreclosure sale as it did on a widely advertised and marketed auction of the Hickory Hills property. In light of the broad interpretation given to the term "benefit" by the Third Circuit, see In re McKeesport Steel Castings Co., 799 F.2d 91, 93 (3d Cir.1986), and this court's estimation of what a foreclosure sale would have cost NatWest under New Jersey law, the court finds that NatWest clearly derived a "benefit" from the auction.
Accordingly, the decision of the bankruptcy court apportioning Costanzo Auctioneer's commission and marketing expenses among the secured parties is affirmed. No costs.
NOTES
[1] Any contracts for sale of the remaining lots had to be approved jointly by the Trustee and NatWest.
[2] The remaining lot, No. 26.14, was sold to the original contract purchasers.
[3] NatWest retained final approval of all auction bids on the remaining ten Hickory Hill lots.
[4] In total, the Trustee was ordered to pay one-third of the auctioneer's commission.
[5] Fed.R.Civ.P. 60(a) is not applicable here, because its reach is limited to the correction of mistakes which are clerical in nature, and does not encompass alterations of decisions deliberately made. See Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir.1975).
[6] The evidence before the bankruptcy court showed that the auction was attended by over 500 people and that 163 people posted $30,000.00 each in order to qualify to place a bid.
[7] N.J.Stat.Ann. § 22A:4-8 provides, in pertinent part:
When a sale is made by virtue of an execution the sheriff shall be entitled to charge the following fees: On all sums not exceeding . . . $5,000.00, 4%; on all sums exceeding . . . $5,000.00 on such excess, 2½%
. . . . | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/403409/ | 677 F.2d 1
UNITED STATES of America, Plaintiff, Appellee,v.Roberto Louis Bosch MORALES, Defendant, Appellant.
No. 80-1673.
United States Court of Appeals,First Circuit.
Argued Jan. 8, 1982.Decided March 1, 1982.As Amended March 16, 1982.On Rehearing May 24, 1982.
Owen S. Walker, Federal Public Defender, Boston, Mass., for defendant, appellant.
H. Manuel Hernandez, Asst. U. S. Atty., with whom Raymond L. Acosta, U. S. Atty., San Juan, P.R., was on brief, for plaintiff, appellee.
Before COFFIN, Chief Judge, TIMBERS, Senior Circuit Judge*, BREYER, Circuit Judge.
COFFIN, Chief Judge.
1
Appellant was indicted in the District of Puerto Rico for conspiring with a bank teller to misapply monies of a federally insured bank in violation of 18 U.S.C. § 371. A superseding indictment charged him with the identical conspiracy, and with thirteen counts of aiding and abetting the unindicted co-conspirator in misapplying those monies in violation of 18 U.S.C. §§ 2 and 656. The overt acts supporting the conspiracy count consisted "among others" of the same thirteen instances of fraudulent check cashing which were alleged to be substantive crimes. No other specific overt acts were alleged.
2
After a jury trial, the district judge instructed the jury that an essential element of the offense of conspiracy was that "one of the conspirators ... knowingly committed at least one of the overt acts charged in the indictment." (emphasis added). He repeated the essence of this charge, that the overt acts must be alleged in the indictment, on several occasions. In response to a later question from the jury, the judge issued a further instruction that the verdict with respect to the substantive counts need not be consistent with the verdict on the conspiracy count. Appellant's counsel did not object to this instruction.1 The jury returned a verdict of guilty on the conspiracy count and not guilty on each of the substantive counts. Although appellant failed to object to the verdict, he now urges that the verdict on the substantive counts amounted to a finding that none of the alleged overt acts occurred, so that the jury's verdict on the conspiracy count should be reversed as plain error.
3
In light of the jury instructions, we are persuaded by appellant's argument. It is clear that the government may ordinarily succeed in its conspiracy case by proving overt acts not mentioned in the indictment. See, e.g., Napolitano v. United States, 340 F.2d 313, 314 (1st Cir. 1965); United States v. Sellers, 603 F.2d 53, 56 (8th Cir. 1979), vacated on other grounds, 447 U.S. 932, 100 S. Ct. 3033, 65 L. Ed. 2d 1127 (1980); United States v. Armone, 363 F.2d 385, 400-01 (2d Cir.), cert. denied, 385 U.S. 957, 87 S. Ct. 391, 17 L. Ed. 2d 303 (1966). This is, indeed, the government's sole argument. But where the judge in his instructions to the jury refers repeatedly only to the specific overt acts alleged in the indictment, the absence of any evidence with respect to those alleged acts is grounds for reversal of the conspiracy conviction, even where there is evidence of other, nonalleged overt acts. United States v. Negro, 164 F.2d 168, 171-72 (2d Cir. 1947). We think the same principle is applicable here, where the jury's verdict of not guilty with respect to the substantive crimes of fraudulent check cashing constituted, in effect, a finding that none of the alleged overt acts took place. See Herman v. United States, 289 F.2d 362, 368-69 (5th Cir.), cert. denied, 368 U.S. 897, 82 S. Ct. 174, 7 L. Ed. 2d 93 (1961).
4
To reach its inconsistent verdict, the jury either must have ignored the judge's instruction that only overt acts alleged in the indictment could be considered as a necessary element of the conspiracy count, or the jury must have erred in acquitting appellant of all the substantive counts. In either case, the error is clear on the face of the indictment, instructions and verdict, and the district judge would have been in no better position than we to correct the mistake. Although appellant failed to object below, the verdict constituted "plain error", Fed.R.Crim.P. 52(b), and we accordingly reverse appellant's conviction. Cf. Villarreal Corro v. United States, 516 F.2d 137, 141 (1st Cir. 1975) (reversing as plain error jury verdict which was irrational on its face).
5
We are of course aware of the general rule that actual or apparent inconsistency in a jury verdict in a criminal case is no basis for setting it aside. See, e.g., Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932); United States v. Coran, 589 F.2d 70, 76 (1st Cir. 1978). We rely here on the narrow exception to this rule, that a jury's acquittal on substantive counts operates as an acquittal on the underlying conspiracy count where the acquittal on the substantive counts constitutes a determination that no overt act in support of the conspiracy took place. See generally 8A Moore's Federal Practice P 31.05(1) (2d ed. 1981). In our view, this doctrine, together with the court's instruction that the jury could consider only overt acts charged in the indictment, justify overturning the jury's verdict.
ON PETITION FOR REHEARING
6
The government's strong petition for rehearing has led us to supplement and modify our reasoning, though not our disposition, in overturning appellant's conspiracy conviction. Although we state in our opinion that the jury must either have ignored the judge's instruction or erred in acquitting appellant of the substantive counts in order to reach its inconsistent verdict, we recognize that the jury may also have acted out of leniency. Dunn, 284 U.S. at 393, 52 S.Ct. at 190. Such inconsistency is ordinarily not a basis for reversal. But, as we note in the opinion, an exception to this rule has been recognized where a jury's acquittal on substantive counts constitutes a finding that no overt acts to support the conspiracy took place. Herman; accord, United States v. Fuiman, 546 F.2d 1155, 1158-59 (5th Cir. 1977); cf. United States v. Moloney, 200 F.2d 344, 346 (7th Cir. 1952) (acquittal of defendant on substantive counts constituted finding that underlying acts did not occur; conspiracy conviction reversed where evidence of other overt acts was insufficient).
7
Were this the only exception to the Dunn rule, we might be prepared to reconsider it. But there is at least one other well-recognized exception to the rule against overturning inconsistent jury verdicts, namely, the principle that a conspiracy conviction of one defendant will not be upheld when all other alleged coconspirators are acquitted in the same trial. See, e.g., United States v. Williams, 503 F.2d 50, 54 (6th Cir. 1974); United States v. Musgrave, 483 F.2d 327, 333 (5th Cir.), cert. denied, 414 U.S. 1023, 94 S. Ct. 447, 38 L. Ed. 2d 315 (1973); United States v. Shuford, 454 F.2d 772, 779 (4th Cir. 1971); United States v. Austin-Bagley Corp., 31 F.2d 229, 233 (2d Cir.) (L. Hand, J.), cert. denied, 279 U.S. 863, 49 S. Ct. 479, 73 L. Ed. 1002 (1929). But cf. United States v. Espinosa-Cerpa, 630 F.2d 328, 331-33 (5th Cir. 1980) (divided panel questions validity of doctrine).
8
Both of these exceptions have been established despite the broad sweep of the Dunn rationale, perhaps because courts should take a closer look at conspiracy convictions where the jury's verdict on other counts indicates some doubt that a conspiracy actually took place. Until and unless the Supreme Court determines that these exceptions are not part of federal law, we are content that the narrow result we reach here is supported and justified.
9
Reversed.
*
Of the Second Circuit, sitting by designation
1
Appellant argues that the parties and the court below, in responding to the question, were considering only the possibility that the jury would convict on the substantive counts and acquit on the conspiracy count, the reverse of what actually happened. The jury's query was not so specific to alert the court to the problem raised here | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1918233/ | 730 So.2d 81 (1998)
Robert GIVENS, Appellant,
v.
STATE of Mississippi, Appellee.
No. 96-KA-00650 COA.
Court of Appeals of Mississippi.
September 29, 1998.
Rehearing Denied October 15, 1998.
Certiorari Denied February 18, 1999.
*83 Raymond L. Wong, Cleveland, Attorney for Appellant.
Office of the Attorney General by Billy L. Gore, Attorneys for Appellee.
Before THOMAS, P.J., and COLEMAN and HINKEBEIN, JJ.
COLEMAN, Judge, for the Court:
¶ 1. A grand jury in the Second Judicial District of Bolivar County indicted the appellant, Robert Givens, for the crime of touching a child for lustful purposes as defined by Section 97-5-23(1) of the Mississippi Code.[1] A jury in the circuit court of that same district and county returned a verdict of "Guilty as charged" against Givens, and the trial court sentenced him to serve a term of eight years in an institution under the supervision and control of the Mississippi Department of Corrections (MDOC). The trial court also directed MDOC to provide Givens with psychiatric and psychological evaluations and treatment as needed pursuant to such evaluations. The trial court denied Givens's motions for a directed verdict, a peremptory instruction, and acquittal JNOV or, in the alternative, a new trial.
¶ 2. In his appeal from the trial court's judgment and sentence, Givens presents for our review and resolution the following three issues, which we quote verbatim from his brief:
(1) The trial court committed error in granting the prosecution's amendment or change to the indictment as to the date of the offense from on or about August 16, 1993 to on or about August 10, 1991 through August 14, 1991 was a change of substance and not of form as contemplated by Rule 7.09, URCCC.
(2) The trial court committed error in allowing the prosecution to introduce other crimes, wrongs, or acts of the defendant in the prosecution's case-in-chief in violation of Rules 404(b) and 403, M.R.E.; and the prosecution's introduction of defendant's other crimes, wrongs, or acts of the defendant did not fit into the exception of "absence of mistake or accident" as contemplated by Rule 404(b), supra. Further, there was not a limiting instruction given by the trial court concerning the Rule 404(b) evidence which was reversible error.
3. The trial court committed error in denying appellant's motion for directed verdict because the prosecution failed to prove its case against the appellant, and the verdict was against the overwhelming weight of the evidence, and the verdict evidences bias and prejudice against the appellant, and was based solely upon suspicion and speculation.
We resolve these issues adversely to Givens and affirm the judgment and sentence of the trial court.
I. FACTS
¶ 3. We recite the facts which are consistent with the jury's verdict that Givens was guilty of fondling; however, the nature of the crime requires that we change the names of the victim and her mother. Around ten *84 o'clock on the night of January 10, 1996, Mary, Givens's stepdaughter, entered the bedroom of her mother. Mary was crying and upset. The first thing Mary said to her mother was, "Mama, please don't be mad at me." Then, Mary told her mother that Givens, her stepfather, had been coming up to her room at night, and that's why she had been sleeping in her brother's room. Mary then told her mother that the first time it happened was when their family was living with Mary's mother's parents. Mary also remembered that when Givens touched her the first time, her mother had gone on a trip. Mary's mother had left on August 10, 1991, and returned on August 14, 1991. Thus, more than four years passed from the date that Givens first touched Mary until January 8, 1996, when Mary reported the incident to her mother.
¶ 4. Her mother took Mary to the Cleveland Police Department, where William Quinton, an investigator with the department, arranged for Tracy Ann Mohdzain, a licensed social worker who was employed by the Department of Human Services as an investigator of child abuse and child neglect, to interview Mary. After Mohdzain's interview, Quinton then interviewed Mary in her mother's presence. Givens was arrested the next day, and pursuant to his being questioned by Quinton, Givens signed a statement which Quinton had typed.
¶ 5. The incident for which Givens was indicted occurred as follows: Mary, dressed in a tee-shirt and underpants, had fallen asleep in her stepfather and mother's bed. When Givens came home later that night after work, he went to bed in the same bed. Mary was awakened by Givens's sticking his hand down in her underpants and "feeling on [her] bottom." Mary then got out of the bed and went into the bedroom in which her brother and she usually slept. Mary's brother was asleep when she entered their bedroom, but she did not awaken him. Mary's birthday was October 23, 1984; thus, she was six years old in August 1991 when this incident occurred. Givens was thirty seven years old in August 1991.
II. LITIGATION
A. Pre-trial
¶ 6. In its indictment of Givens, the grand jury charged that the crime occurred "on or about the 16th day of August, 1993." During the course of discovery, Givens filed a motion for definite time and place of offense, to which the State responded that "the time of the incident alleged in the indictment was... August 10-15, 1991" because "Mary said this happened when her mom went out of town and Mary had gone to the airport in Greenville to see her off." The State also filed a motion to amend indictment "to change the date of offense from `August 16, 1993' to `on or about or between August 10th14th, 1991.'"
¶ 7. Before the trial court called the case for trial in the courtroom, the State presented its motion to amend the indictment, which Givens opposed because "a three-year gap is more unreasonable and ... is a substantive change of time as to when these offenses occurred." Givens's counsel argued that the amendment was "more than just a matter of form." The State responded that the amendment was "allowable under Rule 7.09 of the Uniform Rules of County and Circuit Court Practice, and this does not result in any prejudice to the defendant." The trial judge asked Givens's counsel how Givens would "be prejudiced in terms of putting forth a defense by" the proposed amendment to August 11-14, 1991, to which counsel replied, "[W]e prepared our defense on the week of or a few weeks before and after August, 1993 date." There are indications in the record that Mary's mother had also attended an out-of-state conference in August 1993.
¶ 8. The trial court asked Givens's counsel to confer with Givens about whether a continuance would help his defense, and, if a continuance would help his client's defense, how much time would Givens need. Givens and his counsel retired from the trial court's presence to discuss the trial court's inquiries. When they returned before the trial court, Givens's counsel announced that they would "proceed today," but that they did "not give up [their] objection or waive ... [their] objections to the amendment of the indictment." The trial court granted the State's *85 motion to amend the indictment and signed an order amending indictment.
¶ 9. Next, the State moved the Court to conduct an "803 hearing" regarding testimony about other acts which occurred after the incident in August 1991. Included in these other acts were an incident near the end of the 1995 school year when Mary was at home sick. Mary's mother was away at work, and Mary's brother was at school. Mary was in her mother's bed watching television when Givens sat beside her on the bed, put his arm around her, and began rubbing and feeling on Mary's back with his hand under her clothing. There were other incidents in which Givens came to Mary's bedroom where she was sleeping and raised the covers to look at her lying in bed. To support its motion, the State called Tracy Ann Mohdzain, Investigator Quinton, and Mary's mother, all of whom established that Mary had told them about one or more of these incidents. After the State rested on its motion, the State argued that these other incidents were needed "to tell the complete story" about the lapse of more than four years between the date of the crime and the date that Mary told her mother about it. The State further argued that these other incidents negated Givens's anticipated claim that his feeling Mary's buttocks was a mistake because when he did that, he had been dreaming of his wife.
¶ 10. After the trial judge conducted a hearing pursuant to Mississippi Rule of Evidence 803(25) to determine whether Mary's statements to Mohdzain, Investigator Quinton, and her mother were reliable, he reviewed all twelve factors suggested in the portion of the comment to Rule 803 which pertain to the "tender years exception," and held that Mary's statements to those three witnesses were sufficiently reliable to be admitted through their testimony. Furthermore, the State proposed to introduce evidence of the incidents involving Mary subsequent to the one for which Givens was indicted for two reasons. First, the State proposed to offer these incidents to explain why Mary had waited more than four years to tell her mother what Givens had done. Second, the State anticipated that Givens might admit that he had felt of Mary's buttock but explain that he did so only while he was dreaming of his absent wife. Thus, the State reasoned that although the other incidents occurred subsequently to August 1991, they were necessary to rebut Givens's testimony that he had touched Mary by mistake. The trial court conducted a hearing to determine whether Mississippi Rule of Evidence 403 would permit the State to introduce evidence of these incidents. After the trial court heard the State's and Givens's arguments on whether the probative value of these incidents was outweighed by "the danger of unfair prejudice, confusion of the issues, or misleading the jury," it ruled as follows:
Here, I think we are primarily concerned with whether or not the probative value is substantially outweighed by the danger of unfair prejudice. It is a small possibility of confusion of the issues and misleading the jury. This is a close call. The Court does feel that without this explanation as to the gap in time and without this explanation of absence of mistake or accident, the jury would not have the whole story, and the Court finds that the probative value does, therefore, substantially outweigh the danger of unfair prejudice, confusion of the issues, etc. So the Court will allow that testimony.
B. Trial
¶ 11. Following jury selection and opening statements by each party, the State called its first witness, Tracy Mohdzain. Ms. Mohdzain described her job as a social worker, and she began to speak of the conversation that she had with Mary at the police station. However, pursuant to an objection by Givens's counsel regarding the order in which the witnesses were presented, Mohdzain vacated the witness stand so that Mary could testify.
¶ 12. Mary communicated the first incident of her stepfather's fondling her in August of 1991. She also testified that on about eight occasions since that incident, Givens had entered her bedroom during the night and lifted the bedcovers and sometimes touched her. She said that Givens had also felt her naked *86 bottom once when she was sick at home just before Christmas in 1995. Mary approximated the date of the first incident, recalling that she had gone to take her mother to the Greenville Airport. Finally, she testified concerning her statement to Officer Quinton at the police department.
¶ 13. Tracy Mohdzain again took the witness stand and described Mary's demeanor while they discussed Givens's actions that night at the police department. She noted that Mary told her that Givens had touched her again some time during the 1995 school year.
¶ 14. The State then called Officer Bill Quinton of the Cleveland Police Department to testify. Officer Quinton established venue for the alleged crime and recounted the investigation which led to the arrest of Robert Givens. He explained that Givens declined the opportunity to give a taped statement, but he read and signed the statement that Quinton typed. Quinton read the following portion of Givens's statement for the jury:
I was in our bed, Beth and mine, and when [Mary] was lying down beside me, and I got hot and sweaty, and I touched her on her bottom with my hand inside her panties, and I thought about what I was doing, and I removed my hand. She got up and went into the other room and I thought about what I had done, and I was ashamed. I knew it was wrong at the time and I regretted doing this act and I have attempted to stay my distance from her because of these abnormal feelings.
Quinton also testified about his conversation with Mary, with her mother present, at the police station after Mary had spoken to Tracy Mohdzain.
¶ 15. Next, the State called Mary's mother to the witness stand. She related the January 1996 conversation in which Mary told her about Givens's actions. She explained that she had estimated the date of the initial incident based upon the certificate that she received for attending the conference in Hazleton, Minnesota. Her mother then testified that Mary told her that Givens had come into her bedroom and looked under the covers as recently as December of 1995. Lastly, Mary's mother commented that Mary had developed and exhibited hostility toward Givens. Finally, the State called Rob Linkous to testify. However, Linkous was excused after Givens agreed to stipulate that Linkous would have testified that he saw Givens read and sign the typed statement. After the State rested its case, the defense moved for a directed verdict which the court denied.
¶ 16. Robert Givens was the lone witness presented by the defense. He testified that he remembered the incident when he touched Mary's buttocks. He said that he had returned home after work, gotten into bed and fallen asleep. Givens then elaborated that he was asleep and dreaming, and when he awoke his hand was touching Mary's buttocks. He said that he removed his hand and he denied that he had touched Mary to satisfy his lustful purposes. Givens then described the occasion when he stayed at home with Mary when she was sick. He said that Mary was on the bed and he "laid down next to her, and [he] was rubbing her back". He fell asleep and his hand touched Mary's buttocks. He asserted that he never touched Mary's buttocks except for the two times which he discussed in this testimony.
¶ 17. Givens then read the following portion of the statement which Officer Quinton had prepared:
I realized what I did was not considered normal and I feel extremely guilty pertaining to these actions. I realize that I need counseling to help me to determine how these feelings are being harbored inside me and to help me to dissolve this problem. The reason for giving this statement is that I did not want [Mary] to have to go through a lengthy trial process and me attempt to prove what she said was untrue, when it was.
Givens testified that the statement was true, but he averred that he never touched Mary for sexual purposes. He acknowledged that he knew what he had done was wrong and he regretted doing it. Givens explained that he had only lifted Mary's bedcovers when he was looking for some of his tools which he thought Mary might have taken and that he usually found the tools under Mary's bedcovers. Givens reiterated that he understood *87 that what he did was not normal, that he felt extremely guilty about his actions, and that he knew that he needed counseling.
III. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES
A. Givens's first issue
¶ 18. For his first issue, Givens asserts that the trial court erred when it granted the State's motion to amend the indictment to change the date of the offense from August 16, 1993, to "on or about August 10, 1991, through August 14, 1991." Givens argues that this amendment was "a change of substance and not of form as contemplated by Rule 7.09 of the Uniform Rules of Circuit and County Court Practice."[2]
1. Discussion
¶ 19. Rule 7.06 of the Uniform Rules of Circuit and County Court provides that "[f]ailure to state the correct date shall not render the indictment insufficient." URCCC 7.06. Furthermore, Section 99-7-21 of the Mississippi Code allows the court to "cause the indictment to be forthwith amended" to cure any formal defect. Miss.Code Ann. § 99-7-21 (Rev.1994). Although Rule 7.09 denies the trial court authority to make substantive amendments of indictments, the Mississippi Supreme Court has observed that amending the date of the alleged offense is a change of form only where time is not an essential element or factor in the indictment. Baine v. State, 604 So.2d 258, 260-261 (Miss. 1992). Furthermore, the Court has upheld amendments to indictments which effected a change in the date of the offense charged. See Kincaid v. State, 711 So.2d 873, 877 (Miss.1998) (allowing the trial court to change the date of the indictment by one month by entering an order so amending the indictment and holding that issue was waived by defense counsel during guilty plea hearing); Eakes v. State, 665 So.2d 852, 860 (Miss.1995) (finding that the lack of specific dates in the indictment was not fatal where the defendant was fully and fairly advised of the charges against him); Norman v. State, 385 So.2d 1298, 1301 (Miss.1980) (involving the trial judge's specifically finding absence of surprise or prejudice); Deaton v. State, 242 So.2d 452, 453 (Miss.1970) (finding discrepancy did not show surprise or prejudice and conviction was sustained although the offense occurred on August 16 and the indictment alleged it occurred on November 14).
¶ 20. "[A] change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Shelby v. State, 246 So.2d 543, 545 (Miss.1971). However, Rule 7.09 also provides that "[a]mendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised." URCCC 7.09. The well-established test in this jurisdiction for determining whether the defendant is prejudiced by the amendment depends on whether a defense under the original indictment would be equally available under the amended indictment. Byrd v. State, 228 So.2d 874, 875-76 (Miss.1969) (cited with approval in Lester v. State, 692 So.2d 755, 775 (Miss.1997)). Furthermore, the court must determine whether the evidence the defendant plans to present would be equally applicable to the amended indictment. Byrd, 228 So.2d at 875-76. If both the defense and the evidence remain unhindered after amending the indictment, then the amendment is considered to be an amendment of form rather than substance. Griffin v. State, 540 So.2d 17, 21 (Miss.1989); Doby v. State, 532 So.2d 584, 586 (Miss.1988); Reed v. State, 506 So.2d 277, 279 (Miss.1987); Byrd, 228 So.2d at 876.
2. Analysis and resolution
¶ 21. Givens argued before the trial court that the amendment of the indictment was *88 "more than just a matter of form." He renews this argument before this court and adds that "the defense had prepared to meet the allegation as set forth on August 16, 1993, which was mooted by change in the time of two years." In other words, Givens argues that the amendment of the indictment charged him "for an offense for which he had not been charged by the grand jury, which the trial court could not do."
¶ 22. Givens cites no case in which the Mississippi Supreme Court has opined that an amendment to an indictment which changed only the date of occurrence of the crime, without more, also changed the crime itself. If anything, the supreme court has held to the contrary. See Baine, 604 So.2d at 260-61. This Court holds that in the case sub judice the amendment to the indictment did not change the offense with which Givens is charged, nor did it add elements to the offense or charges to the indictment. See Byrd, 228 So.2d at 875. From our review of the facts established by the evidence in the record, this Court further finds that the defense of accident or mistake to which Givens testified was not prejudiced by the amendment of the date on the indictment. Indeed, Givens does not claim that it did. Nothing in the record indicates that Givens intended to present a time-specific defense such as alibi. Reversal is not necessary where the same defense and the same witnesses are available for both the original date and the amended date on the indictment. Doby v. State, 532 So.2d 584, 587 (Miss.1988).
¶ 23. The fact that Givens declined to request a continuance after he had conferred with his counsel in response to the trial court's inquiry after the trial court granted the State's motion to amend the date in the indictment buttresses our finding that Givens incurred no prejudice from the amendment of his indictment. Hudson v. State, 311 So.2d 648, 649 (Miss.1975); see generally Lester v. State, 692 So.2d 755, 774 (Miss. 1997). In Hudson, the defendant requested a continuance which the court denied. Hudson, 311 So.2d at 649. The Mississippi Supreme Court noted that the defendant failed to offer any evidence that he could have produced a stronger defense if the continuance had been granted, so the Court found no merit in the claim that the amendment to the indictment prejudiced the defendant. Id. The Mississippi Supreme Court has refused to find error warranting reversal where an appellant "raised no credible claim of unfair surprise or prejudice, nor did he seek a continuance or any other remedy." Wilson v. State, 515 So.2d 1181, 1183 (Miss.1987). Givens cannot complain that he was prejudiced or that he was unable to determine the date of the charge, so we resolve his first issue against him and affirm the trial court's granting the State's motion to amend the indictment. Rushing v. State, 711 So.2d 450, 455 (Miss.1998).
B. Givens's second issue
¶ 24. There are two facets to the appellant's second issue. The first facet is whether the trial court erred when it allowed the State to introduce evidence of subsequent incidents when Givens either touched Mary's buttocks or lifted the linen of the bed in which she slept, which we choose to denominate "bad acts." The second facet of this issue is whether the trial court erred when it failed sua sponte to give the jury a limiting instruction concerning Givens's other bad acts.
1. Standard of Review
¶ 25. Givens bases his second assignment of error on Rule 404(b) of the Mississippi Rules of Evidence (M.R.E.) which states:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
¶ 26. Evidence of other crimes, wrongs, or acts is admissible if the present case and the other offense are "so interrelated as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences." Neal v. State, 451 So.2d 743, 759 (Miss.1984). The rationale for admitting evidence of certain closely related acts is that the State "has a legitimate *89 interest in telling a rational and coherent story of what happened...." Brown v. State, 483 So.2d 328, 329 (Miss.1986) (citing Turner v. State, 478 So.2d 300, 301 (Miss. 1985)); Neal v. State, 451 So.2d 743, 759 (Miss.1984).
¶ 27. The Mississippi Supreme Court has recognized that presenting a complete story of the alleged offense might require revealing information about other wrongs perpetrated by the defendant. Brown, 483 So.2d at 329. For example, in Hosford v. State, 560 So.2d 163, 165 (Miss.1990), the supreme court explained that it had "held in similar cases of sexual battery involving small children that admission of evidence of `substantially similar prior sexual acts with the same person' are properly admitted." In White v. State, 520 So.2d 497, 500 (Miss.1988), the supreme court cited a number of cases in all of which, "this Court held that such evidence [that the accused had forced his victim, a child under the age of twelve-years, to have sex with him two or three times a week for a period of six months] is admissible in this limited situation to show appellant's lustful, lascivious disposition toward his particular victim, especially where, as here, the victim was under the age of consent." (emphasis added).
¶ 28. Nevertheless, if evidence of other bad acts is deemed relevant and generally admissible as an exception under Mississippi Rule of Evidence 404(b), then the court must determine whether the probative value of the evidence is substantially outweighed by the considerations of Mississippi Rule of Evidence 403. Lester v. State, 692 So.2d 755, 779 (Miss.1997); Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995). The trial judge, in his sound discretion, determines the relevance of evidence at trial, and that determination will not be reversed unless the reviewing court finds clear abuse of discretion. Bounds v. State, 688 So.2d 1362, 1369 (Miss. 1997), citing Watts v. State, 635 So.2d 1364, 1367 (Miss.1994).
2. Analysis
a. Admission of Givens's bad acts into evidence
¶ 29. In Neal v. State, 451 So.2d at 759, the Mississippi Supreme Court recognized the necessity of allowing the state to present adequate information to tell a logical, complete story. The Court observed that "if evidence of other crimes had been left out of the defendant's confession, it would have been reduced to nonsense" and would have severely diminished the credibility of the witness who testified about the confession. Id. In the case sub judice, the State contemplated that the lapse of more than four years between the offense charged in the indictment and Mary's reporting the incident to her mother could adversely affect Mary's credibility or cause the jury to question Mary's motives for reporting the incident almost five years later. However, the State argued that if Mary could testify regarding the similar incidents between the time of the crime charged and time of reporting the crime, the jury might more fully understand the apparent delay in reporting the incident.
¶ 30. The State faced a similar challenge in Williams v. State, 543 So.2d 665, 666 (Miss. 1989), because the rape victim waited nine months before she told her grandmother about the attack. Over the appellant's objection, the State elicited answers from the victim about other threats which the appellant made to her to show that the victim was afraid of the appellant. Id. The supreme court opined that "the trial judge did not abuse his discretion in admitting the testimony of the victim establishing that she was afraid of the defendant and was reluctant to report the crime soon after it occurred for that reason." Id. at 667. White and Williams establish that Givens's other "bad acts," even though they occurred after the incident for which the grand jury indicted Givens, were relevant to the State's explanation of Mary's delay in telling her mother about the incident and to Givens's defense of accident or mistake. Therefore, we hold that the trial court did not err when it admitted into evidence Givens's "bad acts."
b. Trial court's failure to give a limiting instruction sua sponte
¶ 31. Rule 105 of the Mississippi Rules of Evidence provides that "[w]hen evidence which is admissible ... for one purpose *90 but not ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." M.R.E. 105 (emphasis added). Nevertheless, in Smith v. State, 656 So.2d 95, 100 (Miss.1995), the Mississippi Supreme Court effectively amended Rule 105 to delete its requirement that the trial court only instruct the jury upon request. The supreme court opined:
Nevertheless, we must be mindful of our rules. We have promulgated M.R.E. 105 which clearly contemplates that restrictive instructions be given upon request and as the Comment acknowledges, that in the absence of a request, there is no error. M.R.E. 105 and Comment. We are loath to reverse for plain error in the face of a rule so clear. We say for the future, however, that wherever 404(b) evidence is offered and there is an objection which is overruled, the objection shall be deemed an invocation of the right to M.R.E. 403 balancing analysis and a limiting instruction. The court shall conduct an M.R.E. analysis and, if the evidence passes that hurdle, give a limiting instruction unless the party objecting to the evidence objects to giving the limiting instruction.
Id. (emphasis added) At issue in Smith was the admission into evidence of appellant's prior sales of "drugs" as evidence of his intent to sell the crack cocaine for the possession of which Smith had been indicted. Id. at 98. The supreme court reversed Smith's conviction of possession of cocaine with intent to sell because it found the State's evidence insufficient to establish that Smith possessed the cocaine with the intention to sell it. Id. at 102. Instead, the court remanded the case to the trial court for resentencing on the charge of possession of cocaine only. Id.
¶ 32. In Bounds v. State, 688 So.2d 1362, 1369 (Miss.1997), the supreme court reviewed the Smith ruling and observed that "the Court analogized the 404(b) situation to impeachment by prior conviction under M.R.E. 609, where it was suggested that a limiting instruction be given in order to minimize the risk that the jury will infer guilt from the previous conduct." 688 So.2d 1362, 1369 (Miss.1997). In Bounds the court reaffirmed its edict in Smith that the court shall conduct an M.R.E. analysis and, if the evidence passes that hurdle, give a limiting instruction. Bounds, 688 So.2d at 1372. Nevertheless, the supreme court continued:
Because the case sub judice was heard prior to the definitive ruling regarding limiting instructions in Smith, the trial judge was not bound by its holding. Thus, standing alone, it was not reversible error for the trial judge to not give, sua sponte, a limiting instruction on the M.R.E. 404(b) evidence. The defense attorney had the burden of objecting contemporaneously and requesting the limiting instruction. However, as this case is to be retried, any retrial should be conducted according to and within the guidelines of Smith.
Id. (emphasis added). The case sub judice was tried on May 8, 1996, one year after Smith was decided by the supreme court on May 11, 1995. Rule 105 notwithstanding, it is apparent in the case sub judice, that Smith and Bounds render as error the trial judge's failure to instruct the jury sua sponte about Givens's bad acts.
¶ 33. However, we find this error to be harmless. In Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216, 221 (Miss.1969), the supreme court discussed the distinction between harmless and reversible error as follows:
To warrant reversal, two elements must be shown: error, and injury to the party appealing. Error is harmless when it is trivial, formal, or merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case; it is prejudicial, and ground for reversal, only when it affects the final result of the case and works adversely to a substantial right of the party assigning it. Obviously, in order for the rule of harmless error to be called into play in support of a judgment, the judgment must be otherwise supportable, and will be reversed when there is nothing in the pleadings or evidence to support it....
(quoting 5 Am.Jur.2d Appeal and Error sec. 776 (1962)). Later, the supreme court related *91 a more stringent concept of "harmless error" in Forrest v. State, 335 So.2d 900, 903 (Miss.1976), when it opined, "An error is harmless only when it is apparent on the face of the record that a fair minded jury could have arrived at no verdict other than that of guilty." (citations omitted).
¶ 34. As we noted, Givens testified in his behalf. When his attorney asked Givens if he remembered the incident alleged to have occurred one evening between August 10 through August 14, 1991, Givens replied, "Most definitely." The record next contains his explanation of the incident for which the grand jury indicted him:
I was asleep, dreaming, and what I was dreaming and what I felt with my hand did not coincide. I woke up. I said, "Oh, God," and removed my hand because I realized that it was [Mary] in the bed and rolled over away from her and just"I can't believe this. I can't believe this." And at that time [Mary] got up and got out of the bed, went around the bed, passed by me, out the door, and, I assume, back to her room.
Givens's counsel then questioned his client about the later incident where Givens allegedly stroked Mary's buttock before Christmas in 1995. Givens explained that Mary was indeed "home sick from school" and that he rubbed her back to comfort her. When his counsel asked Givens, "[W]ere you sexually aroused at that time [before Christmas in 1995]?," Givens replied, "Absolutely not. I was trying to comfort her. She was sick."
¶ 35. We also noted that Givens's counsel questioned his client about the portion of the statement he had signed for investigator Bill Quinton in which Givens acknowledged that what he had done "was not considered normal" and that he felt "extremely guilty pertaining to these actions." Givens further acknowledged to Quinton that he needed "counseling to help me to determine how these feelings are being harbored inside me and to help me to dissolve this problem."
¶ 36. The State's initial cross-examination of Givens was as follows:
Q. Mr. Givens, you did give this statement to Bill Quinton?
A. Yes.
Q. Voluntarily and freely on your own?
A. Yes.
About the second occasion when Givens touched Mary's buttock before Christmas in 1995, Givens responded under the State's cross-examination as follows:
She was lying on the bed. I laid [sic] down next to her. She put her head on my chest, and I rubbed her back. In the process of rubbing her back, I began to doze off myself. My hand touched her bottom, and I laid it out to the side to get it away from her.
Givens also admitted that he had gone into Mary's bedroom to look for his tools which Mary would sometimes take there and leave beneath the covers of her bed.
¶ 37. The Mississippi Supreme Court's reaffirming its Smith de jure amendment of Rule 105 to eliminate the request for a limiting instruction in Bounds demonstrates that the trial court's failure to instruct the jury sua sponte about the limited purpose for which Givens's other bad acts were admitted was substantial error. However, Mary's positive testimony combined with Givens's written statement which he signed in the presence of investigator Quinton and his testimony during the trial of this case remains persuasive that this error did not "affect[] the final result of [the case sub judice or] work[] adversely to a substantial right of [Givens]." See Jaquith, 224 So.2d at 221. To this Court, "it is apparent on the face of the record that a fair minded jury could have arrived at no verdict other than that [Givens was guilty of `fondling' Mary]." See Forrest, 335 So.2d at 903. Therefore, this Court holds that the trial court's failure sua sponte to give a limiting instruction about Givens's other "bad acts" was harmless error, and this Court accordingly resolves Givens's second issue adversely to him. Nevertheless, this Court thinks it appropriate to conclude our resolution of Givens's second issue with the following quotation from Townsend v. State, 605 So.2d 767, 771 n. 1 (Miss.1992): "[L]ower courts and prosecuting attorneys must not commit errors on the speculation that the Supreme Court [or the Court of *92 Appeals] will affirm on the ground of harmless error."
C. Givens's third issue
¶ 38. For his third issue, Givens argues both that the evidence was insufficient to support the jury's verdict and that the jury's verdict was against the overwhelming weight of the evidence. Indeed, the State suggests that Givens has "blurred" the distinction between "weight and sufficiency [of the evidence]new trial versus discharge." Because we agree with the State, we analyze and resolve whether the evidence was sufficient to support the jury's verdict and whether the jury's verdict was against the overwhelming weight of the evidence.
1. Sufficiency of the evidence
a. Standard of review
¶ 39. If the court finds that the evidence is insufficient to sustain the guilty verdict, "the verdict may not stand and ... the defendant must be finally discharged." May v. State, 460 So.2d 778, 781 (Miss.1984), cited in Collier v. State, 711 So.2d 458, 461 (Miss.1998). Reversal of a conviction will only be granted "where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Givens, citing Miller v. State, 198 Miss. 277, 22 So.2d 164 (1945), incorrectly states that the standard for determining the sufficiency of the evidence implies balancing reasonable doubt adduced by the state against the weight of the testimony consistent with innocence. However, the current rule requires that all credible evidence presented at trial must be considered in the light most favorable to the verdict and must be accepted as true. Wetz, 503 So.2d at 808. Additionally, the trial judge is required to accept as true all reasonable inferences that may be drawn from the evidence adduced by the State, and to disregard evidence favorable to the defendant. Clemons v. State, 460 So.2d 835, 839 (Miss.1984); Bullock v. State, 391 So.2d 601, 606 (Miss.1980).
¶ 40. Moreover, the standard of review for the denial of directed verdict, peremptory instruction, and judgment notwithstanding the verdict are identical. Coleman v. State, 697 So.2d 777, 787 (Miss.1997). On appeal, this Court reviews the trial court's last decision when it reviewed a challenge to the sufficiency of the evidence. Wetz, 503 So.2d at 807 n. 3. In this case, the trial court's last opportunity to review the sufficiency of the evidence was Givens's motion for judgment notwithstanding the verdict.
b. Analysis of whether the evidence was sufficient to support the jury's verdict
¶ 41. Givens compares this case to a 1915 Mississippi case in which the Court stated the following:
We have carefully gone over all the evidence in this case, and we can find no single circumstance that points to the defendant's guilt with that degree of certainty which the law demands. Taking all the circumstances together, there is no legal proof of guilt. The most that can be said for the state's case is that there were some suspicious circumstances proven against the defendant.
Hunt v. State, 108 Miss. 588, 67 So. 57 (1915). Givens also cites an older case, City of Hazlehurst v. Byrd, 101 Miss. 57, 57 So. 360 (1912), to support his suggestion that the verdict should not be predicated merely upon suspicion of guilt.
¶ 42. Whether Givens touched Mary on her buttocks with his hand which he had placed beneath her underpants as she lay sleeping in bed with him is not at issue in this case. Givens freely admitted in his direct examination that he had touched his stepdaughter in that manner. Instead, the issue was whether he touched her "for the purpose of gratifying his lust, or indulging his depraved licentious sexual desires," as the grand jury had charged in its indictment. Givens denied that he had touched Mary's buttocks to satisfy his sexual desire but, instead, claimed that he had done so by accident or mistake. However, Givens's statement which investigator Bill Quinton typed and Givens signed contradicted Givens's claim of accident or *93 mistake, as did subsequent incidents involving Givens and Mary, which incidents we related in our review and resolution of Givens's second issue.
¶ 43. It was for the jury to determine whether they believed or disbelieved Givens's defense that his touching Mary on her buttocks was an accident or mistake, which resulted from his dreaming about his absent wife. As the Mississippi Supreme Court opined in Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979):
As is usual in jury cases, the evidence conflicted, but the conflict does not necessarily create a "reasonable doubt" of appellant's guilt. Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject, the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into findings of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.
In the case sub judice, it was "enough that the conflicting evidence presented a factual dispute [about Givens's motive for touching his stepdaughter]," and, therefore, this Court affirms the trial court's denial of Givens's motion for directed verdict which was made after Givens testified and rested. We find that the evidence was sufficient to sustain the jury's verdict that Givens was "Guilty as charged."
2. Weight of the evidence
a. Standard of review
¶ 44. Rule 6.01 of the Uniform Rules of Circuit and County Court provides that "[r]ule Series 6 through 12 are applicable only to criminal proceedings." URCCC 6.01. Rule 10.05 authorizes the court to "grants a new trial on any of the following grounds:.... If the verdict is contrary to law or the weight of the evidence." URCCC 10.05. The trial judge employs his sound discretion in deciding whether a new trial is required in the interest of justice or whether the jury's verdict is contrary to law or against the weight of the evidence. Wetz, 503 So.2d at 812. A new trial should not be granted unless the jury's verdict is "so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice." Id.; Malone v. State, 486 So.2d 360, 366 (Miss. 1986); Groseclose v. State, 440 So.2d 297, 300 (Miss.1983); Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). The motion for new trial is not considered de novo on review. Veal v. State, 585 So.2d 693, 695 (Miss.1991).
b. Analysis
¶ 45. Givens's "blurring" the distinction between "weight and sufficiency [of the evidence]" has resulted in his failure to offer a specific explanation about why the jury's verdict of his guilt was against the weight of the evidence. Absent Givens's suggestion or argument specifically explaining the manner in which the jury's verdict was against the overwhelming weight of the evidence, this Court resorts to its review and resolution of Givens's issue that the evidence was insufficient to support the jury's verdict of his guilt of "fondling" and affirms the trial court's denial of Givens's motion for a new trial. The jury's verdict was not against the weight of the evidence.
IV. CONCLUSION
¶ 46. The trial court committed no error in granting the State's motion to amend the indictment to indicate the correct date on which the incident occurred for which the grand jury indicted Givens. The amendment did not change the offense of fondling, and Givens's defense, i.e., accident or mistake, remained the same. Givens testified that he "[m]ost definitely" remembered the incident which led to his indictment. Therefore, time was not an essential factor in this crime. This rendered the amendment one of form only.
*94 ¶ 47. The trial court properly admitted into the record evidence of Givens's other bad acts not only because they were relevant to the nature of the relationship between him and his stepdaughter but also because they were relevant to rebutting Givens's defense of "accident or mistake." Although the lower court ought to have given a limiting instruction regarding the purpose of admitting Givens's other bad acts, that error was harmless for the reasons which we have related.
¶ 48. The trial court acted within its discretion and thus did not err when it denied Givens's motion for a directed verdict or judgment notwithstanding the verdict because the State's evidence in the form of Mary's testimony about the incident and Givens's admission that he had touched her buttocks with his hand was sufficient evidence to support the jury's verdict that Givens was "Guilty as charged." Neither did the trial court err when it denied Givens's motion for new trial inasmuch as the matter of Givens's motive for touching his stepdaughter was properly for the jury's resolution. This Court remains confident that our affirming the trial court's denial of Givens's motion for a new trial does not "sanction an unconscionable injustice." Thus, we affirm the trial court's judgment of Givens's conviction of touching a child for lustful purposes and its sentence of Givens to serve a term of eight years in an institution under the supervision and control of the Mississippi Department of Corrections.
¶ 49. THE BOLIVAR COUNTY CIRCUIT COURT'S JUDGMENT OF THE APPELLANT'S CONVICTION OF FELONY TOUCHING OF A CHILD AND ITS SENTENCE OF APPELLANT TO SERVE A TERM OF EIGHT YEARS IN AN INSTITUTION UNDER THE SUPERVISION AND CONTROL OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS ARE AFFIRMED. SENTENCE IMPOSED TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. ALL COSTS OF THIS APPEAL ARE TAXED TO BOLIVAR COUNTY.
BRIDGES, C.J., THOMAS, P.J., and DIAZ, HERRING, HINKEBEIN, KING, PAYNE and SOUTHWICK, JJ., concur.
McMILLIN, P.J., not participating.
NOTES
[1] Before July 1, 1998, Section 97-5-23(1) read as follows:
Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of fourteen (14) years, with or without the child's consent, or a mentally defective, mentally incapacitated or physically helpless person as defined in Section 97-3-97, shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than One Thousand Dollars ($1,000.00) nor more than Five Thousand Dollars ($5,000.00), or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court.
Miss.Code Ann. § 97-5-23(1) (Supp.1997). As of July 1, 1998, the age of the child was increased from "under the age of fourteen (14) years" to "under the age of sixteen (16) years." Laws, 1998, ch. 549, § 5, eff from and after July 1, 1998.
[2] The portion of Rule 7.09 relevant to the amendment of this indictment reads:
All indictments may be amended as to form but not as to the substance of the offense charged.... Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.
URCCC 7.09 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/299079/ | 448 F.2d 581
Charles Dee SCOTT, Doyle Monroe Cross, Appellants,v.UNITED STATES of America, Appellee.
No. 71-1597 Summary Calendar.*
United States Court of Appeals, Fifth Circuit.
September 15, 1971.
Rehearing Denied October 12, 1971.
A. Cecil Palmour, Cook & Palmour, Summerville, Ga., for Doyle Monroe Cross.
William Jerry Westbrook, Summerville, Ga., for Charles Dee Scott.
John W. Stokes, Jr., U. S. Atty., J. Owen Forrester, Robert L. Smith, Asst. U. S. Attys., Atlanta, Ga., for appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
BELL, Circuit Judge.
1
Appellants Scott and Cross appeal from their conviction after a joint indictment and trial on two counts of violating 18 U.S.C.A. § 1343.1
2
The fraud charged was that Scott and Cross made an unauthorized connection with the General Telephone Company's line in Dalton, Georgia, and then made long distance interstate calls without having subscribed for telephone service. The fraud was perfected by giving, for billing purposes, the phone numbers of other persons who did not know appellants and who did not give permission for their numbers to be so used.
3
Scott argues, among other things, that there was insufficient evidence to support his conviction. The record discloses that the unauthorized phone was located in Scott's home. Telephone company officials testified that Scott had neither made application for the phone in question nor could he have received installation had he applied due to an overdue account in excess of three hundred dollars on a phone at a previous residence. Furthermore the very nature of the installation, i. e., a "drop-line" off of the telephone cable running to a neighbor's residence, indicated that the phone had not been installed according to authorized telephone company procedures. The evidence also discloses that Scott participated in a conversation using the phone in question. Moreover, Scott permitted appellant Cross to use the illegal phone to make interstate calls. Furthermore, when Scott was arrested he made statements to the arresting officers attesting to the ease with which such phone installations could be obtained at a price of fifty dollars. The arresting officer was unsure whether Scott admitted to knowing that the installation was illegal. However Scott did admit that "[he] must have been a damn fool" to tap the line which, he later learned, went to the home of a law enforcement officer.
4
The evidence against Cross consisted of proof of his use of the phone to make several interstate calls while giving different phone numbers for billing purposes. The calls were charged, at his direction, to persons who testified that they did not know either of the defendants and did not give permission for their numbers to be used. During the course of one of the calls made by Cross, he was heard to tell one of the other parties, "No don't call me. I'll call you * * *," thereby raising the inference that Cross knew that the phone was illegally installed and could be used only for outgoing calls if the secrecy of the illegal installation was to be preserved.
5
Upon this statement of the facts and evidence, we apply the familiar standard of Glasser v. United States2 which has been long followed in this circuit.3 Viewing the evidence presented most favorably to the government, we find the evidentiary basis for conviction to be entirely adequate.
6
It is further contended that it was reversible error for the government to argue to the jury in closing that there was evidence that on more than one occasion, appellant Cross told the party with whom he was talking not to try to call Cross back. This argument goes that the evidence was that Cross made this statement only once.
7
This claimed error falls under the harmless error standard of Rule 52, F.R. Crim.P.,4 which makes it incumbent on the reviewing court to determine whether the matter complained of "affected substantial rights."
8
The record reveals that after objection to this portion of the government's argument, the trial judge stated to the jury that it was the jury's role to determine facts and that they were free to check the accuracy of the government's argument. Thereafter the prosecuting attorney stated to the jury that he might have been mistaken as to whether there were one or two occasions when Cross made the statement in question and urged the jurors to use their own judgment if he had unintentionally misstated the evidence.
9
This court has held that an inadvertent misstatement of fact which is neither pronounced nor persistent and where there is an instruction that the arguments of counsel are not to be treated as evidence, does not affect substantial rights within the meaning of Rule 52. Rubin v. United States, 5 Cir. 1969, 414 F.2d 473. Additionally, given any cumulative effect that the prosecutor's misstatement might have had, the matter erroneously referred to by the government was otherwise properly before the jury to the extent of the one occasion, thus reducing any prejudicial impact. See Buie v. United States, 5 Cir. 1969, 420 F.2d 1207.
10
Following these precedents and recognizing the remedial instructions by the court and the qualifying remarks by the prosecutor, we cannot conclude that the prosecutor's misstatement amounted to reversible error.
11
There is no merit in the additional claim of error premised on the failure to give an instruction to the jury on the defense of good faith. This request was made after the original charge but before the jury retired. This defense was adequately covered in the charge as given.5
12
Affirmed.
Notes:
*
Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I
1
18 USCA, § 1343:
"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both."
2
"The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680, 704 (1942)
3
Gordon v. United States, 5 Cir. 1971, 438 F.2d 858; United States v. Piercefield, 5 Cir. 1971, 437 F.2d 1188; United States v. Preston, 5 Cir. 1969, 420 F.2d 60 (1969); Strauss v. United States, 5 Cir. 1963, 311 F.2d 926, 928
4
Rule 52:
"(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."
5
Although the matter was not raised by appellants, this court has given careful consideration to whether 18 USCA § 1343 covers a scheme to defraud the telephone company of revenues for interstate telephone service. That question has been answered in the affirmative. Brandon v. United States, 10 Cir. 1967, 382 F.2d 607; United States v. Beckley, N.D.Ga.1965, 259 F. Supp. 567; United States v. Hanna, S.D.Fla.1966, 260 F. Supp. 430, rev'd on other grounds, 5 Cir. 1968, 393 F.2d 700. There is no case to the contrary. We agree that the statute embraces the conduct charged here | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/751550/ | 135 F.3d 911
George ZAHODNICK, Plaintiff--Appellant,v.INTERNATIONAL BUSINESS MACHINES CORPORATION; LockheedMartin Federal Systems, Incorporated, Defendants-Appellees.
No. 96-2663.
United States Court of Appeals,Fourth Circuit.
Argued June 6, 1997.Decided Dec. 22, 1997.
ARGUED: Bradley Scott Weiss, Law Office of Bradley Scott Weiss, Washington, DC, for Appellant. Ellen Moran Dwyer, Crowell & Moring, L.L.P., Washington, DC, for Appellees. ON BRIEF: Michael A. Lewis, Washington, DC, for Appellant. Caryl L. Flannery, Crowell & Moring, L.L.P., Washington, DC, for Appellees.
Before RUSSELL, WIDENER, and WILKINS, Circuit Judges.
Affirmed by published PER CURIAM opinion.OPINION
PER CURIAM:
1
George Zahodnick filed suit against his employers, International Business Machines Corporation ("IBM") and Lockheed Martin Federal Systems, Incorporated,1 alleging (1) retaliation under the False Claims Act, 31 U.S.C. § 3730(h) (1994); (2) abusive discharge; and (3) breach of employment contract. Lockheed counterclaimed for breach of nondisclosure agreements. Zahodnick appeals the district court order granting IBM and Lockheed summary judgment on all of Zahodnick's claims and granting Lockheed summary judgment on the counterclaim. The court also enjoined Zahodnick from disclosing confidential information to third parties and ordered him to return all confidential materials to the Defendants. We affirm the district court's judgment.
2
Zahodnick worked as a managing engineer at IBM and Federal Systems Company ("FSC"), a division of IBM, from 1981 to 1994.2 The crux of Zahodnick's claims concern events commencing in September 1989 while he was working at FSC's Gaithersburg, Maryland facility. At that time, Zahodnick assembled cost information on a proposal to extend IBM's "DSIS" contract with the Defense Intelligence Agency. During the course of his research, Zahodnick discovered that the "work package number" to which employees working on the project were charging their time was incorrect. The assigned number was actually associated with the DSIS contract rather than the proposal effort. Zahodnick reported the mischarging to his supervisor. Zahodnick claims that shortly after he reported this error, he began receiving negative treatment from the company in the form of unfavorable work performance evaluations, unsuccessful appeals, and denials of transfer requests.
3
In November 1989, Zahodnick received his annual evaluation of his work performance. Although the review was generally satisfactory, it criticized Zahodnick for his lack of leadership qualities. Zahodnick pursued an appeal under the company's appeal policy and succeeded in having the comments deleted after an investigation. In June 1990, Zahodnick's request for relocation and transfer was denied, but the next year he received a temporary transfer to California. Zahodnick's 1992 evaluations also criticized his lack of communication and leadership skills. Investigators who reviewed Zahodnick's appeal concluded that the evaluations were fair. Zahodnick returned to Maryland in May 1992, after rejecting a permanent position in California.
4
Over the next two years, Zahodnick continued to receive and unsuccessfully appeal his work evaluations, which he believed did not accurately reflect his true performance. In early 1994, Zahodnick accepted a transfer offer to Springfield, Virginia, where he worked for a short period of time. By late March of 1994, Zahodnick no longer worked for IBM and Lockheed. Zahodnick maintains the company terminated his employment. The record of evidence reveals, however, that Zahodnick voluntarily resigned, and that he brought this suit against the company under the "whistle blower" provision of the False Claims Act only after learning that his voluntary resignation disqualified him from receiving an enhanced separation package and unemployment compensation benefits.
5
Summary judgment is appropriate when there is no genuine issue of material fact and it appears that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970). On summary judgment, all evidence must be viewed in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538 (1986). Summary judgments are reviewed de novo on appeal. See Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1166-67 (4th Cir.1988).
6
The "whistleblower" provision of the False Claims Act prevents the harassment, retaliation, or threatening of employees who assist in or bring qui tam actions. The statute provides:
7
Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section, including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole....
8
31 U.S.C. § 3730(h). Thus, an employee must prove that (1) he took acts in furtherance of a qui tam suit; (2) his employer knew of these acts; and (3) his employer discharged him as a result of these acts. See X Corp. v. Doe, 816 F. Supp. 1086, 1095 (E.D.Va.1993).
9
Here, there is no evidence that Zahodnick initiated, testified for, or assisted in the filing of a qui tam action during his employment with IBM and Lockheed. In fact, the record discloses that Zahodnick merely informed a supervisor of the problem and sought confirmation that a correction was made; he never informed anyone that he was pursuing a qui tam action. Simply reporting his concern of a mischarging to the government to his supervisor does not suffice to establish that Zahodnick was acting "in furtherance of" a qui tam action. See Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir.1994).
10
Furthermore, there is no evidence that IBM and Lockheed were aware of Zahodnick's alleged protected activity. Without evidence of any knowledge on the part of IBM and Lockheed, Zahodnick cannot establish the necessary causal connection between the alleged protected activity and Zahodnick's termination of employment four years later. Accordingly, we affirm the district court's grant of summary judgment against Zahodnick on this claim.
11
We also find that the district court properly granted summary judgment on the abusive discharge claim. Maryland courts recognize a cause of action for abusive discharge available to employees who have been fired in contravention of public policy. See Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464, 473 (1981). The action applies when an employee has refused to act in an unlawful manner, attempted to perform a statutorily prescribed duty, exercised a statutory right or privilege, or performed an important public function. See Makovi v. Sherwin-Williams Co., 316 Md. 603, 561 A.2d 179, 182 (1989). The remedy, however, is unavailable when the "public policy sought to be vindicated by the tort" is expressed in a "statute which carries its own remedy for vindicating that public policy." Chappell v. Southern Md. Hosp., Inc., 320 Md. 483, 578 A.2d 766, 770 (1990). We conclude that § 3730(h) adequately covers Zahodnick's claim. As the district court noted, even assuming Zahodnick could pursue an abusive discharge claim, he failed to produce any evidence suggesting a causal relationship between his report of the mischarging error and his termination four years later. Accordingly, the district court properly granted Defendants summary judgment on this claim.
12
With respect to Zahodnick's breach of contract claim, employment is at-will in Maryland unless the employee can show that the contract has "been so modified by the personnel policy statement as to remove it from the full strictures of the common-law rule." Staggs v. Blue Cross of Md., Inc., 61 Md.App. 381, 486 A.2d 798, 801 (1985). An employer may include a clear disclaimer, however, to avoid contractual liability for a personnel policy. See Bagwell v. Peninsula Reg'l Med. Ctr., 106 Md.App. 470, 665 A.2d 297, 309 (1995).
13
In 1993 Defendants provided employees with a handbook bearing a disclaimer. It stated that IBM and FSC "reserve[d] the right to change all their benefits, separation plans, programs, practices, policies and rules at any time." It further stated that "[t]he employment relationship with IBM and Federal Systems Company is at will. This means that the relationship can be ended at any time for any reason by the employee or by IBM or the Federal Systems Company." Because this disclaimer is unambiguous, we find the breach of contract claim without merit.
14
As to Lockheed's counterclaim for breach of confidentiality, the record discloses that Zahodnick signed two nondisclosure agreements. In these agreements, Zahodnick agreed not to disclose confidential information to anyone outside of IBM and to return all IBM property to IBM when he left IBM's employment. Zahodnick retained confidential materials belonging to IBM after termination of his employment and forwarded those documents to his counsel without IBM's consent. Under such circumstances, the district court did not err either in enjoining Zahodnick from disclosing Lockheed's confidential materials to third parties or in ordering Zahodnick to return all confidential materials to Lockheed. Accordingly, we affirm the district court's order.
15
AFFIRMED.
1
In 1996, Loral Federal Systems Company, a defendant below, was acquired by Lockheed Martin and became known as Lockheed Martin Federal Systems, Inc. We refer to the company as "Lockheed."
2
In 1994, Loral acquired FSC | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1918238/ | 101 B.R. 24 (1989)
In re Arthur H. LEEFERS and Nancy E. Leefers.
Arthur H. LEEFERS and Nancy E. Leefers, Debtors,
v.
Mary Ann ANDERSON, John Lancaster, Jerry Lancaster, and Ivan Lancaster, Defendants.
No. 88-3123.
United States District Court, C.D. Illinois, Springfield Division.
June 6, 1989.
Rick Verticchio, Gillespie, Ill., for debtors.
J. Richard Meno, Carlinville, Ill., Stephen A. Tagge, James A. Lewis, Springfield, Ill., for defendants.
OPINION
RICHARD MILLS, District Judge:
The Bankruptcy Court held the contract for deed at issue to be executory and, therefore, subject to the provisions of section 365 of the Bankruptcy Code.
This cause is before the Court on appeal from that decision. 28 U.S.C. § 158(a).
I Facts
Debtor Arthur Leefers entered into a contract for deed with Defendants on May 29, 1979. Leefers contracted to purchase certain real estate in Macoupin County, Illinois. The purchase price was set at $357,750.00 of which $75,550.00 was paid to Defendants at the time of execution of the *25 contract. Also, at the time of execution of the contract, a warranty deed was deposited with an escrow agent who was designated to receive payment on behalf of the sellers and to convey the warranty deed to the Debtor upon full payment of the contract price. The balance of the purchase price was to be paid by annual installments the final payment to be made January 5, 1990.
The Debtor made payments as scheduled from 1979 through 1985. Subsequently, the Debtor filed for bankruptcy under Chapter 12.
The Debtor's amended plan under Chapter 12 provided for application of the "cram down" provision and set forth a plan to pay Defendants the appraised value of the land contracted for in the amount of $143,775.00. The balance due on the contract for deed at the time of the bankruptcy filing was $243,331.27. The Defendants objected to confirmation of the plan and filed a motion to compel adoption or rejection of the contract by the trustee in bankruptcy pursuant to the original terms of the contract as per section 365 of the Bankruptcy Code.
II Issue
The issue is whether the contract for the sale of land involved herein is an "executory contract" within the meaning of section 365 of the Bankruptcy Code.
III Applicable Law
The Bankruptcy Code does not define the term "executory contract." Thus, an underlying issue in this cause is: to what source do we look to obtain the definition of executory contract? There are two approaches on this issue. The first looks to state law. This view is based on the premise that: "Questions of ownership, as between parties, are questions of state law." In re Rancho Chamberino, Inc., 89 B.R. 597, 599 (W.D.Tex.1987) (citing Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979) ("Congress has generally left the determination of property rights in the assets of a bankrupt's estate to state law.")).
The second approach holds that: "Whether a contract is executory within the meaning of the Bankruptcy Code is a question of federal law." In re Wegner, 839 F.2d 533, 536 (9th Cir.1988). This approach is premised on the view that:
There is no need to look at state law for the meaning of "executory contract." As Professor Countryman observed, there was no need for a statutory definition of "executory contract" under the former Bankruptcy Act, because the courts "seem to have experienced little difficulty in fashioning a definition of executory contracts that is both workable and consistent with the apparent policy of those provisions of the Bankruptcy Act dealing with such contracts." . . . Perhaps because the federal courts had fashioned a definition of executory contracts, the drafters of the new Bankruptcy Code found it unnecessary to define the term.
In re Alexander, 670 F.2d 885, 888 (9th Cir.1982) (quoting Countryman, Executory Contracts in Bankruptcy: Part II, 58 Minn.L.Rev. 479, 563 (1974)).
We believe the second approach to be the better. The definition of words in federal statutes should be defined as a matter of federal law. It is only after the term is defined that state law comes into play to determine the relationship of the parties. For example, in the instant cause we look to federal law to define the term executory contract. Generally, that depends upon whether either side has so far performed their obligations under the contract such that a material breach of the contract could not occur. Whether a material breach could occur would be determined according to state contract law.
Having determined the source of law to use, we must determine what the law is. On the issue of executory contracts for purposes of the Bankruptcy Code, the Countryman definition is universally accepted. See, e.g., In re Speck, 798 F.2d 279, 280 (8th Cir.1986) (Eighth Circuit notes its adoption of the Countryman definition for executory contracts); 1 R. Ginsberg, Bankruptcy ¶ 7002, at 7011-12 (1986). Countryman defines an executory contract *26 within the meaning of the Bankruptcy Code as: "[A] contract under which the obligation of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing the performance of the other." Countryman, Executory Contracts in Bankruptcy: Part I, 57 Minn.L. Rev. 439, 460 (1973). This definition is fully in accord with the legislative history of section 365 of the Bankruptcy Code which states:
Though there is no precise definition of what contracts are executory, it generally includes contracts on which performance remains due to some extent on both sides. A note is not usually an executory contract if the only performance that remains is payment. Performance on one side of the contract would have been completed and the contract is no longer executory.
H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 347 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 6303. Thus, we apply the Countryman definition to the contract at issue.
IV Contract for Deed
Whether a land sales contract is an executory contract under section 365 of the Bankruptcy Code has generated a considerable amount of caselaw. Two lines of cases have developed. The first line of cases holds that land sales contracts are not executory contracts, but rather, are security devices similar to mortgages (which consistently have been held to be outside the scope of section 365). See, e.g., In re Bertelsen, 65 B.R. 654 (Bankr.C.D.Ill. 1986) (and cases cited therein).
The second line of cases, applying the Countryman definition strictly, have held land sales contracts to be executory where substantial performance remains on both sides. See, e.g., In re Scanlan, 80 B.R. 131 (Bankr.S.D.Iowa 1987) (and cases cited therein). Many courts holding this way have further found that such contracts would not be treated as a mortgage under applicable state law. See, e.g., In re Buchert, 69 B.R. 816, 820-21 (Bankr.N.D.Ill. 1987).
In Illinois, the bankruptcy courts are split on this issue. In In re Bertelsen, 65 B.R. 654 (Bankr.C.D.Ill.1986), Bankruptcy Judge Altenberger found a land sales contract to be a security device similar to a mortgage and, therefore, not an executory contract.[1] Conversely, in In re Buchert, 69 B.R. 816 (Bankr.N.D.Ill.), aff'd, No. 87-C-2680, 1987 WL 16019 (N.D.Ill. Aug. 19, 1987), Bankruptcy Judge Schwartz found a land sales contract to be an executory contract based on (1) Illinois law and (2) the assertion that "a land sales contract fits in with the traditional definition of an executory contract as performance is still due by both parties to the contract." Id. at 820.
This Court believes the proper course in determining whether a land sales contract is executory is to apply the Countryman definition. This requires a two-step inquiry. First, it must be ascertained whether either party has any unperformed obligation under the contract at the time the bankruptcy petition is filed. Second, if both parties have unperformed obligations under the contract, would the failure to perform those obligations constitute a material breach of the contract. Whether a breach would be material is a question of state contract law. If one party has so fully performed that nothing he could do would cause a material breach of the contract, then the contract is not an executory contract.
By definition our holding requires a case by case analysis. We reject a rule *27 which would classify all land sales contracts as executory or non-executory simply by virtue of its status as a land sales contract.
We must address one argument raised by Defendants. They argue that we must consider any land sale contract to be executory under section 365(a) because: "11 U.S.C. Section 365(i) and (j) specifically refers to an agreement for the sale of real property as an executory contract." We believe this is not a correct characterization of what those subsections say. What section 365(i) does say is: "If the trustee rejects an executory contract of the debtor for the sale of real property . . ." 11 U.S.C. § 365(i). The Court does not believe this language indicates an attempt to treat all land sale contracts as executory. Such language merely begs the question: is the contract at issue executory and does it involve a land sale contract where the purchaser is in possession? Under the statute, these appear to be separate issues. Thus, not all land sale contracts must be considered executory under section 365(i).
Even if we were to concede Defendants' argument that sections 365(i) and (j) require a finding of land sale contracts to be executory, it does not follow that we must carry over that definition to section 365(a). As the court stated in In re Booth, 19 B.R. 53 (Bankr.D.Utah 1982):
[This] argument founders, however, on at least two shoals. First, treatment of the contract for deed as an executory contract, where debtor is vendee, ignores the reasons for enacting Sections 365(i) and 365(j). They were passed to give nondebtor vendees the protection of mortgagors. Viewing the contract for deed as a lien, where the debtor is vendee, therefore is consistent with the spirit of these provisions. Second, consistency in terminology, that is treating contracts for deed as executory contracts under Section 365 in every instance, favors nondebtor vendees over debtor vendees and debtor vendors over debtor vendees in bankruptcy. Particularized treatment of the contract for deed is necessary to avoid these consequences.
Id. at 62.
V Bankruptcy Court Decision
Here, the Bankruptcy Court found the contract at issue to be an executory contract. However, from the Court's order of April 7, 1988, denying confirmation of the debtors' amended plan under Chapter 12, it is impossible to tell on what basis it did so. The Court may have relied on state law, following the Buchert court's view that Illinois land sales contracts are not considered to be in the nature of security devices, see supra note 1; or it may have considered the contract executory based solely on its status as a land sales contract regardless of state law; or it may have relied on application of the Countryman definition and found there to have been material obligations remaining on both sides. Having no indication as to which approach the Bankruptcy Court used, and in light of our holding, we ordered further briefing from the parties on the questions of whether the Defendants had unperformed obligations under the contract and whether Defendants could materially breach the contract.[2]
Rather predictably, Defendants argued that, as of the time of the bankruptcy filing, they had not yet provided merchantable title failure of which would constitute a material breach of the contract under Illinois law. On the other hand, the Debtor argues that the Defendants have fully performed by placing a warranty deed in escrow and, therefore, cannot materially breach the contract. However, it is not clear from the Debtor's memorandum whether he is arguing that (1) Defendants have already provided merchantable title and, therefore, have fully performed or (2) the Defendants have yet to provide merchantable title, but even if they do not, this would not constitute a material breach under *28 Illinois contract law. There is a crucial difference here which must be resolved.
VI Conclusion
Having put forth the rule to be followed, and considering the record before us, the Court believes the most expeditious way to further this litigation is to remand it to the Bankruptcy Court for application of the rule announced herein. We would note that the requirement of providing merchantable title, as prescribed in paragraph 3 of the contract for deed, appears to be the operative issue. This Court tends to agree with In re Rehbein, 60 B.R. 436 (9th Cir.Bankr.App.Panel 1986), that "where the debtor has already placed the deed in escrow and has no other material obligations to perform, a contract for deed is not executory." Id. at 441; see also In re Buchert, 69 B.R. at 820 n. 5. But see In re Rancho Chamberino, Inc., 89 B.R. at 601 (fact that deed is placed in escrow does not flaw the executory nature of the contract). Thus, the obligation of delivery of the warranty deed has been satisfied by use of the escrow agent in the instant case unless state law holds otherwise.
Ergo, the decision of the Bankruptcy Court is hereby VACATED and REMANDED for further proceedings consistent with this opinion.
NOTES
[1] In Bertelsen, the court found that under Illinois law a land sales contract is considered to be in the nature of a secured transaction, though acknowledging that Illinois courts have referred to such contracts as executory. The court noted, however, that the "characterizations of land sales contracts as `executory' contracts by Illinois courts are not determinative for purposes of Section 365." In re Bertelsen, 65 B.R. at 657 n. 2. But see In re Buchert, 69 B.R. at 820 ("Under Illinois law, contracts for the purchase of real property or, as they are sometimes called, articles of agreement, are not considered to be a security instrument, mortgage or trust deed, but constitutes [sic] an executory contract.").
[2] It is undisputed that the debtor-vendee had not fully performed at the time of bankruptcy as the purchase price had not been fully paid. Thus, clearly a material breach could (and did) occur on his side. Thus, in applying the Countryman definition, the issue became whether Defendants had fully performed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918255/ | 101 B.R. 628 (1989)
In re FAMILY HEALTH SERVICES, INC., et al., Debtors.
In re MAXICARE/HEALTHAMERICA HEALTH PLAN OF ARIZONA, INC. and Maxicare Arizona, Inc., Debtors.
Bankruptcy Nos. SA89-01549JW, SA89-01550 through SA89-01594, SA89-02535, SA89-02536, SA89-01584JW and SA89-01585JW.
United States Bankruptcy Court, C.D. California.
June 9, 1989.
Peter Wolfson, Myerson & Kuhn, Los Angeles, Cal., for debtors.
*629 Christopher Maisel, Rubinstein & Perry, Los Angeles, Cal., Patrick Cantilo, Admitted Pro Haec Vice for A.W. Pogue, Com'r of Ins. for the State of Tex.
James W. Ryals, Milbank, Tweed, Hadley & McCloy, Los Angeles, Cal., for IBJ Schroder Bank & Trust Co.
MEMORANDUM OF DECISION
JOHN J. WILSON, Bankruptcy Judge.
This matter comes before the Court on the motion of the Director of Insurance for the State of Arizona to dismiss or abstain from hearing the petitions filed by Maxicare/HealthAmerica Health Plan of Arizona, Inc. and Maxicare Arizona, Inc. (Maxicare Arizona), for relief under Chapter 11 of the Bankruptcy Code. Group Health Association of America filed an amicus curiae brief in support of the motion. The debtor and Bondholders Committee opposed the motion and IBJ Schroeder Bank & Trust Co., a member of the Bondholders Committee, filed a response supporting the debtor's position.
This is one of a number of motions to dismiss filed by state insurance regulators in the Maxicare cases. The first opinion issued by the court was In re Family Health Services, Inc. et al./In re Maxicare North Texas, Inc., 101 B.R. 618 (1989), and much of the court's analysis in that decision is repeated here.
BACKGROUND
Family Health Services, Inc. and 45 related corporations, including Maxicare Arizona, filed for relief under Chapter 11 of the Bankruptcy Code on March 15, 1989. Subsequently, two affiliated corporations also filed Chapter 11 petitions. The 48 cases were consolidated for joint administration under Family Health Services, Inc., however, the debtors are commonly and collectively known as "Maxicare." According to the petitions, assets of Maxicare total $2.1 billion and liabilities are $1.4 billion. It appears that there are in excess of 100,000 creditors plus an unknown number of the one million members of Maxicare health plans who may have claims.
Maxicare operates a national network of health maintenance organizations (HMOs) which furnish health care services to approximately one million people. Plan members (also called enrollees) pay a fixed monthly fee, usually through their employer, and are eligible for all covered routine and emergency medical services. Hospitals, doctors, and individual health care professionals provide services to plan members under two fee arrangements with Maxicare. A health care provider agrees either to deliver medical care for a fixed monthly charge, a "capitation" fee, or to render services on a fee for service basis.
Maxicare Arizona is a member of the Maxicare network. At the top of the Maxicare corporate pyramid is Maxicare Health Plans, Inc., a publicly held California corporation. Maxicare Health Plans, Inc. owns 100% of the stock of Maxicare, Inc., a holding company which is also incorporated in California. Maxicare Inc. owns 100% of the stock of Maxicare/HealthAmerica Health Plan of Arizona, Inc., an Arizona corporation, which in turn owns 100% of Maxicare Arizona, Inc., another Arizona corporation.
Maxicare Arizona, as an HMO in the Maxicare network, constitutes part of a large integrated and interdependent system for the provision of health care to Maxicare enrollees. Maxicare provides essential operational, administrative and managerial services, as well as centralized budget planning and marketing for the entire network of Maxicare HMOs. (Ruegger Decl. Ex. A., pp. 7-8).
The clearest evidence of the interrelationship between the Maxicare entities is Maxicare's cash management system. Maxicare HMOs transmit daily both bills and funds to Maxicare, Inc., Maxicare's California HMO. Maxicare, in turn, uses the funds received to pay debts as they are incurred throughout the Maxicare network. Maxicare also lends money to Maxicare HMOs, with such transfers being recorded on the books and records of the individual HMOs. Further, Maxicare Arizona, along with the *630 other Maxicare entities, submits consolidated financial statements reflecting the overall financial health of the Maxicare network. (Ruegger Decl. Ex. A., p. 17).
Maxicare Arizona HMOs are no longer operated by the debtor. The enrollees of Maxicare Arizona, Inc. were transferred to other HMOs serving the Phoenix area. A sale of the assets of Maxicare/HealthAmerica Health Plan of Arizona, Inc. was approved by the court at a hearing held on May 8, 1989.
Maxicare Arizona is an Arizona corporation which conducted business only within that state. Under Arizona law, the regulation of health care service organizations (HCSOs) includes regulation of HMOs.[1] HMOs in Arizona are regulated by the Director of Insurance pursuant to the Arizona Revised Statutes. Ariz.Rev.Stat.Ann. §§ 20-1051 to -1072 (1975 & Supp.1988).
JURISDICTION
This court has jurisdiction pursuant to 28 U.S.C. § 1334(a), (d); 28 U.S.C. § 157(b)(2)(A), (O), and general order No. 266 of the United States District Court for the Central District of California.
ISSUE
The issue is whether Maxicare Arizona is a "domestic insurance company" and therefore not eligible to be a debtor under sections 109(b)(2) and 109(d) of the Bankruptcy Code? 11 U.S.C. § 109(b)(2), (d).
ANALYSIS
Section 109(a) defines who may be a debtor as a person that resides or has a domicile, a place of business, or property in the United States and the term "person" includes individuals, partnerships, and corporations. 11 U.S.C. §§ 109(a), 101(35). The specific exceptions in subsections (b) through (f) of section 109 are the only limits on this broad definition of who may be a debtor.
The applicable subsections of section 109 provide:
(b) A person may be a debtor under chapter 7 of this title only if such person is not
. . . . .
(2) a domestic insurance company, . . .
. . . . .
(d) Only a person that may be a debtor under chapter 7 of this title, . . . may be a debtor under chapter 11 of this title.
11 U.S.C. § 109(b)(2), (d). Section 109 excludes railroads, domestic insurance companies and banking institutions from eligibility for Chapter 7 relief. In general, to proceed under Chapter 11 an entity must be eligible for Chapter 7 relief.
The Arizona Director of Insurance argues that Maxicare Arizona is a domestic insurance company for section 109 purposes. By comparing and contrasting the regulation of HMOs with other provisions of the Arizona Insurance Code, the Director contends that Arizona classifies Maxicare Arizona as a domestic insurance company. The debtor responds that HMOs in general, and Maxicare Arizona in particular, are not domestic insurance companies as that term is defined by federal case law and Arizona regulatory statutes. Furthermore, the Arizona Attorney General has determined that HMOs are not insurance companies under Arizona law, therefore, Maxicare Arizona is eligible for Chapter 11 relief.
In determining whether an entity is excluded from seeking bankruptcy relief under section 109, federal courts have followed one or more of several approaches. The process of applying traditional rules of statutory construction has come to be known as the independent classification test. Courts may consider the classification of an entity under state law, thereby applying the state classification test. Finally, at least one court has suggested a third approach and coined the term alternate relief test. This court's analysis of *631 the facts under each of these tests leads to the conclusion that Maxicare Arizona is not a domestic insurance company and is therefore eligible for Chapter 11 relief.
INDEPENDENT CLASSIFICATION TEST
The independent classification test is based upon the court's own construction of the Bankruptcy Code. 2 Collier On Bankruptcy ¶ 109.02 (15th ed. 1989). The test is essentially statutory construction by another name. In applying the test, courts have adopted a common sense approach guided by legislative history and traditional rules of statutory construction. In re Cash Currency Exchange, Inc., 37 B.R. 617, 621 (D.C.1984), aff'd, 762 F.2d 542 (7th Cir. 1985), cert. denied, 474 U.S. 904, 106 S.Ct. 233, 88 L.Ed.2d 232 (1985).
Beginning with the language of section 109, a "domestic insurance company" may not be a debtor under the Bankruptcy Code. 11 U.S.C. § 109(b), (d). The Code neither defines the term, domestic insurance company, nor mentions health maintenance organizations. Absent a definition, courts have applied traditional rules of statutory construction to determine what entities Congress intended to exclude from bankruptcy relief under section 109.
The general rule of statutory construction is that the enumeration of exclusions from the operation of a statute indicates that the statute applies to all cases not specifically excluded. Expressio unius est exclusio alterius. 2A Sutherland Statutory Construction § 47.23 (Sands 4th ed. 1984). As the Seventh Circuit concluded:
If congress had intended to make the list of excluded entities illustrative rather than exhaustive, it could have used the rule of statutory construction found in the Bankruptcy Code which provides that the words "`includes' and `including' are not limiting." 11 U.S.C. § 102(3). Because Congress chose not to do so, we conclude that the list of excluded entities is intended to be exhaustive.
Cash Currency, 762 F.2d at 552.
Section 109 broadly defines who may be a debtor subject to a specific and exhaustive list of exclusions. Congress, in choosing to exempt certain organizations from the operation of the bankruptcy laws, must be presumed to narrowly circumscribe the limits of this exemption. In re Southern Indus. Banking Corp., 59 B.R. 978, 982 (Bankr.E.D.Tenn.1986). Absent affirmative action by Congress to expand the application of this provision, section 109 must be narrowly construed.
Section 109 of the Bankruptcy Code adopted the insurance company exclusion under the Bankruptcy Act, adding the words "domestic" and "foreign" to clarify when bankruptcy laws may apply to foreign insurance companies. S.Rep. No. 989, 95th Cong., 2d Sess. 31, reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5817; H.R.Rep. No. 595, 95th Cong., 1st Sess. 318, reprinted in 1978 U.S.Code Cong. & Ad.News 6275. Former section four of the Bankruptcy Act (11 U.S.C. § 22) provided: "Any person, except a municipal, railroad, insurance, or banking corporation or a building and loan association, shall be entitled to the benefits of this Act as a voluntary bankrupt." 11 U.S.C. § 22 (repealed 1978). The insurance company exclusion was continued essentially unaltered as section 109 of the Code.
Congress chose not to expand or modify the insurance company exception despite two clear opportunities for revision: first, when the Act was codified in 1978 and again, when section 109(b)(2) was amended in 1982. Congress did modify section 109(b) when it expanded the definition of "bank" to include six additional banking entities "or similar institution which is an insured bank." 11 U.S.C. § 109(b)(2). But it did not add similar language to exclude entities that are similar or substantially equivalent to insurance companies.
It may be presumed that Congress was aware of the existence of HMOs when the Code was enacted in 1978. For example, in 1973, Congress passed federal HMO legislation "to provide assistance and encouragement for the establishment and expansion of health maintenance organizations." *632 S.Rep. No. 129, 93th Cong. 1st Sess. 4, reprinted in 1973 U.S.Code Cong. & Ad. News 3033; 42 U.S.C. §§ 300e to 300e-17. From the failure to include HMOs in section 109(b)(2), it may be inferred that Congress intended to make them eligible for bankruptcy relief. Cash Currency, 762 F.2d at 552 n. 11. Accordingly, this court finds that HMOs are eligible for bankruptcy relief since they are not specifically excluded by section 109.
Application of the traditional rules of statutory construction to section 109 is dispositive of the primary issue in this case. However, the court takes this opportunity to continue the analysis of these facts under the other tests relied upon by some courts.
STATE CLASSIFICATION TEST
Under the state classification test the court examines the law of the state of incorporation to determine the character of an entity for section 109 purposes. The analysis begins with whether the state law classifies the entity as one specifically excluded from being a debtor under section 109(b)(2). Next, the court may conduct a functional analysis, comparing the powers of the entity to be classified with those of entities excluded from bankruptcy relief. Finally, the court may examine the state statutes for characteristics common to excluded entities, those entities which conduct business of a public or quasi-public nature and are subject to extensive state regulation including a statutory scheme for liquidation or rehabilitation. Cash Currency, 762 F.2d at 548.
Some courts have suggested that the inquiry is complete if the state classifies the entity as one specifically excluded by section 109(b) from being a debtor. Id. The Ninth Circuit dealt with this issue in Security Building & Loan Ass'n v. Spurlock, 65 F.2d 768 (9th Cir.1933).
In Spurlock, the bankrupt appealed from an involuntary petition which designated the bankrupt as a building and loan association. One month after the petition was filed, the Bankruptcy Act was amended to exclude building and loan associations from eligibility for bankruptcy relief. Absent a definition or other guidance within the Act, the appellate court reasoned that a building and loan association was "entirely a creature of state statute and the statute authorizing its creation must necessarily define its characteristics." Id. at 771. The court opinion noted that the name of the debtor and the designation in its articles of incorporation as a building and loan association were persuasive if not controlling evidence of its character, though name alone would not be "determinative." Id. Before comparing the articles of incorporation with the state statutes, the court observed that the statute reflected the general conception of a building and loan throughout the United States. Id. at 772. The court ruled that the bankrupt was a building and loan association and therefore excluded from bankruptcy relief. Here, however, Maxicare Arizona does not purport to be a "domestic insurance company" in its corporate name or under the laws of the state of Arizona. Thus this court's decision is entirely consistent with the Ninth Circuit decision in Spurlock.
The Director contends that Maxicare Arizona is a domestic insurance company under Arizona law and that its classification is dispositive of this dispute. Maxicare Arizona responds that according to the Arizona Attorney General, HCSOs, the Arizona equivalent of HMOs, are not insurance companies under Arizona law. It argues that the definitions and provisions of the Arizona insurance laws recognize a fundamental difference between an HMO, which has the power to arrange for health care services, and an insurance company, which indemnifies its policyholders against the cost of such service. The Director's argument is not persuasive.
One clear indication of how Arizona classifies and treats HMOs is the opinion of its senior legal officer, the Arizona Attorney General. He responded to a letter from the Arizona Director of Insurance questioning whether the state would be obligated to use the assets of the Life and Disability Insurance Guaranty Fund to pay the debts of an insolvent HMO. Op. Att'y Gen. 179-20 *633 (1979). To make this determination, the Attorney General considered whether an HMO was an insurance company under Arizona law.
The Attorney General stated that HMOs are generally not considered to be insurers under the insurance laws. He cited Section 20-1068 which specifies the limited number of Title 20 insurance provisions which apply to HMOs. Ariz.Rev.Stat. Ann. § 20-1068 (Supp.1988). Under this provision, the rehabilitation and liquidation article of the Arizona insurance laws applies to HMOs. Ariz.Rev.Stat.Ann. § 20-1066 (Supp.1988). The Director cites these statutes as examples of the Arizona legislature's intent to treat HMOs as insurers. While it is true that statutes regulating Arizona HMOs are found in the Arizona insurance laws and Arizona HMOs are liquidated under the supervision of the Director of Insurance, these facts alone do not support the conclusion that HMOs are domestic insurance companies. In re Prudence Co., 79 F.2d 77, 79 (2nd Cir.1935), cert. denied, 296 U.S. 646, 56 S.Ct. 248, 80 L.Ed. 459 (1935). In fact, the provisions of the Arizona insurance laws support the conclusion reached by this court and the Arizona Attorney General that HMOs are not domestic insurance companies.
Arizona law defines HMOs as:
[a]ny person which undertakes to conduct one or more health care plans [and] `Health care plan' means any contractual arrangement whereby any health care services organization undertakes to provide directly or to arrange for all or a portion of designated basic health care services and to pay or make reimbursement for any remaining portion of such health care services on a prepaid basis through insurance or otherwise. A health care plan shall include basic health care services.
Ariz.Rev.Stat.Ann. § 20-1051 subds. 5, 7 (1975). The definition of insurance is set forth in section 20-103 subd. A as "a contract by which one undertakes to indemnify another or to pay a specified amount upon determinable contingencies." Ariz.Rev. Stat.Ann. § 20-103 subd. A (Supp.1988). After considering these definitions, the Attorney General concluded as follows:
An [HMO] conducts health care plans. From a legal standpoint, there is no indemnification nor is any contingent event needed in order for the services to be made available. An enrollee in a health care plan operated by an [HMO] simply makes a periodic payment in return for which he is furnished certain specified health care services. We are thus persuaded that [HMOs] do not transact insurance as that term is defined in A.R.S. § 20-103.
Op. Att'y Gen. I7920 (1979). According to the Attorney General of Arizona, HMOs such as Maxicare Arizona are not insurance companies. Therefore, both the Arizona statutes and the Arizona Attorney General classify Maxicare Arizona as an HMO, not a domestic insurance company.
A strikingly similar case arose in Michigan. Matter of Michigan Master Health Plan, Inc., 44 B.R. 642 (Bankr.E.D.Mich. 1984), rev'd, 90 B.R. 274 (E.D.Mich.1985). There the bankruptcy judge decided that an HMO was a domestic insurance company and thus ineligible for relief under section 109. On appeal, the district court reversed on the ground that the Michigan Attorney General had ruled, in an official opinion, that the state had not classified HMOs as insurance companies; therefore, the HMO was an eligible debtor. Id. at 275.
Since Maxicare Arizona is not classified under state law as a domestic insurance company, the court may conduct a functional analysis to determine whether it exercises the same powers as those entities excluded under section 109. For example, in Cash Currency, the Seventh Circuit ruled that a currency exchange was not a banking corporation excluded from the jurisdiction of the bankruptcy court because a currency exchange, although similar to a bank in many respects, lacked the statutory power to accept deposits. Cash Currency, 762 F.2d at 550. In the case at bench, the powers of an HMO are compared with those of a domestic insurance company to determine whether they are substantially equivalent entities.
*634 The distinctive function of an HMO is the ability to provide medical services to its members, and insurance companies as a rule do not exercise this function. Jordan v. Group Health Ass'n, 107 F.2d 239, 247 (D.C.Cir.1939). In considering whether Group Health Association was illegally engaged in the business of insurance, the Jordan court recognized the substantial difference between Group Health Association's agreement to provide medical services and an insurance company's contract to reimburse the cost when or after the service is rendered. Id. The court focused not on whether risk was involved but on the primary object or purpose of the medical services plan, and determined that Group Health Association was not subject to state insurance laws. Id. at 248. Furnishing medical services is clearly not a traditional function of insurance companies.
The central indispensable element of an insurance company is the underwriting or spreading of risk. Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 212, 99 S.Ct. 1067, 1073, 59 L.Ed.2d 261 (1979), reh'g denied, 441 U.S. 917, 99 S.Ct. 2017, 60 L.Ed.2d 389 (1979), cert. denied, 469 U.S. 1160, 105 S.Ct. 912, 83 L.Ed.2d 925 (1985). At issue in Royal Drug was the validity of price-fixing agreements between pharmacies and a health care insurer. The pharmacies agreed to charge policyholders $2.00 for each prescription drug and receive reimbursement of the cost of acquiring the drug from the insurer. The agreements were entitled to a limited exemption from federal antitrust statutes if the activity was the "business of insurance" for purposes of the McCarran-Ferguson Act. 15 U.S.C. § 1012(b). In defining the "business of insurance," the Court looked to the legislative history of the McCarran-Ferguson Act.
The Supreme Court found that Congress distinguished insurance companies which distribute risk according to hazard, experience and the law of averages, from enterprises, such as manufacturers, which have the ability to control costs. Royal Drug, 440 U.S. at 221, 99 S.Ct. at 1073. Since the agreements were arrangements designed to minimize the costs of purchasing goods and services, the Court concluded that the pharmacy agreements were not the "business of insurance." Id. at 224, 230, 232, 99 S.Ct. at 1080, 1082, 1084. Thus, the ability to control costs, the foundation of the HMO concept, also distinguishes HMOs from traditional notions of insurance.
An HMO can choose the providers of medical services with which it will contract to care for its enrollees. It may also, and in the vast majority of instances does, pay health care providers a fixed sum, which will not increase or decrease in relation to the actual services rendered. An HMO selects which health care professionals will serve its enrollees and does not assume an "insurance" risk of post-injury payment to its enrollees for any qualified service. For these reasons, an HMO and an insurance company cannot be viewed as equivalents.
The last step under the state classification test is an examination of Maxicare Arizona for characteristics common to entities excluded from bankruptcy relief by section 109(b)(2). These characteristics are regulation under an extensive state statutory scheme, including provision for liquidation or rehabilitation, and the operation of a public or quasi-public business. Cash Currency, 762 F.2d at 548.
There can be no question that Arizona law includes a statutory scheme for regulation of HMOs. Ariz.Rev.Stat.Ann. §§ 20-1051 to 1072 (1975 & Supp.1988). Section 20-1066 provides that rehabilitation or liquidation of HMOs shall be deemed to be rehabilitation or liquidation of an insurer. Ariz.Rev.Stat.Ann. § 20-1066 (Supp.1988). Whether or not HMOs are regulated and liquidated under a state statutory scheme, however, is of little assistance in deciding whether an HMO is the substantial equivalent of an insurance company under state law. Maxicare Arizona is not transformed into an insurance company by providing for its liquidation under the supervision of the Arizona Director of Insurance.
Today's ruling is consistent with other decisions which have given little or no weight to statutory liquidation schemes in *635 applying the state classification test. For example, in Cash Currency, the Seventh Circuit held that under the state classification test, a statutory scheme for an entity's liquidation has never been deemed sufficient to classify that entity as one excluded under section 109(b)(2). Cash Currency, 762 F.2d at 551; Prudence, 79 F.2d at 79. In Michigan Master, the district court held that "as of the date the petition in this case was filed a health maintenance organization certainly was not an insurance company under Michigan state law and is likely still not an insurance company." Michigan Master, 90 B.R. at 275. In reaching this conclusion, the court adopted the following advice of the Michigan Attorney General:
[T]he Commissioner of Insurance has been designated the state official to act as custodian or receiver of health maintenance organizations and since the Commissioner is already empowered . . . to act as custodian or receiver of insurance companies, the manner of custodianship and receivership has been extended to health maintenance organizations. At no point in Michigan law is there an attempt to classify health maintenance organizations, which are in effect medical clinics, as insurance companies.
Id. at 277. Thus, the courts have rejected the argument that by providing for liquidation of an entity under the banking or insurance laws, the state thereby classifies the entity as one excluded under section 109(b)(2).
The final inquiry is whether HMOs conduct business of a public or quasi-public nature. HMOs provide health care services, an activity which clearly affects the public interest. The comprehensive statutory scheme for regulating and liquidating Arizona HMOs confirms the state legislature's interest in maintaining the financial stability of HMOs. The Director claims that the Arizona Department of Insurance is in a superior position to handle the insolvency proceedings of Maxicare Arizona including the transfer of enrollees to other health plans. While access to an alternative health care plan is of paramount importance, the enrollees of the two Arizona HMOs have already been transferred to other HMOs. Therefore, the enrollees' interests appear to be adequately protected.
In sum, Arizona law does not classify HMOs as insurance companies and HMOs do not possess or exercise the powers of a domestic insurance company. Therefore, Maxicare Arizona lacks the characteristics common to entities excluded from bankruptcy relief. Under the state classification test Maxicare Arizona is not a domestic insurance company for purposes of section 109(b)(2).
The Director relied heavily on In re Portland Metro Health, Inc., 15 B.R. 102 (Bankr.D.Or.1981). In that case, Bankruptcy Judge Sullivan determined that the debtor, a health maintenance organization, was a domestic insurance company and therefore, not eligible for relief under the Bankruptcy Code. Portland Metro Health, Inc. operated in two states, Oregon and Washington. A two state operation differs significantly from a national network of HMOs which operated in about 15 states. In addition, the Portland opinion adopted the state classification test, while this court found the independent classification test decisive. Finally, Portland Metro was decided prior to the Seventh Circuit decision in Cash Currency, a decision upon which this court relies heavily and which is of greater precedential value. For these reasons, the court declines to adopt the holding in Portland Metro.
ALTERNATE RELIEF TEST
The alternate relief test, a policy based analysis, has been suggested as a third test for determining eligibility for bankruptcy relief under section 109(b)(2). In re Republic Trust & Sav. Co., 59 B.R. 606, 614 (Bankr.N.D.Okla.1986). In crafting the alternate relief approach, the court relied on the broad discretion vested in the bankruptcy courts to serve the purpose and intent of the Bankruptcy Code. The test emphasizes "congressional intent and factors of practicality and policy" thereby combining elements of the state and independent classification tests and adding policy considerations. Id. In general, "courts should consider whether a bankruptcy proceeding is a *636 satisfactory method, compared with available State and Federal non-bankruptcy methods, of reorganizing or liquidating a would-be debtor." Id. In essence is a Chapter 11 reorganization proceeding a satisfactory alternative to the statutory liquidation provisions of Texas law?
By proceeding under federal bankruptcy statutes, unsecured creditors of Maxicare Arizona receive the benefit of powers not available to the Director under the Arizona statutes. For example, the committee of unsecured creditors appointed pursuant to section 1102 has authority under section 1103 to investigate the conduct and financial condition of the debtor. 11 U.S.C. §§ 1102, 1103. This committee is an active participant in the case and has the fiduciary duty to act in the best interests of all the unsecured creditors. No similar provision exists under the Arizona insolvency procedures governing HMOs.
Arizona law grants a priority for payment of unpaid claims arising from insurance coverage, which also applies to claims filed by HMO enrollees. This preferential treatment of loss claimants is anathema to the basic tenet of federal bankruptcy law. Equal treatment and distribution to all unsecured creditors is the heart of federal bankruptcy policy. The federal bankruptcy court, with its nationwide jurisdiction and its broad equitable powers, has the ability to reorganize the entire Maxicare network and to ensure equitable treatment for all creditors, not just creditors from Arizona. If the choice here is between a state liquidation of Maxicare Arizona and a global federal reorganization of the debtors and 46 related entities, the practical and policy factors support the conclusion that a proceeding under Chapter 11 is the preferred method of reorganizing Maxicare Arizona.
CONCLUSION
For the forgoing reasons, the court finds that Maxicare Arizona are eligible debtors under 11 U.S.C. § 109. Accordingly, the motion to dismiss is denied. Counsel for the debtor will prepare, lodge and serve an order denying the motion as required by Bankruptcy Rule 9021 and Local Rule 116(1)(a).
NOTES
[1] The Arizona statutes designate health maintenance organizations as "health care service organizations," or "HCSOs." In order to achieve consistency between this and other opinions, the organizations will be referred to throughout as "HMOs." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1089597/ | 430 So.2d 1235 (1983)
Robert RODRIGUE
v.
A. Deutsche O'NEAL, Jr.
No. 82 CA 0655.
Court of Appeal of Louisiana, First Circuit.
April 5, 1983.
*1236 Joseph R. Raggio, Baton Rouge, for plaintiff and appellant.
Pamela Walker, Baton Rouge, for defendant and appellee Appalachian Ins. Co.
Joseph A. Reilly, Jr., Houma, for defendant and appellee A. Deutsche O'Neal Jr. and the Travelers Ins. Co.
Before LOTTINGER, COLE and CARTER, JJ.
LOTTINGER, Judge.
This appeal arises from the granting of a summary judgment in favor of a defendant insurer in a legal malpractice action. Plaintiff, Robert Rodrigue, sued A. Deutsche O'Neal, Jr. and three professional liability insurers[1], claiming that O'Neal, plaintiff's former attorney, allowed plaintiff's tort claim to prescribe, rather than diligently prosecuting same.[2] Defendant Appalachian Insurance Company moved for summary judgment, contending that it did not provide coverage for O'Neal during the time in which plaintiff's suit prescribed. From the granting of the summary judgment, dismissing Appalachian Insurance Company from the suit, plaintiff has filed a devolutive appeal.
*1237 FACTS
Plaintiff alleged in his petition that he was injured on or about May 19,1973, while working offshore as an employee of Frank's Casing Crew as a floor hand. He alleged that his injuries were caused through the negligence of various employees of his employer, Sea Drilling Company, and/or Amoco Oil Company.
Plaintiff was injured while working on a "self-contained platform rig" owned by Sea Drilling Company. The rig was leased to Amoco and was affixed to Amoco's stationary production platform in the field known as Eugene Island Block 215 on the outer continental shelf.
Appalachian provided coverage to defendant O'Neal only for the period from September 10, 1975 to October 1, 1977. Thus, the claim(s) assertable by plaintiff and the prescription period(s) applicable thereto are determinative of Appalachian's coverage, since the policy covered acts or omissions occurring during the policy period.[3]
TRIAL COURT
Appalachian Insurance Company moved for a summary judgment in its favor on the grounds that plaintiff's injury occurred on a fixed platform rig on the outer continental shelf; that the applicable prescriptive period for such injuries is one year; that any alleged negligence of defendant O'Neal occurred on or prior to May 19,1974, the date on which plaintiff's claim prescribed; and that it was, therefore, entitled to a judgment dismissing the plaintiff's claims against it.
The trial court opined that the central issue involved in determining whether Appalachian provided coverage for defendant O'Neal's alleged acts and omissions was whether or not the self-contained platform rig could be considered a vessel for purposes of the Jones Act and the general maritime law of torts.
After a hearing on the motion, the trial court concluded that Sea Drill Rig No. 12 was not a vessel, that plaintiff's tort claim(s) were governed by Louisiana law and the one year prescription of La.Civ. Code art. 3536, and that such claim(s) prescribed on May 19,1974, prior to commencement of Appalachian's coverage. Thus, Appalachian was entitled to judgment as a matter of law, and was granted summary judgment. This appeal followed.
SPECIFICATIONS OF ERROR
Plaintiff-appellant, Robert Rodrigue, assigns the following specifications of error:
1. The Trial Court erred in finding that the issue of the classification of a drilling rig as a vessel or non-vessel was an issue of law.
2. The Trial Court erred by failing to find that under its own conclusions of fact that the drilling rig question was a vessel.
APPLICABLE LAW
If the Sea Drill Rig No. 12 is considered a "vessel," then Rodrigue could have pursued a Jones Act (46 U.S.C. § 688) claim against his employer and a tort claim under the general maritime law against Sea Drilling and Amoco. A Jones Act claim is prescribed by the passage of three years from the date of injury, 46 U.S.C. § 688, incorporating 45 U.S.C. § 56. Maritime tort claims are barred by the doctrine of laches, Barrois v. Nelda Faye, Inc., 597 F.2d 881 (5th Cir. 1979); Federal Commerce & Navigation Co., Ltd. v. Calumet Harbor Terminals, Inc., 542 F.2d 437 (7th Cir.1976). The date of the accident was May 19, 1973; thus, if the Sea Drill Rig No. 12 is a "vessel," then the negligent acts and omissions of defendant O'Neal in allowing plaintiff's personal injury claim to prescribe would have been committed at least in part during the period of *1238 Appalachian's coverage. In such case, summary judgment herein would be erroneous.
If the Sea Drill Rig No. 12 is not considered a vessel, as an attachment to a stationary production platform, the rig is part of an "artificial island" and is governed by the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq. In such case, the Lands Act makes the law of the adjoining state applicable to injuries received by workers on fixed drilling platforms on the outer continental shelf, 43 U.S.C. § 1333(a)(2), Rodrigue v. Aetna Casualty and Surety Company, 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969). Any tort claim asserted by plaintiff would be governed by La.Civ.Code art. 3536 as to prescription. Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Thus, if the rig is not a vessel, plaintiff's personal injury claim would have prescribed May 19, 1974, prior to the commencement of Appalachian's coverage, and summary judgment herein would be correctly rendered.
Thus, we agree with the trial court that the paramount issue is the classification of the Sea Drill Rig No. 12.
SPECIFICATION OF ERROR NO. 1
Plaintiff contends that what constitutes a vessel for purposes of determining admiralty jurisdiction and seaman's status of an injured worker is normally a question of fact. Thus, plaintiff argues, such question should not be resolved by summary judgment, but should be determined by the trier of fact.
However, the United States Fifth Circuit has held that what constitutes a vessel for purposes of seaman's status may be decided on summary judgment if the undisputed material facts establish the mover's right to judgment as a question of law, Barrois v. Engine and Gas Compressor Services, Inc., 669 F.2d 350 (5th Cir.1982); Blanchard v. Engine and Gas Compressor Services, Inc., 575 F.2d 1140 (5th Cir.1978). Since seaman's status is primarily contingent upon a finding that the injured party is more or less permanently assigned to a vessel, Offshore Company v. Robison, 266 F.2d 769 (5th Cir.1959), we find that what constitutes a vessel may be determined on summary judgment as a matter of law if there are no undisputed facts as to the nature of the structure. See: Myers v. Howell Electric Motors Company, 365 So.2d 541 (La.App. 3rd Cir.1978), writ denied 367 So.2d 1185 (La.1979); see also Alexander v. Hudson Engineering, Incorporated, 378 So.2d 156 (La.App. 1st Cir.1979).
The trial court found that the material facts as to the nature of the Sea Drill Rig No. 12 were undisputed. The trial court's findings of fact are largely unchallenged on appeal by plaintiff. Thus, summary judgment was not an inappropriate procedural vehicle herein.
SPECIFICATION OF ERROR NO. 2
The trial court found the following to be undisputed material facts:
"The Number 12 is a `self-contained platform rig'; it is not a jack-up rig. It is designed to rest on a permanent platform. From that vantage point it can be `skidded' to reach several different drilling positions as far as six to eight feet apart.
"The Number 12 has living quarters, a galley, and a regular crew. It has a derrick permanently attached to it, and general equipment, such as derrick cables, wrenches, air tuggers and tongs. Specialized equipment is provided by any subcontractors, such as casing crews and cement work crews.
"The Number 12 has no kind of self-contained power; in other words, it cannot move itself from place to place. It has never been equipped to so move. Nor does it have a tender vessel, or motorized vessel, which stays with the rig constantly. The rig does not float; it is designed to rest on a platform.
"A self-contained platform rig is used in the following manner. A company such as Sea Drilling Company consumates a lease with an operator (a major oil company or an independent). The operator builds a platform in the gulf or elsewhere, which platform is permanent, to be used as a production platform after the drilling operation ceases.
*1239 "The self-contained platform rig is transported to the platform via barges. It is put onto large offshore barges by hugh [sic] cranes, secured down, and moved with tugboats to the location. The rig's crew members are not actually on the rig when it is being transported. They are transported to location by crew boats and/or helicopters. Mr. Bob Kubelka, whose deposition was filed into evidence, was the supervisor of the Number 12 crew at the time of the accident.
"Once the self-contained platform drilling rig has been taken to the platform it is lifted from the barges and placed on the platform. It remains there until all drilling is complete, which normally takes about a year. The rig is then removed and moved by barge to another site, if it is leased, or back to land for storage until it is leased."
Determinative factors as to whether a structure is a vessel are the purpose for which the structure is built and the business in which it is engaged. The Robert W. Parsons, 191 U.S. 17, 24 S.Ct. 8, 48 L.Ed. 73 (1903); Guidry v. Continental Oil Company, 640 F.2d 523 (5th Cir.1981), cert. den. 454 U.S. 818,102 S.Ct. 96, 70 L.Ed.2d 87. "Vessel" includes conventional ships and special purpose structures not usually employed as a means of transport on water but designed to float on water. Offshore Company v. Robison, supra.
We are of the opinion that the Sea Drill Rig No. 12 is not a vessel. Although it is designed to be moved from platform to platform, it cannot float and is not susceptible of navigation under its own or other power. The rig is not towed or floated to platforms, as are jack-up rigs and submersible drilling barges, but rather is onloaded and off-loaded onto transport barges and drilling platforms by cranes. We thus agree with the trial court that the rig in question is clearly not a navigable structure capable of being used as a means of transportation, nor is it a special purpose vessel designed to float on water.
Since we find that the rig on which plaintiff was injured was part of a fixed platform rather than a vessel, plaintiff's tort action would have been governed by Louisiana law, Rodrigue and Chevron Oil Company, supra. Thus, plaintiff's tort action prescribed prior to the coverage of Appalachian. (See discussion, infra.) For this reason, Appalachian is entitled to judgment as a matter of law, and inasmuch as there is no serious dispute as to the material facts surrounding the nature of the rig, summary judgment was correctly rendered by the trial court.
DECREE
Therefore, for the above and foregoing reasons, summary judgment of the trial court in favor of defendant, Appalachian Insurance Company, dismissing this defendant from plaintiff's suit, is hereby affirmed. All costs of this appeal are assessed to plaintiff-appellant, Robert Rodrigue.
AFFIRMED.
NOTES
[1] Sued as professional liability insurers of O'Neal were Travelers Insurance Company, Appalachian Insurance Company, and National Union Fire Insurance Company.
[2] The former wife of plaintiff, Glenda Rodrigue Forse, was married to plaintiff at the time of his injuries, and intervened in the suit.
[3] The policy also covered acts and omissions occurring prior to the policy period if claim was made against the insured during the policy period and the insured did not know or have reason to know of same when coverage commenced. However, since the instant suit was not filed until March 27, 1980, after the end of the Appalachian's coverage, this coverage provision is of no consequence herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3040707/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2766
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Sharon Lee Walker, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: May 31, 2006
Filed: June 13, 2006
___________
Before ARNOLD, BYE, and SMITH, Circuit Judges.
___________
PER CURIAM.
Sharon Lee Walker pleaded guilty to conspiring with others to commit
financial-aid fraud, in violation of 18 U.S.C. § 371, and committing financial-aid
fraud, in violation of 20 U.S.C. § 1097(a). The district court1 sentenced Walker to 87
months in prison and 3 years of supervised release, and to pay restitution. On appeal,
counsel has moved to withdraw and has filed a brief under Anders v. California, 386
U.S. 738 (1967), arguing that Walker’s sentence is unreasonable.
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
We conclude that the sentence is not unreasonable, as the district court
sentenced Walker within the advisory Guidelines range and gave appropriate
consideration to the factors in 18 U.S.C. § 3553(a). See United States v. Booker, 543
U.S. 220, 258-62 (2005) (district courts must consult Guidelines and take them into
account when sentencing, along with other § 3553(a) factors; § 3553(a) factors guide
inquiry as appellate courts review sentences to determine whether they are
reasonable); United States v. Lincoln, 413 F.3d 716, 717-18 (8th Cir.) (sentence
within Guidelines range is presumptively reasonable, and defendant must rebut such
presumption), cert. denied, 126 S. Ct. 840 (2005); United States v. Tobacco, 428 F.3d
1148, 1151 (8th Cir. 2005) (presumptively reasonable sentence can be unreasonable
if district court (1) failed to consider relevant factor that should have received
significant weight; (2) gave significant weight to improper or irrelevant factor; or (3)
considered only appropriate factors but in weighing those factors committed clear
error of judgment).
Having reviewed the record independently pursuant to Penson v. Ohio, 488
U.S. 75 (1988), we conclude that there are no nonfrivolous issues for appeal.
Accordingly, we affirm the judgment of the district court and grant counsel’s motion
to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1576129/ | 612 F. Supp. 2d 453 (2009)
UNITED STATES of America
v.
ATLANTIC STATES CAST IRON PIPE COMPANY, John Prisque, Scott Faubert, Jeffrey Maury, and Craig Davidson, Defendants.
Criminal No. 03-852(MLC).
United States District Court, D. New Jersey.
March 23, 2009.
*455 Michael D. Critchley, Michael Critchley & Associates, West Orange, NJ, Michael D'Alessio, Jr., Walder, Hayden & Brogan, PA, Roseland, NJ, Michael N. Pedicini, Morristown, NJ, Vincent Joseph Nuzzi, Nuzzi & Mason, LLC, Dover, NJ, for Defendants.
MEMORANDUM OPINION
MARY L. COOPER, District Judge.
OUTLINE OF OPINION
PRELIMINARY STATEMENT ................................................................. 455
DISCUSSION ............................................................................ 457
I. LEGAL FRAMEWORK ................................................................... 457
A. The Crime Victims Rights Actsummary of rights and enforcement
provisions .................................................................... 457
B. Definition of "Victim" in CVRA and its source statutes, the VWPA and
2 MVRA ("statutory victim status") ............................................. 460
C. Review of case law on disputed factual issues of statutory victim status ....... 473
D. Rights of statutory victims against particular defendants in sentencing ........ 481
E. Comparison between statutory victim status and information from other
affected persons .............................................................. 493
F. Constitutional and statutory rights of defendants in sentencing ................ 497
2
II. FINDINGS AND CONCLUSIONS .......................................................... 503
A. IndictmentAllegations and convictions ......................................... 503
B. Statutes charged in the Indictment ............................................. 515
C. OSHA statuteNot charged ....................................................... 519
D. CVRA contentions in this motion ................................................ 522
E. No. CVRA contentions prior to this motion ...................................... 526
F. Findings and conclusions of the Court .......................................... 531
PRELIMINARY STATEMENT
This is a complex criminal case in which an industrial company that operates a cast iron pipe foundry in New Jersey, and four of its employees, were convicted by a jury on charges of an alleged multi-object conspiracy and various substantive counts. Essentially, the indictment alleged that the corporate defendant and numerous indicted and unindicted conspiratorsall employees of the companyengaged in a conspiracy and committed substantive offenses relating to violation of the Clean Water Act ("CWA") and the Clean Air Act ("CAA"); and that they systematically obstructed proceedings of the federal Occupational Safety and Health Administration ("OSHA") after incidents in which other *456 employees sustained serious or fatal injuries at work. See infra Secs. II.A, II.B.
Sentencing proceedings are pending. The government has made a motion under the Crime Victims' Rights Act, 18 U.S.C. § 3771 ("CVRA"), which defendants oppose. We rule that the motion is moot in part and denied in part.
The offenses of conviction that are relevant to this motion are as follows: First, conspiracy in violation of 18 U.S.C. § 371, with objectives of obstructing pending proceedings before OSHA [contrary to 18 U.S.C. §§ 1505 and 1515(b) ], making materially false statements to OSHA [contrary to 18 U.S.C. § 1001], and defrauding OSHA [in violation of the "defraud" clause of 18 U.S.C. § 371]. Second, substantive offenses of: (1) obstruction of OSHA in violation of 18 U.S.C. §§ 1505 and 1515(b); (2) obstruction of OSHA in violation of 18 U.S.C. § 1519 [altering object with intent to obstruct OSHA]; and (3) false statements to OSHA in violation of 18 U.S.C. § 1001. We will refer to those convictions as the "OSHA-related offenses."[1] The corporate defendant was convicted of those offenses; several of the individual defendants were also convicted of some of those offenses. See infra Sec. II.A.[2]
The trial extended over approximately eight months from September 2005 through April 2006. See infra n. 54. A total of 108 verdict questions were submitted to the jury. The verdicts were mixed, including convictions, acquittals, convictions on lesser-included offenses, and no verdict on one count. (See dkt. 721 at 3 n. 4.) All but two counts of conviction were upheld by this Court in ruling upon posttrial motions in August, 2007, and the noverdict count was dismissed. (Id. at 267.) Since then the sentencing proceedings have been protracted, due to the size of the case and the number and complexity of sentencing issues. Final sentencing hearing dates are set for April 20-24, 2009.
We divided the sentencing briefing process into Step One (Guideline calculations), to be followed by combined briefing on Steps Two and Three (Guideline departures; imposition of sentence under 18 U.S.C. § 3553(a)). Draft and Revised Presentence Reports ("PSRs") were distributed to the parties by U.S. Probation. The briefing on Step One was extensive, with the parties opposing each other on virtually every issue pertaining to the guidelines calculations and the Revised PSRs. After briefs and oral argument on those issues were complete, the Court adjourned the previously-scheduled sentencing dates while the objections were under review. On December 31, 2008, the Court provided to the parties a lengthy written memorandum containing its intended rulings on Guideline calculations for the individual defendants. The contents of that memorandum *457 will be filed, with any necessary revisions, as an opinion on the docket at the time of sentencing. On February 2, 2009, the Court stated on the record its intended rulings on Guideline calculations for the corporate defendant. Also on that date, the Court conferred with counsel and set the current schedule for the remaining sentencing proceedings, culminating in the sentencing hearings on the stated dates.
While those events were unfolding, on December 1, 2008, the government filed a motion seeking to set a sentencing date, invoking the CVRA. The motion asserted that six individuals, employees who sustained serious or fatal injuries at work during the relevant period, qualify as crime victims under the CVRA because of the OSHA-related convictions in this case. The defendants did not oppose setting a sentencing date, which they understood the Court was going to do even without benefit of the government's motion, but they did oppose designating any persons as victims under the CVRA in this case. The government, in its reply brief, stated that it seeks the further relief that the alleged CVRA crime victims, or their representatives, be afforded the right to allocute at defendants' sentencing hearings. The rescheduled sentencing dates have since been set, so the motion is moot as to the timing aspect. The motion is not moot as to the status of the named individuals as CVRA crime victims, which is the issue we address here.
DISCUSSION
I. LEGAL FRAMEWORK
A. THE CRIME VICTIMS' RIGHTS ACT-SUMMARY OF RIGHTS AND ENFORCEMENT PROVISIONS
The formal name of the CVRA is the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act, Pub.L.No. 108-405, §§ 101-104, 118 Stat. 2260, 2261-65 (2004) (codified at 18 U.S.C. § 3771), effective Oct. 30, 2004. The CVRA itself was introduced and moved rapidly through Congress starting in April, 2004, at the end of almost a decade of unsuccessful bipartisan effort by victims' advocates to gain approval of a federal constitutional amendment.[3] The House Committee Report for the CVRA stated:
Crime victims already have a listing of rights in Title 42 of the United States Code. However, because those rights are not enumerated in the criminal code, most practitioners do not even know these rights exist. Further, the rights as they are currently enumerated do not contain any explicit enforcement provision. As such, crime victims often feel that they are ignored by a system that gives a great number of rights and protections to the person accused of the crime, but few to the victim. [This legislation] addresses these problems by moving the victims' rights to Title 18 of the United States Code, where they will be more readily available to practitioners. *458 It also amplifies the current rights and sets forth an explicit enforcement mechanism for those rights.
H.R. REP. No. 108-711, at 4 (2004), reprinted in 2005 U.S.C.C.A.N. 2274, 2277 ("House Committee Report").
The eight statutory rights of CVRA crime victims, as summarized in the House Committee Report, are: "the right to be reasonably protected from the accused; the right to be notified of, and not excluded from, public proceedings involving their case; the right to be heard at release, plea, or sentencing; the right to confer with the government attorney; the right to full and timely restitution; the right to be free from unreasonable delays in proceedings; and the right to respect. . . . [CVRA] makes no changes in the law with respect to victims' ability to get restitution." Id. at 2283.[4]
Those eight rights, applicable in every federal criminal prosecution, are codified in the CVRA, 18 U.S.C. § 3771(a)(1)-(8).[5] We discuss those enumerated CVRA rights below, insofar as they pertain to the instant motion. See, e.g., infra Sec. I.D. The law that the CVRA superseded had a similar but not identical formulation of the victims' substantive rights. 42 U.S.C. § 10606 (repealed 2004).
There are other crime victims' rights provisions already in place in Title 18, including but not limited to certain restitution statutes that become relevant here. See, e.g., 18 U.S.C. §§ 3510, 3525, 3555, 3556, 3663, 3663A, & 3664. The Court of Appeals for the Fourth Circuit has observed that "[a]lthough the CVRA provides the vehicle for [a petitioner] to assert her right to restitution, it does not create an independent obligation for a district court to order or a defendant to pay such an award.... Rather, the CVRA merely protects the right to receive restitution that is provided for elsewhere." In re Doe, 264 Fed.Appx. 260, 262 n. 2 (4th Cir.2007).[6]
The CVRA places responsibility on the court for its implementation, requiring that "the court shall ensure that the crime victim is afforded [those] rights." 18 U.S.C. § 3771(b)(1). It emphasizes the obligations of the responsible federal law enforcement *459 agencies to "make their best, efforts to see that crime victims are notified of, and accorded [those] rights." Id. § 3771(c)(1)-(3); see also id. § 3771(f) (procedures to promote compliance); 42 U.S.C. § 10607 (services to victims).
There are two primary innovations embodied in the CVRA. First, it applies to all federal offenses, not just those offenses for which statutory restitution provisions have been enacted. Second, it creates a new and powerful enforcement mechanism. It confers standing upon both the government and the victims themselves to assert the rights afforded under the CVRA. 18 U.S.C. § 3771(d)(1).[7] It provides that the asserted rights are to be asserted first in the district court, and if the relief sought is denied the movant may petition for mandamus on an expedited basis. This is the statutory mandamus petition procedure:
The rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred. The district court shall take up and decide any motion asserting a victim's right forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed. In no event shall proceedings be stayed or subject to a continuance of more than five days for purposes of enforcing this chapter. If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion.
Id. § 3771(d)(3). A companion provision, applicable to "any court proceeding involving a crime victim," requires that "[t]he reasons for any decision denying relief under this chapter shall be clearly stated on the record." Id. § 3771(b)(1).[8]
*460 The CVRA also provides that the government may assert error under the CVRA in any appeal in the criminal case. Id. § 3771(d)(4). At least one circuit court has held that CVRA crime victims are limited to the mandamus procedure, and may not invoke CVRA rights to participate in a direct appeal of the conviction and sentence. See United States v. Hunter, 548 F.3d 1308, 1309-16 (10th Cir.2008). This would be a distinction from district court decisions under the restitution statutes, which lack the mandamus procedure. Those decisions have been reviewed on appeals filed by the alleged victims. See, e.g., United States v. Kones, 77 F.3d 66, 67-68 (3d Cir.1996) (asserted victim/claimant appealed final judgment of conviction of defendant, where district court had denied restitution to that claimant); see also United States v. Gamma Tech. Indus., Inc., 265 F.3d 917, 920-23 (9th Cir.2001) (defendants appealed restitution granted in favor of asserted victim/claimant; government sided with defendants; circuit court granted amicus status to claimant and affirmed restitution orders).
There are limitations on the relief available under the CVRA. The statute provides that "in no case shall a failure to provide a right under this chapter provide grounds for a new trial." 18 U.S.C. § 3771(d)(5). It expressly creates no cause of action or any duty giving rise to a claim for damages against the government or its personnel, and it is not to be construed to impair prosecutorial discretion. Id. § 3771(d)(6). However, the CVRA provides a procedure for a victim to move to re-open a plea or sentence under specified conditions. Id. § 3771(d)(5).[9]
B. DEFINITION OF "VICTIM" IN CVRA AND ITS SOURCE STATUTES, THE VWPA AND MVRA ("STATUTORY VICTIM STATUS")
A "crime victim" under the CVRA is defined as "a person directly and proximately harmed as a result of the commission of a Federal offense." Id. § 3771(e).[10] The House Committee report was silent on the meaning of that term, and there was no Senate Committee report on the CVRA. However, one of the chief sponsors of the bill, Sen. John Kyl, has explained that "the CVRA's definition of a crime victim is based on the federal restitution statutes," citing the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. § 3663, and the Mandatory Victims Restitution Act *461 ("MVRA"), 18 U.S.C. § 3663A. See Kyl et al., supra n. 3, at 594 & n. 65; see also Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the Crime Victims' Rights Act, 2005 BYU L. REV. 835, 857 (2005) (noting that the CVRA's definition of "victim" comes from the MVRA).[11]
The definition of "victim" in the VWPA, which provides for discretionary restitution as part of the sentence for certain federal crimes, has developed over a series of Congressional amendments, since its enactment in 1982. The case law interpreting it has evolved as well. In 1996 Congress enacted the MVRA, which requires mandatory restitution for specified crimes and augmented and partially superseded the VWPA in the statutory restitution arsenal. See United States v. Leahy, 438 F.3d 328, 331 nn. 3-4 (3d Cir.2006) (joining circuits holding that Booker does not apply to orders of restitution under MVRA and VWPA). Both the VWPA and the MVRA are subject to the administrative procedures and enforcement provisions of 18 U.S.C. § 3664. Id. at 331 n. 4.[12]
Here we quote again the definition of "victim" in the CVRA:
[A] person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia.
18 U.S.C. § 3771(e).
The definition of "victim" in both the VWPA and MVRA is:
[A] person directly and proximately harmed as a result of the commission of an offense for which restitution may be *462 ordered, including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern.
18 U.S.C. § 3663(a)(2); 18 U.S.C. § 3663A(a)(2).
There are two main differences between these two definitions of "victim." First, the CVRA definition does not contain the qualifier phrase, "for which restitution may be ordered." The CVRA by its terms, unlike restitution statutes, applies to all federal criminal prosecutions, regardless of whether the offense qualifies for an award of restitution. See, e.g., COMM. ON THE JUDICIARY, AMENDMENTS TO THE FEDERAL RULES OF CRIMINAL PROCEDURE, H.R. Doc. No. 110-118, at 51 [hereinafter "RULES COMMITTEE REPORT"] ("The act defines the term `crime victim' without limiting it to certain crimes."). Second, the clause in the VWPA and MVRA "victim" definition, after the word "including," which refers to "an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity," is absent from the definition of "victim" in the CVRA. There is no legislative history explaining that omission, but we believe the CVRA definition will be interpreted to include that expansive clause because of the Congressional and case law history of that clause under the VWPA, briefly summarized below. This would be consistent with the stated purpose of the CVRA to strengthen rather than weaken victims' rights in federal criminal prosecutions.[13]
Amendments to the Federal Rules of Criminal Procedure were adopted effective December 1, 2008, to implement the provisions of the CVRA. See Fed.R.Crim.P. 1(b)(11) ("victim" is a "crime victim" as defined in 18 U.S.C. § 3771(e)); id. 12.1(b) (disclosing government witnesses); id. 17(c)(3) (subpoena for personal or confidential information about a victim); id. 18 (place of prosecution and trial); id. 32 (sentencing and judgment); id. 41(b) (authority to issue a warrant); and id. 60 (victim's rights). The Committee Note to revised Rule 1(b)(11) ("victim" defined) observes: "Upon occasion, disputes may arise over the question whether a particular person is a victim. Although the rule makes no special provision for such cases, the courts have the authority to do any necessary fact finding and make any necessary legal rulings." RULES COMMITTEE REPORT, supra, at 37.
This Court is of the view that based on the text, origin and limited legislative history of the CVRAand bearing in mind the distinction that the CVRA applies to victims of all federal crimes while the VWPA and MVRA apply only to restitution rights under specified federal crimesnevertheless the definition of "victim" under CVRA will be interpreted consistent with existing and evolving case law under the VWPA and MVRA. The court decisions so far under the CVRA generally reflect this approach, as we describe below.
The Court of Appeals for the Third Circuit has not yet had occasion to interpret the meaning of the definition of "victim" in the CVRA. It has, however, described and *463 interpreted the definition of "victim" in the VWPA and MVRA as it has evolved.
The VWPA was the first modern federal restitution statute, enacted in 1982. As of 1986, it authorized federal courts, when sentencing under certain offenses, to order "that the defendant make restitution to any victim of such offense." Hughey v. United States, 495 U.S. 411, 412-13 & n. 1, 110 S. Ct. 1979, 109 L. Ed. 2d 408 (1990) (explaining that this provision was recodified effective Nov. 1, 1987, pursuant to the Sentencing Reform Act of 1984, when it became 18 U.S.C. § 3663, and had received the term "such offense" in the 1986 amendments).
The term "victim" in the pre-1987 version of the VWPA was not defined with any standard of causation other than the quoted phrase "to any victim of such offense," which is what the Hughey court interpreted. This is in contrast to the "direct and proximate" standard in the current VWPA, MVRA, and CVRA statutes.
In Hughey, the Supreme Court interpreted the phrase "restitution to any victim of such offense," as used in 18 U.S.C. § 3663(a), to authorize restitution "only for the loss caused by the specific conduct that is the basis of the offense of conviction." Id. at 413, 110 S. Ct. 1979. There, the defendant pled guilty to only one count of use of an unauthorized credit card in violation of 18 U.S.C. § 1029(a)(2). Id. He had been charged with three counts under that offense statute, and three counts of theft by a Postal Service employee in violation of 18 U.S.C. § 1709, and at sentencing he was ordered to pay restitution for loss caused by all of the counts. Id. at 413-14, 110 S. Ct. 1979. The Supreme Court held invalid the portions of the sentencing order directing restitution for losses caused by conduct outside the count of conviction. Id. at 422, 110 S. Ct. 1979.
The Third Circuit describes the next Congressional step after Hughey as follows:
Not long after the Supreme Court decided Hughey, Congress amended the VWPA by adding 18 U.S.C. § 3663(a)(2) which provides:
For the purposes of restitution, a victim of an offense that involves as an element a scheme, a conspiracy, or a pattern of criminal activity means any persons directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy or pattern.
Crime Control Act of 1990, Pub.L.No. 101-647, 104 Stat. 4789, 4863 (1990). This amendment ... expands the restitution granting authority of district courts beyond that found in Hughey. By its own terms, however, § 3663(a)(2) applies only in cases where a scheme, conspiracy, or pattern of criminal activity is an element of the offense of conviction. In such cases, § 3663(a)(2) authorizes restitution to "any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern" that was an element of the offense of conviction.
Kones, 77 F.3d at 69-70.[14]
Another significant feature of the 1990 amendments to the VWPA, which carries through to the current VWPA and MVRA, was an exception for plea agreements. See United States v. Chalupnik, 514 F.3d 748, 752-53 (8th Cir.2008) (referring to 18 U.S.C. § 3663(a)(3) as enacted in 1990). That provision in the current version of the VWPA states:
*464 The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.
18 U.S.C. § 3663(a)(3). The VWPA also states that "the court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense." Id. § 3663(a)(1)(A).
A more complicated version of this exception appears in the MVRA. See id. §§ 3663A(a)(3) & (c)(1)-(3). The MVRA expressly states that a plea agreement can provide for restitution to persons "other than the victim of the offense," and if so the court shall so order. Id. § 3663A(a)(3).
There was no plea agreement in this case, and those provisions of the VWPA and MVRA are not directly relevant here. However, when reviewing case law under the VWPA, the MVRA, and the CVRA, it is important to recognize that plea agreements pertaining to restitution can be entered into for the benefit of persons other than statutory "victims," and under offense statutes for which no statutory right to restitution exists, and for losses and amounts beyond those provided in restitution statutes. Persons having crime victim status under the CVRA, which applies to all federal offenses, can enforce rights to participate in the plea process even if the actual offense statutes do not carry a statutory right to restitution. See, e.g., In re Dean, 527 F.3d 391, 395-96 (5th Cir.2008) (CVRA petitioners sought participation in plea proceedings for offenses to be charged under the CAA), denying mandamus in part in BP Prods. N. Am. Inc., 2008 WL 501321, at *3-*6.
Courts have recognized that the 1990 Congressional amendments to the VWPA definition of "victim" did not vitiate Hughey entirely. As one circuit court has observed, "Congress responded [to Hughey] by adding a definition of `victim' that retained the core limiting principle of Hughey but clarified its application to certain offenses and to plea agreements. See 18 U.S.C. § 3663(a)(2) (Supp. III 1991)." Chalupnik, 514 F.3d at 752.
The Court of Appeals for the Third Circuit interpreted the "scheme, conspiracy, or pattern of criminal conduct" portion of the VWPA definition of "victim" in its 1996 Kones decision. 77 F.3d at 66-71. Defendant was a doctor who pled guilty to 200 counts of mail fraud in violation of 18 U.S.C. § 1341 in connection with false insurance claims based on nonexistent services to eighteen of his patients. Id. at 68. He agreed that his sentence would include $2 million forfeiture as restitution to the health insurance companies who were the victims of his fraud. Id. Before his sentencing, one of the eighteen patients filed a claim for $1 million in restitution, alleging that defendant gave her prescriptions for excessive amounts of pain killers, which caused her to become addicted, lose her job, and require ongoing treatment. Id. She contended that it was only by inducing her drug dependency that defendant was able to carry out his fraudulent scheme. Id.
The district court in Kones found that the patient was not a "victim" of defendant's offenses of conviction within the meaning of the VWPA. Id. The Third Circuit affirmed. It stated the controlling principle as follows:
This [1990 VWPA amendment] expansion of restitution powers, however, is limited by its terms. Section 3663(a)(2) is not so broad that it permits a district court to order restitution to anyone harmed by any activity of the defendant related to the scheme, conspiracy, or pattern. Rather, in order for restitution to be permissible, the harm must "directly" result from the "criminal conduct" of the defendant. In this context, we interpret "direct" to require that the *465 harm to the victim be closely related to the scheme, rather than tangentially linked. Further, we interpret "defendant's criminal conduct in the course of the scheme, conspiracy or pattern" to mean conduct that is both engaged in the furtherance of the scheme, conspiracy or pattern, and proscribed by the criminal statute the defendant was convicted of violating.
Id. at 70 (emphasis added).[15]
Applying that principle, Kones held on the facts in that case:
[Patient] is not a "victim" of [defendant's] mail fraud offenses within the meaning of § 3663(a). . . . The conduct that [she] alleges caused her harm is not conduct proscribed by the mail fraud statute. The conduct proscribed by the mail fraud statute is the use of the mails for the purpose of executing a scheme to defraud. Specifically, in this case it is [defendant's] submission of false insurance claims through the mail. [Patient] does not allege that she was injured by the submission of the insurance claims. She alleges that she was injured by faulty medical services. While [patient] alleges that [defendant's] provision of drugs to her was malpractice and was done in furtherance of his scheme, the provision of drugs, properly or improperly, is not conduct proscribed by the mail fraud statute.
Thus, we agree with the district court that "victim" within the meaning of § 3663(a)(1) and (a)(2) does not include a person who has experienced no harm arising from the criminal conduct that gives rise to the offense of conviction.
Id. at 71. That case, interpreting the VWPA in the context of a mail fraud scheme, prompted the Kones court to add in a footnote:
We have no occasion here to address, and reserve for another day, the issue of whether in this context `conduct in the course of the ... conspiracy' includes only conduct prohibited by the substantive statute which the coconspirators conspired to violate.
Id. at 70 n. 3 (italics in original).[16]
However, the court in Kones did couple its holding with some strong observations about the process that the VWPA envisioned for determining "victim" status, and the accompanying right to restitution under that statute. The 1990 version of the VWPA contained the following provision, as described in Kones:
Even where there is a "victim of the offense," § 3663(d) provides that the court may decline to order restitution "to the extent that the court determines that the complication and prolongation of the sentencing process [required to do so] outweighs the need to provide restitution to any victims."
Id. at 68 (quoting 18 U.S.C. § 3663(d) (1990)) (bracketed material original). That provision survives in the current version of the VWPA, and in a modified form in the later-enacted MVRA. See 18 U.S.C. § 3663(d); id. § 3663A(c)(3).
The Kones court stated:
*466 We understand this provision to call for a weighing of the burden of adjudicating the restitution issue against the desirability of immediate restitutionor otherwise stated, a weighing of the burden that would be imposed on the court by adjudicating restitution in the criminal case against the burden that would be imposed on the victim by leaving him or her to other available legal remedies.
. . .
Nothing in the legislative history evidences an expectation that a sentencing judge would adjudicate, in the course of the court's sentencing proceeding, all civil claims against a criminal defendant arising from conduct related to the offense. Rather, it was expected that entitlement to restitution could be readily determined by the sentencing judge based upon the evidence he had heard during the trial of the criminal case or learned in the course of determining whether to accept a plea and what an appropriate sentence would be. While the original statute, similar to the current version, provided for discretion to decline to grant restitution when it would be an undue burden to do so, this was not because Congress expected that sentencing judges would be required to hold an evidentiary hearing on liability issues in the course of the sentencing proceedings. As the Senate Report explains, "the Committee added this provision to prevent sentencing hearings from becoming prolonged and complicated trials on the question of damages owed the victim." S.Rep. No. 532, 97th Cong., 2d Sess. 31 (1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2537 (emphasis added). The kind of case that Congress had in mind was one in which liability is clear from the information provided by the government and the defendant and all the sentencing court has to do is calculate damages. See id. at 2536-37 (discussing a case where the victim of a purse snatching suffered a broken hip). This aspect of Congress' expectation is important because it counsels against construing the text of the statute in a way that would bring fault and causation issues before the sentencing court that cannot be resolved with the information otherwise generated in the course of the criminal proceedings on the indictment. We are persuaded that this counsel should guide our interpretation of the restitution provisions of the VWPA.
Kones, 77 F.3d at 68-69 (emphasis in original).
[W]e agree . . . that "victim" within the meaning of § 3663(a)(1) and (a)(2) does not include a person who has experienced no harm arising from the criminal conduct that gives rise to the offense of conviction. As the facts of this case illustrate, to hold otherwise would unduly burden sentencing courts. No information developed in the course of these proceedings provided the district court with a basis for adjudicating whether [defendant's] treatment of [claimant] was legal or illegal, was consistent or inconsistent with medical standards prevailing in the community, or was or was not causally related to the injuries she allegedly suffered. As the district court aptly observed, it could not grant [claimant's] restitution request without fully litigating a tangentially related medical malpractice case as a part of the sentencing process.
Id. at 71.
Congress revisited the VWPA in 1996. That was the year that the MVRA was enacted.[17] The MVRA partially but not *467 completely superseded the VWPA so as to require mandatory restitution as to specified offenses. Compare 18 U.S.C. § 3663(a)(1) with id. § 3663A(a)(1) & (c); see Leahy, 438 F.3d at 331 nn. 3-4; Chalupnik, 514 F.3d at 752 & n. 2. It also amplified the definition of "victim" in both statutes and made those definitions identical.
As a reference point for the 1996 amendments, we now quote again, from Kones, the former text of the VWPA that was added as subsection (b)(2) in the 1990 amendments:
For the purposes of restitution, a victim of an offense that involves as an element a scheme, a conspiracy, or a pattern of criminal activity means any persons directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy or pattern.
Kones, 77 F.3d at 69 (quoting Crime Control Act of 1990, Pub.L.No. 101-647, 104 Stat. 4789, 4863 (1990) (codified at 18 U.S.C. § 3663(a)(2) (1960))).
The corresponding 1996 provision, as set forth in both the VWPA and the MVRA as of the 1996 enactments and as currently in effect, is this text:
For the purposes of this section, the term "victim" means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered, including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern.
18 U.S.C. § 3663(a)(2) (emphasis added); id. § 3663A(a)(2) (1996) (emphasis added).
The portion of the text shown above in bold type is the new language adopted by Congress for both the VWPA and the newly-enacted MVRA in 1996. See Chalupnik, 514 F.3d at 752-53. That, as we have seen, is the causation test that the drafters of the CVRA have adopted for its definition of "victim." 18 U.S.C. § 3771(e). The Conference Committee Report, in explaining the 1996 enactment of the MVRA and parallel amendment of the VWPA, explained the test of causation as follows:
The committee intends this provision to mean, except where a conviction is obtained by a plea bargain, that mandatory restitution provisions apply only in those instances where a named, identifiable victim suffers a physical injury or pecuniary loss directly and proximately caused by the course of conduct under the count or counts for which the offender is convicted.
S. REP. No. 104-179, at 19 (1996), 1996 U.S.C.C.A.N. 924, 932. That Report emphasized:
In all cases, it is the committee's intent that highly complex issues related to the cause or amount of a victim's loss not be resolved under the provisions of mandatory restitution. The committee believes that losses in which the amount of the victim's losses are speculative, or in which the victim's loss is not clearly causally linked to the offense, should not be subject to mandatory restitution.
Id. This statement of Congressional intent echoed the similar expressions of Congress under predecessor versions of the VWPA discussed in Kones. 77 F.3d at 68-71.
The Third Circuit confronted the "conspiracy" portion of the definition of "victim," in both the VWPA and the MVRA after the 1996 amendments, in United *468 States v. Akande. 200 F.3d at 140. That case involved a guilty plea to a conspiracy rather than a jury verdict, but the court did address the meaning of the "offense," for purposes of determining the scope of conspiracy conduct encompassed within the VWPA/MVRA definition of "victim." Id.
The defendant in Akande pled guilty to a conspiracy to commit credit card fraud. Id. at 137. Her plea agreement specified that restitution would be ordered at sentencing, but it did not mention any particular transactions, victims, or dates. Id. at 138. The alleged conspiracy, according to the Information, took place from "on or about" a specified date to "on or about" another specified date. Id. At the plea hearing the defendant allocuted to certain transactions within that time period. Id. However, the PSR calculated the victims' losses for purposes of restitution under the MVRA to be a sum that included two instances of credit card fraud that predated by more than one month the alleged "on or about" dates in the Information. Id. The government stated at sentencing that defendant and her co-conspirators had been involved in both incidents, and asserted that the disputed transactions were part of the charged conspiracy (although not specifically alleged in the Information). Id. The district court included the two disputed transactions in the restitution order. Id. The circuit reversed and remanded for restitution to be recalculated without those transactions. Id. at 140 n. 3, 142-43. The issue in Akande concerned the temporal limits of statutory restitution obligations, rather than, as here, statutory victim status per se. However, Akande necessarily addressed the MVRA/VWPA definition of "victim" in the context of a conspiracy because that statutory definition was the basis for determining the temporal limits as well. Id. at 140.
The Akande court began its discussion with a review of the history of statutory restitution authorization, and the corresponding definitions of "victim" in the VWPA (before and after the Supreme Court decision in Hughey), and the MVRA. It determined that "[t]he history of the pertinent statutes, past and present, reveals that this authorization is limited to the `offense of conviction.'" Id. at 138. It reiterated several of the principles set down in Kones, including that "[t]he victim's harm must be closely connected to the conspiracy or scheme rather than merely tangentially." Id. at 139 (citing Kones, 77 F.3d at 70). It concluded that where the plea agreement did not specify a broader scope for restitution, "the offense of conviction is temporally defined by the period specified in the indictment or information." Id. at 141.
The court in Akande addressed the 1990 VWPA amendments that expanded the definition of "victim" where the offense had an element of scheme, conspiracy, or pattern, as those amendments were carried forward in the 1996 amendments that ushered in the MVRA and updated the VWPA. The court concluded that the "offense" that defines statutory victim status under the MVRA and VWPA must be the offense of conviction. Id. at 141-42. "The conduct underlying the offense of conviction thus stakes out the boundaries of the restitutionary authority." Id. at 141. It stated:
The [1990] amendment enlarged the group of victims who would be entitled to restitution, but the triggering event the offense of convictionremains the same. . . .
Although victims need not be specifically named in the indictment or at trial, their harm must still be directly and proximately caused by the criminal conduct that is established by the prosecution. *469 As the 1990 House Report made clear, restitution was authorized only for "a victim of the offense for which the defendant has been convicted" . . . . As stated in a later Senate Report accompanying the enactment of section 3663A, restitution is to be ordered where the loss was "directly and proximately caused by the course of conduct under the count or counts for which the offender is convicted" . . . . Congress did not want sentencing to become a forum for determination of issues better suited to civil proceedings.
Id. (internal citations omitted).
One other point that Akande appeared to settle was the scope of conduct to be considered in making determinations under the "victim" definition in the MVRA and VWPA. It clearly stated that while "relevant" conduct may be a concept appropriate for other sentencing rulings, such as under the guidelines, that concept has no place in making decisions under the statutory "victim" definition in the MVRA and VWPA. Id. at 143. The court explained that "[a]lthough judges normally may use any information they possess to enhance a sentence, `restitution is a special case,' because the statutes limit restitution to the losses caused by the offense of conviction. . . . Accordingly, . . . [in applying these statutes] we look only to the `specific conduct' supporting the offense of conviction." Id. (internal citations omitted).[18]
What does "directly and proximately harmed" mean, as used in the VWPA, the MVRA, and now in the CVRA? The Third Circuit interpreted the MVRA test of causation in the context of a scheme-based offense in Fallon. There, the president of a company that manufactured and distributed medical devices was convicted at trial of wire fraud and mail fraud under 18 U.S.C. §§ 1341 and 1343, respectively, in connection with a scheme to attract customers using a fabricated FDA clearance letter. Fallon, 470 F.3d at 545. The district court found that the basis for the fraud charges was the fabricated FDA letter, and that a customer who leased the devices relying on that letter was a fraud "victim" entitled to restitution. Id. at 549. The Court of Appeals agreed with that ruling, which was not challenged on appeal, and remanded only for determination of the amount of losses proximately caused by the offense. Id. at 549-50. Here we quote the portions of the Fallon opinion that interpret the test of causation under the MVRA in the context of a scheme or conspiracy:
By the statute's explicit terms, loss can only be paid to victims who are "directly and proximately harmed."
Thus, this court, as well as others, has repeatedly recognized that under the MVRA, "restitution must be . . . `based on losses directly resulting from [the defendant's criminal] conduct'" . . . . *470 The First Circuit has adopted the following two-prong test:
First: Restitution should not be ordered in respect to a loss which would have occurred regardless of the defendant's conduct. . . .
Second: Even if but for causation is acceptable in theory, limitless but for causation is not. Restitution should not lie if the conduct underlying the offense of conviction is too far removed, either factually or temporally, from the loss.
Id. at 548-49 (internal citations omitted) (citing United States v. Vaknin, 112 F.3d 579, 589 (1st Cir.1997)).
The Fallon court further explained as follows:
For scheme-based crimes such as wire fraud and mail fraud, . . . the term "victim" is broadly defined by the MVRA. . . .
Several courts have interpreted this language to hold that restitution: 1) may be ordered to a victim not named in the indictment, provided that the victim was "directly harmed by the defendant's criminal conduct in the course of a scheme or conspiracy." United States v. Henoud, 81 F.3d 484, 489 (4th Cir.1996); see also United States v. Kones, 77 F.3d 66, 70 (3d Cir.1996); 2) may be ordered for losses which result from acts or conduct related to the scheme, but for which the `defendant was not convicted; cf. United States v. Lawrence, 189 F.3d 838, 846 (9th Cir.1999); United States v. Hensley, 91 F.3d 274, 277 (1st Cir.1996); or 3) may be ordered for losses of a common scheme, even though the loss was caused by conduct occurring outside the statute of limitations. See United States v. Dickerson, 370 F.3d 1330, 1342 (11th Cir.2004).
Nonetheless, despite Congress' clear intent to broaden the district court's authority to grant restitution for crimes involving a scheme or conspiracy, we are unaware of any cases holding that the definition of "victim" for scheme-based crimes diminishes the requirement that losses be "directly" caused by the defendant's actions.... Thus, even for scheme or conspiracy based crimes, the government bears the burden of showing that the, loss suffered was "directly" caused by defendants' actions.
Id. at 549 n. 12.[19]
As the Fallon opinion demonstrates, the term "directly and proximately harmed" serves a two-fold purpose when used in the MVRA [and, by analogy now, the VWPA and the CVRA]. First, it defines who qualifies as a "victim" under the statute. Second, it provides a rule for determining what losses may be claimed as restitution; i.e., only those losses "directly and proximately" caused by defendant's criminal conduct. The issue that required reversal *471 in Fallon was the latter. There was no dispute on appeal that the duped customer was a "victim" of the mail/wire fraud scheme so as to be eligible for restitution under the MVRA. Id. at 549-50.
The Vaknin opinion, which first articulated the two-part test of causation that was cited with approval by our court of appeals in Fallon, provides an in-depth explanation of this concept under the VWPA. Vaknin, 112 F.3d at 589. Vaknin was decided under the pre-1990 version of the VWPA as interpreted in Hughey, before the word "directly" was added for schemes and conspiracy-type offenses in 1990, and before the word "proximately" was added in the 1996 enactments of the VWPA and MVRA. Id. at 583 n. 1. Nevertheless, as seen from the above-quoted language in Fallon, the Vaknin court's careful delineation of the meaning of causation in that version of the VWPA appears fully applicable to interpreting the current VWPA and MVRA. Moreover, because the definition of "victim" in the CVRA is derived from the VWPA and MVRA, the Vaknin interpretation appears to be applicable as the causation test for determining "victim" status under the CVRA.
In a nutshell, what the court in Vaknin concluded was that neither "but for" [in the sense of being an event preceding the later events leading to the loss], nor "direct" [in the sense of being the event immediately before the loss] causation would satisfy the VWPA as then in effect. Having reviewed the then-existing statutory language, legislative history and case law, the court observed:
Upon close perscrutation, the extreme positions advocated by the parties do not hold out much promise in our quest for a serviceable standard of causation.
On the one hand, the sort of direct causation standard that the [defendants] propose is simply too rigid. Under their theory of intervening forces, a court could not impose restitution even if the defendant's conduct were a substantial cause of a loss, unless it were the last cause. . . .
On the other hand, concerns of fairness require us to reject the unbridled but for causation standard that the government propounds. Under it, a court could impose restitution based on the most tenuous of connections.
Id. at 588.[20]
The Vaknin court then "distill[ed] certain bedrock principles" from the sources it had consulted, and articulated the twopart test later quoted with approval by the Third Circuit for the MVRA in Fallon. Id. at 589; see Fallon, 470 F.3d at 548-49 (quoted supra). From those principles, it articulated the following causative standard:
[W]e hold that a modified but for standard of causation is appropriate for restitution under the VWPA. This means, in effect, that the government must show not only that a particular loss would not have occurred but for the conduct underlying the offense of conviction, but also that the causal nexus between the conduct and the loss is not too attenuated (either factually or temporally). The watchword is reasonableness. A sentencing court should undertake an individualized inquiry; what constitutes sufficient causation can only be determined case by case, in a fact-specific probe.
Vaknin, 112 F.3d at 589-90.
Vaknin also suggested a process for analyzing the contentions of the parties in *472 factual disputes on causation. Id. at 590. It used the factual dispute in that case as an illustration. Id. There, the offense was bank bribery; loans had defaulted, leaving the FDIC as the victim. Id. at 582. The factual dispute under the VWPA was the causation of the loss amounts. Vaknin thus further explained the meaning of its test for causation:
[W]here, as here, the government establishes that arrangements for a bribe precede and relate to the making of a loan, a commonsense inference arises that subsequent losses referable to the loan's uncollectibility are causally linked in reasonable proximity to the bribe . . . . Of course, the inference can be rebutted if the defendant produces specific evidence of factual or temporal remoteness. Here, however, [defendant] made no such showing. To the contrary, there is no compelling proof either of an unforeseeable intervening cause or of any cognizable remoteness, factual or temporal.
Id. at 590.
We have included this detailed description of the groundbreaking opinion of the panel in Vaknin because, although it interpreted the pre-1990 version of the VWPA, it appears to express and explain the thinking that has informed courts as they have interpreted the definitions of "victim" as one who was "directly and proximately harmed," under both later versions of the VWPA, and under the MVRA and the CVRA once they were enacted. As demonstrated by the fact that Fallon cited it on this point (as have other courts), the Vaknin opinion deals with the concepts of "direct" and "proximate" causation in a way that helps make those concepts meaningful as courts endeavor to apply them to fact situations under these criminal statutes.
* * *
It is necessary to emphasize the following points before we leave this discussion of the definition of "victim" in the VWPA, MVRA, and CVRA. The concept of "related conduct," used by courts for purposes of determining statutory victim status in scheme, conspiracy, or pattern-based offenses, must be distinguished from the concept of "relevant conduct," as used in the federal sentencing guidelines. Here we draw upon some of the decisions summarized supra, as well as some cited infra. See, e.g., Akande, 200 F.3d at 143.
This distinction is illustrated in United States v. Dorcely, which did not involve a scheme-based offense. 454 F.3d 366 (D.C.Cir.2006). There, defendant was acquitted of conspiracy to defraud the U.S. Department of Education of a substantial sum of money, and also acquitted of conspiracy to launder the money, but convicted of one count of making a false statement during the FBI's ensuing criminal investigation, in violation of 18 U.S.C. § 1001. Id. at 173-75. The circuit court held that the guidelines calculation was properly based on the acquitted "relevant conduct," because it was established by at least a preponderance of the evidence. Id. at 180-81. However, a restitution award for the loss caused to the Department of Education was not proper under the VWPA or the MVRA because the only offense of conviction was the false statement count, which under Hughey could not support restitution, except for any loss caused by the specific [non-scheme/conspiracy] offense of conviction. Id.
We believe that where, as here, one of the offenses of conviction does have a scheme, conspiracy, or pattern as an element, the "relevant conduct" for guidelines purposes may or may not be the same as "related conduct" for purposes of determining statutory victim status under the VWPA, MVRA, or CVRA. Akande, 200 F.3d at 143.
Likewise, the definition of "victim" in the restitution statutes and the CVRA *473 does not mirror the various definitions of "victim" in the guidelines. Cf. United States v. Blake, 81 F.3d 498, 506 n. 5 (4th Cir.1996) ("The definition of victim provided in [the VWPA post-1990 amendments] is much narrower than the one in the guidelines, and it is § 3663not the guidelinesthat governs the authority of a sentencing court to require restitution."). Indeed, the references to "victims" in the guidelines are not even consistent within the guidelines themselves, by design.[21]
Therefore, the terms should not be conflated. It cannot be assumed that "relevant conduct" for guidelines purposes is the same as "related conduct" for purposes of determining statutory victim status under a scheme or conspiracy-based offense. Nor does the term "victim," as variously appearing in the guidelines, inform the determination of statutory victim status under the VWPA, MVRA, or the CVRA.
C. REVIEW OF CASE LAW ON DISPUTED FACTUAL ISSUES OF STATUTORY VICTIM STATUS
The parties have not cited, nor has our research revealed, any case in which statutory victim status was established in circumstances similar to this prosecution. We have studied the reported Third Circuit cases under the VWPA, MVRA, and CVRA, and we have surveyed the federal appellate case law in other circuits, in an effort to shed some light on the question presented in this motion. Here we summarize the results of that search.
First we address the case law in the Third Circuit under the VWPA, MVRA, and CVRA.[22] Most of those cases have arisen in prosecutions for property crimes causing pecuniary loss. The type of victim harmed by the criminal conduct was simply not in dispute, and the opinions dealt with other issues.[23]See, e.g.:
*474 United States v. Hawes, 523 F.3d 245, 255-56 (3d Cir.2008) (investors were victims of mail fraud);
United States v. Lessner, 498 F.3d 185, 189-90, 192, 205-06 (3d Cir.2007) (federal agency was victim of mail fraud and defense procurement fraud);[24]
United States v. Fallon, 470 F.3d 542, 547-48 (3d Cir.2006) (customer was victim of mail fraud/wire fraud);
United States v. Leahy, 438 F.3d 328, 329-31 (3d Cir.2006) (consolidated appeals including banks as victims of bank fraud);
United States v. Himler, 355 F.3d 735, 737-38, 744-46 (3d Cir.2004) (settlement company was victim of being tendered counterfeit checks at real estate closing);
United States v. Syme, 276 F.3d 131, 135-36, 158-59 (3d Cir.2002) (Medicare/Medicaid programs were victims of mail fraud/ wire fraud, False Claims Act violations, and false statements relating to health care matters in false billing of government programs for ambulance trips);
United States v. Jarvis, 258 F.3d 235, 236-39 (3d Cir.2001) (investors were victims of mail fraud);
United States v. Akande, 200 F.3d 136, 137-38 (3d Cir.1999) (entities that made cash advances and sold merchandise were victims of conspiracy to commit credit card fraud);
United States v. Holmes, 193 F.3d 200, 201-02, 205-06 (3d Cir.1999) (attorney's clients and acquaintances were victims of offenses including conspiracy and fraud schemes);
United States v. Voigt, 89 F.3d 1050, 1059, 1091-93 (3d Cir.1996) (loan applicants and investors were victims of mail fraud/wire fraud scheme to obtain advance fees for loans);
United States v. Copple, 74 F.3d 479, 480-82 (3d Cir.1996) ("Copple II") (investors were victims of mail fraud);
United States v. Graham, 72 F.3d 352, 354-55, 357-58 (3d Cir.1995) (banks were victims of offenses including bank fraud and conspiracy to make and utter counterfeit checks);
United States v. Carrara, 49 F.3d 105, 106, 108-09 (3d Cir.1995) (municipality was victim of conspiracy to misappropriate its insurance funds);
Gov't of Virgin Islands v. Davis, 43 F.3d 41, 42-44 & n. 4 (3d Cir.1994) (estate of decedent was victim of mail fraud scheme);
United States v. Copple, 24 F.3d 535, 549-50 (3d Cir.1994) ("Copple I") (same as Copple II);
United States v. Hallman, 23 F.3d 821, 827-28 (3d Cir.1994) (bank was victim of forgery and possession of stolen mail offenses);
United States v. Woods, 986 F.2d 669, 670-72, 678-79 (3d Cir.1993) ("Woods II") (investors were victims of mail fraud);
United States v. Kress, 944 F.2d 155, 157-58 (3d Cir.1991) (government was victim of contracting fraud; offenses included mail *475 fraud, false statements to government agency, and filing false claims);
United States v. Sleight, 808 F.2d 1012, 1014-15, 1017-18 (3d Cir.1987) (employer was victim of offenses of conspiracy to defraud it, to obtain money and property by false pretenses, and to deprive it of honest services, as well as mail fraud scheme to defraud it);
United States v. Woods, 775 F.2d 82, 84-87 (3d Cir.1985) ("Woods I") (same as Woods II);
United States v. Palma, 760 F.2d 475, 476-77 (3d Cir.1985) (employer bank was victim of bank embezzlement).
See also:
United States v. Turcks, 41 F.3d 893, 895-97, 901-03 (3d Cir.1994) (remanding for restitution findings including loss to victim banks caused by offenses involving credit card and bank fraud);
United States v. Logar, 975 F.2d 958, 959-62 (3d Cir.1992) (remanding for restitution findings including loss to investors caused by offenses involving fraudulent tax shelter investment).
There are a few cases in the Third Circuit where the offense was not a property crime, and statutory victim status under the VWPA, MVRA, or CVRA was not dispute. Again, as in the property cases, the rulings on appeal dealt with issues other than whether statutory victim status was shown. See:
United States v. Ausburn, 502 F.3d 313, 315-16, 319-27 (3d Cir.2007) (sentencing hearing appropriately, under CVRA, included oral victim impact statements by parent and guardian of minor victim of offense under 18 U.S.C. § 2422(b) (using telephone and computer to persuade minor to engage in illegal sexual activity));
United States v. Quillen, 335 F.3d 219, 222-26 (3d Cir.2003) (state parole board was victim of threatening letter containing white powdery substance mailed by defendant; district court findings under MVRA were sufficient to support restitution award for hazmat response and cleanup even though testing later revealed substance was not hazardous);
United States v. Simmonds, 235 F.3d 826, 828-32 (3d Cir.2000) (homeowners whose furniture was destroyed by federal arson offense were victims under MVRA);
United States v. Jacobs, 167 F.3d 792, 794-97 (3d Cir.1999) (victim of federal aggravated assault offense was victim under MVRA).
See also:
United States v. Coates, 178 F.3d 681, 684-85 (3d Cir.1999) (remanding for restitution findings under MVRA, including loss to victim banks caused by bank robbery);
United States v. Crandon, 173 F.3d 122, 124-27 (3d Cir.1999) (district court made adequate findings of proximate cause to award restitution for medical expenses incurred by parent for psychiatric treatment of minor victim of child pornography offense, under 18 U.S.C. § 2259(b)(1));
United States v. Johnson, 816 F.2d 918, 924 (3d Cir.1987) (similar to Coates; bank robbery but restitution governed by VWPA).
We are aware of only four Third Circuit opinions addressing contested issues of statutory victim status under the CVRA, or under any of the federal restitution statutes. Those are easily summarized as follows. In United States v. Hayward, the defendant was convicted of transporting minors in interstate and foreign commerce with intent to engage in criminal sexual activity. 359 F.3d 631, 632-33 (3d Cir. 2004). The court soundly rejected his contention that the parents were not included as victims, under the MVRA, to obtain restitution for the costs of obtaining their victimized children from London and making them available to participate in the *476 investigation and trial. Id. at 642. United States v. Kones is discussed at length supra Sec. I.B. There, the court held that a patient was not a victim of the defendant physician's insurance mail fraud scheme under the VWPA, because the conduct that allegedly harmed her was not conduct proscribed by the mail fraud statute. 77 F.3d at 70-71. United States v. Cottman held, consistent with other circuits, that the FBI is not a victim, under the VWPA, to obtain restitution of funds expended in a sting operation during a criminal investigation. 142 F.3d 160, 168-70 (3d Cir.1998). United States v. Hand presented a different factual scenario, and the court held that the government was a victim entitled to restitution under the VWPA. 863 F.2d 1100, 1102-05 (3d Cir.1988). There, defendant was convicted of contempt of court for her misconduct as a juror in a federal criminal trial that forced the trial judge to vacate the convictions of six defendants. Id. at 1101. An award of restitution for salaries and expenses of Assistant U.S. Attorneys, DEA agents and U.S. Marshals was upheld based on findings that their time and energy was wasted in the trial as a result of defendant's conduct. Id. at 1102-05.[25]
* * *
Next we address case law in other circuits that has addressed whether statutory victim status was established under the VWPA, MVRA, or the CVRA. Cases in which victim status was not in dispute typically had similar fact patterns to those summarized above in the Third Circuit, and we will not list them here. See generally John F. Wagner, Annotation, Who is "victim" so as to be entitled to restitution under Victim and Witness Protection Act, 108 A.L.R. FED. 828 (1992 with pocket part updates).[26] The following collection of citations is limited to cases where statutory victim status was in dispute.[27]
*477 Statutory victim status was found to exist, over objection by one or more of the parties, in cases of which the following are a representative collection:
In re Stewart, 552 F.3d 1285, 1288-89 (11th Cir.2008) (CVRA mandamus petition; circuit court held that mortgage borrowers were CVRA victims of conspiracy to deprive bank of honest services, where defendants were bank officer and co-conspirator whose offense caused borrowers to pay excess fees that defendants pocketed);
United States v. Brock-Davis, 504 F.3d 991, 998-1000 (9th Cir.2007) (owner of second location at which defendants conspired to manufacture methamphetamine was MVRA victim for resulting cleanup costs although not named in indictment; victim status appropriate either because activity at that location was "related conduct," or it was part of same conspiracy);
United States v. Chalupnik, 514 F.3d 748, 752-55 (8th Cir.2007) (distributor of copyrighted CDs and DVDs stolen by defendant was MVRA victim of misdemeanor copyright infringement offense);
United States v. Johnson, 440 F.3d 832, 835-39, 849-50 (6th Cir.2006) (victims of four predicate criminal acts in RICO conspiracy conviction were MVRA victims, where district court found trial evidence established by a preponderance that defendant was actively involved in all four predicate acts);
United States v. Washington, 434 F.3d 1265, 1266-67, 1268-70 (11th Cir.2006) (police department and another property owner were MVRA victims as to police car and property damaged during chase of defendant fleeing after bank robbery);
United States v. Gee, 432 F.3d 713, 715 (7th Cir.2005) (local organization that held contracts to administer federal welfare program was MVRA victim of conspiracy to defraud the United States through bribery concerning programs receiving federal funds; organization was a "proxy" for the federal interest because it was a recipient of federal funds designated for a particular use);
United States v. Rand, 403 F.3d 489, 493-96 (7th Cir.2005) (all individuals who sustained losses caused by acts of identity theft performed in the charged identity theft conspiracy were MVRA victims, not just those listed in the indictment or in the plea agreement);
United States v. Donaby, 349 F.3d 1046, 1047-48, 1051-55 (7th Cir.2003) (another bank robbery case; police department was MVRA victim as to police car damaged during chase);
United States v. Hackett, 311 F.3d 989, 992-93 (9th Cir.2002) (insurer of home damaged by fire caused by explosion of chemicals used to manufacture methamphetamine was MVRA victim as to defendant convicted of aiding and abetting manufacture of methamphetamine);
United States v. Gamma Tech. Indus., Inc., 265 F.3d 917, 922-24, 926-28 (9th Cir.2001) (subcontractors were convicted of paying kickbacks on Navy contracts; individual employee of defense contractor was convicted of conspiracy to provide and receive kickbacks; employer of individual defendant was MVRA victim as to all defendants because amount of the kickbacks paid to defendant employee was reflected in overcharges to employer by subcontractors);
Moore v. United States, 178 F.3d 994, 1001 (8th Cir.1999) (bank customer was MVRA victim of attempted bank robbery; defendant had stood within six feet of teller and customer and pointed sawed-off gun at both of them); *478 United States v. Hoover, 175 F.3d 564, 566-69 (7th Cir.1999) (university was MVRA victim of false statement offense under 18 U.S.C. § 1001, where it provided tuition loan money under federal student loan program based on defendant's misrepresentations in loan application);
United States v. Jackson, 155 F.3d 942, 944-45, 949-50 (8th Cir.1998) (where defendant was convicted, for check writing fraud scheme, of conspiracy to possess or utter counterfeit securities and related substantive offenses, MVRA victims were all persons and entities harmed by the scheme including those from whom checks were stolen and those who received fraudulent checks that were dishonored, whether or not individually identified in indictment);
United States v. Vaknin, 112 F.3d 579, 583-84, 590-91 (1st Cir.1997) (three bank customers separately paid bribes to bank officer when applying for loans that eventually went into default; bank later failed and FDIC took over; defendant customers were each convicted of bank bribery; circuit court held that record supported finding that FDIC was VWPA victim as to first defendant, and remanded for factual findings on causation of losses as to other two defendants);
United States v. Hensley, 91 F.3d 274, 275-78 (1st Cir.1996) (where defendant pled guilty to mail/wire fraud and other charges in indictment alleging that he devised and executed a scheme in Boston to obtain merchandise by false pretenses from computer-products distributors in specified states including California, during an approximate one-month period, and PSR contained undisputed facts about a delivery not specified in the indictment, which was obtained by defendant from a California distributor using same modus operandi during same time period, that distributor was a victim of "unitary scheme" under VWPA [post-1990 amendments]);
United States v. Henoud, 81 F.3d 484, 486-90 (4th Cir.1996) (telephone companies were VWPA victims of offenses of conspiracy, wire fraud and fraud using access devices, where indictment specifically alleged scheme to defraud local and long-distance carriers; indictment did not have to identify all asserted victims for them to qualify as statutory victims under VWPA);
United States v. Haggard, 41 F.3d 1320, 1323-24, 1329 (9th Cir.1994) (mother of child missing for several years was VWPA victim of hoax by state inmate who contacted FBI falsely claiming to know location of body and identity of assailant; defendant pled guilty to offenses including obstructing FBI investigation and making false statements to FBI and grand jury; district court found that mother's refreshed grief that manifested as physical illness and disability was a result of defendant's crimes of lying to FBI and grand jury; circuit court concluded that where defendant deliberately targeted an unsuspecting family as the victim of his crimes, VWPA victim status for the mother was established);
United States v. Sanga, 967 F.2d 1332, 1333-35 (9th Cir.1992) (live-in maid kept as virtual slave by defendants was VWPA victim as to defendants convicted of conspiracy to smuggle aliens; any complicity by victim ended when she became an object of, rather than a participant in, the criminal goals of defendants);
United States v. Spinney, 795 F.2d 1410, 1414-17 (9th Cir.1986) (deceased man was VWPA victim of misdemeanor conspiracy to commit simple assault where defendant, intending only to assault the victim, supplied a weapon to an intoxicated individual who used it to murder the victim);
United States v. Fountain, 768 F.2d 790, 793-94, 800-04 (7th Cir.1985) (where defendant federal inmates murdered two *479 guards and permanently disabled another guard and Department of Labor provided some compensation to the injured guards or their estates, all had statutory VWPA victim status).
See also:
In re W.R. Huff Asset Mgmt. Co. [United States v. Rigas], 409 F.3d 555, 557-61, 563-64 (2d Cir.2005) (CVRA mandamus petition; circuit court held that after two members of securities fraud conspiracy were convicted and were awaiting sentencing, and government was determining whether to prosecute others, those who suffered pecuniary loss resulting from conspiracy were CVRA victims entitled to be heard, but proposed "global" settlement that limited criminal restitution to a $715 million victim compensation fund under which claimants would be required to release civil claims against all except the two convicted defendants was reasonable and did not violate CVRA or MVRA);
United States v. Grundhoefer, 916 F.2d 788, 789-91, 793-95 (2d Cir.1990) (bankruptcy trustee lacked standing to appeal VWPA restitution orders in favor of students who sustained pecuniary loss from conspiracy to make false claims to federal student loan program and related substantive offenses; circuit court in dicta approved district court finding that students were VWPA victims).
Cf.:
United States v. Kaminski, 501 F.3d 655, 657-58, 665, 669-70 (6th Cir.2007) (affirming district court finding that "society at large" was the victim of offenses under Food, Drug and Cosmetic Act, 21 U.S.C. § 321 et seq., involving sales of unapproved and adulterated drugs, and imposing restitution as a condition of probation under 18 U.S.C. § 3563(b)(2), in amount of retail sales to consumers).
Statutory victim status was determined not to exist in the following appellate decisions under the CVRA, MVRA, or VWPA:[28]
In re Antrobus, 519 F.3d 1123, 1124-26, 1127-31 (10th Cir.2008) (on original petition and on petition for rehearing and rehearing en banc) (CVRA mandamus petition; affirming district court finding that deceased woman was not CVRA victim of offense of transferring a handgun to a juvenile in violation of 18 U.S.C. § 922(x)(1), where defendant supplied a weapon to a juvenile who indicated nothing about his intentions, but more than seven months later as an adult murdered five people, including petitioners' decedent, in shopping mall rampage);[29]
In re Jane Doe, 264 Fed.Appx. 260, 263 (4th Cir.2007) (CVRA mandamus petition; holding that petitioner was not a statutory *480 victim under CVRA or VWPA, where corporate defendant was convicted of misbranding a prescription drug (OxyContin) with intent to defraud or mislead, in violation of 21 U.S.C. §§ 331(a), 333(a)(2), and entered plea agreement requiring it to pay restitution to various entities affected by its conduct but did not provide for restitution to consumers, and petitioner objected and petitioned to set aside plea and reopen sentencing to obtain restitution, contending that she suffered harm from OxyContin addiction);
United States v. Robertson, 493 F.3d 1322, 1326-27, 1333-35 (11th Cir.2007) (purchaser of stolen goods who was sued by and settled with manufacturer from whom the goods were obtained by defendant by mail/wire fraud, was not an MVRA victim entitled to restitution of money paid under undisclosed terms of settlement with manufacturer);
United States v. Randle, 324 F.3d 550, 555-58 (7th Cir.2003) (where defendant pled guilty to one count of bankruptcy fraud [an offense not having element of scheme, conspiracy or pattern], and plea agreement did not expand group of victims, under Hughey individuals harmed by similar criminal conduct in dismissed counts were not MVRA victims);
United States v. Cutter, 313 F.3d 1, 2-9 (1st Cir.2002) (where defendant was convicted of two counts of bankruptcy fraud [offenses not having element of scheme, conspiracy or pattern], but where bankruptcy trustee initiated fraudulent conveyance action against transferee of defendant's prior residence not because of defendant's bankruptcy fraud but because of below-market-value sale price to transferee, loss sustained by transferee when forced to sell the property to settle with bankruptcy trustee did not create MVRA victim status for transferee);
United States v. Elias, 269 F.3d 1003, 1007-08, 1021-22 (9th Cir.2001) (where defendant was convicted, inter alia, of: (1) one count of storing or disposing of hazardous waste without a permit, knowing that his actions placed others in imminent danger of death or serious bodily injury, under 42 U.S.C. § 6928(e) [RCRA], and (2) false statements to investigators who responded after worker was taken to hospital near death from working inside cyanide-contaminated confined space, holding that worker was not MVRA victim as to 18 U.S.C. § 1001 false statement count, and no federal restitution statute authorized restitution for offenses under Title 42);[30]*481 United States v. Ramirez, 196 F.3d 895, 896-97, 899-900 (8th Cir.1999) (investors in separate fraudulent investment scheme, which was not stated or implied to be the subject of wire fraud scheme described in the indictment, were not MVRA victims);
United States v. Upton, 91 F.3d 677, 679-81, 686-87 (5th Cir.1996) (materialmen and suppliers who were left unpaid when defendant failed to complete bonded Air Force construction job, were not VWPA victims of the conspiracy and substantive counts of conviction, which were based on a scheme to defraud the Air Force by obtaining reimbursement for fraudulent surety bonds);
United States v. Broughton-Jones, 71 F.3d 1143, 1144-49 (4th Cir.1995) (where defendant pled guilty to perjury before grand jury [an offense not having element of scheme, conspiracy, or pattern], and grand jury had been investigating her for suspected fraudulent financial dealings, but conviction was only for perjury and plea agreement did not provide for restitution to any financial victims, individual who had sustained financial harm in scheme alleged in dismissed wire fraud count was not VWPA victim under Hughey and post-1990 amendments).[31]
Cf.:
United States v. Blake, 81 F.3d 498, 501-02, 505-07 (4th Cir.1996) (persons from whom defendant stole credit cards that he used to commit [non-conspiracy] offense of fraudulent use of unauthorized access devices were not VWPA victims [using narrow reading of Hughey, post-1990 amendments and before 1996 amendments]; circuit court suggesting that if "directly harmed" were added to VWPA statutory victim definition, this result would be corrected).[32]
* * *
We summarize this case law survey with the point made at the outset: The existing legal landscape does not feature any case in which statutory victim status was asserted or found to exist in circumstances similar to this prosecution. They do provide useful background, however, as we render our findings and conclusions infra Sec. II.F.
D. RIGHTS OF STATUTORY VICTIMS AGAINST PARTICULAR DEFENDANTS AT SENTENCING
We next review the rights that all statutory victims have in sentencing proceedings under the CVRA and related statutes.
The CVRA provides that where a person is a "crime victim," as defined in that statute, a crime victim has the following enumerated rights:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, *482 involving the crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney for the Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim's dignity and privacy.
18 U.S.C. § 3771(a); see id. § 3771(e) (defining "crime victim"). The CVRA specifies:
In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection(a).
Id. § 3771(b)(1).
Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection(a).
Id. § 3771(c)(1).
The prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to the rights described in subsection(a).
Id. § 3771(c)(2).[33]
The CVRA does not itself confer a right to restitution.[34] It is, however, obvious that if a person is a "crime victim" under the CVRA, and if the offense of conviction is one specified in the restitution statutes, MVRA or VWPA, then that person also has statutory victim status under the restitution statutes.[35] This is evident from the fact that, as we have seen, the definition of "crime victim" in the CVRA is based on the definition of "victim" in both the MVRA and the VWPA. See supra Sec. I.B.
All of the OSHA-related offenses in this case are violations of Title 18 of the United States Code. See supra n. 1 and accompanying text. The VWPA (discretionary restitution statute) applies to all offenses arising under Title 18, as well as other specified statutes, except those carved out for mandatory treatment in the MVRA. See 18 U.S.C. § 3663(a)(1)(A). The offenses to which the MVRA (mandatory restitution statute) applies include "an[y] offense against property under [title 18], including any offense committed by fraud or deceit," and crimes of violence as defined in 18 U.S.C. § 16. See 18 U.S.C. § 3663A(c)(1)(A).
*483 The VWPA certainly applies in this case if any persons are "crime victims" of the offenses of conviction, although in our view the MVRA would not arguably apply. Neither of those statutes is new, and neither was amended when the CVRA was enacted in 2004. Therefore, with the filing of the present motion asserting that individuals are "crime victims" under the CVRA, it is clear to us that the Court's review of the rights of victims must include awareness of the restitution provisions of the VWPA.
Case law under both the VWPA and the MVRA is relevant here because many of the provisions are parallel. Also, the requirements for issuance and enforcement of restitution orders under both statutes are specified in one place: 18 U.S.C. § 3664 (Procedure for issuance and enforcement of order of restitution). The name of Section 3664 is somewhat of a misnomer because it treads into substantive, territory as well as procedural ground. See, e.g., infra n. 40 and accompanying text. Implementation of the VWPA and MVRA, as well as the CVRA, is also governed by the Federal Rules of Criminal Procedure.[36]
* * *
Here we provide an overview of the substantive restitution rights of statutory victims under the VWPA, and the restitution-related procedural rights of statutory victims under 18 U.S.C. § 3664 and the Federal Rules of Criminal Procedure.[37] Relevant case law under both the VWPA and MVRA is also cited. Next, we describe how the CVRA provisions are implemented in the sentencing process, including but not limited to the restitution aspect of sentencing.
The substantive provisions of the VWPA state in pertinent part:
The court, when sentencing a defendant convicted of an offense under this title,. . . may order, in addition to . . . any other penalty authorized by law, that the defendant make restitution to any victim of such offense, or if the victim is deceased, to the victim's estate.
18 U.S.C. § 3663(a)(1)(A); see also id. § 3663(a)(2) (defining "victim").
The court, in determining whether to order restitution under this section, shall consider
(I) the amount of the loss sustained by each victim as a result of the offense; and
(II) the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.
Id. § 3663(a)(1)(B)(i).
To the extent that the court determines that the complication and prolongation of the sentencing process resulting from the fashioning of an order of restitution under this section outweighs the need to provide restitution to any victims, the court may decline to make such an order.
Id. § 3663(a)(1)(B)(ii).
The order may require that such defendant
(1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense
*484 . . . .
(2) in the case of an offense resulting in bodily injury to a victim . . .
(A) pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment;
(B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and
(C) reimburse the victim for income lost by such victim as a result of such offense;
(3) in the case of an offense resulting in bodily injury [that] also results in the death of a victim, pay an amount equal to the cost of necessary funeral and related services;
(4) in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense;
(5) in any case, if the victim (or if the victim is deceased, the victim's estate) consents, make restitution in services in lieu of money, or make restitution to a person or organization designated by the victim or the estate.
Id. § 3663(b).
An order of restitution made pursuant to this section shall be issued and enforced in accordance with section 3664.
Id. § 3663(d).
The VWPA codifies the "basic rule that restitution in a criminal case may only compensate a victim for actual losses caused by the defendant's criminal conduct." Gamma Tech, 265 F.3d at 926. Therefore, consequential or contingent losses may not be included in a restitution award. United States v. George, 403 F.3d 470, 474 (7th Cir.2005); United States v. Richard, 234 F.3d 763, 771 (1st Cir.2000); Rodrigues, 229 F.3d at 845; Davis, 43 F.3d at 45. Lost wages, however, are not considered consequential damages, and circuits have held that an award of lost income resulting from an offense causing bodily injury or death, including future lost income (based on the period after the judgment of conviction is entered), may be included in a restitution award under the VWPA, and is mandatory, at least for violent crimes, under the MVRA. See United States v. Cienfuegos, 462 F.3d 1160, 1163-69 (9th Cir.2006) (MVRA); Fountain, 768 F.2d at 802 (VWPA). In addition, the Third Circuit has ruled that the VWPA implicitly authorizes a district court to include in a restitution order both pre-judgment interest from the date of loss and post-judgment interest. See Davis, 43 F.3d at 47.
The provisions of Section 3664, pertaining to issuance of a restitution order under either the VWPA or the MVRA, state in pertinent part:
(a) For orders of restitution under this title, the court shall order the probation officer to obtain and include in its presentence report, or in a separate report, as the court may direct, information sufficient for the court to exercise its discretion in fashioning a restitution order. The report shall include, to the extent practicable, a complete accounting of the losses to each victim, . . . and information relating to the economic circumstances of each defendant. If the number or identity of victims cannot be reasonably ascertained, or other circumstances exist that make this requirement *485 clearly impracticable, the probation officer shall so inform the court. (b) The court shall disclose to both the defendant and the attorney for the Government all portions of the presentence or other report pertaining to the matters described in subsection (a) of this section.
. . .
(d)(1) Upon the request of the probation officer, but not later than 60 days prior to the date initially set for sentencing, the attorney for the Government, after consulting, to the extent practicable, with all identified victims, shall promptly provide the probation officer with a listing of the amounts subject to restitution.
(2) The probation officer shall, prior to submitting the presentence report under subsection (a), to the extent practicable
(A) provide notice to all identified victims of
(i) the offense or offenses of which the defendant was convicted;
(ii) the amounts subject to restitution submitted to the probation officer;
(iii) the opportunity of the victim to submit information to the probation officer concerning the amount of the victim's losses;
(iv) the scheduled date, time, and place of the sentencing hearing;
(iv) the availability of a lien in favor of the victim pursuant to subsection (m)(1)(B); and
(v) the opportunity of the victim to file with the probation officer a separate affidavit relating to the amount of the victim's losses subject to restitution; and
(B) provide the victim with an affidavit form to submit pursuant to subparagraph (A)(vi).
(3) Each defendant shall prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant, including a complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested, the financial needs and earning ability of the defendant and the defendant's dependents, and such other information that the court requires relating to such other factors as the court deems appropriate.
(4) After reviewing the report of the probation officer, the court may require additional documentation or hear testimony. The privacy of any records filed, or testimony heard, pursuant to this section shall be maintained to the greatest extent possible, and such records may be filed or testimony heard in camera.
(5) If the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good `cause for the failure to include such losses in the initial claim for restitutionary relief.
(6) The court may refer any issue arising in connection with a proposed order of restitution to a magistrate judge or special master for proposed findings of fact and recommendations as to disposition, subject to a de novo determination of the issue by the court.
*486 (e) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government.. . . The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires. (f)(1)(A) In each order of restitution, the
court shall order restitution to each victim in the full amount of each victim's losses as determined by the court and without consideration of the economic circumstances of the defendant.[38]
(B) In no case shall the fact that a victim has received or is entitled to receive compensation with respect to a loss from insurance or any other source be considered in determining the amount of restitution.
(2) Upon determination of the amount of restitution owed to each victim, the court shall, pursuant to section 3572, specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid, in consideration of
(A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled;
(B) projected earnings and other income of the defendant; and
(C) any financial obligations of the defendant; including obligations to dependents.
(3)(A) . . . .
(B) A restitution order may direct the defendant to make nominal periodic payments if the court finds from facts on the record that the economic circumstances of the defendant do not allow the payment of any amount of a restitution order, and do not allow for the payment of the full amount of a restitution order in the foreseeable future under any reasonable schedule of payments.
18 U.S.C. § 3664(a)-(f).[39]
The district court is required to make findings of fact on all factual issues relevant to restitution under the VWPA. Palma, 760 F.2d at 480. Sentencing decisions are routinely vacated in the Third Circuit (for failure to make adequate findings under the VWPA or MVRA. See, e.g., Fallon, 470 F.3d at 549-50; Holmes, 193 F.3d at 205; Turcks, 41 F.3d at 901-03; Logar, 975 F.2d at 961-62. At least one circuit has ruled, even before enactment of the CVRA, that under Section 3664(d) the court can permit the asserted victim to assume the burden of proof on restitution. Gamma Tech, 265 F.3d at 924 ("So long as the district court orders defendants to pay restitution only after someone proves the amount by a preponderance of the evidence, there is no reason a non-party like [victim] can't carry the burden.").
If restitution is ordered in the absence of a plea agreement for a specific sum, the district court cannot delegate or defer its obligation to specifically identify victims and make at least reasonable estimates of their losses in ordering restitution. See, e.g., United States v. Catoggio, 326 F.3d 323, 328-29 (2d Cir.2003) (holding that where a defendant's complex fraud scheme resulted in approximately 10,000 victims and $192 million in actual losses, the district court erred in ordering restitution to unidentified, as opposed to unidentifiable, *487 victims and in an amount ($80 million) that probably did not represent the actual losses to the victims). Moreover, despite the exception in the VWPA, and the MVRA (at least for property crimes), permitting the court to decline to impose restitution on the ground that "complication and prolongation of the sentencing process . . . outweighs the need to provide restitution to any victims," this exception has been interpreted narrowly. 18 U.S.C. § 3663(a)(1)(B)(ii); see id. § 3663A(c)(3); Catoggio, 326 F.3d at 328 ("[W]e find meritless [defendant]'s argument that the number of victims is too large for restitution to be practicable and that the issues. . . are so complex that the need for restitution is outweighed by the burden on the sentencing process.").
Section 3664 expressly allows for varying amounts of restitution to be imposed upon different defendants. Section 3664 also permits joint and several liability among co-defendants:
(h) If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim's loss and economic circumstances of each defendant.
(i) If the court finds that more than 1 victim has sustained a loss requiring restitution by a defendant, the court may provide for a different payment schedule for each victim based on the type and . . . circumstances of each victim. In any case in which the United States is a victim, the court shall ensure that all other victims receive full restitution before the United States receives any restitution.
18 U.S.C. § 3664(h)-(i).
It has long been settled in this circuit that restitution imposed in differing amounts and joint and several restitution liability, regardless of precise culpability of each co-defendant, are within the court's discretion under the VWPA. See, e.g., United States v. Hunter, 52 F.3d 489, 494-95 (3d Cir.1995); Palma, 760 F.2d at 478. This type of disparity does not violate the Equal Protection Clause. Palma, 760 F.2d at 478. The joint and several liability authorization was explicitly added in the 1996 amendments to Section 3664. See United States v. Trigg, 119 F.3d 493, 501 n. 6 (7th Cir.1997). It is also recognized that co-conspirators are jointly and severally liable for losses caused by the foreseeable acts of their co-conspirators, and this principle applies in ordering restitution for losses caused by the conspiracy. See, e.g., Rand, 403 F.3d at 495; Nichols, 169 F.3d at 1278.
The district court is not limited to the evidence presented at trial in determining the scope of harm caused by the scheme or conspiracy for purposes of determining restitution. See, e.g., United States v. Martin, 195 F.3d 961, 968-69 (7th Cir. 1999). If the district court decides that an evidentiary hearing is necessary to complete the record on victim status or the amount of victims' losses, the court is required to conduct a full and fair hearing on the issue of restitution. See Gamma Tech, 265 F.3d at 925 ("We doubt the district court could ever abuse its discretion by accepting evidence relevant to a sentencing decision . . . .").
Collateral sources of reimbursement may be compensated under a VWPA restitution order, but not until all direct restitution of victims has been paid; amounts later recovered as civil damages are to be offset against restitution obligations:
(j)(1) If a victim has received compensation from insurance or any other source with respect to a loss, the court shall order that restitution be paid to *488 the person who provided or is obligated to provide the compensation, but the restitution order shall provide that all restitution of victims required by the order be paid to the victims before any restitution is paid to such a provider of compensation.
(2) Any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in
(A) any Federal civil proceeding; and
(B) any State civil proceeding, to the extent provided by the law of the State.
18 U.S.C. § 3664(j); see also Himler, 355 F.3d at 745 (concluding that district court did not err in providing that amount of restitution would be reduced by setoff at such time in the future when property on which restitution order was based could be sold).
An order of restitution in the judgment of conviction is declared by this statute to constitute a collateral estoppel bar, preventing the defendant from denying the essential allegations of the offense in any subsequent civil proceeding by the victim:
(l) A conviction of a defendant for an offense involving the act giving rise to an order of restitution shall estop the defendant from denying the essential allegations of that offense in any subsequent Federal civil proceeding or State civil proceeding, to the extent consistent with State law, brought by the victim.
18 U.S.C. § 3664(1).[40]
* * *
The enactment of the CVRA has introduced significant changes in the sentencing process. Here we will summarize two of those changes as they have been implemented in the federal courts: (1) the effect of the CVRA upon restitution procedures under the VWPA and MVRA; and (2) the extent of participation by CVRA crime victims in preparation for and during the sentencing hearing.
Restitution Procedures
The legislative history of the CVRA includes the following statement of sponsor Senator Kyl on the right to "full and timely restitution as provided in law," 18 U.S.C. § 3771(a)(6):
This right, together with the other rights in the [A]ct to be heard[,] and confer with the government's attorney. . ., means that existing restitution laws will be more effective.
150 CONG. REC. S 10910, S 10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).
Even before the CVRA was enacted, one of the leaders of the victims' rights movement, then-District Judge Paul Cassell, wrote about the duties of the court to ensure proper consideration of victims' rights to restitution. The discussion was in the context of the MVRA rather than the VWPA, but the following text highlighted Section 3664's procedural provisions governing both the MVRA and the VWPA:
[O]n close examination of the [Section 3664] statutory scheme, neither a request from the probation officer nor from the prosecutor is required for the court to impose restitution. . . . It is well-settled that "[t]he probation officer acts as an agent of the court for the purpose of gathering and classifying information and informing the court in the exercise of its sentencing responsibility." Thus, the probation officer works for the *489 courtnot the other way around. Accordingly, if the court believes that a possible approach to restitution ought to be investigated, the probation officer must undertake the investigation.
The objection that a prosecutor must request restitution is likewise unfounded. . . . [P]rosecutors are certainly empowered (if not, indeed, required) to pass along restitution information to the probation officer. But prosecutorial action is no prerequisite. To be sure, § 3664 first requires the probation officer to collect from the prosecutor whatever information the government has relevant to restitution. But after that, the probation officer must give the victim notice of her opportunity to submit to the court "a separate affidavit" regarding restitutioni.e., an affidavit separate from the prosecutor's information. If the statute were not already plain enough, it goes on to provide that "[a]fter reviewing the report of the probation office, the court may require additional documentation or hear testimony"i.e., additional documentation apart from the prosecutor's. . . . The court cannot be blocked from the discharge of its duty to fashion an appropriate restitution order [under MVRA] by prosecutors' decisions.
United States v. Serawop, 303 F. Supp. 2d 1259, 1263 (D.Utah 2004) (footnotes omitted), rev'd on other grounds sub nom. United States v. Bedonie, 413 F.3d 1126 (10th Cir.2005); see also Gamma Tech, 265 F.3d at 924 ("The statute [18 U.S.C. § 3664(a)], by its plain language, gives the district court discretion to identify victims other than those brought to its attention by the government or the probation office.").
The CVRA, enacted in 2004, expressly imposes on the court, not the prosecutor, the primary obligation for its implementation: "In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in [the CVRA]." 18 U.S.C. § 3771(b)(1) (emphasis added). This has spurred district courts to take responsibility not only for responding to restitution requests by identified crime victims or the prosecutor, but also for initiating efforts to identify all persons having statutory crime victim status in order to afford restitution rights, if any. See, e.g., United States v. Brennan, 526 F. Supp. 2d 378, 391-92 (E.D.N.Y.2007) (directing government, on eve of sentencing, to answer questions regarding identifying potential MVRA victims for restitution).
We have previously noted that the Federal Rules of Criminal Procedure ("Rule" or "Rules") were amended, effective December 1, 2008, to implement the CVRA. The primary amendment was to replace a narrower definition of "crime victim" in former Rule 32(a), with the following:
"Victim" means a "crime victim" as defined in 18 U.S.C. § 3771(e). Fed. R.Crim.P. 1(b)(11); see RULES COMMITTEE REPORT, supra, at 37, 46.[41]
The detailed amendments cover various aspects of the CVRA including the addition of a new Rule 60, entitled Victim's Rights. Here we only point out the Rule amendments that particularly affect questions of restitution. The Rules have long required the Presentence Investigation Report to contain, "when the law provides for restitution, information sufficient for a restitution order." Fed.R.Crim.P. 32(d)(2)(D). To implement the CVRA, the following amendments were adopted pertaining to restitution:
*490 Rule 32. Sentencing and Judgment.
. . . .
(c) Presentence Investigation.
(1) Required Investigation.
. . . .
(B) Restitution. If the law [strike out "requires"] permits restitution, the probation officer must conduct an investigation and submit a report that contains sufficient information for the court to order restitution.
(d) Presentence Report.
. . . .
(2) Additional Information. The presentence report must also contain the following [strike out "information"]:
. . .
(B) [Strike out "verified"] information, [strike out "stated in a nonargumentative style;"] that assesses [strike out "the"] any financial, social, psychological, and medical impact on any victim [strike out "individual against whom the offense has been committed"];
RULES COMMITTEE REPORT, supra, at 46-48.[42]
These amendments clearly require that even where restitution is discretionary, such as under the VWPA, the sentencing court must now obtain and review, in the PSR, restitution information. The prior version of Rule 32(c)(1)(B), which required a PSR containing sufficient information to order restitution only if restitution was mandatory, no longer exists.[43] he CVRA enforcement mechanism is available to obtain relief for failure to comply with these procedures. See infra nn. 47-48 and accompanying text.
Participation by CVRA crime victims in preparation for and during sentencing
Here we incorporate by reference the foregoing discussion of the CVRA "right to full and timely restitution as provided in law." 18 U.S.C. § 3771(a)(6). The other CVRA rights that particularly pertain to the sentencing process are:
(4) The right to be reasonably heard at any public proceeding in the district court involving . . . sentencing . . . .
(5) The reasonable right to confer with the attorney for the Government in the case.
Id. § 3771(a)(4), (5). Where there are multiple crime victims, this also applies:
Multiple crime victims.In a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection(a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.
Id. § 3771(d)(2). Of course, all of the more generalized rights apply to the sentencing stage as well. See id. § 3771(a) (2), (3), (7), (8).
The Rules, as amended December 1, 2008, provide:
*491 Rule 32. Sentencing and Judgment.
. . . .
(i) Sentencing.
. . . .
(4) Opportunity to Speak.
(A) By a Party . . . .
(B) By a Victim. Before imposing sentence, the court must address any victim of the crime who is present at sentencing and must permit the victim to be reasonably heard.
Fed.R.Crim.P. 32(i)(4).[44]
There was an initial flurry in the district courts as to whether this CVRA right "to be heard" means that the crime victim normally has the right to "speak" at sentencing. See Kenna v. U.S. Dist. Court for Cent. Dist. of Cal. (Kenna I), 435 F.3d 1011, 1013-14 (9th Cir.2006) (citations omitted). It has, however, quickly been recognized in the appellate courts, including our own, that a crime victim does have the right to speak at sentencing unless special circumstances exist. Id. at 1013-16. The Third Circuit has directly addressed this issue, stating:
The right is in the nature of an independent right of allocution at sentencing. . . . Under the CVRA, courts may not limit victims to a written statement.
United States v. Vampire Nation, 451 F.3d 189, 197 n. 4 (3d Cir.2006) (citing Kenna I, 435 F.3d 1011).
The district judge has statutory discretion to "fashion a reasonable procedure to give effect" to this right where there are multiple victims. 18 U.S.C. § 3771(d)(2). For example, in Kenna I, where scores of victims were swindled out of almost $100 million, more than sixty victims submitted written victim impact statements and several of them spoke at the first defendant's sentencing hearing. Kenna I, 435 F.3d at 1012-13. No appeal or petition resulted from that procedure.
What presents a more challenging problem, and prompted the CVRA mandamus petition decided in Kenna I, is what to do if there is more than one defendant to be sentenced for the offense that harmed the victims. Defendants in Kenna I were a father and son both convicted of the same wire fraud scheme, who were sentenced three months apart. Id. The circuit court held that the district court committed legal error by refusing to allow the victim/petitioner to allocute at the second defendant's sentencing, and granted his mandamus petition. Id. at 1017-18. The court stated the rationale as follows:
Victims now have an indefeasible right to speak, similar to that of the defendant, and for good reason: The effects of a crime aren't fixed forever once the crime is committedphysical injuries sometimes worsen; victims' feelings change; secondary and tertiary effects such as broken families and lost jobs may not manifest themselves until much time has passed. The district court must consider the effects of the crime on the victims at the time it makes its decision with respect to punishment, not as they were at some point in the past. Moreover, the CVRA gives victims the right to confront every defendant who has wronged them; speaking at a codefendant's sentencing does not vindicate the right of the victim to look this defendant in the eye and let him know the suffering his misconduct has caused.
Id. at 1016-17.[45] Beyond that holding in Kenna I, there are few answers to these *492 questions of how to afford the right of crime victim allocution in complex cases at this early stage in the developing jurisprudence under the CVRA.[46]
The Kenna I appellate panel retained jurisdiction over any future mandamus petitions arising out of the underlying criminal case. Id. at 1018. Six months later, petitioner Kenna provided another opportunity for the panel to address the rights of crime victims in the sentencing process. See In re Kenna (Kenna II), 453 F.3d 1136 (9th Cir.2006).
The mandamus petition in Kenna II challenged the district court's rejection of petitioner's request that the entire PSR of the defendant be released to him in advance of the resentencing hearing. Id. at 1137. The panel noted that petitioner had rejected an offer by the district court to disclose "specific portions" (not otherwise identified) of the PSR to him. Id. It held that petitioner's argument that the CVRA confers a general right for crime victims to obtain disclosure of the PSR was not supported by the language or legislative history of the CVRA, nor had petitioner demonstrated that his reasons for the request outweighed "the confidentiality of the report under the traditional `ends of justice' test." Id. (citations omitted). Thus it found no error of law or abuse of discretion by the district court, and denied the petition. Id.
A similar mandamus petition was presented to, the Court of Appeals for the Fourth Circuit. See In re Brock, 262 Fed. Appx. 510 (4th Cir.2008). Petitioner Brock was the victim of a criminal assault by the two defendants. Id. at 511. Two days before their sentencing hearing, petitioner (who was represented by counsel) filed a CVRA motion in the district court seeking disclosure of four parts of defendants' PSRs: (1) the background/statement of facts; (2) the restitution section, including any discussion of Brock's losses and the defendants' ability to pay; (3) the section calculating the guidelines sentencing range; and (4) the "upward departure section." Id. He and his counsel already possessed and had access to the sentencing memorandum of one defendant and two sentencing memoranda of the government. Id. The court noted that those "memoranda summarized the substance of the PSRs and also included comprehensive discussions of the Guidelines calculations contained in the PSRs in addition to other facts relevant to the district court's sentencing decision." Id.
The district court in Brock had declined to release the PSRs, relying on the local criminal rule of the district and on Rule 32(e) (2). Id. [We note that Rule 32(e)(2) remains unchanged in the Rules effective December 1, 2008.] At the sentencing hearing, the district court denied petitioner's motion for release of the PSRs, finding that he was present and had all the information he needed to make a victim impact statement. Id. Petitioner had already filed a written victim impact statement and a "Restitution Affidavit," and the district court afforded him the opportunity to "make whatever further impact statement he want[ed] to make," and petitioner did make an oral statement. Id. (alteration in original) (quotation and citation *493 omitted). In so ruling, the district court declined to hear testimony or arguments from petitioner related to guidelines calculations, but it did recognize that he had a right to be heard with respect to the sentences to be imposed. Id.[47] The mandamus panel, citing Kenna II, held there was no legal error or abuse of discretion, because the record showed that petitioner "was provided ample information concerning the applicable Sentencing Guidelines and other issues related to the defendants' sentencing. And, of course, he did not need access to the PSR to describe the crime's impact on him." Id. at 512; see also BP Prods. N. Am. Inc., 2008 WL 501321, at *9 (collecting cases addressing whether victims have a right to copies of the PSR or related documents prior to sentencing).[48]
* * *
We have summarized in this Section the rights of persons qualifying for statutory crime victim status under the restitution statutes and the CVRA. In the process, we have reviewed the procedural protections for statutory crime victims under those statutes, as interpreted in the federal courts. We have also identified the recent amendments to the Rules that implement the CVRA and pertain specifically to sentencing.
E. COMPARISON BETWEEN STATUTORY VICTIM STATUS AND INFORMATION FROM OTHER AFFECTED PERSONS
Courts conducting sentencing have received information such as victim impact statements, both written and oral, before enactment of the CVRA in 2004. The Second Circuit summarized that tradition as follows:
Sentencing courts had access to victim statements long before the Justice for All Act. We noted in 1989 that "[t]he sentencing court's discretion is `largely unlimited either as to the kind of information [it] may consider, or the source from which it may come.'" United States v. Carmona, 873 F.2d 569, 574 (2d Cir.1989) (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972)) (emphasis added). *494 And 18 U.S.C. § 3661, which was enacted in 1948, provides that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." By the end of 1994, district courts were required to allow victims of violence and sexual abuse to speak at sentencing, see Fed.R.Crim.P. 32(i)(4)(B) (2004), and were permitted to allow any other victim to speak, see Fed.R.Crim.P. 32 advisory comm. note, 1994 amendments, sub. (e).
Eberhard, 525 F.3d at 177 (alterations in original), referring to CVRA as Justice for All Act; see supra n. 3.
Only those holding statutory crime victim status have rights of allocution at sentencing under the CVRA. 18 U.S.C. § 3771(a)(4), (e). The Rules have been amended to afford those rights. See supra Sec. I.D.
Nothing in the CVRA or the Rules, however, diminishes the discretionary authority of the court to receive information from a wider range of affected individuals under 18 U.S.C. § 3661, enacted in 1948. The Ninth Circuit, commenting upon the court's discretion under Section 3661, observed well before enactment of the CVRA:
This is in keeping with the court's duty to set a sentence that is "sufficient, but not greater than necessary" to achieve the purposes of sentencing. See 18 U.S.C. § 3553(a). Thus, the district court has virtually unfettered discretion in allowing affected individuals to present sentencing information to the court. See Roberts v. United States, 445 U.S. 552, 556, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980) ("Two Terms ago, we reaffirmed the fundamental sentencing principle that a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.") (internal quotations omitted).
Gamma Tech, 265 F.3d at 924 (permitting asserted victim to provide information supporting its claim for statutory crime victim status to obtain restitution under VWPA).
Sentencing courts in this and other circuits have exercised that discretion for many years, receiving written and oral statements even in the absence of statutory provisions recognizing a right to allocution for certain persons at the time. For example in the following cases, persons who today would have CVRA rights, but had no such rights at the time, were permitted to make oral statements at sentencing. See, e.g., Jarvis, 258 F.3d at 236-38 (mail fraud); United States v. Dominguez, 951 F.2d 412, 417 (1st Cir.1991) (pre-VWPA crime; robbery-related offenses involving murdered drug money courier).[49]
Recent circuit court rulings have highlighted this distinction between the CVRA statutory crime victim right of allocution at sentencing and the broader discretion of the court to receive information from affected persons under Section 3661. In *495 each of the following cases, the circuit court did not rule that the persons who had been permitted to speak at sentencing had statutory crime victim status under the CVRA. Nevertheless, the district court's decision to hear their statements was found to be either not error or, at most, harmless error.
United States v. Duffy was an appeal from a conviction for the offense of felon in possession of a firearm under 18 U.S.C. § 922(g)(1), which was characterized as a "victimless crime." No. 08-10241, 2009 WL 235669, at *1-*2, 315 Fed.Appx. 216, 217-18 (11th Cir. Feb.3, 2009). The district court found by a preponderance of the evidence that defendant committed an uncharged crime of burglary in the chain of events linked to the offense of conviction. Id. at *3, 315 Fed.Appx. at 218-19. The district court permitted the burglary victims to testify at sentencing to the impact of the burglary on them. Id. at *2, 315 Fed.Appx. at 218. The circuit court found that was proper under 18 U.S.C. § 3661, and it declined to address defendant's argument that they were not "crime victims" under the CVRA, 18 U.S.C. § 3771(e). Id. at *3 & n. 4, 315 Fed.Appx. at 219 & n. 4.
United States v. Kennedy was an appeal from defendant's conviction on a guilty plea for knowingly making a false statement in connection with an application to purchase a firearm, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2), and being a prohibited person in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(3). 292 Fed.Appx. 240, 241 (4th Cir.2008). His arrest leading to the convictions stemmed from this tragic event, "[Defendant]'s son, . . . after experiencing a significant decline in his mental health, stole seven of [defendant]'s guns, drove to the local police station, and shot [two police officers]. Both officers died, and responding officers shot and killed [defendant's son]." Id.
Investigation determined that, approximately fifteen months before his son's death, defendant had purchased a semiautomatic weapon, for which he completed an ATF form falsely swearing that he was not an unlawful user of marijuana. Id. That conduct was his offense of conviction. Id. At the sentencing hearing, the government called the widow of one of the two slain officers to provide victim impact testimony. Id. at 242. Defendant objected, contending that in rejecting a guidelines enhancement for reasonable foreseeability that the firearm he purchased would be used in connection with another offense [U.S.S.G. § 2K2.1(b)(6)], the court had implicitly found that the slain officers were not "directly and proximately harmed" by defendant's criminal conduct underlying the offenses of conviction, and therefore they would not be considered "crime victims" under the CVRA. Id. at 242-43. The district court overruled the objection and received the widow's testimony. Id. at 242. The circuit court affirmed, holding:
Even if we assume the admission of the victim impact evidence was erroneous, the error was harmless. There is no indication in the record that the district court was "substantially swayed" by [the widow]'s testimony. The district court fully accepted the Guidelines as stipulated in the plea agreement, rejecting the enhancement, and sentenced [defendant]. . . toward the low end of the applicable Guidelines range . . . . Moreover, because [the widow] simply read the statement she had already submitted to the court, her testimony was cumulative.
Id. at 243 (citations omitted).
United States v. Poole was another appeal from a conviction for felon in possession of a firearm under 18 U.S.C. *496 § 922(g)(1), based on a guilty plea. 241 Fed.Appx. 153, 154 (4th Cir.2007). During the arrest that led to the conviction, defendant had struggled with the officers, tried to get both of their guns, succeeded in getting one gun, striking one officer with it and inflicting injuries, and then continued to struggle until they subdued him. Id. At sentencing, the court allowed evidence from the two arresting officers. Id. The evidence consisted of a letter from one of them concerning the events leading to arrest and commenting on sentencing, a photograph of the other officer's injuries, and oral reading by the injured officer of a written statement concerning the effect of defendant's actions on that officer. Id. The district court admitted that evidence, stating that the injured officer had "a right under the criminal rules . . . as a victim." Id. (alteration in original). Defendant did not object at the time, but did appeal, contending that neither officer was a "crime victim" of the charged offense under the CVRA, and that his due process rights were violated because the statements were unduly prejudicial. Id. The circuit court affirmed, on plain error review, stating:
Even assuming that the district court erred in admitting the victim evidence at sentencing, and that error was plain, it did not affect [defendant]'s substantial rights. The evidence was not so unduly prejudicial as to render [defendant]'s sentence unfair; contrary to [defendant]'s contentions, it did not so "inflame the emotions of the sentencing court" that the court sentenced [defendant] to the top of . . . or above the Guidelines range . . . . Moreover, the victim statements of [the officers] were largely cumulative of evidence not subject to challenge. Much of the information related by [the officers] concerning the events leading up to [defendant]'s arrest, while not as detailed as their statements, was contained in the presentence report and thus was already before the court and not prejudicial. Therefore, any error by the district court in admitting the victim statements did not affect [defendant]'s substantial rights.
Id. at 155.
United States v. Leach was also an appeal from a guilty plea to being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). 206 Fed.Appx. 432, 433 (6th Cir.2006). There, the evidence was seized during a lawful search of defendant's vehicle. Id. Defendant and his estranged wife were in the midst of a "very contentious divorce," and the presentence report indicated that defendant had previously threatened her with violence. Id. at 434-35. The wife attended the sentencing, and the government repeatedly told the district court that she did "want to be heard," to "make a statement as a victim of [defendant]'s crime." Id. at 433-35. The district court permitted her to testify about defendant's threats to her, and her belief that "as long as [his] trigger finger works, there are people that are in danger." Id. at 434 (alteration in original). The district court referred to some of that testimony in its justification for the sentence imposed. Id. The circuit court found no error in that respect, nor any effect on defendant's substantial rights, stating:
At sentencing, trial courts have considerable discretion to permit the introduction of evidence related to, among other things, "the nature and circumstances of the offense and the history and characteristics of the defendant." 18 U.S.C. § 3553(a)(1). . . .
For better or worse, [wife]'s statement at the sentencing hearing plainly was relevant to [defendant]'s "background, character, and conduct.". . .
It thus makes no difference for our purposes whether [wife] had "standing" to testify under the Crime Victim's *497 Rights Act, . . . a point we would have to consider if the district court had denied her an opportunity to be heard. No matter whether the Act applies to [her] testimony or not, the fact remains that the Act did not alter (or, more importantly, limit) a district court's traditionally broad discretion to consider "a wide variety of factors" at sentencing. . . .
Nor does it change matters that the district court permitted her to testify because it thought that the Act required her to have this opportunity. The fact remains that [wife] had access to considerable evidence bearing on [defendant]'s sentence. . . . Under these circumstances, [defendant] cannot show that any error in permitting her to testify, if indeed it was error, "affect[ed] [his] substantial rights." Fed.R.Crim.P. 52(b). No plain error occurred.
Id. at 434-35.
* * *
The cases summarized here, which were the only ones we found discussing the CVRA on this point, were appeals from convictions on substantive firearms offenses rather than scheme or conspiracybased offenses. Nevertheless, they demonstrate the distinction between statutory crime victim status, which carries a right to allocute at sentencing under the CVRA, and the position of other affected persons who may seek to provide information to the court, individually or through the prosecutor. As to the latter group, the court retains broad discretion on the scope of information to be considered under 18 U.S.C. § 3661.
F. CONSTITUTIONAL AND STATUTORY RIGHTS OF DEFENDANTS IN SENTENCING
When participation of a statutory crime victim or other affected person becomes an issue in the sentencing process, the court facing those issues must not lose sight of the rights of the defendant. We do not propose to list all of the rights of a defendant in the sentencing process here, but this discussion would be incomplete without consideration of a defendant's statutory and constitutional rights in this setting. We will start with the broad outline of the procedural rights of the defendant in the sentencing process, then describe some specific constitutional concerns under the CVRA.
A defendant has a due process right not to be sentenced based upon materially false information. See United States v. McDowell, 888 F.2d 285, 290 (3d Cir.1989) (citing Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948) and United States v. Cifuentes, 863 F.2d 1149, 1153 (3d Cir.1988)). "In particular, due process in criminal sentencing requires that a defendant receive notice of, and a reasonable opportunity to comment on, (a) the alleged factual predicate for his sentence, and (b) the potential punishments which may be imposed at sentence." Ausburn, 502 F.3d at 322 (citing United States v. Nappi, 243 F.3d 758, 763-64 (3d Cir.2001)). "In federal practice, a defendant's `due process right to be sentenced based upon accurate information' is `safeguard[ed] by Federal Rule of Criminal Procedure 32 . . . .'" Id. (alteration in original) (quoting Nappi, 243 F.3d at 763). The provisions of Rule 32 are familiar to all parties and the court in any sentencing, but here we note these key features:
Rule 32. Sentence and Judgment
. . . .
(c) Presentence Investigation.
(1) Required Investigation.
. . . .
(B) Restitution. If the law permits restitution, the probation officer must conduct an investigation and submit a report that contains sufficient *498 information for the court to order restitution.
. . . .
(d) Presentence Report.
(1) Applying the Advisory Sentencing Guidelines. The presentence report must:
(A) identify all applicable guidelines and policy statements of the Sentencing Commission;
(B) calculate the defendant's offense level and criminal history category;
(C) state the resulting sentencing range and kinds of sentences available;
(D) identify any factor relevant to:
(i) the appropriate kind of sentence, or
(ii) the appropriate sentence within the applicable sentencing range; and
(E) identify any basis for departing from the applicable sentencing range.
(2) Additional Information. The presentence report must also contain the following:
(A) the defendant's history and characteristics, including . . .;
(B) information that assesses any financial, social, psychological, and medical impact on any victim;[50]
(C) . . .
(D) when the law provides for restitution, information sufficient for a restitution order;
(E) . . .
(F) any other information that the court requires, including information relevant to the factors under 18 U.S.C. § 3553(a).
. . . .
(e) Disclosing the Report and Recommendation.
(1) . . . .
(2) Minimum Required Notice. The probation officer must give the presentence report to the defendant, the defendant's attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period.
. . . .
(f) Objecting to the Report.
(1) Time to Object. Within 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report.
. . . .
(3) Action on Objections. After receiving objections, the probation officer may meet with the parties to discuss the objections. The probation officer may then investigate further and revise the presentence report as appropriate.
(g) Submitting the Report. At least 7 days before sentencing, the probation officer must submit to the court and to the parties the presentence report and an addendum containing any unresolved objections, the grounds for those objections, and the probation officer's comments on them.
(h) Notice of Possible Departure from Sentencing Guidelines. Before the court may depart from the applicable sentencing range on a ground not *499 identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.
(i) Sentencing.
(1) In General. At sentencing, the court:
(A) must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report;
(B) . . .
(C) must allow the parties' attorneys to comment on the probation officer's determinations and other matters relating to an appropriate sentence; and
(D) may, for good cause, allow a party to make a new objection at any time before sentence is imposed.
(2) Introducing Evidence; Producing a Statement. The court may permit the parties to introduce evidence on the objections. If a witness testifies at sentencing, Rule 26.2(a)-(d) and (f) applies . . . .
(3) Court Determinations. At sentencing, the court:
(A) may accept any undisputed portion of the presentence report as a finding of fact;
(B) mustfor any disputed portion of the presentence report or other controverted matterrule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; and
(C) must append a copy of the court's determinations under this rule to any copy of the presentence report made available to the Bureau of Prisons.
(4) Opportunity to Speak.
(A) By a Party. Before imposing sentence, the court must:
(i) provide the defendant's attorney an opportunity to speak on the defendant's behalf;
(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and
(iii) provide an attorney for the government an opportunity to speak equivalent to that of the defendant's attorney.
(B) By a Victim. Before imposing sentence, the court must address any victim of the crime who is present at sentencing and must permit the victim to be reasonably heard.
Fed.R.Crim.P. 32.[51]
Additional notice requirements and procedures for adjudication are applicable where restitution is sought for a statutory crime victim, as we have detailed in Section I.D. Those procedures include a requirement that "not later than 60 days prior to the date initially set for sentencing, the attorney for the Government, after consulting, to the extent practicable, with all identified victims, shall promptly provide the probation officer with a listing of the amounts subject to restitution." 18 U.S.C. § 3664(d)(1). Further, "[i]f the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, *500 the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing." Id. § 3664(d)(5).
Restitution orders in favor of crime victims under the VWPA require findings by the court on (1) the amount of loss, (2) the defendant's ability to pay and the financial needs of the defendant and the defendant's dependents, and (3) how the amount of restitution imposed relates to any loss caused by the conduct underlying the offenses for which defendant was convicted. See, e.g., Logar, 975 F.2d at 961. If restitution is ordered, the court must also designate the timing and amount of the restitution payments and cannot delegate that responsibility to others. Coates, 178 F.3d at 683-85; Graham, 72 F.3d at 356-57.
If the defendant is not afforded the opportunity to present factual claims and objections, or the court fails to make particularized findings on restitution, defendant's due process and equal protection rights may be violated. See Palma, 760 F.2d at 477-78; cf. United States v. Reano, 298 F.3d 1208, 1211-13 (10th Cir. 2002) (concluding that failure of government and the district court to follow procedural requirements of Section 3664 did not prevent remand for restitution hearing because "imposition of restitution at sentencing put the defendant on notice that restitution would be imposed and thus served as the functional equivalent of the notice required under the MVRA").
If the sentencing process becomes a complicated damages dispute, due process may also be violated. See Palma, 760 F.2d at 477-78; see also Kones, 77 F.3d at 69 ("The kind of case that Congress had in mind [in the VWPA] was one in which liability is clear from the information provided by the government and the defendant and all the sentencing court has to do is calculate damages."). "The essential factor in the procedure leading to a restitution award is that defendant be given the opportunity to contest the information on which the restitution award was based." Sleight, 808 F.2d at 1016.
There is no absolute requirement in the Third Circuit that written victim impact statements, or a summary of anticipated oral victim impact statements, be produced before sentencing. See Ausburn, 502 F.3d at 319, 324, 326; see also Vampire Nation, 451 F.3d at 197 n. 4 ("Given that it would be impossible to predict what statements victims might offer at sentencing, it would be unworkable to require district courts to provide advance notice of their intent to vary their discretionary sentence based on victim statements that had not yet been made."). This is because the provisions of Rule 32, even before the recent CVRA-related amendments, require that the PSR's "victim impact" section should provide notice of the material facts alleged in victim impact statements, as well as the claimed emotional impact on the victim. Ausburn, 502 F.3d at 323-24 & n. 17. Nor would the "emotional appeal" presented by the victim impact statement generally violate defendant's due process rights because "this is inherent in the victim's right to attend court and present his or her own account of the crime and its impact." Id. at 324 n. 17. On the other hand, the possibility is not foreclosed that in a particular case a district court's failure to permit a defendant to respond to undisclosed facts or statements could violate due process. Id. at 326-27. As our court of appeals stated in Ausburn:
[W]e expect that existing procedures such as the right to object to sentencing information at any time upon good cause and the option to move for a continuance *501 to avoid unfair surprisewill provide an effective remedy in individual cases . . . .
Id. at 327.[52]
Other circuits have approached defendant's due process rights to notice of restitution claims, or victim impact information, in much the same manner. See, e.g., Eberhard, 525 F.3d at 178 (described in the margin);[53]United States v. Gale, 468 F.3d 929, 942 (6th Cir.2006) (defendant did not dispute accuracy of restitution amounts in PSR, but argued at sentencing hearing that he had made additional payments to the victim; the district court adjourned the sentencing hearing to give the parties additional time to gather evidence, then completed the sentencing hearing); United States v. Hayes, 171 F.3d 389, 390-92 (6th Cir.1999) (the sentencing court relied extensively on ex parte victim impact letters that were sent directly to the court and were never made available to the defendant; defendant was not even aware that the letters existed prior to imposition of sentence; circuit court found plain error).
* * *
We turn now to due process rights of defendants in relation to the enforcement mechanism created by the CVRA, again limited to the context of sentencing. One problem became evident as soon as an asserted victim petitioned for mandamus to reopen a sentence. Under the CVRA statutory scheme, the defendant is not a party to that mandamus proceeding. See 18 U.S.C. § 3771(d)(5), quoted supra n. 9. Kenna I brought that problem to the foreground when the circuit court determined under the CVRA that petitioner had a right to allocute at defendant's sentencing, which had been denied him by the district court when it imposed sentence. 435 F.3d at 1013, 1017. In that case, the sentencing was complete when the mandamus petition was filed. Id. at 1013. The circuit court, having ruled in favor of petitioner, then directed as follows:
[T]he district court here committed an error of law by refusing to allow petitioner to allocute at [defendant]'s sentencing and we must therefore issue the writ. We turn now to the scope of the *502 remedy. [Petitioner] asks us to vacate [defendant]'s sentence, and order, the district court to resentence him after allowing the victims to speak. The problem is that the CVRA gives district courts, not courts of appeals, the authority to decide a motion to reopen in the first instance. See 18 U.S.C. § 3771(d)(5). Moreover, [defendant] is not a party to this mandamus action, and reopening his sentence in a proceeding where he did not participate may well violate his right to due process. It would therefore be imprudent and perhaps unconstitutional for us to vacate [defendant]'s sentence without giving him an opportunity to respond.
We could delay further our consideration of the petition and order briefing from the defendant, but we think it more advisable to let the district court consider the motion to reopen in the first instance. In ruling on the motion, the district court must avoid upsetting constitutionally protected rights, but it must also be cognizant that the only way to give effect to [petitioner]'s right to speak as guaranteed to him by the CVRA is to vacate the sentence and hold a new sentencing hearing. We note that if the district court chooses not to reopen the sentence, [petitioner] will have another opportunity to petition this court for mandamus pursuant to the CVRA. Likewise, defendant will be able to contest any change in his sentence through the normal avenue for appeal.. . .
Footnote 5: We note . . . that our task in crafting an effective remedy would have been greatly simplified, had the district court postponed [defendant]'s sentencing until the petition for writ of mandamus was resolved. District courts may consider whether to routinely postpone final imposition of sentence in cases where they deny a request by victims to exercise rights granted by the CVRA.
Id. at 1017-18 & n. 5.
The guidance of Kenna I is that where a district court denies a motion made under the CVRA to afford allocution rights at sentencing, the district court should postpone completing the sentencing long enough for a mandamus petition to be filed and decided.
* * *
It seems that there may also be Sixth Amendment Booker concerns if the definition of statutory "crime victim," which is essentially the same definition under the CVRA, the MVRA, and the VWPA, is interpreted so broadly that it is not based upon the offense established by the guilty plea or jury verdict. See supra Sec. I.B. This problem has not been addressed by the parties in this motion. However, the very foundation of the jurisprudence holding that restitution under the VWPA and the MVRA does not violate the right to jury trial in a criminal case is that this punishment does not exceed the authorization of the verdict or the guilty plea. The majority opinion of the Court of Appeals for the Third Circuit articulated this rationale in Leahy, 438 F.3d 328, indeed in the context of a scheme-based offense (bank fraud). There the court stated:
Under both the VWPA and the MVRA, when a defendant is convicted of certain specified offenses, restitution is authorized as a matter of course "in the full amount of each victim's losses." 18 U.S.C. § 3664(f)(1)(A). Hence, under a plain reading of the governing statutory framework, the restitution amount authorized by a guilty plea or jury verdictthe full amount of lossmay not be exceeded by a district court's restitution order; that is, a district court is not permitted to order restitution in excess of that amount. In imposing restitution, *503 a district court is thus by no means imposing a punishment beyond that authorized by jury-found or admitted facts. Though post-conviction judicial fact-finding determines the amount of restitution a defendant must pay, a restitution order does not punish a defendant beyond the "statutory maximum" as that term has evolved in the Supreme Court's Sixth Amendment jurisprudence. See Booker, 125 S.Ct. at 749 (defining "statutory maximum" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant") (citing Blakely, 542 U.S. at 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403) (emphasis in original) . . . . There can therefore be no Booker violation in the imposition of restitution under the VWPA or the MVRA.
. . . [W]hen the court determines the amount of loss, it is merely giving definite shape to the restitution penalty born out of the conviction.
Leahy, 438 F.3d at 337.
It is clear that the definitions of "victim" under the CVRA, MVRA and VWPA have been aligned by Congress to identify a common core group of persons who have powerful and enforceable rights under those statutes. See supra Sec. I.B. Therefore, it appears that any Sixth Amendment limitation on the MVRA and VWPA is equally applicable to determinations of "crime victim" status and commensurate rights under the CVRA. See infra Sec. II.F.
* * *
We have summarized in this Section some of the rights of a defendant in the sentencing process. Those include the procedural requirements of due process, as codified in the Rules and, where restitution is an issue, in 18 U.S.C. § 3664. The process for the court to receive and utilize victim impact information from statutory crime victims and other affected persons, consistent with defendant's due process rights, has also been reviewed. We have described the special due process problem that must be addressed when the circuit court grants a writ of mandamus seeking to reopen a sentence to afford CVRA rights. Finally, we have noted a potential Sixth Amendment Booker issue in interpreting the common definition of "crime victim" under the CVRA, the MVRA and the VWPA.
II. FINDINGS AND CONCLUSIONS
A. INDICTMENTALLEGATIONS AND CONVICTIONS
Defendant Atlantic States Cast Iron Pipe Company ("Atlantic States") is a manufacturer of ductile cast iron pipe, operating a foundry in Phillipsburg, New Jersey. Atlantic States is a division of McWane, Inc. ("McWane"), an Alabama corporation. Atlantic States and three of the individual defendants, who were supervisor-level employees of Atlantic States, were found guilty of what we refer to as the OSHA-related offenses in this case. See text accompanying supra n. 1.[54]
*504 The indictment alleged one multi-object conspiracy (Count 1), having three objectives that were partly or wholly OSHArelated and two other objectives to violate the CWA and the CAA. (Dkt. 711 at 11-13.) There were also OSHA-related substantive charges, as well as other substantive charges. The statutory bases of all charges are summarized below in Section II.B. In this Section we concentrate on the details of the OSHA-related charges.
The verdict sheets included questions as to each alleged object of the Count 1 conspiracy, which were answered as to each defendant. (Dkts. 609, 610, 611, 612, 613, 614.) Atlantic States and individual defendants John Prisque ("Prisque"), Scott Faubert ("Faubert"), and Jeffrey Maury ("Maury") were found guilty on all OSHA-related conspiracy objectives. (Dkt. 721 at 112 n. 64.)
The OSHA-related substantive counts were Counts 2, 5, and 7 through 11. (Dkt. 711 at 1-43.) Atlantic States was found guilty of all OSHA-related substantive offenses except Count 2. (Dkt. 609 at 1-2.) Individual defendants Prisque, Faubert, and Maury were found guilty of one or more of the substantive OSHA-related offenses charged against them, as listed below. (See dkt. 610, 611, 612.)
One individual defendant was acquitted of all charges against him. (Dkt. 613; dkt. 721 at 3.) The jury failed to reach a verdict on Count 2, which we dismissed under Rule 29 after trial. (Dkt. 721 at 135-36.) Another individual defendant, Craig Davidson ("Davidson"), was convicted of certain non-OSHA-related charges and is also pending sentencing. (See dkt. 614.) The verdict found him not guilty of any OSHA-related fraud or obstruction objectives, and there was no evidence against him of participating in any false statement conspiracy objective as to OSHA. (See id.) Nor was he charged in any of the OSHArelated substantive counts. (Dkt. 721 at 3 n. 4, 133-34.) Therefore, we do not consider defendant Davidson to have been convicted of any OSHA-related conspiracy objectives or substantive offenses.[55]
The verdicts as to each defendant convicted on the OSHA-related substantive counts were:
(1) Atlantic States: Guilty on Counts 5 and 7 through 11.
(2) Prisque: Guilty on Counts 8, 9, and 11.
(3) Faubert: Guilty on Counts 7, 9, and 10.
(4) Maury: Guilty on Count 9.
(Id. at 3 n. 4.)
Counts 5 and 7 charged false statement offenses under 18 U.S.C. § 1001. (Dkt. 711 at 37, 39.) Counts 8, 9, and 10 charged obstruction of pending OSHA proceedings under 18 U.S.C. § 1505. (Id. at 40-42.) Count 11 charged altering a tangible object with intent to obstruct an OSHA investigation. (Id. at 43.) Those statutes are quoted and discussed in Section II.B. All substantive counts in the indictment also charged aiding and abetting under 18 U.S.C. § 2. (Id. at 34-48.)
The government's present motion contends that there are six individuals who qualify as crime victims under the CVRA ("statutory crime victims") in this case. (Dkt. 744 at 2, 5.) Each was an Atlantic States employee who sustained serious injuries in incidents that occurred while on the job at the foundry. (Id. at 2.) One of *505 them died, and at least two of the others suffered permanent injury.[56]
The inclusive dates of the alleged conspiracy were from approximately October 31, 1995, to August, 2003. (Dkt. 711 at 11.)[57] The names of those individuals, and the dates of the particular incidents in which they were injured, were:
Alfred Coxe, deceased March 24, 2000
Randall Lieberman March 1, 1996
Gabriel Marchan April 27, 1999
Robert Owens June 25, 1999
Eloy Rocca May 10, 2000
Hector Velarde December 7, 2002
The indictment alleged a total of eightyone overt acts under the Count 1 conspiracy, some of which directly corresponded to the allegations of the substantive OSHA-related offenses of conviction.[58] (See id. at 15-34, 37, 39-43.) Those six individuals and their injuries were described in the overt acts portion of the indictment, and four of them were also referred to in certain substantive counts, as described below. (See id. at 21-23, 26-30, 34, 39-43.) Evidence pertaining to defendants' alleged obstruction of OSHA's investigations of all six incidents was presented at trial. The five workers still living testified as witnesses at trial. We will refer to those six individuals as the "six named workers." There were also other workplace injuries and deaths referred to in the indictment, specifically and generally. We will describe those after the summary of allegations pertaining to the six named workers.
We repeat here the CVRA definition of crime victim, as derived from the VWPA and the MVRA. See supra Sec. I.B. A "crime victim" under the CVRA is defined as "a person directly and proximately harmed as a result of the commission of a Federal offense." 18 U.S.C. § 3771(e). We have already stated that we will interpret this definition to include the expansive language of the VWPA and MVRA where, as here, one of the offenses is a conspiracy. See supra Sec. I.B. That language is re-quoted in the margin.[59]
*506 This definition of "crime victim" requires the court to find what each "federal offense" is in this case. There was no guilty plea and the case was tried to verdict. Therefore, we must look at the indictment to determine the offenses of conviction.
We will first quote the OSHA-related charging language of the conspiracy count and the related alleged means and methods.
Next, we quote each alleged overt act referring to one of the six named workers and any corresponding substantive count of conviction. Four of the six named workers are referred to in both alleged overt acts and substantive counts. The substantive counts refer to the workplace incidents involving Mr. Coxe, Mr. Marchan, Mr. Owens, and Mr. Velarde, so we will address those four named workers in that order. Then we will quote the alleged overt acts referring to the incidents involving Mr. Lieberman and Mr. Rocca, which have no corresponding substantive counts.
Next, we quote additional alleged overt acts referring specifically to other workplace injuries. Those allegations have no corresponding substantive counts.
Finally, we quote some of the alleged overt acts describing generalized acts in the conspiracy designed to obstruct OSHA.
This Court has quoted each substantive OSHA-related count of conviction, and summarized the trial evidence for those counts in detail, in forty-one pages of our Memorandum Opinion ruling upon the Rule 29/Rule 33 motions. (Dkt. 721 at 147-88.) Here we simply quote the pertinent portions of the indictment.
IndictmentConspiracy charging language
The charging language of the conspiracy count, Count 1, is confined to paragraph 39. (See tr. 165 at 31-32.) Here we quote the OSHA-related allegations of that charging language:
The Conspiracy
39. Beginning at a time unknown to the Grand Jury but no later than October 31, 1995, and continuing thereafter until . . . no earlier than August, 2003, in the District of New Jersey and elsewhere, the defendants
[NAMED DEFENDANTS]
did knowingly and willfully conspire and agree with each other and others to commit the following offenses against the United States, that is:
A. [Clean Water Act violation objective];
B. [Clean Air Act violation objective];
C. To defraud the United States, that is, to hamper, hinder, impede, impair and obstruct by craft, trickery, deceit, and dishonest means, the lawful and legitimate functions of the [Department of Labor] and its agency, OSHA, in enforcing the federal safety and health regulations covering certain workers throughout the United States. . .;
D. To knowingly and willfully make materially false, fictitious and fraudulent statements and representations and make and use a false writing and document knowing the same to contain a materially false, fictitious, and fraudulent statement and entry, in matters within the jurisdiction of OSHA, . . . in violation of Title 18, United States Code, Section 1001; and
E. To corruptly influence, obstruct, and impede, and endeavor to influence, *507 obstruct, and impede, the due and proper administration of law under which a pending proceeding is being had before OSHA, . . . in violation of Title 18, United States Code, Sections 1505 and 1515(b).
. . . .
In violation of Title 18, United States Code, Section 371.
(Dkt. 711 at 11-12, 33.)
* * *
The charging language of Count 1 is followed by three portions: (1) alleged purpose of the conspiracy (¶ 40); (2) alleged means and methods (¶¶ 41-49); and (3) alleged overt acts (¶ 50 [with subsections containing eighty-one numbered acts]). (Id. at 13-33.)
The alleged purpose of the overall conspiracy (including the environmental and the OSHA-related objectives) was "to enrich defendants [NAMED DEFEDANTS], and their co-conspirators by maximizing the production of cast iron pipe at the Phillipsburg facility, without concern to environmental pollution and worker safety risks." (Id. at 13, ¶ 40.)
* * *
IndictmentAlleged means and methods of conspiracy
Count 1 states that "[a]mong the means and methods employed . . . to carry out the conspiracy and effect its unlawful objects were those set forth in Paragraphs 42 through 47." (Id. at 13, ¶ 41.) Here we quote the OSHA-related allegations of those paragraphs.
Means and Methods of the Conspiracy
. . . .
46. Defendants [NAMED DEFEDANTS], and their co-conspirators repeatedly exposed workers to unsafe and dangerous conditions, resulting in deaths and serious injuries to workers.
47. Defendants [NAMED DEFEDANTS], and their co-conspirators systematically altered accident scenes and existing conditions at the Phillipsburg facility in order to conceal the unsafe working practices from OSHA.
48. In order to permit continuation and prevent detection of the conduct referred to in Paragraphs 42 through 47, defendants [NAMED DEFENDANTS], and their co-conspirators regularly lied to and obstructed government officials conducting investigations into activities at the Phillipsburg facility.
49. In order to coerce defendant [ATLANTIC STATES]'s employees into committing, and to prevent these employees from revealing, certain conduct referred to in Paragraphs 42 through 47, defendants [NAMED DEFENDANTS], and their co-conspirators utilized tactics involving intimidation and retaliation.
(Id. at 13-14.)
IndictmentAlleged overt actsIntroduction and caveat
As stated above, the conspiracy count contains paragraphs stating alleged overt acts referring to the workplace incidents involving each of the six named workers. Four of those incidents are also referred to in substantive counts. We have organized those allegations by the name of the worker injured in the incident, quoting the alleged Count 1 overt acts pertaining specifically to that incident, as well as any substantive count or counts pertaining to that incident. There are also alleged overt acts referring to other specific worker injury incidents. There are also alleged overt acts describing generalized acts in the conspiracy designed to obstruct OSHA.
An important caveat to keep in mind when reading these alleged overt acts is that the jury was not asked any questions *508 in the verdict sheets as to whether any of those acts were performed, or whether the person or persons named did perform any of those acts. See supra n. 58 and accompanying text. The Court has made some findings regarding sufficiency of the evidence in ruling upon the Rule 29/Rule 33 motions. (Dkt. 721 at 130-265.) We are also called upon to make some factual determinations, under the preponderance of evidence standard, in the sentencing process, and we have issued some tentative guideline rulings to the parties at this stage. See infra n. 104. But we have not made, and we will not be required to make in the sentencing process, factual findings on all of the overt acts alleged in Count 1 of the indictment.
This Court has found sufficient evidence to support those counts of conviction described in this opinion. However, we expressly state no factual findings in this opinion as to whether any particular overt act was established in the evidence, or if so, whether it was established against any or all of the individual defendants named in the overt act.[60]
IndictmentAlleged overt acts referring to incidents involving the six named workers, with any corresponding substantive counts of conviction
Alfred Coxe
Overt Act Number 29: From in or about 1999 through in or about 2000, on a routine and regular basis, including on or about March 23, 2000, employees were forced by [NAMED DEFEDANTS] to drive faulty and unsafe fork-lifts.
Overt Act Number 30: From in or about 1999 through in or about 2000, on a routine and regular basis, [NAMED DEFENDANTS] failed to obtain parts required to fix forklifts they knew were unsafe and faulty.
Overt Act Number 31: Between in or about March 1998 and in or about March 1999, [NAMED DEFENDANT][61] instructed an employee of defendant [ALANTIC STATES] to teach a fellow employee how to drive a forklift with inoperable brakes.
Overt Act Number 32: From in or about 1999 through in or about 2000, on a routine and regular basis, including on or about March 23, 2000, employees were forced by [NAMED DEFENDANTS] to drive forklifts without receiving proper training in their operation.
Overt Act Number 33: On or about March 24, 2000, [NAMED DEFENDANTS] permitted a forklift with faulty brakes to be used by inadequately trained and uncertified employees of defendant [ATLANTIC STATES], which contributed to the death of Alfred Coxe, an employee of defendant [ATLANTIC STATES].
Overt Act Number 34: On or about March 24, 2000, [NAMED DEFENDANTS] took steps to conceal facts regarding the forklift fatality earlier that day from law enforcement officials and an OSHA inspector by causing the forklift's brakes, which were known to leak brake fluid, to be repaired before the OSHA inspector inspected it.
*509 Overt Act Number 35: On or about March 24, 2000, [NAMED DEFENDANTS] performed a misleading demonstration of the forklift involved in the fatality earlier that day in order to deceive an OSHA inspector into believing that the brakes were fully operational.
Overt Act Number 36: On or about March 24, 2000, [NAMED DEFENDANT] instructed an employee to provide a misleading account of the fatality in order to hide from OSHA inspectors that the forklifts were faulty.
Overt Act Number 37: On or about March 25, 2000, [NAMED DEFENDANT] prepared a misleading report that indicated the forklift involved in the fatality the day before was inspected and found to be in "perfect operating condition."
Overt Act Number 38: On or about July 24, 2000, [NAMED DEFENDANT] made a misleading statement to OSHA inspectors when, after being asked why the forklifts were being used despite numerous inspection sheets showing, among other things, problems with the brakes, steering, and horn, he stated that just because an employee turns in an inspection sheet for a forklift does not mean that the forklift was used by that employee.
(Dkt. 711 at 21-23.)
COUNT 9
(Obstruction of OSHA)
1. Paragraphs [identifying defendants, describing OSHA] are hereby realleged . . . .
2. Between on or about March 24, 2000, and on or about March 25, 2000,. . . defendants [ATLANTIC STATES], JOHN PRISQUE, SCOTT FAUBERT, and JEFFREY MAURY, did corruptly obstruct, impede, and endeavor to obstruct and impede, the due and proper administration of the law under which a pending proceeding was being had before [OSHA] . . ., by taking steps to conceal facts regarding the forklift fatality on March 24, 2000 from [OSHA] inspectors.
In violation of Title 18, United States Code, Sections 1505 and 2.
(Id. at 41.)[62]
COUNT 5[63]
(Making A Materially False Statement to OSHA)
1. Paragraphs [identifying defendants, describing OSHA] are realleged. . . .
2. On or about March 25, 2000, . . . defendant[ ] [ATLANTIC STATES] in a matter within the jurisdiction of [OSHA], . . . knowingly and willfully did make a materially false, fictitious, and fraudulent statement and representation and did make and use a false writing and document knowing the same to contain a materially false, fictitious, and fraudulent statement and entry, that is, defendant . . . prepared a report that indicated:
The forklift involved in the fatality the day before was inspected and found to be in "perfect operating condition;"
When in truth and in fact, as defendant. . . then well knew and believed, such forklift had several defects, including faulty brakes.
*510 In violation of Title 18, United States Code, Sections 1001 and 2.
(Id. at 37.)[64]
Gabriel Marchan (identified as "employee `A'" in the indictment)[65]
Overt Act Number 53: In or about May 1999, [NAMED DEFENDANT] and his co-conspirators caused defendant [ATLANTIC STATES] to maintain a false OSHA 200 log by failing to include complete and accurate entries regarding an incident on April 27, 1999, in which [Gabriel Marchan] had sustained a broken leg after being struck by a forklift.
Overt Act Number 54: On or about April 7, 2000, [NAMED DEFENDANTS], and their co-conspirators presented OSHA with a false OSHA 200 log, in which complete and accurate entries regarding the April 27, 1999 incident described in Overt Act Number 53, were omitted.
Overt Act Number 55: On or about May 11, 2000, [NAMED DEFENDANT] falsely told OSHA inspectors that the reason that there was no entry on the OSHA 200 log concerning the April 27, 1999 incident was because the employee's leg had not been broken.
Overt Act Number 56: On or about July 24, 2000, under instructions from [NAMED DEFENDANTS], [Gabriel Marchan] falsely told OSHA inspectors that his leg had not been broken when he had been struck by a forklift on April 27, 1999.
(Id. at 27.)
COUNT 7
(Making A Materially False Statement to OSHA)
1. Paragraphs [identifying defendants, describing OSHA] are hereby realleged . . . .
2. On or about May 11, 2000, . . . defendants [ATLANTIC STATES] and SCOTT FAUBERT, in a matter within the jurisdiction of [OSHA], . . . did knowingly and willfully make a false and fictitious statement and representation, that is, defendant SCOTT FAUBERT stated to [OSHA] inspectors:
That the reason why there was no entry on the OSHA 200 log concerning a April 27, 1999 incident was because [Gabriel Marchan] did not break his leg;
When in truth and in fact, as defendant SCOTT FAUBERT then well knew and believed, [Gabriel Marchan] sustained a fractured bone in his leg on April 27, 1999, after being struck by a forklift.
In violation of Title 18, United States Code, Sections 1001 and 2.
(Id. at 39.)[66]
COUNT 10
(Obstruction of OSHA)
1. Paragraphs [identifying defendants, describing OSHA] are hereby *511 realleged . . . .
2. On or about July 24, 2000, . . . defendants [ATLANTIC STATES] . . . and SCOTT FAUBERT, did corruptly obstruct, impede, and endeavor to obstruct and impede, the due and proper administration of the law under which a pending proceeding was being had before [OSHA] . . ., by instructing [Gabriel Marchan] to falsely inform the [OSHA] inspectors that his leg had not been broken when he had been struck by a forklift on April 27, 1999.
In violation of Title 18, United States Code, Sections 1505 and 2.
(Id. at 42.)[67]
Robert Owens
Overt Act Number 57: In or about July 1999, [NAMED DEFENDANT] falsely told an OSHA inspector, who was investigating a June 25, 1999 incident in which an employee sustained a fractured skull and lost an eye when a saw blade broke apart, that the saw safety shield had not been changed since the incident, when in fact a steel wire screen had been added to the shield after the incident.
Overt Act Number 58: In or about July 1999, under instructions from [NAMED DEFENDANT], employee "B" falsely told an OSHA inspector, in substance, that the saw safety shield had not been changed since the incident described in Overt Act Number 57, when in fact a steel wire screen had been added to the shield after the incident.[68]
(Id. at 27-28.)
COUNT 8
(Obstruction of OSHA)
1. Paragraphs [identifying defendants, describing OSHA] are hereby realleged . . . .
2. In or about July 1999, . . . defendants [ATLANTIC STATES] and JOHN PRISQUE, did corruptly obstruct, impede, and endeavor to obstruct and impede, the due and proper administration of the law under which a pending proceeding was being had before [OSHA] . . ., by instructing employee "B" to falsely inform the [OSHA] inspectors that the saw safety shield had not been changed since the June 25, 1999 incident in which an employee sustained a fractured skull and lost an eye when a saw blade broke apart, when, in fact, a steel wire screen had been added to the shield after the incident.
In violation of Title 18, United States Code, Sections 1505 and 2.
(Id. at 40.) Alleged overt acts 57-58, and Count 8, refer to the OSHA investigation of a June 25, 1999, incident in which Robert Owens sustained the described injuries. Mr. Owens testified as a government witness. (See dkt. 721 at 159-63.)[69]
Hector Velarde
Overt Act Number 67: In or about May 2002, [NAMED DEFENDANTS] caused the bypass of a manufacturer-installed *512 safety device on a new cement mixer because they believed the device would slow down the production of pipes by stopping the mixer when its doors were opened.
Overt Act Number 68: Between December 7, 2002, when an employee had three fingers amputated inside the cement mixer because the mixer's safety device had been bypassed, and December 18, 2002, when OSHA first inspected the mixer as a result of the amputation, [NAMED DEFENDANT] and Co-Conspirator "Y" directed that the safety device be concealed from OSHA.[70]
Overt Act Number 69: On or about December 18, 2002, during OSHA's initial inspection of the cement mixer, [NAMED DEFENDANT] and Co-Conspirator "Y" falsely informed OSHA that the mixer had originally arrived from the manufacturer without a safety device for its doors, but told OSHA that such a device could be installed on the mixer.
Overt Act Number 70: Between December 18, 2002, when OSHA was falsely informed that the mixer did not originally have a safety device for its doors but that one could be put on the mixer, and January 2, 2003, the date of OSHA's follow-up inspection, [NAMED DEFENDANTS] and Co-Conspirator "Y" directed the installation of a safety device similar to the one originally installed by the manufacturer.
Overt Act Number 71: On or about March 20, 2003, after admitting to OSHA that the cement mixer had actually arrived from the manufacturer with the safety device referred to in Overt Act Number 67 installed on it, [NAMED DEFENDANT] and Co-Conspirator "Y" falsely informed OSHA that they believed the safety device was removed by an unnamed employee who, had quit.
(Dkt. 711 at 29-30.)
COUNT 11
(Obstruction of OSHA)
1. Paragraphs [identifying defendants, describing OSHA] are hereby realleged . . . .
2. In or about December 2002, . . . defendants [ATLANTIC STATES] and JOHN PRISQUE, did knowingly alter, conceal, and cover up a tangible object with the intent to impede, obstruct, and influence the investigation and proper administration of a matter within jurisdiction of [OSHA], . . . by altering the condition of a cement mixer and concealing from the [OSHA] inspectors that they had bypassed a safety device designed to shut down the cement mixer when its doors were opened, which led to the amputation of three of an employee's fingers.
In violation of Title 18, United States Code, Sections 1519 and 2.
(Id. at 43.) Alleged overt acts 67-71, and Count 11, refer to the OSHA investigation of a December 7, 2002, incident in which Hector Velarde sustained the described injuries. Mr. Velarde testified as a government witness. (See dkt. 721 at 176-88.)[71]
Randall Lieberman
Overt Act Number 50: Between on or about February 26, 1996, and on or about March 1, 1996, [NAMED DEFENDANT] falsely told OSHA inspectors that the plant was closed down for the week and that there were no work activities taking place, when in fact certain work-related activities were occurring, *513 including maintenance of the cupola during which an employee fell off a rope ladder and broke bones in his back, pelvis, and ankle.
Overt Act Number 51: On or about March 4, 1996, [NAMED DEFENDANT] falsely told OSHA inspectors that the rope ladder involved in the incident described in Overt Act Number 50 had been discarded into a dumpster after the incident because a particular employee of defendant [ATLANTIC STATES] had issued an order to do so, when in fact no such order had been given by this employee.
Overt Act Number 52: On or about March 27, 1996, [NAMED DEFENDANT] falsely told OSHA inspectors that the rope ladder involved in the incident described in Overt Act Number 50 was torn after it had been discarded into a dumpster following the incident, when in fact the ladder was torn during the incident itself.
(Dkt. 711 at 26.) Alleged overt acts 50-52 refer to the OSHA investigation of a March 1, 1996, incident in which Randall Lieberman sustained the described injuries. Mr. Lieberman testified as a government witness. (Tr. 359 at 125-214; tr. 362 at 4-131.)[72]
Eloy Rocca
Overt Act Number 60: In or about May 2000, [NAMED DEFENDANT] and his co-conspirators caused defendant [ATLANTIC STATES] to maintain a false OSHA 200 log by failing to include complete and accurate entries regarding an incident on May 10, 2000, in which an employee had burned his leg and missed six weeks of work.
Overt Act Number 61: On or about July 13, 2000, [NAMED DEFENDANTS], and their co-conspirators presented OSHA with a false OSHA 200 log which failed to include complete and accurate entries regarding the May 10, 2000 incident described in Overt Act Number 60.
Overt Act Number 62: On or about July 24, 2000, [NAMED DEFENDANT] falsely told OSHA inspectors that the reason that there was no entry on the OSHA 200 log concerning the May 10, 2000 incident was because he thought that the employee had quit.
Overt Act Number 63: On or about August 22, 2000, [NAMED DEFENDANTS], and their co-conspirators presented OSHA with a false OSHA 200 log by modifying its earlier entry concerning the May 10, 2000 incident but still failing to include complete and accurate entries regarding that incident.
(Dkt. 711 at 28-29.)[73] Alleged overt acts 60-63 refer to the OSHA investigation of a May 10, 2000, incident in which Eloy Rocca sustained the described injuries. Mr. Rocca testified as a government witness. (Tr. 422 at 146-160; tr. 424 at 4-81.)
IndictmentAlleged overt acts referring to incidents involving other specific worker injuries
Overt Act Number 59: On or about August 6, 1999, [NAMED DEFENDANT] falsely told OSHA inspectors that he was unaware of a pit excavated in the casting department that had collapsed onto an employee's leg.
(Dkt. 711 at 28.)[74]
Overt Act Number 66: On or about December 7, 2000, [NAMED DEFENDANT] *514 directed an employee of defendant [ATLANTIC STATES] to falsely report that an injury to that employee, in which the employee had a finger partially cut off and sewed back on, took place at the home of that employee when, in fact, it occurred at the Phillipsburg facility.
(Id. at 29.)[75]
IndictmentAlleged overt acts describing generalized acts in the conspiracy designed to obstruct OSHA, under heading "Atmosphere of Fear, Intimidation, and Retaliation"
Overt Act Number 75: From in or about 1999 through in or about 2003, on a routine and regular basis, [NAMED DEFENDANTS], . . . took steps to deter employees from telling OSHA inspectors about the unsafe conditions at the plant.
Overt Act Number 76: From in or about 1999 through in or about 2003, on a routine and regular basis, [NAMED DEFENDANTS] instructed employees to provide misleading descriptions and accounts to OSHA inspectors in order to conceal the unsafe conditions at the Phillipsburg facility.
. . . . .
Overt Act Number 78: From in or about 1999 through in or about 2003, on a routine and regular basis, [NAMED DEFENDANT] retaliated and threatened to retaliate against employees if they filed a grievance with the union concerning conditions of their employment, including the unsafe conditions at the Phillipsburg facility.
Overt Act Number 79: Beginning . . . no later than 1997 and ending . . . not earlier than 1999, [NAMED DEFENDANT] threatened to fire employees if they pursued workers' compensation claims against defendant [ATLANTIC STATES] following injuries suffered at the Phillipsburg facility.
Overt Act Number 80: From in or about 1999 through in or about 2003, in order to intimidate employees into committing, and to prevent them from revealing, the conduct referred to in Paragraphs 42 to 47, [NAMED DFENDANTS],. . . instructed mid-level supervisors to instill fear in the employees by using retaliation tactics.
Overt Act Number 81: From in or about 1999 through in or about 2003, in order to intimidate employees into committing, and to prevent them from revealing, the conduct referred to in Paragraphs 42 to 47, [NAMED DEFENDANTS], and Co-Conspirator "Z" utilized coercive measures, which included *515 (a) assigning employees to work on casting machine # 3, the hottest machine at the plant, as a punishment; (b) assigning Spanish-speaking employees to work in the most dangerous parts of the plant; and (c) forcing employees to douse' themselves with water and realign pipes in a 2,000 degree Fahrenheit annealing oven.
(Id. at 31-33.)[76]
This completes our description of the charged OSHA-related offenses and convictions. The indictment actually has two major components, OSHA-related offenses and environmental offenses. In this motion for relief under the CVRA, the government does not contend that in this case there are any "statutory crime victims" of the environmental offenses or the corresponding conspiracy objectives. (Dkt. 744.) There are, however, sharp contrasts between the OSHA-related and the environmental-related aspects of the indictment, which in our view directly impact the outcome of this motion. We describe those contrasts in the following two Sections.
B. STATUTES CHARGED IN THE INDICTMENT
The indictment in this case has been described by its drafters as "pioneering." This is the first, and to our knowledge the only case to date, that has been actually litigated under this novel structure for an indictment. There are numerous novel aspects to this case, but one aspect stands out as pertinent to the pending motion. It will be recalled that this motion invokes the CVRA to seek statutory victim status with respect to six named workers, each of whom suffered injures in a separate workplace incident.
The novelty is in the fact that while the environmental offenses charged in this case include violations of the CWA and the CAA (along with related false statement offenses and conspiracy objectives), in contrast the so-called "OSHA-related" offenses charged here do not include one single violation of the federal OSHA statute, or any alleged conspiracy objective to violate that statute.
In the next Section we provide a summary of the criminal offenses available to be pleaded under the OSHA statute, 29 U.S.C. §§ 666(e), (f) and (g), as well as the civil enforcement scheme under the OSHA statute. Suffice it to point out here that none of those criminal OSHA offenses are charged in this case, nor does Count 1 allege a conspiracy objective to commit any of those offenses.
There were substantive environmental offenses charged in this case, and convictions obtained. Counts 12 through 33 charge substantive violations of the CWA, consisting of knowingly causing the discharge of petroleum-contaminated wastewater from a point source at the Atlantic States facility into the waters of the United States, without a permit authorizing such discharge, in violation of the CWA, 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A).[77]*516 Count 34 charges a substantive violation of the CAA by knowingly operating the facility in violation of its air permit requirements by causing more than 55 gallons per day of waste paint to be burned in the cupola, in violation of the CAA, 42 U.S.C. § 7413(c)(1).[78]
The charged illegal objectives of the Count 1 conspiracy also included objectives to violate those provisions of the CWA and the CAA (Count 1, ¶ 3 9, alleged objectives A and B). (Dkt. 711 at 11-12.) To be sure, the alleged objectives of the conspiracy also included defrauding the EPA in enforcing the environmental regulations, and making false statements to the EPA and FBI in that connection (Count 1, ¶ 39, portions of objectives C. and D). (Id. at 12.) But violations of the environmental laws were specifically alleged as objectives of the conspiracy, upon which convictions were obtained.[79]
This anomaly in the indictment can be described graphically as follows:
Charged Offenses:
Violation of Conspiracy to
regulatory violate that
statute statute
CWA Yes Yes
CAA Yes Yes
OSHA No No
In other words, what we refer to as the "OSHA-related" offenses in this indictment are limited to obstruction and false statement offenses, and corresponding conspiracy objectives, all based upon deception of OSHA rather than violating OSHA workplace standards. Those statutes are 18 U.S.C. §§ 1001, 1505 and 1519.[80] Those are the statutes upon which the jury was instructed and rendered its verdicts. (See dkt. 717 at 17-18, 31-32, 42-49 (jury instructions).)
Here we quote the substantive statutes of conviction for the OSHA-related counts and the corresponding conspiracy objectives:
[W]hoever, in any matter within the jurisdiction of the executive . . . branch of the Government of the United States, knowingly and willfully
. . .
(2) makes any materially false, fictitious, or fraudulent statement or representation;
. . .
[shall be guilty of this offense].
18 U.S.C. § 1001(a). This statute was charged in Counts 5 and 7 of the OSHArelated substantive counts, and was the subject of alleged unlawful Objective D of the Count 1 conspiracy. (Dkt. 711 at 12, 37, 39.)
Whoever corruptly . . . endeavors to . . . obstruct[ ] or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the *517 United States [shall be guilty of violating this law].
18 U.S.C. § 1505. This statute was charged in Counts 8, 9, and 10 of the OSHA-related substantive counts, and was the subject of alleged unlawful Objective E of the Count 1 conspiracy. (Dkt. 711 at 12, 40-42.)[81]
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . [shall be guilty of this offense].
18 U.S.C. § 1519. This statute was charged in Count 11 of the OSHA-related substantive counts, but has no corresponding alleged unlawful objective in Count 1. (Dkt. 711 at 43.)
The omission of any indictment charges under the OSHA statute was intentional, as explained by the federal prosecutors who drafted it for the submission to the grand jury that indicted defendants.[82]
The original indictment in this case was handed down on December 11, 2003. It was widely reported at the time that this case (and investigation of other McWane, Inc. facilities) was prompted by articles in the New York Times and a PBS television documentary program on "Frontline" describing workplace injuries at McWane facilities. The New York Times reported later, on May 2, 2005, that this prosecution was part of a new initiative to forge collaboration between OSHA, the EPA, and Justice Department prosecutors. The newspaper provided background written by its journalists, then quoted federal officials, including one of the prosecutors in this case. It reported:
For decades, the most egregious workplace safety violations have routinely escaped prosecution, even when they led directly to deaths or grievous injuries. Safety inspectors hardly ever called in the Justice Department. Congress repeatedly declined to toughen criminal laws for workplace deaths. Employers with extensive records of safety violations often paid insignificant fines and continued to ignore basic safety rules. Inside the Bush administration, though, a novel effort to end this pattern of leniency has begun to take root.
With little fanfare and some adept bureaucratic maneuvering, a partnership between the Occupational Safety and Health Administration, the Environmental Protection Agency and a select group of Justice Department prosecutors has been forged to identify and single out for prosecution the nation's most flagrant workplace safety violators.
The initiative does not entail new legislation or regulation. Instead, it seeks to marshal a spectrum of existing laws that carry considerably stiffer penalties than those governing workplace safety alone. They include environmental laws, criminal *518 statutes more commonly used in racketeering and white-collar crime cases, and even some provisions of the Sarbanes-Oxley Act, a corporate reform law.
The result, those involved say, should be to increase significantly the number of prosecutions brought against dangerous employers, particularly in cases involving death or injury.
This new approach addresses a chronic weakness in the regulatory systemthe failure of federal agencies to take a coordinated approach toward corporations that repeatedly violate the same safety and environmental regulations. . . . [T]he central premise of this unfolding strategy is that shoddy workplace safety often goes hand in hand with shoddy environmental practices.
"If you don't care about protecting your workers, it probably stands to reason that you don't care about protecting the environment either," said David M. Uhlmann, chief of the Justice Department's environmental crimes section, which is charged with bringing these new prosecutions.
The effort is noteworthy in an administration that has generally resisted efforts to increase penalties for safety and environmental violations. It has declined to support such steps as making it a felony for employers to commit willful safety violations that cause a worker's death. Such violations are currently misdemeanors, punishable by up to six months in jail. . . .
The new initiative is already at an advanced stage of planning. Hundreds of senior OSHA compliance officers have attended training sessions led by Justice Department prosecutors and criminal investigators from the E.P.A. In several regions of the country, OSHA managers have begun making lists of the worst workplaces and sharing them with E.P.A. investigators and prosecutors, who select the most promising cases for investigation. Several criminal inquiries and prosecutions are under way.
. . .
Even so, it is difficult to gauge the degree of political support for more prosecutions. . . .
[I]n March, a news conference to announce the initiative was canceled. The name of the program was also changed. What was to have been called the Worker Endangerment Initiative is now described as a "policy decision"not an "initiative"aimed at achieving "environmental protection in the workplace."
. . .
Richard E. Fairfax, OSHA's director of enforcement programs, described the initiative as part of a broader effort by the agency to crack down on companies that persistently flout workplace safety rules.
. . . .
If some hesitation exists at the political level, enthusiasm is high in the trenches of OSHA and the E.P.A. Andrew D. Goldsmith, assistant chief of the environmental crimes section, has led most of the OSHA training sessions, in which he describes the many ways criminal and environmental statutes can be brought to bear. It has been a revelation of sorts, he says, to watch agency compliance officers grasp at the chance at last to seek significant criminal penalties against defiant employers.
"You see a glint in these people's eyes, and you see them getting very enthusiastic," Mr. Goldsmith said. "You see hands start shooting up. They view us like the cavalry coming over the hill."
. . . .
All federal environmental crimes carry potential prison sentences, including up to 15 years for knowingly endangering *519 workers. And unlike OSHA, the E.P.A. has some 200 criminal investigators with extensive experience building cases for federal prosecutors.
. . . .
With nearly 40 prosecutors, the environmental crimes section of the Justice Department has a long record of bringing complex criminal cases against major employers. By contrast, before this initiative, only one prosecutor at the Justice Department focused full time on workplace safety crimes. Now, after identifying promising cases from the lists sent by OSHA, prosecutors are also checking for significant records of environmental infractions. If a plant is part of a larger conglomerate, they are checking the records of sister plants, too.
"We can see all the pieces," Mr. Goldsmith said. "We can coordinate."
The value of that coordination became obvious, he and other officials said, during a recent federal investigation into a New Jersey foundry owned by McWane Inc., the nation's largest manufacturer of cast-iron pipe. The investigation was prompted by articles in The Times and a companion documentary on the PBS television program "Frontline" that described McWane as one of the most dangerous employers in America.
Senior officials at OSHA, the E.P.A. and the Justice Department saw a way to produce an indictment that would "tell the whole picture" of how a company could put profit ahead of all other considerations, said Mr. Uhlmann, the chief of the environmental crimes section.
. . .
The case is pending, but Justice Department officials called it a "pioneering indictment."
David Barstow & Lowell Bergman, With Little Fanfare, a New Effort to Prosecute Employers That Flout Safety Rules, N.Y. TIMES, May 2, 2005.
That article, and other publicity participated in by both sides of the case, prompted applications to this Court regarding subpoena disputes and concerns on both sides about pretrial publicity. There was an exchange of letter briefs on those issues, which were resolved.
The government, in one of its letter briefs at that time, acknowledged the accuracy of that New York Times article regarding "this new prosecution priority of the Justice Department and the impact these cases will bring." (5-16-05 Gov. Ltr. Br. at 2, undocketed, with attachments). It confirmed that the prosecutors responsible for drafting this indictment were part of the Environmental Crimes Section of the Justice Department and the United States Attorney's Office for the District of New Jersey. (Id. at 2 n. 1.) We can add that the conduct of the trial was also a team effort by those prosecutorial offices, resulting in sweeping convictions under this indictment.
The point for present purposes, however, is that the Justice Department and the United States Attorney's Office purposely avoided charging any workplace violations under the OSHA statute in crafting this indictment. Instead, for the OSHA aspect of this case, they charged a conspiracy and substantive offenses under the obstruction and false statement laws. In the next Section we briefly review the OSHA statute itself, and what Congress has and has not provided for its criminal enforcement.
C. OSHA STATUTENOT CHARGED
The Supreme Court has described the passage of the Occupational Safety and Health Act of 1970, with its federal regulatory scheme, as follows:
*520 After extensive investigation, Congress concluded, in 1970, that work-related deaths and injuries had become a "drastic" national problem. Finding the existing state statutory remedies as well as state common-law actions for negligence and wrongful death to be inadequate to protect the employee population from death and injury due to unsafe working conditions, Congress enacted the Occupational Safety and Health Act of 1970 (OSHA or Act), 84 Stat. 1590, 29 U.S.C. § 651 et seq. The Act created a new statutory duty to avoid maintaining unsafe or unhealthy working conditions, and empowers the Secretary of Labor to promulgate health and safety standards.
Atlas Roofing Co., Inc. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442, 444, 97 S. Ct. 1261, 51 L. Ed. 2d 464 (1977); see 29 U.S.C. § 651 (Congressional statement of findings and declaration of purpose and policy).
The statute provides that each employer:
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;[83]
(2) shall comply with occupational safety and health standards promulgated under this [Act].
29 U.S.C. § 654(a).
The statute also states that each employee:
shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this [Act] which are applicable to his own actions and conduct.
Id. § 654(b).
The civil enforcement scheme under the OSHA statute is unique to that statute. It features an elaborate civil regulatory process that does not include adjudication in the district court, nor a right to trial by jury, but includes a right of direct appeal to a Circuit Court of Appeals from the findings of an administrative law judge, after review by an Occupational Health and Safety Review Commission. As summarized in Atlas Roofing, this is the civil process:
Two new remedies were provided permitting the Federal Government, proceeding before an administrative agency, (1) to obtain abatement orders requiring employers to correct unsafe working conditions and (2) to impose civil penalties on any employer maintaining any unsafe working condition. Each remedy exists whether or not an employee is actually injured or killed as a result of the condition. . . .
Under the Act, inspectors, representing the Secretary of Labor, are authorized to conduct reasonable safety and health inspections. 29 U.S.C. [§] 657(a). If a violation is discovered, the inspector, on behalf of the Secretary, issues a citation to the employer fixing a reasonable time for its abatement and, in his discretion, proposing a civil penalty. [§§ ] 658, 659. Such proposed penalties may range from nothing for de minimis and nonserious violations, to [stated fine ranges], [§§ ] 658(a), 659(a), 666(a)(c) and (j).
If the employer wishes to contest the penalty or the abatement order, he may do so by notifying the Secretary of Labor *521 within 15 days, in which event the abatement order is automatically stayed. [§§ ] 659(a), (b), 666(d). An evidentiary hearing is then held before an administrative law judge of the Occupational Safety and Health Review Commission. The Commission consists of three members,. . . each of whom is qualified `by reason of training, education or experience' to adjudicate contested citations and assess penalties. [§§ ] 651(b)(3), 659(c), 661, 666(i). . . . The judge's decision becomes the Commission's final and appealable order unless within 30 days a Commissioner directs that it be reviewed by the full Commission. [§§ ] 659(c), 661(i). . . .
If review is granted, the Commission's subsequent order directing abatement and the payment of any assessed penalty becomes final unless the employer timely petitions for judicial review in the appropriate court of appeals. 29 U.S.C. [§ ] 660(a) The Secretary similarly may seek review of Commission orders, [§ ] 660(b), but, in either case, `(t)he findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.' [§ ] 660(a).
Atlas Roofing, 430 U.S. at 445-47, 97 S. Ct. 1261.
There are three degrees of civil violations of regulations and standards under the OSHA statute: (a) willful or repeated, (b) serious, or (c) not serious. 29 U.S.C. §§ 666(a), (b), (c). A serious violation is defined in the statute; those other two degrees are not. Id. § 666(k). Other terms are defined, such as "person," "employer," "employee," and "occupational safety and health standard." Id. § 652.
Reviewing circuit courts have developed standards for interpreting and applying those terms, and reviewing the numerous issues that arise on appeal under the civil regulatory scheme. See, e.g., Sec'y of Labor v. Trinity Indus., Inc., 504 F.3d 397, 399-403 (3d Cir.2007) (reviewing ALJ findings, inter alia, that violations were "nonserious" and whether employees of on-site contractor were "employees" of the alleged employer). The standard of appellate review of the ALJ and agency decision is highly deferential, pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Id. at 400. No right to jury trial applies, and the Supreme Court has ruled that the Seventh Amendment is not violated by those civil enforcement remedies. Atlas Roofing, 430 U.S. at 461, 97 S. Ct. 1261.
Despite its grand declaration of purpose and policy, 29 U.S.C. § 651, Congress created few and narrow criminal sanctions in the OSHA statute. Those are:
(e) Willful violation causing death to employee
Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one year, or by both.
(f) Giving advance notice of inspection
Any person who gives advance notice of any inspection to be conducted under this chapter, without authority from the Secretary or his designees, shall, upon conviction, be punished by a fine of not more than $1,000 or by imprisonment for not more than six months, or by both.
*522 (g) False statements, representations or certification
Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this chapter shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both.
29 U.S.C. §§ 666(e)-(g). All of these criminal offenses, even for a willful violation causing death to an employee, carry only misdemeanor penalties.
Criminal liability under 29 U.S.C. § 666(e), for a willful violation causing the death of another, is limited to the employer only. An employee can neither directly commit that criminal offense nor aid and abet the employer in its commission of the offense. See, e.g., United States v. Shear, 962 F.2d 488, 490-95 (5th Cir.1992) (superintendent was not "employer" to be held criminally liable for company's OSHA violation, nor could he be held liable as aider and abettor); United States v. Doig, 950 F.2d 411, 412-16 (7th Cir.1991); United States v. Cusack, 806 F. Supp. 47, 48-52 (D.N.J.1992).
Congress, in enacting the OSHA statute, carefully limited the reach of its criminal provisions. The Supreme Court, explaining the Congressional enactment of OSHA in 1970, stated that "existing state statutory and common-law remedies for actual injury and death remain unaffected." Atlas Roofing, 430 U.S. at 445, 97 S. Ct. 1261.[84]
* * *
The indictment in this case does not charge any defendant with a criminal violation of the OSHA statute. Summarizing the provisions cited above, it is clear that Congress, in enacting the federal OSHA statute, has refused to criminalize violations of OSHA workplace standards that cause injury to an employee, no matter how severe, unless death results. Even then, the employer's violation must be "willful," a term defined not in the statute but in administrative and judicial precedent interpreting the OSHA statute. Nor does the OSHA statute permit an employee, even a supervisory-level employee, to be criminally charged under the OSHA statute in connection with a fatal workplace incident.
Defense counsel has pointed out in arguing this motion, and the government does not dispute, that OSHA itself did not deem it appropriate to seek prosecution of Atlantic States under the OSHA statute, 29 U.S.C. § 666(e), in connection with the death of Mr. Coxe. OSHA therefore made no referral to the Department of Justice seeking prosecution under that statute. (Tr. 752 at 16-17.) Again, no criminal charges would be available under the OSHA statute to prosecute the employer (or supervisory employees) for non-fatal injuries sustained by any workers.
D. CVRA CONTENTIONS IN THIS MOTION
Contentions of the government
The government argues in the present motion that the six named workers are "crime victims" under the CVRA. It focuses primarily on the conspiracy count in support of that contention. It states as to the incidents in which the six named workers were injured:
*523 For each of these individuals, the jury learned about Defendants' elaborate efforts to deceive OSHA about the circumstances that led to the injuries and death. In each case, those efforts were alleged in the superseding indictment to be among the overt acts that were part of the charged conspiracy. All of these events were supported by evidence during trial.
(Gov. mot. br., dkt. 744 at 2.)
The government recognizes that the relevant objectives of the conspiracy, as charged in the indictment, were to obstruct, defraud, and make false statements to OSHA. (Indictment, ¶ 39, dkt. 711 at 11-12.) However, as it stated at oral argument on this motion:
[T]he government's theory of the case here is that the continuing deception of OSHA not only involved the coverup after the injuries, but in large measure was responsible for the injuries themselves.
(Tr. 752 at 27.)[85]
The government points to the "Means and Methods" section of the indictment, which we have quoted supra Section II.A, including paragraph 46 that alleged:
46. Defendants [NAMED DEFENDANTS], and their co-conspirators repeatedly exposed workers to unsafe and dangerous conditions, resulting in deaths and serious injuries to workers. (Dkt. 711 at 14 (cited in gov. reply br., dkt. 747 at 3).)[86]
The government in its reply brief cites alleged overt acts as to each of the six named workers, then refers to trial evidence pertaining to the incidents in which they were injured. (Gov. reply br., dkt. 747 at 3-4.)[87] It states its argument as to why each of them should qualify as a CVRA statutory crime victim [here we quote the government's reply brief], as follows:
Defendants "permitted a forklift with faulty brakes to be used by inadequately trained and uncertified employees of Atlantic States, which contributed to the death of Alfred Coxe"
(Id. (quoting alleged overt act 33).)
[T]he same inadequately trained forklift driver who ran over Mr. Coxe also injured Gabriel Marchan
(Id. (citing alleged overt acts 53-56).)
Defendant Scott Faubert "falsely told OSHA inspectors that the plant was closed down for the week and that there were no work activities taking place," which prevented OSHA from being able to monitor Randy Lieberman's cleaning of the cupola during which he fell and sustained multiple fractures
(Id. (citing alleged overt act 50).)
Robert Owens sustained a fractured skull and lost his eye when working on *524 a cut saw which had been dangerously modified to speed up production
(Id. (citing alleged overt act 57).)
Eloy Rocca burned his leg when he stepped into scalding water that was exposed because production trumped safety in the casting department, as elsewhere, at Atlantic States
(Id. (citing alleged overt act 60).)
Hector Velarde had three fingers chopped off in the cement mixer because Defendant Prisque ordered a safety device on the mixer to be bypassed rather than slow down production
(Id. at 3-4 (citing alleged overt acts 67-68).)[88]
The government cited the CVRA at oral argument, arguing that "[u]nder the plain language of the statute, a party may qualify as a victim even though it may not have been the target of the crime, as long as it suffers harm as a result of the crime's commission." (Tr. 752 at 10.) The government concludes that "as alleged by overt acts contained in the Superseding Indictment, and as proven by the United States at trial, there was a direct nexus between Defendants' conduct and the injuries and death sustained by the victims." (Gov. reply br., dkt. 747 at 3.)
The government opposes any argument by defendants that this Court may not make findings of fact to establish statutory crime victim status just because the jury did not make specific findings as to alleged overt acts. It contends that determinations of statutory crime victim status, like factual findings under the guidelines, are to be made by the district court under a preponderance of the evidence standard. It asserts that the trial evidence is sufficient for that purpose here, and acknowledges that if necessary the Court may receive additional evidence to resolve disputed issues of fact. (See tr. 752 at 13-14, 30, 35-36.)
This Court inquired during oral argument whether, in the government's view, a deceased Atlantic States worker named Sonny Peacock, who was not named in the indictment but who did sustain fatal workplace injuries at Atlantic States during the period of the alleged conspiracy, is also a statutory crime victim in this case. (Id. at 35.) We asked because the government had already sent to the Court, in preparation for sentencing, victim impact statements from Mr. Owens, and the widow of Mr. Coxe, and the widow of Mr. Peacock. When asked this question at oral argument on this motion, the government initially stated that it did not consider Mr. Peacock to be a statutory crime victim because this Court excluded all evidence about him or the circumstances of his demise from the trial evidence. (Id. at 35-36.)[89] But the government requested some time after oral argument to consider the question. No further word having been communicated by the government on that question, we assume that its position remains that only the six named workers are in the status of statutory crime victims in this case. On the other hand, the government agreed at oral argument that persons not named in an indictment can be found to be statutory crime victims, with all attendant rights under the CVRA, if the Court so finds. (Id. at 32-36.)
*525 Contentions of defendants[90]
Defendants argue several points in opposition to the government's contention in this motion that the six named workers are "crime victims" under the CVRA. Their main contentions can be summarized as follows:
The trial testimony provided by, or about, the six named workers did not pertain to the CWA or CAA offenses or conspiracy objectives, so those aspects of the case are not relevant to this motion.
There were no charges or convictions for violations of the OSHA statute, or conspiracy to violate the OSHA statute.
All of the offenses of conviction referring to OSHA were either substantive obstruction or false statement offenses, or a conspiracy to accomplish those unlawful objectives. The jury was so instructed.
The injuries suffered by the six named workers were not part of the elements of any of those substantive offenses, nor were those injuries part of the charged objectives of the conspiracy offense.
The government cannot show that the injuries suffered by the six named workers were directly and proximately linked to the essential elements of the offenses of conviction, as required under the CVRA. Any such asserted nexus is too factually and temporally attenuated to meet that standard.
The only identifiable "victim" of a false statement or obstruction offense is the United States.
"The [government] should be precluded from converting the `victim' for sentencing purposes from the United States to [these workers] because Defendants were not charged with causing the accidents; they were only charged with conduct after the accident."
(Def. opp. br., dkt. 745 at 2-8; quoted portion is id. at 2 (emphasis in original).)[91]
Defendants emphasized at oral argument their position that the government cannot show that the trial evidence, even viewed under a preponderance of the evidence standard, would support a finding by the Court that the injuries sustained by any of the six named workers were directly and proximately caused by the offenses charged. (Tr. 752 at 15-26.) Thus, they dispute factually whether the trial evidence does or could support a finding of *526 direct and proximate causation under the CVRA standard. In that connection, they assert that there are facts both in evidence and not yet in evidence indicating that each of the six named workers contributed to their own injury. (Id. at 22-23.)
Counsel for Atlantic States summed up defendants' position by stating: "Every one of these situations was an accident, Judge. What happened afterwards is what is the subject of this indictment." (Id. at 20.) Defendants contend that for the Court now to resolve factual issues of direct and proximate causation regarding the injuries to the six named workers, under the CVRA standard, would "elongate this sentencing process way beyond what anybody expects." (Id.)[92]
* * *
The parties offer a few case law citations in their briefing materials on this motion, but none are even closely analogous. As we stated in describing the federal appellate case law supra, Section I.C, there is no authority under the VWPA, the MVRA, or the CVRA that is factually similar to this case. Our findings and conclusions, set forth below, do address the case law cited by the government in support of its position. See infra Sec. II.F.
E. NO CVRA CONTENTIONS PRIOR TO THIS MOTION
This case has an extensive litigation history prior to the current motion. The government did not refer to the Crime Victims' Rights Act or mention potential statutory crime victim status for any injured workers before it filed this motion. Here we describe the significant points in the litigation history where that topic naturally would have come up or would have been suggested by the discussion on the record among Court and counsel, but it did not.
Numerous pretrial motions were filed by defendants. Those motions included a motion to strike alleged surplusage from the indictment. (Dkt. 126.) That motion argued that the allegations in the indictment concerning causation of injuries to the six named workers were surplusage and should be struck as unfairly prejudicial because defendants were not charged with causing those injuries. (Dkt. 127 at 9-11.) The government responded that such evidence was relevant and admissible because it was part of the links in the chain of events supporting the conspiracy to defraud OSHA, and was necessary to complete the story of that crime. (Dkt. 146 at 105-07.) It contended that "the injuries provide critical background or context for much of the obstructive conduct and false statements alleged in the . . . Indictment." (Id. at 107.) We denied that motion prior to trial, without prejudice, because of that representation by the government. (Tr. 213 at 56-57; dkt. 201, 9-8-05 Order.) However, at the close of trial we did redact as surplusage, from the version of the indictment provided to the jury, the entire "Background" section of the indictment that alleged the statutory and regulatory scheme enforced by OSHA.[93]
*527 The government suggested at one point during oral argument on that motion to strike surplusage, but not in its brief, that it was alleging causation of the workers' injuries in this case. The AUSA stated: "And that forklift without brakes ends up, because of not having brakes, crushing an individual and killing him, we argue is at the core of this case." This Court immediately questioned that comment, and the government responded as follows:
COURT: Just a minute. The point that you raised is one that [defense counsel] has argued. It is found partly on pages 9 and 10 of the moving brief. And it refers to the overt actsnumerous overt actswhere the physical injuries are described and related to a malfunction of some work setting or equipment, right?
GOV: That's correct.
COURT: And you're saying that people are not being charged with intentionally causing those injuries, in the form of an assault? It's not that type of a charge, right?
GOV: Correct. Rather, they're being charged with the deception and obstruction of justice, by doing things postconduct. When an individual got injured, as far as the mind set, the Government's argument is the defendants see an individual get injuredor in one instance, killedand then the next part of the conspiracy and the co-conspirators, in furtherance of the conspiracy say, what do we need to do before OSHA gets here? What do we need to do to make this look like an accident?
COURT: All right.
GOV: It'sthat is what we're arguing. So we're notyes. They were not charged with the death. They're not charged with the person losing an eye. They're not charged with the person breaking a back or breaking a bone in the foot. But it's what they did after; the lies and the deception, subsequent to that.
COURT: Okay.
(Tr. 165 at 38-39.)
Another pretrial defense motion was to dismiss the OSHA-related obstruction counts (Counts 8, 9, and 10), and the corresponding conspiracy objectives, on the *528 ground that the essential element of a "pending proceeding" by OSHA was not adequately pleaded in the indictment. (Dkt. 134 at 9-14.) At oral argument on that motion, the government made the following accurate statements concerning the theory of those charges:
GOV: [E]ach of these incidents in [Counts] 8, 9, and 10, this was not . . . an unannounced, routine inspection, that was basically triggered by nothing. In each of these cases, the inspection was triggered or the investigation was triggered by a serious incident. And in each of those cases, OSHA came in to investigate particular injuries in those cases. In each of those cases, the efforts were made to cover up and misrepresent and change accident scenes, so that OSHA would get off the trackto thwart OSHA in pursuing its investigation furtherobviously, to an end result that could have involved the more formal type of proceeding that the defense is attempting to define here. . . . The law we cite defines pending proceeding broadly. It clearly encompasses OSHA's particular efforts, in these three incidents [involving Messrs. Coxe, Owens, and Marchan], OSHA's particular efforts, in these three incidents, to investigate very serious accidents in the workplace.
This whole indictment is about this group of defendants being aware of the trouble that OSHA and the EPA could cause them in their production of pipe, and their efforts to thwart those agencies in doing their job. I think it's obvious, both from the charges here and clearly, the facts that will be adduced at trial, that these defendants were aware of the workings of OSHA, about the seriousness of particular investigations, involving particular accidents at those sites.
(Tr. 173 at 78-80.) We denied that motion, finding that the obstruction element of a "pending proceeding" was adequately pleaded in those counts. (Tr. 213 at 61-62; dkt. 207, 9-9-05 Order.)
Pretrial in limine motions by defendants provided another opportunity to discuss the evidence to be adduced at trial and how it was relevant to the charged offenses. Defendants moved to exclude medical records of injured workers included in the government's proposed exhibit list, including records on workers Lieberman and Owens, who were named in the indictment, and fatal injuries to worker Peacock, who was not so named. (Dkt. 171 at 11-12.) Again, the government's opposing brief stated that the injuries were relevant to the obstruction charges because they provided context and motive for the alleged obstruction. (Dkt. 188 at 15-17.) The defendants argued that by introducing medical records of injured workers, the government sought "to introduce these medical records to somehow place blame on Defendants for the injuries, despite the fact that they are not charged with causing the accidents," and that such would be unduly prejudicial. (Dkt. 192 at 19.) The Court denied that motion without prejudice as well, but required the government to give advance notice if, during trial, it sought to introduce evidence on any injuries not mentioned in the indictment so that a ruling could be made. (Tr. 213 at 20-28, 37-39; tr. 231 at 20-23; dkt. 665,11-14-06 Order.)
The government again, during oral argument on the defense in limine motions, momentarily suggested that the indictment in effect charged OSHA violations, stating:
Paragraph 39C says the object was to defraud OSHA and impede their investigations. And impede their functioning by concealing OSHA violations.
(Tr. 213 at 10 (emphasis added).)
Defense counsel immediately corrected that suggestion and the Court agreed, stating:
*529 FAUBERT COUNSEL: I just want to make just one note. I know you may know this. . . . But, we're not defending OSHA violations here. I mean, we're defending alleged lies to OSHA agents, albeit.
COURT: Right.
FAUBERT COUNSEL: But, if Sonny Peacock unfortunately is killed on the job and there's no allegation anybody lied about anything, then I'm not prepared to start defending everything anybody ever did that got hurt. This is a foundry, there are going to be a lot of injuries here. Even if we're in the middle of the [safety statistic] percentiles.
COURT: Yes.
(Id. at 22-24.)
Defense counsel in that in limine motion outlined some of the causation proof problems that would arise if defendants were to have to address injury causation issues, including contributory conduct by the injured worker or others. (See dkt. 192 at 21; tr. 213 at 6-7, 37-39.) They also gave some indication of the number and variety of OSHA inspections conducted over the approximately eight-year period of the alleged conspiracy. (Dkt. 192 at 16.) Counsel for Atlantic States elaborated at oral argument:
ATLANTIC STATES COUNSEL: [T]here's numerous OSHA inspections that are done during the course of almost anything that happens. Almost every shutdown that we have, one union will always call OSHA against another union. That's independent contractors. OSHA always appears whenever we have shutdown because independent contractors, that's the way they compete with one another, one calls . . . OSHA on the other. It has little or nothing to do with Atlantic States, other than the fact it's on our site.
There are other times when OSHA gets called and arrives. Or, they arrive unannounced. But, for us to now in front of this jury argue each one of the OSHA visits and/or citations and the ultimate disposition and whether or not they impact in any way, shape, or form on this particular charge, these particular overt acts and the counts, I think is highly prejudicial to us. [I]t's going to be a very long trial to start with. The trial will become impossible at that point and unmanageable for us to have to defend against all those.
(Tr. 213 at 5-6.)[94]
The defense in limine motion on that point was resolved, at least pre-trial, in the following exchange between the Court and the prosecutor:
GOV: I think, as stated in my letter, I think the issue is some of the injuries that could come up throughout the trial could be for a purpose other than triggering an OSHA investigation. It may be for an intimidation or retaliation against a witness. It may be having something to do with maximizing production at the plant. So . . . it would have to do with the means and methods used in the conspiracy. But at the same time, as stated in our letter, we are not planning to have OSHA investigations, people from OSHA get up and talk about injuries that are not alleged in the indictment. . . .
We don't know where this case is going to bring us. And we're not bringing forth all of these injuries, as [Atlantic States] counsel said in an earlier hearing. Injuries happen there every *530 day. We're not planning to bring in hundreds of injuries. But at the same time, it's very tough for us to try to limit ourself, to say only anything in the indictment and nothing else will possibly come out of any of our witnesses' mouths, because it's too
COURT: I'll just have to see where it fits into the framework of relevance.
GOV: Yes.
(Tr. 231 at 20-23.)
There were other skirmishes between the parties on the topic of admitting evidence of other injuries, or opening the door to causation issues during trial, but all of those were resolved in the course of the trial such that no injuries except those to the six named workers (and one to cooperating co-conspirator George Shepherd, alleged overt act number 66) were allowed into evidence. During none of the pretrial motion practice, or the ongoing rulings required of the Court during the trial, did the government state or indicate that CVRA statutory crime victim status was contemplated for any persons.
When the trial began, this Court directed sequestration of all trial witnesses, with the exception of stated individuals such as the case agent, defendants' spouses, and prospective expert witnesses. (Tr. 233 at 6-7.) This was granted on joint request of the government and defense counsel. (Id.) Both sides policed that sequestration order throughout the trial.
The government's opening statement to the jury described the OSHA-related aspect of the indictment as follows:
[K]eep in mind, and this goes to the tragedy and coverup, what I call the tragedy and coverup part of the case, this case is not about assessing fault or finding cause [in] any of these incidents. My recitation shows in several instances these workers surrendered to the pressure put on them to make [pipe] and to ignore safety systems. And indeed, they may have contributed [in] some of these cases to their injuries. The crime here is of the coverup.
(Tr. 234 at 101.)
The government did not assert during trial that any person had a CVRA right to be present and not to be sequestered, nor did anyone assert such a right on his or her own behalf. This is true even though the government presented all five living named injured workers as trial witnesses in this case. See, e.g., In re Mikhel, 453 F.3d 1137, 1139-40 (9th Cir.2006) (granting government's CVRA petition and remanding to district court for findings by clear and convincing evidence standard whether family members of murder victims were highly likely to alter their testimony as prospective witnesses, sufficient to support sequestering them from attending trial).
Closing arguments were an opportunity for the government to make an emotional appeal, which it expressed as follows:
The word verdict has [roots] in Latin, verde, which means the truth. You, the jury, will have the ability to speak the truth after you hear all argument summations, and you take the evidence and you deliberate. Now, you will also have the opportunity to give your opinion and judgment based on the evidence. Now, in this case, I submit to you, speak the truth. Speak the truth for all the people who were deliberately deceived by Atlantic States and these individual defendants. Speak the truth for all the laborers, who were forced to burn and discharge oil, tires and paint, which escaped from Atlantic States and went into the environment. Speak the truth for Bobby Owens. Speak the truth for Eloy Rocca. Speak the truth for Hector Velarde. Speak the truth for Al Coxe. Thank you.
(Tr. 564 at 158.)
This elicited an immediate motion for mistrial from defendants for alleged prosecutorial *531 misconduct. (Dkt. 575.) There, defendants argued that the government's exhortation to the jury to "speak the truth" for those injured workers was "designed solely to incite the jury to convict Defendants for causing the accidents discussed in this trial and for unfair treatment of Atlantic States workers." (Id. at 8.) They reiterated that "[t]hese issues have absolutely nothing to do with the allegations of the Indictmentpost-accident efforts to obstruct OSHA." (Id.) The motion for mistrial on that ground was denied, but the government did not, in connection with that motion, suggest any CVRA crime victim issue. (Dkt. 697, 11-30-06 Order (with transcript references).)
The briefing and rulings on the posttrial Rule 29 and Rule 33 motions consumed many pages and many months, for both the parties and the Court. (See dkt. 721.) At no time during that phase of the case did the government suggest that CVRA crime victim status might enter into the case.
The briefing and oral argument on the Step One guidelines calculations came next. (See infra n. 104.) There, the government contended that "the workers and their families [were] very real victims in this case. . . . Within this conspiracy, Defendants treated Atlantic States' workers as expendable fodder for their criminal enterprise." (Gov. Br. 11-30-07, submitted to chambers re: sentencing.) The government stated that it intended to submit victim impact statements to the Court and to the U.S. Probation Office. Id.
The government submitted some victim impact letters, including letters from the widow of Mr. Peacock, as well as Mr. Owens and the widow of Mr. Coxe. That submission was silent, however, as to any intention to submit those statements under the CVRA rather than under the Court's authority to consider information under 18 U.S.C. § 3661.
The government submissions to the Probation Office for preparation of the Presentence Report also have not sought or suggested a right to restitution on behalf of any person.[95]
* * *
This chronology of events demonstrates that the government did contend that injured Atlantic States workers were "victims" of the conspiracy to obstruct OSHA in a broad sense throughout this case. The government, however, did not mention, cite, or invoke the Crime Victims' Rights Act as being possibly applicable until the current motion was filed.
F. FINDINGS AND CONCLUSIONS OF THE COURT
The CVRA requires that any motion seeking relief thereunder must be decided by the district court "forthwith," and "[t]he reasons for any decision denying relief . . . shall be clearly stated on the record." 18 U.S.C. § 3771(b)(1), (d)(3). Denial of any of the relief sought is subject to a mandamus petition that must be decided by the court of appeals within 72 hours after the petition has been filed. "If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion." Id. § 3771(d)(3).
We have written at length, and as quickly as the topic has permitted us to do, because in our view there are substantial legal and constitutional issues raised here. Indeed, we believe that some of the issues *532 raised in this motion highlight unresolved constitutional issues under the restitution statutes. Those issues are only intensified by the novelty of the CVRA because it draws its definition of "crime victim" from the restitution statutes. We will explain as best we can, but we see that this is a complicated and multi-faceted situation.
The government originally brought this motion seeking to compel the Court to reset a sentencing date, at a time when the Court was actively deliberating upon serious and substantial guidelines issues that had been raised in the Step One briefing process and had so informed the parties. The government invoked the CVRA rather than Rule 32(b), which was also available for the purpose of pressing for a sentencing date. (Dkt. 744 at 5.) Defendants agreed that sentencing should be completed, as did the Court; that was never an issue. As soon as the Court rendered its tentative rulings on the Step One issues, we rescheduled the additional steps leading to firm sentencing dates for all defendants, as we had informed the parties we would do. Meanwhile, however, this motion had been filed. See supra Preliminary Statement.
Defendants responded to this motion stating that they did not oppose setting sentencing dates, and indicating their confidence and expectation that the Court was doing, and would do, what it said it would do in that regard. (Dkt. 745 at 1, 8-9.) Defendants strongly opposed, on the merits and as a procedural matter, any suggestion that the six named workers have statutory crime victim status under the CVRA in this case. (Id. at 1-8.) This contention, as we have seen, was raised by the government for the first time in this case when it filed the present motion. Prior to that, the government had characterized all injured workers and their families simply as "victims," without seeking restitution or invoking the CVRA on behalf of any of them. See supra Sec. II.E.
The government then asserted, in its reply brief, that this motion also seeks to afford the six named workers, or their families or representatives, a right under the CVRA to allocute at the defendants' sentencing hearings, by providing victim impact statements in person or on paper. (Dkt. 747 at 4.) The government reiterated at oral argument that it is asserting a demand for statutory rights under the CVRA, rather than a request that the Court exercise its discretionary power to allow such statements under 18 U.S.C. § 3661. See supra Sec. II.D. We set the renewed sentencing dates on the day of oral argument on this motion, and also attended to oral argument on other sentencing-related issues. (Dkt. 751, 2-5-09 Scheduling Order.) To that extent, therefore, this motion is moot.
The issue that requires resolution in this opinion is whether the six named workers, or their representatives, have statutory crime victim status under the CVRA. We hold that, in this case, the six named workers are not statutory crime victims under the CVRA of the offenses of conviction. We recognize, however, that the Court has discretion to consider allowing them or their representatives to present information to the Court in connection with sentencing, pursuant to 18 U.S.C. § 3661. Our findings and conclusions are set forth below.
* * *
A person who is a "crime victim" under the CVRA has an array of enumerated rights, including the right to allocute at sentencing, either in person or, if that is not possible, through family members or other persons appointed by the court as suitable to assume the crime victim's rights. 18 U.S.C. § 3771(a)(4), (e). A "crime victim" is defined in the CVRA as *533 "a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia." Id. § 3771(e). This definition is based upon the definition of "victim" in the restitution statutes, the VWPA and the MVRA. See supra Sec. I.B.
The CVRA also provides that one of the enumerated rights of a CVRA "crime victim" is "[t]he right to full and timely restitution as provided in law." 18 U.S.C. § 3771(a)(6). This provision is not considered to confer substantive rights to restitution. In re Doe, 264 Fed.Appx. at 262 n. 2. Those rights are provided under the restitution statutes, chiefly the VWPA and the MVRA. The VWPA provides for a discretionary award of restitution to a statutory "victim" if the offense of conviction is within its stated offenses, unless the MVRA specifies that the offense requires mandatory restitution. See 18 U.S.C. § 3663(a); id. § 3663A(a). The relevant offenses in this case would fall under the VWPA rather than the MVRA, but the definition of "victim" under both of those restitution statutes is identical. See supra Sec. I.B.
The first conclusion that emerges from examining this statutory scheme is that if a person is determined to have statutory "crime victim" status under the CVRA, then that person is also a "victim" under the VWPA or the MVRA, if the offense of conviction is within the offenses specified in those restitution statutes. This is clear from comparing the parallel definitions of "victim" in the three statutes, as expressly intended by Congress. See supra Sec. I.B. This would also be true for any federal offense, not just those specified in the VWPA or the MVRA, if restitution is agreed to as part of a plea agreement. See 18 U.S.C. § 3663(a)(3).
A single statutory section governs the procedure for issuance and enforcement of an order of restitution, and its collateral estoppel effect in civil litigation, under both the VWPA and the MVRA. See 18 U.S.C. § 3664. In addition to its collateral estoppel effect in civil litigation, an order of restitution imposed as part of a criminal sentence cannot be discharged in bankruptcy. See Kelly v. Robinson, 479 U.S. 36, 50, 53, 107 S. Ct. 353, 93 L. Ed. 2d 216 (1986).
The government can assert rights to restitution under the VWPA and the MVRA on behalf of alleged "victims." Id. § 3664(d)(1). The government in this case has never asserted that the six named workers, or any other persons injured at the Atlantic States facility during the relevant period, are entitled to be considered for a VWPA restitution award as part of the sentencing of any defendant. See supra Sec. II.E. Courts have, however, found it necessary under the VWPA and the MVRA to seek out potential statutory "victims," and to adjudicate their rights to restitution, if any, even if the government fails or refuses to claim restitution on their behalf. See supra Sec. I.D.
The fact that the government has not sought restitution on behalf of any asserted "crime victims" in this case is of no moment. Nor is the fact that the offenses of conviction implicated in this motion would fall under the VWPA, which makes restitution discretionary, rather than the mandatory MVRA restitution statute. It would be an abuse of discretion for a district court to simply ignore the potential for restitution without considering whether there are potential victims and whether the court should exercise its discretion to order restitution where the offenses of conviction are within the VWPA. See supra nn. 41-43 and accompanying text.
If there are CVRA "crime victims" here, they would be entitled to be at least considered for a discretionary order of restitution in the full amount of each "victim's" *534 losses under the VWPA.[96] In this analysis, all co-conspirators found guilty of the offense are criminally liable to all "victims" for restitution. The VWPA permits this award to be joint and several, or imposed in different amounts on different defendants. Those factual issues must be determined in consideration of each defendant's current and future ability to pay. See supra Sec. I.D. Also, whether restitution is awarded under the VWPA or the MVRA, the court must determine the payment schedule under the statutory formula set forth in 18 U.S.C. § 3664(f)(2). See supra Sec. I.D.
The majority of the federal circuits, including the Third Circuit, has ruled that restitution, when ordered in connection with a criminal conviction, is a criminal, rather than a civil, penalty. Leahy, 438 F.3d at 333-35. Our Court of Appeals, in a divided en banc decision in Leahy, has also joined the majority of federal circuits in holding that a restitution order under the VWPA or the MVRA does not violate a defendant's Sixth Amendment right to trial by jury as articulated in Supreme Court precedent beginning with Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and culminating in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Id. at 335-39.
Leahy was actually three criminal appeals that were combined for en banc determination of whether district courts' orders of forfeiture and restitution violated the Sixth Amendment right to trial by jury. Id. at 330. The underlying convictions were for bank fraud, dealing in counterfeit money, and mail/wire fraud (two under jury verdicts; one under a guilty plea). Id. In each of the cases the statutory victim status was not disputed. The only issues before the en banc court were the Sixth Amendment issues under the Apprendi line of cases ending in Booker, which are all silent as to forfeiture and restitution. Id. at 330-31. The Leahy court concluded as to restitution:
In imposing restitution, a district court is . . . by no means imposing a punishment beyond that authorized by juryfound or admitted facts. . . . [A] restitution order does not punish a defendant beyond the "statutory maximum" as that term has evolved in the Supreme Court's Sixth Amendment jurisprudence. See Booker, 125 S.Ct. at 749 (defining "statutory maximum" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant") (citing [Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)]) (emphasis in original). . . . There can therefore be no Booker violation in the imposition of restitution under the VWPA or the MVRA.
Id. at 337.
As we have observed, it is clear that the definitions of "victim" under the CVRA, the MVRA, and the VWPA have been aligned by Congress to identify a common core group of persons who have powerful and enforceable rights under those statutes. See supra Sec. I.B. Therefore, at least where a determination of CVRA "crime victim" status carries with it an entitlement to be considered for discretionary restitution under the VWPA or to receive mandatory restitution under the *535 MVRA, it appears that any Sixth Amendment limitation on the MVRA and the VWPA is equally applicable to determinations of "crime victim" status and commensurate rights under the CVRA.
The reason underlying the majority opinion in Leahy was hotly debated by the en banc court, and is, beyond the scope of this opinion to discuss. However, the stated rationale in Leahy was that the district court's fact-finding as to the amount of loss "merely give[s] definite shape to the restitution penalty born out of the conviction," so there can be no Booker violation in awarding restitution to each victim. Leahy, 438 F.3d at 337. The Leahy majority also expressed that "for purposes of sentencing under Apprendi and Blakely, whether a fact is labeled a sentencing fact or an element of the offense is of no consequence" because "the relevant `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose based solely on facts reflected in the jury verdict or admitted by the defendant." Id. at 336 (citing Blakely, 542 U.S. at 303-04, 124 S. Ct. 2531).
Leahy teaches that a restitution order does not create Sixth Amendment problems under Booker because criminal liability for restitution is based only on the "facts reflected in the jury verdict or admitted by the defendant." Id. Leahy dealt with whether the district court could, consistent with the Sixth Amendment right to jury trial, determine the amount of restitution. See id. at 335-38. The convictions under review in Leahy presented no dispute as to whether there were statutory "victims" under the VWPA and the MVRA, or how to identify those "victims" for purposes of making restitution determinations under those statutes. See id. at 330. But the rationale of Leahy appears equally applicable where a court must make findings on disputed issues of "victim" status itself. This is necessary whether we apply the CVRA or the VWPA because a finding of CVRA "crime victim" status for the offenses of conviction here, arising as they do out of Title 18 of the United States Code, will automatically create "victim" status under the VWPA for all those so identified by this Court.
We believe that where, as here, the Court's ruling on a disputed issue of "crime victim" status under the CVRA will automatically create "victim" status for purposes of restitution under the VWPA or the MVRA, the Court must avoid creating a Sixth Amendment Booker problem. The way to do that, as explained in Leahy, is to base the Court's ruling "solely on facts reflected in the jury verdict or admitted by the defendant." Id. at 336.
It must also be recognized, however, that the definition of "crime victim" in the CVRA, and the corresponding definitions of "victim" in the VWPA and the MVRA, take as a given that there has been a "federal offense" committed. Those definitions ask the court to make factual findings to determine whether any person was "directly and proximately harmed as a result of the commission of [the] Federal offense," and is thus a statutory crime victim with enforceable rights. Compare 18 U.S.C. § 3771(e), with id. § 3663(a)(2), and id. § 3663A(a)(2). As one circuit court has observed:
The CVRA . . . does not limit the class of crime victims to those whose identity constitutes an element of the offense or who happen to be identified in the charging document. The statute, rather, instructs the district court to look at the offense itself only to determine the harmful effects the offense has on parties. Under the plain language of the statute, a party may qualify as a victim, even though it may not have been the target of the crime, as long as *536 it suffers harm as a result of the crime's commission.
In re Stewart, 552 F.3d at 1289.
It appears that in order for a district court to make the necessary factual findings under those statutory definitions of "crime victim," while simultaneously seeking to avoid a Booker Sixth Amendment violation, the court should employ a two-step analysis:
First, the court should determine what was the offense of conviction, based solely on facts reflected in the jury verdict [or admitted by the defendant];
Second, the court should make the factual findings to determine whether any person or persons were "directly and proximately harmed as a result of the commission of [that] Federal offense."
We will follow that approach here.
District court decisions on contested issues of statutory crime victim status have generally followed this two-prong approach, without expressly articulating it as such, drawing upon the body of appellate case law that we have summarized in Sections I.B and I.C. See, e.g., United States v. Donaghy, 570 F. Supp. 2d 411, 415, 420-23 (E.D.N.Y.2008) (three co-conspirators pled guilty to wire fraud conspiracy and/or conspiracy to transmit wagering information in connection with insider betting recommendations on professional basketball games; basketball league was MVRA/ VWPA victim); United States v. Bogart, 490 F. Supp. 2d 885, 888-97, 903-07 (S.D.Ohio 2007) (five co-conspirators pled guilty to varying offenses including conspiracy to obstruct a federal grand jury, conspiracy to impede the IRS, conspiracy to commit wire fraud, mail fraud, and tax fraud, which the court found were all committed as part of a complex conspiracy to aid another co-conspirator in hiding his assets from his creditors, his ex-wife, and the U.S. government; creditors were MVRA victims entitled to restitution; ex-wife was also potential MVRA victim but evidence did not establish any losses to her directly caused by the conspiracy); United States v. Sharp, 463 F. Supp. 2d 556, 558-68 (E.D.Va.2006) (defendant pled guilty to conspiracy to distribute marijuana; former girlfriend of defendant's customer was not CVRA victim of the offense of conviction where former girlfriend contended that her abuse by the defendant's customer was at least partly attributable to the drugs defendant sold to him); United States v. Schwartz, No. 3:06CR2, 2006 WL 1662899, at *1-*6 (D.Conn. May 25, 2006) (defendant pled guilty to false statements to IRS for falsely telling IRS auditors that tax returns had been filed by himself and the CEO of the company for which he worked; CEO and spouse were not MVRA or VWPA victims; alternatively, court declined to determine restitution under VWPA due to complexity of determining liability issues); United States v. Bold, 412 F. Supp. 2d 818, 820-28 (S.D.Ohio 2006) (defendant pled guilty to tax evasion, bank fraud, and conspiracy in connection with "mortgage flipping" scheme involving approximately 800 homes purchased and resold under inflated mortgages obtained using falsified appraisals and buyer financial statements, many of which went into foreclosure; no individuals claimed statutory victim status; nonprofit community group asserting deterioration of property values in the affected neighborhoods and surrounding communities was not MVRA or VWPA victim).
The government cites United States v. Sandhu for its reference to possible application of the CVRA to permit victim allocution at sentencing. (Dkt. 747 at 2-3.) 462 F. Supp. 2d 663 (E.D.Pa.2006), aff'd, 268 Fed.Appx. 163 (3d Cir.2008). We find that the decisions in that case, at the district court and circuit court levels, do not support the government's arguments here. Defendant in Sandhu was a licensed commercial *537 truck driver who pled guilty, under 18 U.S.C. § 1001, to forty-two counts of having falsified federally-required log book records recording his driving and off-duty hours (the "logbook requirement"). 462 F.Supp.2d at 664. A related federal regulation required drivers to refrain from driving more than ten consecutive hours without at least eight hours of rest (the "ten hour rule"). See id. Defendant swerved while driving his truck and crashed into a van, killing four members of a family and seriously injuring two others. Id. at 663. State vehicular manslaughter and related charges were ultimately resolved with a plea to careless driving. Id. A federal investigation revealed that during the two months leading up to the accident date, defendant had falsified his logbook entries pertaining to the ten-hour rule forty-two times. Id. at 663-64. That was the federal charge to which he pled guilty. Id. at 664. In preparation for sentencing, the government informed the district court that it proposed to offer victim impact testimony of two relatives of the victims of the collision. Id. at 665-66. Defendant moved to strike and preclude such statements. Id. at 664. The district court, citing the CVRA, stated that "[o]nly if, after examining the parties' evidentiary submissions, [it] determines . . . that there is a nexus between the falsifications and the accident, will the family members be considered `crime victims' for purposes of giving testimony." Id. at 666 n. 9. It went on to discuss at length the possible impact of the logbook falsifications on its upcoming sentencing decisions under the guidelines and the sentencing statute, 18 U.S.C. § 3553(a). Id. at 666-75. The district court denied defendant's motion to strike the evidence and gave notice of a possible upward guideline departure or upward variance under Section 3553(a). Id. at 675.
Defendant appealed the sentencing decision ultimately rendered by the district court in Sandhu, which included an upward variance but no departure. United States v. Sandhu, 268 Fed.Appx. 163, 164-65 (3d Cir.2008). The sentence was affirmed, without any citation to or discussion of the CVRA. Id. at 164-66. The circuit court's summary of the sentencing decision, however, indicates that the district court did not find statutory crime victim status or permit allocution of the accident victims' family members under the CVRA in that case. Id. at 164. It stated, "[t]he District Court declined to depart under § 5K2.1 . . . because there was insufficient evidence that Sandhu was fatigued at the time of the crash, or that he was violating the `ten hour rule.'" Id. at 164-65. The circuit court noted that at the sentencing hearing, "the District Court heard from a truck driver who witnessed the crash, the agent who investigated Sandhu's logbook, and several of Sandhu's friends and family." Id. at 164 (emphasis added). In affirming the sentence, the panel emphasized that "the District Court explicitly stated that the upward variance reflected Sandhu's `repeated violations over a short period of time' of 18 U.S.C. § 1001 and 49 C.F.R. § 395.8 [the logbook rule; not the ten-hour rule], not his `causing or being involved in [the] accident.'" Id. at 166.
The circuit court in Sandhu had no occasion to pass on any issue of statutory "crime victim" status under the CVRA, the VWPA, or the MVRA because the only CVRA issue was apparently resolved in defendant's favor at the district court level, and the restitution statutes were never invoked. See id. at 164-66. A further distinction between that case and the present motion is that defendant Sandhu apparently admitted in his plea that he had violated the logbook regulatory standard. See Sandhu, 462 F.Supp.2d at 664.[97]*538 Here, in contrast, there was no guilty plea, and the offenses of conviction, both substantive and as conspiracy objectives, were to obstructive conduct and false statements committed after accidents occurred. There were no charges or convictions in this case under the OSHA false records criminal statute, 29 U.S.C. § 666(g). See supra Sec. II.C. We decline to speculate under what circumstances a false statement conviction based on a logbook violation, or a corresponding logbook offense itself, or even a conspiracy with such objectives, could support CVRA crime victim status where a defendant does not plead guilty and the facts established by the verdict are limited to the logbook violation.
What were the offenses of conviction?
We conclude as a matter of law that the offenses of conviction relevant to this motion, based solely on facts reflected in the jury verdicts, are as follows:[98]
Count 9: Obstruction of OSHA, in violation of 18 U.S.C. §§ 1505 and 2.[99]
The essential elements of the substantive offense are stated in the margin.[100]
The sole facts reflected in the jury verdicts on Count 9, by reference to the essential elements and the factual allegations in this Count, as well as the supporting evidence, were that between on or about March 24 and March 25, 2000, defendants Atlantic States, Prisque, Faubert, and Maury did corruptly obstruct, impede, and endeavor to obstruct and impede, a pending OSHA proceeding, by taking steps to conceal from OSHA inspectors facts regarding the forklift incident in which Mr. Coxe was fatally injured on March 24, 2000.
Count 5: Making a materially false statement to OSHA, in violation of 18 U.S.C. § 1001.
The essential elements are stated in the margin.[101]
*539 The sole facts reflected in the jury verdict on Count 5, by reference to the essential elements and the factual allegations in this Count, as well as the supporting evidence, were that on or about March 25, 2000, defendant Atlantic States, in a matter within the jurisdiction of OSHA, knowingly and willfully made a materially false statement in a report, knowing it to contain a materially false statement that the forklift involved in the fatality the day before was inspected and found to be "in perfect operating condition," when in truth and in fact, as that defendant then well knew and believed, that forklift on March 25, 2000 (the day after the Coxe forklift fatality) had several defects, including faulty brakes.
Count 7: Making a materially false statement to OSHA, in violation of 18 U.S.C. § 1001.
The essential elements are stated supra n. 101.
The sole facts reflected in the jury verdicts on Count 7, by reference to the essential elements and the factual allegations in this Count, as well as the supporting evidence, were that on or about May 11, 2000, defendants Atlantic States and Faubert, in a matter within the jurisdiction of OSHA, knowingly and willfully made a false statement and representation, that is, Faubert stated to OSHA inspectors that the reason there was no entry on the OSHA 200 log concerning an April 27, 1999 incident was because Gabriel Marchan did not break his leg, when in truth and in fact, as Faubert then well knew and believed, Mr. Marchan sustained a fractured bone in his leg on April 27, 1999, after being struck by a forklift.
Count 10: Obstruction of OSHA, in violation of 18 U.S.C. § 1505.
The essential elements are stated supra n. 100.
The sole facts reflected in the jury verdicts on Count 10, by reference to the essential elements and the factual allegations in this Count, as well as the supporting evidence, were that on or about July 24, 2000, defendants Atlantic States and Faubert did corruptly obstruct, impede, and endeavor to obstruct and impede, a pending OSHA proceeding, by instructing Mr. Marchan to falsely inform the OSHA inspectors that his leg had not been broken when he had been struck by a forklift on April 27, 1999.
Count 8: Obstruction of OSHA, in violation of 18 U.S.C. § 1505.
The essential elements are stated supra n. 100.
The sole facts reflected in the jury verdicts on Count 8, by reference to the essential elements and the factual allegations in this Count, as well as the supporting evidence, were that in or about July 1999, defendants Atlantic States and Prisque did corruptly obstruct, impede, and endeavor to obstruct and impede, a pending OSHA proceeding by instructing "employee B" [whose name was known to the jury and who did testify at trial] to falsely inform the OSHA inspectors that the saw safety shield had not been changed since the June 25, 1999, incident in which Robert Owens sustained a fractured skull and lost an eye when a saw blade broke apart, when, in fact, a steel wire screen had been added to the shield after the incident.
*540 Count 11: Obstruction of OSHA, in violation of 18 U.S.C. § 1519.
The essential elements are stated in the margin.[102]
The sole facts reflected in the jury verdicts on Count 11, by reference to the essential elements and the factual allegations in this Count, as well as the supporting evidence, were that in or about December, 2002, defendants Atlantic States and Prisque, did knowingly alter, conceal, and cover up a tangible object with the intent to impede, obstruct, and influence the proper administration of a matter within the administration of OSHA, by altering the condition of a cement mixer and concealing from the OSHA inspectors that they had bypassed a safety device designed to shut down the cement mixer when its doors were opened.
This count also contains the phrase, at the end of the text of Count 11: "which led to the amputation of three of an employee's fingers." (Dkt. 711 at 43.) We find that this factual allegation concerning the causation of the underlying incident involving Hector Velarde, which was the subject of the then-pending OSHA investigation, was not a fact necessary to establish this count of conviction. It is therefore surplusage for purposes of determining the sole facts reflected in the jury's verdict on this obstruction of justice count.
Count 1: Multi-object conspiracy, in violation of 18 U.S.C. § 371.
The essential elements are stated in the margin.[103] The jury's verdict under a § 371 conspiracy count will generally be analyzed according to the alleged unlawful objectives of the conspiracy. Cf. Kones, 77 F.3d at 70 n. 3; see supra n. 16 and accompanying text. The relevant objectives here are Objective C (to defraud the United States); Objective D (to make false statements in violation of 18 U.S.C. § 1001); and Objective E (to corruptly obstruct OSHA in violation of 18 U.S.C. § 1505). (Id. at 11-12.)
The sole facts reflected in the jury verdicts, by reference to the essential elements and the factual allegations in Count 1, as well as the supporting evidence, were that beginning at an unknown time but no later than October 31, 1995, and continuing thereafter until an unknown time but no earlier than August 2003, defendants Atlantic States, Prisque, Faubert, and Maury did knowingly and willfully conspire and *541 agree with each other to commit the following offenses against the United States:
C. To defraud the United States, that is, to hamper, hinder, impede, impair and obstruct by craft, trickery, deceit, and dishonest means, the lawful and legitimate functions of the Department of Labor and its agency, OSHA, in enforcing the federal safety and health regulations covering certain workers throughout the United States;
D. To knowingly and willfully make materially false, fictitious and fraudulent statements and representations and make and use a false writing and document knowing the same to contain a materially false, fictitious, and fraudulent statement, in matters with the jurisdiction of OSHA, in violation of 18 U.S.C. § 1001; and
E. To corruptly influence, obstruct, and impede, and endeavor to influence, obstruct, and impede, the due and proper administration of law under which a pending proceeding was being had before OSHA, in violation of 18 U.S.C. § 1505 and its definition section, 18 U.S.C. § 1515(b);
and that at some time during the existence of the conspiracy, one of the members of the conspiracy knowingly and willfully committed an overt act, and that overt act or acts were committed to further some goal of the conspiracy.
Were any persons "directly and proximately harmed as a result of the commission of [these] Federal offense[s]"?
"The conduct underlying the offense of conviction . . . stakes out the boundaries" for determining whether an individual has statutory crime victim status. See Akande, 200 F.3d at 141 (interpreting CVRA's source definition of "crime victim" in the MVRA and the VWPA). "Although victims need not be specifically named in the indictment or at trial, their harm must still be directly and proximately caused by the criminal conduct that is established by the prosecution." Id.
The Third Circuit, interpreting the statutory definition of "victim" under the VWPA, a source statute for the CVRA, where the conviction is for a scheme or conspiracy, has ruled that "`defendant's criminal conduct in the course of the . . . conspiracy" . . . mean[s] conduct that is both engaged in the furtherance of the . . . conspiracy . . ., and proscribed by the criminal statute the defendant was convicted of violating." Kones, 77 F.3d at 70 (emphasis added) (quoting 18 U.S.C. § 3663(a)(2)). Our Court of Appeals has also interpreted the causation standard, "directly and proximately harmed," in the corresponding definition of "victim" in the MVRA, as subject to the following twoprong test:
First: Restitution should not be ordered in respect to a loss which would have occurred regardless of the defendant's conduct. . . .
Second: Even if but for causation is acceptable in theory, limitless but for causation is not. Restitution should not lie if the conduct underlying the offense of conviction is too far removed, either factually or temporally, from the loss.
Fallon, 470 F.3d at 548-49 (citations omitted). See supra Sec. I.B.
We find that the only victim "directly and proximately harmed" as a result of these federal offenses was OSHA. We do not make a similar finding with respect to the six named workers, for the reasons stated below.
Each of the substantive convictions, against only particular defendants, was an obstruction or false statement during the OSHA investigation after the worker in *542 question had been injured. That criminal conduct cannot support a factual determination that the obstruction or false statement "directly and proximately harmed" the worker whose injury OSHA was investigating. Perhaps in recognition of that impediment, the government concentrates its CVRA argument on the conspiracy count. See supra Sec. II.D.
The OSHA-related conspiracy convictions were against all defendants we have identified as relevant to this motion, namely Atlantic States, Prisque, Faubert, and Maury. If we find that there are statutory victims of the conspiracy offense, then each of those defendants is criminally liable to all of the statutory victims, both for the exercise of the victims' CVRA rights and for the Court to consider restitution awards in favor of each victim under the VWPA. See supra Sec. I.D. This result will occur despite the fact that only the employer, and not individual supervisory employees, can be liable for criminal violations of the OSHA statute itself. See supra Sec. II.C.
The main problem with the government's conspiracy count argument is that it is at once too broad and too narrow. The government contends "that the six named workers, and only they, have CVRA statutory crime victim status in this case. See supra Sec. II.D. Yet the government itself stated at oral argument:
[T]he government's theory of the case here is that the continuing deception of OSHA not only involved the coverup after the injuries, but in large measure was responsible for the injuries themselves.
(Tr. 752 at 27.) See also supra n. 85.
It is obvious that under that argument, all workers who sustained any significant injury during the course of the alleged conspiracy could be considered CVRA and VWPA crime victims in this case, and theoretically without any need for further fact-finding by the Court. We find that is simply too broad a factual premise to meet the statutory standard of "direct and proximate" harm caused by the conspiracy offense of conviction. Each of those injuries would have occurred in a separate incident, at a different time, and under different circumstances. The argument is also too narrow because the government offers it to support statutory crime victim status only for the six named workers when, on its face, it would apply potentially to all workers injured at the Atlantic States facility during the conspiracy period.
Even assuming arguendo that the harm alleged by the government to the six named workers could be considered as having been directly and proximately caused by the conspiracy to obstruct and defraud OSHA, issues of direct and proximate causation would require additional adjudication by this Court. That leads us to the following observations:
Until this motion, the Court has not been called upon to make any factual findings on causation of harm, to any workers under the statutory crime victim statutes, the CVRA or the VWPA. None of the rulings we have made to date, during or after the trial or in preparing for sentencing, have been made under the "direct and proximate" standard of the CVRA and the VWPA. Rulings under Rule 29 and Rule 33, as well as the guidelines, are made under different legal standards. See supra Sec. I.B.[104]
The procedural requirements under the VWPA include notice periods for both *543 victims and defendants, starting before the initial sentencing date and progressing up to 90 days past the sentencing hearing. Those notice procedures have not been followed in this case. See supra Sec. I.D.
Notice to potential victims would be necessary, well beyond the six named workers proposed by the government, because the Court has an affirmative obligation under the CVRA and the VWPA to locate and afford rights to persons who may qualify as statutory crime victims. On the government's factual theory, this would likely require notice to all Atlantic States workers, and all contractors' workers, injured at the facility during the alleged conspiracy period. See supra Secs. I.D, II.D, II.E.
Until this motion, defendants have not been heard on factual issues of causation of harm to any workers. See supra Sec. II.E. They have a right under Rule 32 and the Due Process Clause to contest the government's factual assertions of harm causation leading to any determination of statutory crime victim status. See supra Sec. I.F.
Since these issues of causation arise in the context of an OSHA-regulated workplace, determining direct and proximate causation under the CVRA and the VWPA would raise underlying issues as to the existence and interpretation of any applicable OSHA standards, as well as factual issues of the course of events leading to each of the injuries. Contributory conduct on the part of the injured workers, and intervening causation by other persons or events, would be relevant and not excluded under the "direct and proximate" standard. This is a demanding standard applicable to these criminal statutes, which has no exact analogue in worker's compensation law, various state negligence laws, or collective bargaining agreements or their enforcement laws. See supra Secs. I.B, II.C.
Evidentiary hearings would likely be necessary as to the circumstances of each separate incident in which the government or a claimant asserts that a worker sustained injury and there is a direct and proximate causal relationship between the offenses of conviction and that injury. See supra Secs. I.B, I.C.
The complication and prolongation of the sentencing process resulting from such factual adjudication by the Court would outweigh the need to provide restitution to any victims under the balancing test of the VWPA and the MVRA. See 18 U.S.C. § 3663(a)(1)(B) (ii); id. § 3663A(c)(3). A parallel balancing provision is not found in the CVRA, but here too, due process considerations may be implicated because of the time and complexity of the effort necessary to make such factual determinations under the CVRA in the sentencing process. See supra Sec. I.F.
There are many offense statutes that readily lend themselves to fair and efficient fact-finding of potential victim status, either based on trial evidence or in limited factual determinations post-trial. See generally supra Sec. I.C. For example, even in the obstruction statutes, there are offenses that, by their terms, refer to potential victims. See, e.g., 18 U.S.C. § 1512 (tampering with a witness, victim, or an informant); id. § 1513 (retaliating against *544 a witness, victim, or an informant). Some offense statutes may require a greater degree of fact-finding by the court to determine whether statutory crime victim status exists for various persons, but the statutes at least expressly indicate the potential for such victims to exist.[105]
We recognize that under the CVRA and the restitution statutes, a reference to a particular type of victim in the elements of the offense or the charging document is not a prerequisite to establishing statutory crime victim status.[106] On the other hand, the present case illustrates the difficulty presented by a broad society-based statute, such as obstruction or false statements to government officials, when individual victims are proposed to have statutory crime victim status.
*545 One of the chief salutary purposes of the crime victims' rights statutes, such as the CVRA and the restitution statutes, is to provide victims with dignity and respect in the criminal justice process. See supra Sec. I.A. That purpose is defeated if causation allegations are so attenuated in relation to the offense of conviction that the alleged victims are effectively turned into litigants, defending against contentions that intervening forces or their own actions contributed to their harm. See supra Sec. II.E.
* * *
This Court finds that the harm to the six named workers alleged by the government to have been "directly and proximately" caused by the offenses of conviction is too factually attenuated, in relation to the offenses of conviction, for the Court to make a finding of CVRA or VWPA statutory crime victim status in this case. The conduct that allegedly harmed one or more of the six named workers may have been in violation of OSHA workplace standards (standards applicable to the employer only), and that appears to be the actual basis of the government's argument in this motion. See text accompanying supra n. 88. Such conduct, however, was not conduct proscribed by the obstruction and false statement substantive offenses and conspiracy objectives of which each of these defendants was convicted, and we perceive no "direct and proximate" causal link between those offenses of conviction and the injuries sustained by the six named workers. See Kones, 77 F.3d at 71 (the conduct that allegedly harmed claimant was not conduct proscribed by the mail fraud offense of conviction, so claimant was not a "victim" under the VWPA). In so ruling, we do not preclude the possibility that in a rare factual setting, an obstruction or false statement offense involving OSHA could be found to have the requisite causal nexus to an injury in the workplace.[107]
Alternatively, we find that the record is not sufficiently developed on issues of "direct and proximate" causation linked to the offenses of conviction under the CVRA and VWPA standards, and that defendants have statutory and constitutional rights that would, at a minimum, require further evidentiary adjudication. We further find and conclude that such evidentiary adjudication would unreasonably complicate and prolong the remaining proceedings in this criminal prosecution. See id. ("As the district court aptly observed, it could not grant [claimant's statutory victim request under the VWPA] without fully litigating a tangentially related medical malpractice case as a part of the sentencing process."). We also have grave doubts that such a proceeding would produce a result consistent with the limitations on statutory crime victim status inherent in the Sixth Amendment right to jury trial as articulated in Booker. See Leahy, 438 F.3d at 336-37.
For these reasons, insofar as the government seeks to have the Court afford CVRA allocution rights to the six named workers or their representatives in the sentencing of defendants Atlantic States, John Prisque, Scott Faubert, and Jeffrey Maury, that relief requested under the CVRA is denied. The Court does recognize its discretionary authority under 18 U.S.C. § 3661 to receive information from *546 indirect victims or other persons affected by acts and events depicted in the trial evidence. See supra Sec. I.E. We will determine separately how that authority will be exercised in this case.
An appropriate Order and Notice accompanies this opinion.
NOTES
[1] The corporate defendant and some of the individual defendants were also convicted of substantive violations of the CWA, 33 U.S.C. §§ 1311, 1319(c)(1)(A) & 1319(c)(2)(A); the CAA, 42 U.S.C. § 7413(c); related false statement offenses under 18 U.S.C. § 1001; and conspiracy objectives relating to those offenses under 18 U.S.C. § 371. See infra Sec. II.B. The government does not refer to those convictions in this motion.
[2] Most references to the trial record in this opinion are by citation to the Memorandum Opinion filed herein on 8-2-07 (dkt. 721), containing rulings on post-trial motions. Terms and abbreviations used there are incorporated here by reference. For example, docket entries are cited as "dkt.," except docketed transcripts cited as "tr." All of the charges and convictions are shown in chart form in dkt. 721 at 3 n. 4. The verdicts on the alleged Count 1 conspiracy objectives are shown in chart form, id. at 112-113 n. 64. When quoting transcripts, we correct obvious errors without so noting, but we make no material changes to transcript text. There is an index of all trial transcripts, showing the trial chronology. (Dkt. 718.)
[3] See The Honorable John Kyl et al., On the Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act, 9 LEWIS & CLARK L.REV. 581, 588-93 (2005). A number of state constitutions do contain victims' rights amendments. Id. at 587-88 n. 30. The CVRA provisions gained passage when attached to the "Justice for All Act of 2004." Id. at 592; see United States v. Marcello, 370 F. Supp. 2d 745, 746 n. 1 (N.D.Ill. 2005). The CVRA is sometimes referred to by the latter name. See, e.g., United States v. Eberhard, 525 F.3d 175, 177 (2d Cir.2008). The literature on the developments that led to the passage of the CVRA is cited in United States v. BP Prods. N. Am. Inc., No. 07-434, 2008 WL 501321, at *7 n. 4 (S.D.Tex. Feb.21, 2008).
[4] The fact that the CVRA makes no change in the laws with respect to victims' ability to be awarded restitution probably means that it creates no ex post facto problem. See 18 U.S.C. § 3771(d)(5) (last sentence); see, e.g., Eberhard, 525 F.3d at 178 ("A law requiring that victims be reasonably heard (if they request) after the defendant has already been convicted does not implicate the Ex Post Facto clause."). This is in contrast to the federal criminal restitution statutes, which have been interpreted in some circuits to avoid potential ex post facto problems. See, e.g., United States v. Catoggio, 326 F.3d 323, 326 n. 2 (2d Cir. 2003) (upholding application of mandatory MVRA, instead of discretionary VWPA, to RICO criminal conduct that occurred before, as well as after, effective date of MVRA); United States v. Coates, 178 F.3d 681, 683 (3d Cir.1999) (observing that VWPA applies to cases in which defendant is convicted before effective date of MVRA); but see United States v. Nichols, 169 F.3d 1255, 1279-80 & n. 8 (10th Cir.1999) (noting circuit split and rejecting views of Third Circuit and others on this issue).
[5] The CVRA also contains separate provisions specifying victims' rights in a federal habeas corpus proceeding arising out of a state conviction. See 18 U.S.C. § 3771(b)(2). That portion of the CVRA contains a different definition of "crime victim." Id. § 3771(b)(2)(D).
[6] It is necessary for us to cite unpublished Court of Appeals decisions in this opinion because, in our observation, most of the few circuit court decisions ruling upon mandamus petitions brought under the procedural provisions of the CVRA are unpublished. We surmise that this is due to the time pressure inherent in the 72-hour written mandamus opinion requirement imposed upon the circuit by Congress in the CVRA. See 18 U.S.C. § 3771(d)(3).
[7] Those provisions state:
(1) Rights.The crime victim or the crime victim's lawful representative, and the attorney for the Government may assert the rights described in subsection (a). A person accused of the crime may not obtain any form of relief under this chapter.
Multiple crime victimsIn a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.
18 U.S.C. § 3771(d)(1)-(2).
[8] There is a circuit split on the standard of review for mandamus petitions under the CVRA. Some circuits apply their usual standards for appellate review, and other circuits apply the stringent standard for a traditional writ of mandamus. Compare Kenna v. United States Dist. Court, 435 F.3d 1011, 1017 (9th Cir.2006) ("Kenna I") (applying usual appellate review standard); In re W.R. Huff Asset Mgmt. Co. [United States v. Rigas], 409 F.3d 555, 561-63 (2d Cir.2005) (same as Kenna I) with In re Dean, 527 F.3d 391, 393-94 (5th Cir.2008) (noting circuit split and applying stringent mandamus standard); In re Antrobus, 519 F.3d 1123, 1124-25 (10th Cir.2008) (same as Dean); see also In re Brock, 262 Fed.Appx. 510, 512 (4th Cir.2008) (noting but not reaching circuit split issue; finding relief not available even under more relaxed appellate review standard); In re Stewart, 552 F.3d 1285, 1288, 1290 (11th Cir.2008) (reviewing denial of victim status as a mixed question of law and fact; dissent advocated stringent mandamus standard); In re Doe, 264 Fed. Appx. 260, 262 (4th Cir.2007) (same as Brock). The Third Circuit has taken no official position to date, but in an unpublished opinion it has indicated that it sides with the "appellate review" standard. In re Walsh, 229 Fed.Appx. 58, 60-61 (3d Cir.2007) (stating "mandamus relief is available under a different, and less demanding, standard under 18 U.S.C. § 3771" (citing Kenna I and Rigas)). We describe the usual appellate review standards in the Third Circuit, for rulings under the related restitution statutes, infra n. 12.
[9] The CVRA provides its own mechanism for a crime victim to move to re-open a plea or sentence, adding that this provision "does not affect the victim's right to restitution," as provided elsewhere in Title 18:
A victim may make a motion to re-open a plea or sentence only if
(A) the victim has asserted the right to be heard before or during the proceeding at issue and such right was denied;
(B) the victim petitions the court of appeals for a writ of mandamus within 10 days; and
(C) in the case of a plea, the accused has not pled to the highest offense charged.
This paragraph does not affect the victim's right to restitution as provided in title 18, United States Code.
18 U.S.C. § 3771(d)(5). See infra Sec. I.F regarding due process rights of defendant in those circumstances.
[10] The CVRA permits the legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or other persons appointed as suitable by the court to assume the crime victim's rights if the victim is under age 18, incompetent, incapacitated, or deceased. 18 U.S.C. § 3771(e). This is parallel to similar provisions in the VWPA and MVRA. See id. § 3663(a) (2); id. § 3663A(a)(2); see infra discussion of VWPA and MVRA.
[11] The Senate Judiciary Committee did prepare a comprehensive report on the proposed Crime Victims' Rights Amendment that was withdrawn in April, 2004 when the CVRA bill was introduced. See S. REP. No. 108-191 (2003), 2003 WL 22680234. However, that amendment would have provided rights only to victims of violent crimes. Id. The CVRA, in contrast, applies to victims of all federal crimes. 18 U.S.C. § 3771(e).
[12] It is well settled that restitution may only be ordered if authorized by statute. United States v. Rand, 403 F.3d 489, 493 (7th Cir. 2005); United States v. Dickerson, 370 F.3d 1330, 1335 (11th Cir.2004); United States v. Akande, 200 F.3d 136, 138 (3d Cir.1999). There other statutory bases for restitution as part of federal sentences. See, e.g., 18 U.S.C. §§ 2248 (sexual abuse), 2259 (sexual exploitation and other abuse of children), 2264 (domestic violence and stalking), 2327 (telemarketing fraud), 3563 (conditions of probation), 3583(d) (conditions of supervised release); 21 U.S.C. § 853(q) (cleanup of clandestine amphetamine or methamphetamine laboratory sites). Those statutes are not discussed here, but some cases decided under those provisions are described infra Sec. I.C.
The Third Circuit has been mostly consistent in articulating its standard of review under the VWPA and MVRA. See, e.g., United States v. Fallon, 470 F.3d 542, 548 (3d Cir. 2006) ("We `review a restitution order under a bifurcated standard: plenary review as to whether restitution is permitted by law, and abuse of discretion as to the appropriateness of the particular award.' (internal quotation and citations omitted)."); United States v. Quillen, 335 F.3d 219, 221-22 (3d Cir.2003) (same); United States v. Graham, 72 F.3d 352, 355-56 (3d Cir.1995) (same); but see United States v. Akande, 200 F.3d 136, 138 (3d Cir. 1999) ("We exercise plenary review over the determination that restitution was lawful, and review the amount awarded for clear error."). Other courts have observed that a contested issue of statutory victim status, under the restitution statutes or under the CVRA, is probably a mixed question of fact and law. See, e.g., In re Stewart, 552 F.3d at 1288. We note that only because it may call for a corresponding standard of review. See generally Pierce v. Underwood, 487 U.S. 552, 558, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988) ("For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for `abuse of discretion'").).
[13] The House Committee Report expressed the need for the CVRA in general terms:
Victims of crime often do not feel their voices are heard or that their concerns are adequately addressed in the judicial process. Many express frustration with a judicial system that affords many rights to the accused while giving few to the victim. This legislation addresses these concerns by codifying the rights of victims and providing the means to enforce those rights.
H.R. REP. No. 108-711, 2005 U.S.C.C.A.N. at 2276.
[14] Courts have noted that the 1990 amendments would not have changed the result in Hughey even if they had been in effect at the time of Hughey, because the criminal offense in that case did not have a scheme, conspiracy, or pattern as an element. See, e.g., Dickerson, 370 F.3d at 1338 n. 14.
[15] The Kones court offered this example:
[W]here a defendant is convicted of defrauding person X and a fraudulent scheme is an element of that conviction, the sentencing court has power to order restitution for the loss to defrauded person Y directly caused by the defendant's criminal conduct, even where the defendant is not convicted of defrauding Y.
Kones, 77 F.3d at 70.
[16] The 1999 Akande decision, discussed below, did elaborate upon the statutory definition of "victim," in the context of a conspiracy rather than a scheme. But it appears to us that the specific question left open in this footnote in Kones has not been explicitly addressed in the Third Circuit. We believe that the motion we are addressing here does implicate that unanswered question. See infra Sec. II.F.
[17] The MVRA of 1996 was enacted as Title II, Subtitle A, of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214 (codified at 18 U.S.C. §§ 3663A, 3664 (1996)). See Edwards, 162 F.3d at 89.
[18] The Eleventh Circuit has interpreted Hughey and Akande as follows:
Taken together, Hughey and Akande do not severely restrict the reach of the CCA [1990 VWPA amendments] and the MVRA. Both cases suggest that a district court may not order a defendant to pay restitution for criminal conduct unrelated to the offense of conviction, i.e., conduct not alleged in the indictment, specified in the plea agreement, or otherwise made a part of the record. We read these cases narrowly for the proposition that even after the CCA and the MVRA, a criminal defendant cannot be compelled to pay restitution for conduct committed outside of the scheme, conspiracy, or pattern of criminal behavior underlying the offense of conviction.
Dickerson, 370 F.3d at 1341 (italics in original; footnote omitted). Dickerson ruled that where a scheme-based offense of conviction reaches back in time before the criminal statute of limitations, restitution may be ordered under the MVRA for the entire period. Id. at 1342-43.
[19] This quote from Fallon refers to several precedents that we will briefly summarize here. The circuit court in Lawrence held that if a mail fraud conviction, which the court was reversing for trial error, was retried and a new conviction on that count obtained, the scope of that mail fraud scheme as alleged would permit inclusion in the VWPA restitution award of losses caused by conduct underlying two related substantive counts of conviction that did not contain a scheme or conspiracy element, because the mail fraud count "include[d] language which would cover the acts specifically alleged in [the nonscheme] counts." 189 F.3d at 847. The Henoud decision is summarized infra Sec. II.C. It held that "[b]ecause the indictment allege[d] with specificity a scheme to defraud local and long-distance carriers `[t]he district court had the authority to order restitution for the losses by the entire fraud scheme, not merely for the losses caused by the specific acts of fraud proved by the government at trial.'" Henoud, 81 F.3d at 489 (quoting United States v. Brothers, 955 F.2d 493, 497 (7th Cir.1992)). The citation to Dickerson is explained supra n. 18.
[20] The panel opinion in Vaknin was authored by Hon. Bruce Selya, U.S.C.J., and contains ancient history as well as stylistic flourishes, but never at the sacrifice of legal clarity.
[21] The federal sentencing guidelines do not provide a definition of "victim" for general applicability even within the guidelines. The word "victim" is not found among the guidelines terms that have definitions of general applicability. See U.S.S.G. § 1B1.1 cmt. n. 1 (definitions of terms of general applicability). The commentary states that with the exception of terms of general applicability defined under Section 1B1.1, any definitions of terms that appear in various sections "are not designed for general applicability," even in the guidelines; "therefore, their applicability to sections other than those expressly referenced must be determined on a case by case basis." Id. cmt. n. 2. We are using the 1998 edition of the guidelines in this case. The word "victim" appears in many places in those guidelines, sometimes with varying definitions and sometimes not defined. See, e.g., id. ch. 2, pt. A (Offenses Against the Person); id. ch. 3, pt. A (Victim-Related Adjustments); id. ch. 3, pt. D (Multiple Counts). The guidelines expressly recognize that the definitions of "victims" can and do vary as between the guidelines and the restitution statutes, as seen in this commentary:
"Scheme to defraud more than one victim," as used in subsection (b)(2)(B), refers to a design or plan to obtain something of value from more than one person. In this context, "victim" refers to the person or entity from which the funds are to come directly. Thus, a wire fraud in which a single telephone call was made to three distinct individuals to get each of them to invest in a pyramid scheme would involve a scheme to defraud more than one victim, but passing a fraudulently endorsed check would not, even though the maker, the payee and/or payor all might be considered victims for other purposes, such as restitution.
Id. § 2F1.1 cmt. n. 4 (1998) (repealed 2004); see also id. § 5E1.1 cmt. (background).
[22] A few of these cases arose under other federal restitution statutes such as the Probation Act, 18 U.S.C. § 3563. That made no difference in determining statutory victim status.
[23] To the degree that Third Circuit case law under the VWPA, MVRA, and CVRA is pertinent to this motion, on topics other than establishing whether statutory victim status exists, we have cited and discussed that precedent in other sections of this opinion. See supra Sec. I.A.; infra Secs. I.D., I.E., I.F. Some of the cases cited in this section have been cited previously. We repeat the full citation here for ease of reference.
[24] The defendant in Lessner also pled guilty to obstruction consisting of destruction of records during the FBI's criminal investigation, under 18 U.S.C. § 1519 [a statute that is also a count of conviction in this case]. 498 F.3d at 191. However, the only offenses of conviction that gave rise to statutory victim status in Lessner were the defense procurement fraud and related mail fraud, for which the defense procurement agency was the MVRA victim. Id. at 201. Restitution was awarded "in the amount of the uncontested actual loss that the government sustained as a direct result of [defendant]'s fraudulent acts." Id. at 205.
[25] The government in the present motion cites a district court opinion in this circuit that discussed potential CVRA allocution rights at sentencing. On appeal after sentencing, the conviction was affirmed in an unpublished opinion that did not refer to the CVRA. See United States v. Sandhu, 462 F. Supp. 2d 663, 666 & n. 9 (E.D.Pa.2006); United States v. Sandhu, 268 Fed.Appx. 163, 166 (3d Cir.2008). We discuss that case infra Sec. II.F.
[26] Mass casualty events can also give rise to statutory victim status under the CVRA, MVRA, VWPA, or other statutes. For example, the Oklahoma City federal courthouse bombing resulted in statutory victim status for those who suffered casualties, as well as the government agency that owned the courthouse. See United States v. Nichols, 169 F.3d 1255, 1277-78 (10th Cir.1999); United States v. McVeigh, 106 F.3d 325 (10th Cir.1997) (holding that district court sequestration order, prohibiting from attending trial any persons who would provide victim impact testimony at sentencing, was not reviewable on interlocutory appeal or mandamus petition), superseded by statute, 18 U.S.C. § 3510 (1997). The victims of the 911 terrorist attacks have separate legislative coverage. See Air Transportation Safety Stabilization Act of 2001, Pub.L.No. 107-42, § 403, 115 Stat. 230, 237 (2001) (codified at 49 U.S.C. § 40101). More recently, an explosion at a petroleum refinery that caused mass casualties resulted in CVRA victim status in the ensuing criminal action. In re Dean, 527 F.3d at 395.
[27] The CVRA motion in this case comes at the post-verdict stage, when the offenses of conviction have been determined at the district court level. Courts are required to afford potential victim status to those who qualify, along with commensurate statutory rights of participation, even before a guilty plea or jury verdict has been entered. The CVRA clearly provides for victims' rights at those stages, and indeed before a prosecution has been initiated. See 18 U.S.C. §§ 3771(a), (d)(3), (d)(5). There is a developing body of case law in those circumstances. See, e.g., In re Dean, 527 F.3d at 395; United States v. Rubin, 558 F. Supp. 2d 411 (E.D.N.Y.2008); United States v. Heaton, 458 F. Supp. 2d 1271 (D.Utah 2006); United States v. Turner, 367 F. Supp. 2d 319 (E.D.N.Y.2005). We do not include those cases in the collection listed above, except if there was a plea agreement and potential victims sought to participate in the plea proceedings or sentencing. See also District of Montana case discussed infra n. 105.
[28] This collection of appellate decisions excludes, as effectively abrogated by the 1990 VWPA amendments, any case decided under the pre-1990 amendments to the VWPA, if statutory victim status was denied and the conviction had as an element a scheme, conspiracy or pattern of criminal activity. See supra Sec. I.B. We also do not list decisions rejecting apparently frivolous claims. See, e.g., In re Rochester, 292 Fed.Appx. 226, 227 (4th Cir.2008) (CVRA mandamus petition; holding that state inmate could not raise claims of being a "kidnap victim" due to his conviction and incarceration; all of his claims were fully litigated in prior habeas corpus actions and he was not denied any right under CVRA).
[29] The Tenth Circuit used "traditional mandamus standards" of appellate review in deciding the Antrobus petition brought under the CVRA. 519 F.3d at 1124-25; see id. at 1126 (concurring opinion). In denying a petition for rehearing and rehearing en banc, the court stated that it was not "obvious to us that the outcome would change" under traditional appellate standards. Id. at 1127-31. This highlights the current circuit split as to the standard of review for mandamus petitions under the enforcement mechanism of the CVRA. See supra n. 8.
[30] The circuit court in Elias explained this conclusion as follows:
Although, as a theoretical matter, § 1001 offenses may support the imposition of restitution (footnote 75: See, e.g., United States v. Hoover, 175 F.3d 564, 569 (7th Cir. 1999)), Elias's § 1001 offense cannot support the court's order of restitution for [worker] because [worker] was not a victim of that particular crime. (Footnote 76: See United States v. Rodrigues, 229 F.3d 842, 845 (9th Cir.2000)). Elias did not harm [worker] by lying; he harmed him by knowingly exposing him to hazardous waste. This latter offense is one of the few for which Congress has not sanctioned the imposition of restitution. Perhaps this case will change that. At present, however, we conclude that the law does not sanction the imposition of restitution in this instance.
Elias, 269 F.3d at 1021-22. Elias was decided in 2001, before enactment of the CVRA. It is clear that under current law, the injured worker in Elias would have CVRA victim status because as the court held, he was harmed as a result of the RCRA offense [not the subsequent false statement offense], and the CVRA applies to all federal offenses. That worker probably still would not have restitution rights, because to our knowledge the federal restitution statutes still do not apply to Title 42 or other environmental or worker safety statutes (unless, of course, a defendant in a plea agreement expressly accepts a restitution obligation not otherwise imposed by law). See 18 U.S.C. § 3663(a)(3). We have summarized the Hoover case (cited by Elias) in this Section supra. The citation in the same text to Rodrigues was a reference to the Hughey rule, as it continues to apply to offenses that do not have an element of scheme, conspiracy, or pattern of criminal activity. 229 F.3d at 844-45.
[31] The Broughton-Jones court stated in a footnote:
Though we have been advised of no decision imposing or affirming restitution for loss to a victim of perjury, we may assume that such a loss is conceivable (e.g., by delaying Government efforts to recover stolen or defrauded money), but no factual basis for any such claim is present here.
Id., 71 F.3d at 1149 n. 3.
[32] We have also searched the standard sources for decisions issued under the CVRA at the district court level. To the degree that any of those may assist in the determination of statutory victim status on the present motion, we cite and discuss them infra Sec. II.F.
[33] The CVRA contains the following express limitation on its enforcement:
Nothing in this chapter shall be construed to authorize a cause of action for damages or to create, to enlarge, or to imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages. Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.
18 U.S.C. § 3771(d)(6); see also id. § 3771(d)(5), quoted supra n. 9.
[34] See supra n. 4 and accompanying text.
[35] It appears that would also be the result if the offense of conviction is covered under any other federal restitution laws. See, e.g., statutory provisions cited supra, n. 12.
[36] As noted supra Section I.B, the Federal Rules of Criminal Procedure were amended effective December 1, 2008, to implement the CVRA. Those changes specific to the sentencing process are discussed infra n. 41 and accompanying text.
[37] Of course, procedural provisions in Section 3664 and the Federal Rules of Criminal Procedure address rights of defendants as well as victims. In this Section we focus primarily on victims' rights in the sentencing process. Defendants' rights are more specifically addressed infra Section I.F.
[38] See infra n. 96.
[39] These procedures have not been initiated in this case to date. See infra Sec. II.E.
[40] The federal appeals courts have rejected arguments that this collateral estoppel law violates a defendant's Seventh Amendment right to jury trial in the related civil actions. See Palma, 760 F.2d at 479-80.
[41] All citations to the Federal Rules of Criminal Procedure refer to the amended Rules effective December 1, 2008.
[42] Rule 32(d)(2)(B), quoted above in its amended form, pertains to both restitution and the broader concept of crime victim impact in the sentencing process.
[43] Rule 32(c)(1)(A)(ii) states that with the exception of the material required under Rule 32(c)(1)(B), the court may dispense with presentence investigation and submission of a PSR if "the court finds that the information in the record enables it to meaningfully exercise its sentencing authority under 18 U.S.C. § 3553, and the court explains its finding on the record." Fed.R.Crim.P. 32(c)(1)(A)(ii). As described in the above text, the December 1, 2008 revisions to Rule 32(c)(1)(B) now require a presentence investigation and report containing sufficient information for the court to order restitution "if the law permits restitution." Fed.R.Crim.P. 32(c)(1)(B) (emphasis added).
[44] The Rules Committee has recommended that "[a]bsent unusual circumstances, any victim who is present should be allowed a reasonable opportunity to speak directly to the judge." RULES COMMITTEE REPORT, supra, at 51.
[45] There are procedural and potential constitutional issues concerning the relief to be granted when a CVRA petitioner obtains a writ of mandamus seeking to reopen a judgment of conviction, as discussed in Kenna I. See infra Sec. I.F.
[46] A concurring member of the panel in Kenna I, Senior Circuit Judge Daniel M. Friedman, writing "dubitante," gave the following hypothetical:
Suppose a case with five defendants and 20 victims. Does each victim have the right to speak at the sentencing of each defendant?. . . I think that the statutory standard of "reasonably heard" may permit a district court to impose reasonable limitations on certain oral statements.
Kenna I, 435 F.3d at 1018-19.
[47] The Brock court noted in a footnote that petitioner had also argued that he needed the PSR to obtain information related to his entitlement to restitution, but at the sentencing hearing the court postponed determination of the amount of restitution because it had insufficient information to calculate that amount. Brock, 262 Fed.Appx. at 512 n. *; see 18 U.S.C. § 3664(d)(5). Petitioner did not pursue that argument in his mandamus petition. Brock, 262 Fed.Appx. at 512 n. *.
[48] One of the cases collected in the above citation is a district court decision in a pending CAA prosecution not involving a mass casualty event, in which the court denied a motion by the government to unseal its own submission to the probation office for use in preparing the PSR. United States v. Citgo Petroleum Corp., No. 06-563, 2007 WL 2274393, at *1 (S.D.Tex. Aug.8, 2007). The stated grounds for the motion were to aid the government in discharging its duties under the CVRA, and to counter certain publications of defendant. Id. at *2. The court gave several reasons for denying the motion, including privacy interests of the defendant, compromising government investigations, reliance by the court on the vital transmission of information to Probation by the parties and cooperating third parties, and the fact that alternative methods of public notification of the government's positions were functioning and available. See id. at *1-*2. The public docket in that case contains an order filed on March 28, 2008, setting forth a procedure for discovery and depositions leading to an adversarial evidentiary hearing to determine whether individuals identified by the government as alleged victims quality as "crime victims" under the CVRA. See 3-28-08 Order, United States v. Citgo Petroleum Corp., No. 06-563 (S.D.Tex. Mar. 28, 2008). The current docket indicates that the sentencing process is ongoing in that case.
[49] The procedural provisions applicable to the VWPA and MVRA provide a statutory crime victim with the right to submit a separate affidavit relating to the amount of the victim's losses subject to restitution, and permit the court to require additional documentation or hear testimony in sentencing. See 18 U.S.C. § 3664(d), quoted supra Sec. I.D. Those provisions do not include a right of crime victim allocution at the sentencing hearing. The Rules, immediately prior to the December 1, 2008, amendments implementing the CVRA, required a right of allocution only for a victim of a crime of violence or sexual abuse (or their representative). See Fed.R.Crim.P. 32(i)(4)(B) (2007) (repealed 2008).
[50] As previously noted, the definition of "victim" in the Rules is now based on the CVRA, 18 U.S.C. § 3771(e). Fed.R.Crim.P. 1(b)(11).
[51] Rule 32 also provides that "[t]he court must impose sentence without unnecessary delay," but "[t]he court may, for good cause, change any time limits prescribed in this rule." Fed.R.Crim.P. 32(b)(1)-(2).
[52] There is also a common-sense due process limitation on the scope of information the court may allow, even under the broad discretion conferred by 18 U.S.C. § 3661. "[A]s a matter of due process, factual matters may be considered as a basis for sentence only if they have some minimal indicium of reliability beyond mere allegation" and "bear some rational relationship to the decision to impose a particular sentence." United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir.1982), superseded by statute on other grounds, Sentencing Reform Act of 1984, Pub.L.No. 98-473, 98 Stat. 1987, as recognized in United States v. Essig, 10 F.3d 968, 970 (3d Cir.1993). This principle was applied in a recent district court decision in our circuit, where the court granted defendant's motion to exclude a letter that contained "40 year old uncorroborated allegations" against defendant by a person who undisputedly did not qualify as a CVRA crime victim in the case, and the information lacked sufficient indicia of reliability. United States v. Forsyth, No. 06-00429, 2008 WL 2229268, at *1-*2 (W.D.Pa. May 27, 2008).
[53] In Eberhard, an investment fraud case, the government disclosed all victim impact letters to defendant in advance of the sentencing hearing, and defendant raised no objection either to the number of victims or their identity. 525 F.3d at 176, 178 n. 1. However, he appealed the prejudicial nature of the oral victim impact statements presented at sentencing. Id. at 177. The Second Circuit affirmed, stating:
[Defendant] also complains that he received insufficient notice both of the identity of the victims who would address the sentencing court and of the nature of their statements. But the court afforded [defendant] an opportunity to respond after hearing from the victims. [Defendant] neither objected to the victim statements nor requested additional time to prepare a more thorough response. It was not plain error for the district court to impose sentence immediately thereafter.
Id. at 178.
[54] The original 35-count indictment was filed on December 11, 2003. (Dkt. 1.) A superseding 35-count indictment was filed on September 14, 2004. (Dkt. 95.) By Order filed on March 11, 2005, the Court approved a voluntary dismissal without prejudice of count 34, which resulted in renumbering original count 35 as count 34. (Dkt. 120.) The resulting 34-count superseding indictment was prepared by the government and received in chambers on July 21, 2005, but was not filed on the docket. We had a copy of that version docketed. (Dkt. 711.) We refer to the July 21, 2005, version in this opinion as the "indictment," unless otherwise specified. Before the indictment went to the jury for the deliberation phase, the Court directed redaction of some text, in consultation with the parties. (See dkt. 717 at 66 (jury instructions).) We have docketed that jury version of the indictment. (Dkt. 754.) The jury was sworn and the trial commenced on September 27, 2005. (Tr. 234.) The verdicts were rendered on April 26, 2006. (Tr. 590.) See generally dkt. 718 (Index to Transcripts of Trial Proceedings).
[55] Davidson was convicted of one substantive false statement offense pertaining to an investigation by FBI and EPA/NJDEP officials of suspected CWA violations, Count 4. (Dkt. 721 at 141-42.) He was also convicted of the false statements objective of the Count 1 conspiracy, as well as the CWA conspiracy objective and some CWA substantive offenses. (Id. at 3 n. 4, 112 n. 64.) We consider all of his convictions to be related to the CWA allegations of the indictment.
[56] We note here again that representatives of a crime victim's estate, or family members or other persons appointed as suitable by the court, may assume the crime victim's rights where appropriate. See supra n. 10.
[57] The text of the indictment alleges that the time period of the conspiracy was "[b]eginning at a time unknown to the Grand Jury but no later than October 31, 1995, and continuing thereafter until a time unknown to the Grand Jury but no earlier than August 2003." (Dkt. 711 at 11.)
[58] Some portions of the indictment were redacted before the indictment was sent to the jury for deliberations. See supra n. 54. In that process, the government voluntarily withdrew seven alleged overt acts, and the jury was so instructed. (Dkt. 717 at 66.) Thus, exactly seventy-four alleged overt acts were submitted to the jury, of which forty-eight were OSHA-related. The jury was instructed that at least one overt act was an essential element of the conspiracy offense, but it need not be a crime or even be an overt act alleged in the indictment. (Id. at 28-29, 37.) Following common practice in this district, no separate questions directed to particular overt acts were requested or included in the verdict sheets. The withdrawn alleged overt acts do not affect the analysis of this motion, and we do not refer to them in this opinion.
[59] The complete definition of "victim" in the current VWPA and MVRA is quoted here. The expansive language pertaining to offenses that have an element of scheme, conspiracy, or pattern of criminal activity, added in the 1990 amendments to the VWPA and carried forward into the MVRA when it was enacted in 1996, is shown in bold type:
For the purposes of this section, the term "victim" means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered, including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern.
18 U.S.C. § 3663(a)(2); id. § 3663A(a)(2) (1996) (emphasis added).
[60] The caveat we set forth here is significant to our ultimate findings and conclusions on the pending CVRA motion. See infra Sec. II.F.
[61] This alleged overt act names only defendant Davidson, whom we have found not to be convicted on any OSHA-related conspiracy objectives, and who was not named in any OSHA-related substantive counts. See supra n. 55 and accompanying text. We quote this language here only insofar as it may relate to convictions of those defendants who do stand convicted of those conspiracy objectives and any related substantive charges.
[62] Defendants Atlantic States, Prisque, Faubert, and Maury were convicted on Count 9. (Dkt. 721 at 3 n. 4.)
[63] We are quoting the allegations of Count 5 after Count 9 here because, chronologically, the events described in Count 5 are alleged to have occurred on March 25, 2000, whereas the events described in Count 9 are alleged to have begun the previous day, March 24, 2000, after the fatal forklift incident occurred that morning.
[64] Only defendant Atlantic States was convicted on Count 5. (Dkt. 721 at 3 n. 4.) We have eliminated the name of defendant Maury when quoting Count 5 because although he was also charged in Count 5, he was acquitted of that substantive count. (Id.) Maury, however, was convicted of all OSHA-related objectives of the alleged Count 1 conspiracy. (Id. at 112 n. 64.)
[65] The indictment refers to "employee `A'." (Dkt. 711 at 27, 39, 42.) The jury, however, was instructed during trial that the identity of that worker was Gabriel Marchan, who testified as a government witness. (See dkt. 721 at 149-59.) The final jury instructions also referred to Mr. Marchan by his name. (Dkt. 717 at 22-23.) Therefore, when quoting portions of the indictment referring to him, we have inserted his name in brackets.
[66] Defendants Atlantic States and Faubert were convicted on Count 7. (Dkt. 721 at 3 n. 4.)
[67] Defendants Atlantic States and Faubert were convicted on Count 10. (Dkt. 721 at 3 n. 4.) We have eliminated the name of defendant Prisque when quoting Count 10 because although he was also charged in Count 10, he was acquitted of that substantive count. (Id.) Prisque, however, was convicted of all OSHA-related objectives of the alleged Count 1 conspiracy. (Id. at 112 n. 64.)
[68] "Employee `B,'" described in this alleged overt act and in Count 8, did testify as a government witness and his name was stated in the evidence. (See id. at 159-63.) He was not one of the six named workers described in this motion.
[69] Defendants Atlantic States and Prisque were convicted on Count 8. (Id. at 3 n. 4.)
[70] The jury was instructed as to the name of alleged Co-Conspirator "Y," who did not testify at trial. (Dkt. 717 at 38.)
[71] Defendants Atlantic States and Prisque were convicted on Count 11. (Dkt: 721 at 3 n. 4.)
[72] This incident was not the subject of any substantive counts charged in the indictment.
[73] This incident was not the subject of any substantive counts charged in the indictment.
[74] This incident appears to be the subject of substantive Count 2, which charged defendants Atlantic States and Faubert, but the jury failed to reach a verdict and we dismissed it post-trial. (Dkt. 721 at 135-136.) Atlantic States and Faubert, however, were convicted of all OSHA-related alleged objectives of the Count 1 conspiracy. (Id. at 112 n. 64.) This also brings up, for purposes of this motion, the aspect that according to the trial evidence, the work referred to in alleged overt act number 59 was being performed on-site at Atlantic States by employees of an independent contractor. Atlantic States contracted with a variety of independent contractors to perform construction and other jobs on-site. (See tr. 213 at 5.)
[75] This incident was not the subject of any substantive counts charged in the indictment. We repeat, however, that Atlantic States, Prisque, Faubert, and Maury were convicted of all OSHA-related alleged objectives of the Count 1 conspiracy. (Dkt. 721 at 112 n. 64.) The trial evidence indicated that this alleged overt act refers to a workplace injury sustained by unindicted co-conspirator George Shepherd, who was so identified to the jury. (Dkt. 717 at 38.) Mr. Shepherd testified as a cooperating government witness at trial. This brings up, for purposes of this motion, the aspect that although the CVRA excludes defendants from qualifying as guardians of "crime victims," and states that "a person accused of the crime may not obtain any . . . relief" under the CVRA, see supra n. 7, the CVRA is silent as to whether an unindicted co-conspirator may qualify as a statutory crime victim. See 18 U.S.C. § 3771(e).
[76] These alleged acts were not the subject of any substantive counts charged in the indictment. They were, however, alleged under the Count 1 conspiracy on which Atlantic States, Prisque, Faubert, and Maury were convicted of all OSHA-related objectives. (Dkt. 721 at 112 n. 64.)
[77] The verdicts found Atlantic States guilty as charged on all CWA counts, Counts 12-33. (See dkt. 721 at 3 n. 4 & 189-243.) The individual defendants charged in Counts 12-27 were found guilty only of lesser-included negligent offenses under the CWA, 33 U.S.C. § 1319(c)(1)(A). (Id. at 3 n. 4 & 189-231.) Both Atlantic States and Maury were found guilty as charged of the CWA offenses in Counts 28-33. (Id. at 3 n. 4 & 231-243.) But the distinctions between knowing and negligent CWA violations are not pertinent to this motion.
[78] Defendants Atlantic States and Prisque were found guilty as changed in Count 34. (See dkt. 721 at 3 n. 4 & 243-257.)
[79] Defendants Atlantic States, Prisque, Maury, and Davidson were convicted of the conspiracy objective to knowingly violate the CWA, Objective A. All of them were also convicted of the conspiracy objective to make false statements to the EPA and FBI (which were the federal agencies investigating suspected CWA violations in this case), portions of Objective D. All of them except Davidson were also convicted of the conspiracy objective to defraud the EPA, portions of Objective C. Defendants Atlantic States and Prisque were also convicted of the conspiracy objective to knowingly violate the CAA, Objective B. (See dkt. 711 at 12; dkt. 721 at 112-113 n. 64.)
[80] The alleged OSHA-related conspiracy objectives also included the "defraud" clause of 18 U.S.C. § 371, a Klein-type conspiracy objective of conspiring to defraud OSHA, Objective C of the Count 1 conspiracy. (Dkt. 711 at 12.)
[81] Counts 8-10 and Objective E of the Count 1 conspiracy also cite 18 U.S.C. § 1515(b). (Dkt. 711 at 12, 40-42.) That is a definition section, defining the term "corruptly" as used in Section 1505. Both Section 1505 and Section 1515(b) were quoted and explained in the jury instructions. (Dkt. 717 at 46-50.)
[82] Normally it is not appropriate to quote or cite press releases and public statements by counsel for the parties in a formal opinion of this Court. But we believe it is entirely appropriate here, because not only were public statements made by the prosecutors who described the crafting of this indictment, but those statements were further explained by the prosecutors in a submission to this Court in the course of the litigation, as we describe here. We hasten to add that the jury was not aware of the publicity to which we refer, as reflected in the exhaustive voir dire conducted during jury selection.
[83] This subsection of the OSHA statute was quoted and cited in the "Background" section of the indictment. (Dkt. 711 at 5.) See discussion n. 93 infra and accompanying text.
[84] New Jersey, for example, does have a broad criminal offense statute for knowingly violating legally-imposed duties intended to protect public safety, N.J.S.A. § 2C:40-18; and a state counterpart to the federal OSHA statute, id. § 34:6A-1 et seq.; as well as all of the common-law crimes. See generally id. ch. 2C.
[85] The following exchange along the same lines took place at oral argument:
COURT: [T]he theory of the government is that there's a conspiracy that's been proven here, an obstruction of OSHA conspiracy, and thereby persons injured along the way are crime victims. . . . I think I've stated that accurately. Have I, Mr. [AUSA]? [GOV. COUNSEL]: Yes, it is. . . . Yes.
(Tr. 752 at 18-19.)
[86] The government also states that "[a]dditional paragraphs of the Superseding Indictment that amplify this allegation include ¶¶ 14 and 47-49." (Gov. reply br., dkt. 747 at 3 n. 1.) We have quoted the additional "Means and Methods" paragraphs, 47-49, supra Section II.A. Paragraph 14 of the indictment is quoted and discussed infra, n. 93 and accompanying text.
[87] The government, in its brief setting forth this argument, cites either directly to trial transcripts, or to portions of this Court's posttrial memorandum opinion (dkt. 721) that in turn cited to trial transcripts. (Gov. reply br., dkt. 747 at 3-4.)
[88] This text from the government's reply brief, which we have quoted and organized by bullet points above, does not purport to be a direct quote from the cited alleged overt acts in the indictment, except where the government used quotation marks as to alleged overt act 33, referring to the Coxe incident. Rather, this text sets forth a summary of the government's argument as to why each of the six named workers qualifies as a statutory crime victim here.
[89] (See, e.g., tr. 213 at 20-22, 37-39; tr. 231 at 20-23; tr. 509 at 46.)
[90] There was no joint defense agreement among the defendants, although they have frequently submitted motions or briefs as a group when appropriate. They submitted a joint opposition brief on this motion, and argued individually at oral argument while adopting each others' arguments as well. We believe that the issues raised by the government in this motion are common to defendants Atlantic States, Prisque, Faubert and Maury, so here we refer to them collectively as the defendants. We do not include defendant Davidson in this analysis, because we have ruled that he was not convicted of any OSHA-related offenses. See supra n. 55 and accompanying text.
[91] Defendants argue further that "[w]ithout knowing which specific act(s) the jury found to be in furtherance of the conspiracy, not one of the overt acts can be used to support the [government's] theory that the "victims" are the [named workers]." (Def. opp. br., dkt. 745 at 3.) They also posit that the United States itself cannot be a "person" within the meaning of the CVRA. (Id.) No case law is cited for these points. We reject the first as contrary to established authority, as discussed in this opinion. We need not reach the second because the government does not assert CVRA "victim" status on behalf of the United States in this motion. We note, however, that in appropriate circumstances an agency of the federal government can qualify for statutory victim status under the restitution statutes. See supra Sec. I.C.
[92] This argument was in response to the government's asserted conclusion that "[d]uring the trial of this matter, the Government demonstrated by a preponderance of the evidence that Defendants' commission of overt acts in furtherance of the conspiracy `directly and proximately harmed' Alfred Coxe, Gabriel Marchan, Randy Lieberman, Robert Owens, Eloy Rocca, and Hector Velarde." (Gov. reply br., dkt. 747 at 4.)
[93] The "Background" section of the indictment described the federal OSH Act, 29 U.S.C. § 651 et seq., and the role of OSHA as the agency responsible for promulgation and enforcement of regulations under that statute. (Dkt. 711 at 4, ¶¶ 9-11.) It described Atlantic States as an "employer" under the statute and alleged that Faubert, as Human Resource Manager, had responsibility for supervising health and safety matters at the facility. (Id. ¶¶ 12-13.) It further alleged:
14. Defendant [ATLANTIC STATES] was required by the OSH Act and regulations promulgated thereunder (1) to furnish places of employment that were free from recognized hazards that were likely to cause death or serious physical harm to employees (29 U.S.C. § 654(a)(1)); (2) to take a powered industrial truck out of service if it was found to be in need of repair, defective, or in any way unsafe until it was restored to a safe operating condition (29 C.F.R. § 1910.178(p)(1)); and (3) to ensure that each powered industrial truck operator was competent to operate a powered industrial truck safely (29 C.F.R. § 1901.178(1)).
15. As an employer, defendant [ATLATIC STATES] was required to enter each "recordable" occupational injury on an OSHA 200 log within six working days after learning of the injury. A recordable injury includes, among other things, those that result in death; one or more lost workdays; restriction of work or motion; and medical treatment other than first aid. Defendant [ATLANTIC STATES] was required to have available for inspection at all times a complete copy of the OSHA 200 log current to within 45 days.
16. Section 11(c) of the OSH Act prohibits an employer from discriminating or retaliating against employees who file complaints or institute proceedings against the employer or exercise any rights afforded under the OSH Act. 29 U.S.C. § 660(c)(1).
(Id. at 5, ¶¶ 14-16.) We redacted all of those paragraphs as surplusage before the indictment was submitted to the jury. (Compare dkt. 711 at 4-5, with dkt. 754 at 1.) The jury was not instructed on the OSH Act or its regulations because there were no substantive charges or alleged conspiracy objectives under that statute. Conversely, the jury instructions did quote and explain the CAA and CWA provisions that were charged. (See dkt. 717 at 50-60.)
[94] The OSHA public data website lists its inspections at Atlantic States resulting in some type of OSHA action, dating back only as far as 1997. It lists approximately twenty-one separate inspection numbers assigned by OSHA during that period, with various civil resolutions. See www.OSHA.gov.
[95] We must reject the government's contention at oral argument on this motion that the CVRA is relevant here because the Probation Office, unbidden by the Court or the government, mentioned it in its addendum response to a defense objection to a portion of the first draft of the PSR. (Tr. 752 at 6-8.)
[96] Our Court of Appeals has summed up the triggering of the VWPA and the MVRA as follows:
[O]nce a defendant is convicted of an offense covered by the VWPA or the MVRA, a district court must (or in the case of the VWPA, unquestionably may) order restitution, and in order to fulfill this mandate, the court must determine the amount of loss pursuant to 18 U.S.C. § 3664(f)(1)(A)..
Leahy, 438 F.3d at 337.
[97] Federal prosecutions for logbook violations are becoming more frequent. The following plea was reported from this district this month:
Holy House Shipping AB, a Swedish corporation, was sentenced today in U.S. District Court in Camden, N.J., to pay a $1 million fine, a special assessment of $400,000 in community service payments and serve three years of probation for failing to maintain an accurate oil record book in an attempt to conceal illegal discharges of oil-contaminated waste directly into the ocean from one of its ships, the Justice Department announced.
Press Release, Dep't of Justice, Shipping Line Pays $1.4 Million for Environmental Crimes (Mar. 10, 2009), available at http://www. usdoj.gov/opa/pr/2009/March/09-enrd-215. html.
[98] This trial was conducted before the Third Circuit Model Criminal Jury Instructions were available. When we state the essential elements of the offenses of conviction here, we are quoting from the jury instructions in this case.
[99] All substantive counts in the indictment included an aiding and abetting charge under 18 U.S.C. § 2. The jury was instructed on the essential elements of that statute. (Dkt. 717 at 62-64.) We will not repeat that instruction here, but we note that defendants could have been convicted of being principals under any of the substantive counts of conviction, or as aiders and abettors; and the result of this motion would not change.
[100] In order for a defendant to be found guilty of an obstruction of justice offense under [18 U.S.C. § 1505], the government must prove beyond a reasonable doubt each of the following three elements:
First: that there must be a proceeding pending before a department or agency of the United States;
Second: that the defendant must be aware of the pending proceeding; and
Third: that the defendant must have intentionally endeavored corruptly to influence, obstruct or impede the pending proceeding.
(Dkt. 717 at 46 (jury instructions); see also id. at 47 (jury instruction on definition section for the term "corruptly," 18 U.S.C. § 1515(b)).)
[101] In order for a defendant to be found guilty of a false statement offense under [18 U.S.C. § 1001], the government must prove beyond a reasonable doubt each of the following four elements:
First: that the defendant made a false statement or representation;
Second: that the statement was "material;"
Third: that the defendant acted willfully, with knowledge of the statement's falsity; and
Fourth: that the statement was made in a matter within the jurisdiction of the executive branch of the federal government.
(Dkt. 717 at 43 (jury instructions).)
[102] In order for a defendant to be found guilty of an obstruction of justice offense under [18 U.S.C. § 1519], the government must prove beyond a reasonable doubt each of the following five elements:
First: that the defendant knowingly;
Second: altered, concealed, and covered up;
Third: a tangible object;
Fourth: with the intent to impede, obstruct, and influence the investigation and proper administration;
Fifth: of a matter within the jurisdiction of an agency of the United States, that is, the Occupational Safety and Health Administration.
(Dkt. 717 at 49 (jury instructions).)
[103] There are three essential elements of the crime of conspiracy charged in Count One [18 U.S.C. § 371], which must be proven by the government beyond a reasonable doubt:
First: that the described conspiracy was formed and existed at or about the time alleged in the Indictment;
Second: that the defendant knowingly and willfully became a member of the conspiracy; and
Third: that at some time during the existence of the conspiracy, one of the members of the conspiracy knowingly and willfully committed an overt act, and that overt act or acts were committed to further some goal of the conspiracy.
(Dkt. 717 at 28-29, 48 (jury instructions); see also id. at 31-32, 48 (jury instructions on multiple-object conspiracy and Klein objective t6 defraud United States).)
[104] This Court has prepared two post-trial opinions in this case prior to the instant opinion. The first contained our rulings on the Rule 29 and Rule 33 motions filed by defendants, and is 271 pages long. (Dkt. 721.) The second is a set of tentative Step One guideline rulings distributed only to the parties and their attorneys on December 31, 2008, which will be filed on the docket with any necessary edits and revisions at the time of sentencing. It is currently 368 pages long. Not counting the briefing on this motion and the briefing that the Court will receive on the Step Two and Step Three sentencing issues, the parties have submitted more than 1200 pages of post-trial and sentencing briefs, exclusive of exhibits. The trial transcripts total approximately 20,000 pages, and there are additional transcripts of oral argument on extensive pretrial motions. The trial record also contains many documentary exhibits.
[105] There is a much-publicized federal environmental criminal trial in progress in the United States District Court for the District of Montana, Missoula Division, United States v. W.R. Grace, et al., Cr. 05-07-M-DWM. On February 13, 2009, the district court entered an opinion and order denying companion motions by the government and asserted crime victim-witnesses (Mr. and Mrs. Parker, represented by counsel) seeking to accord the CVRA rights of thirty-four asserted crime victim-witnesses under 18 U.S.C. § 3771(a)(3), including the right to attend trial before testifying despite a sequestration order. United States v. W.R. Grace, 597 F. Supp. 2d 1157, 1158, 1166 (D.Mont.2009). On February 27, 2009, the Court of Appeals for the Ninth Circuit granted mandamus petitions filed by the government and the Parkers, holding that the district court erred in finding that the prospective crime victims did not meet the definition of "crime victim," and remanding for hearings as to whether each of the thirty-four individuals should be excluded prior to testifying. Order at 1-2, Parker v. U.S. Dist. Court for the Dist. of Mont. (Missoula), Nos. 09-70529, 09-70533 (9th Cir. Feb. 27, 2009). On March 2, 2009, the district court filed a Notice of Compliance on the court of appeals docket, stating that the government advised on remand that only the Parkers expressed any interest in being present at trial prior to testifying, and even they had withdrawn their request. Notice of Compliance at 2-5, Parker v. U.S. Dist. Court for the Dist. of Mont. (Missoula), No. 09-70529 (9th Cir. Mar. 2, 2009). The district court also described how it had exercised its discretion under Federal Rule of Evidence 611(a) to afford the Parkers their CVRA rights in that circumstance. Id. at 4-5.
The counts of the indictment that were invoked in support of CVRA statutory crime victim status in the W.R. Grace case were Counts I, II, III, and IV of the Superseding Indictment. W.R. Grace, 597 F.Supp.2d at 1161. Counts II, III, and IV allege CAA violations under 42 U.S.C. § 7413(c)(5)(A). Superseding Indictment at 44-45, United States v. W.R. Grace, No. 05-07, 2006 WL 4863956 (D. Mont. June 26, 2006). The corresponding Count I conspiracy objective cites the same statutory section. Id. at 15, 2006 WL 4863956. That provision of the CAA states that "[a]ny person who knowingly releases into the ambient air any hazardous air pollutant..., and who knows at the time that he thereby places another person in imminent danger of death or serious bodily injury [shall be guilty of this offense]." 42 U.S.C. § 7413(c)(5)(A) ("knowing endangerment" offense). There are other counts in that Superseding Indictment that charge obstruction of the EPA in violation of 18 U.S.C. § 1505, with a corresponding Klein-type "defraud" EPA and OSHA (called NIOSH) objective alleged in the Count 1 conspiracy. Superseding Indictment, supra, at 15-16, 46-49, 2006 WL 4863956. We find it significant, however, that none of the obstruction charges were mentioned as supporting the asserted CVRA crime victim status in the W.R. Grace case. W.R. Grace, 597 F.Supp.2d at 1160-66.
[106] See, e.g., cases summarized supra Sec. I.C, including In re Stewart, 552 F.3d at 1286-89 (mortgage borrowers were CVRA victims of bank fraud conspiracy); Gee, 432 F.3d at 714-15 (local entity administering federal welfare funds was MVRA victim of conspiracy to defraud United States through bribery scheme); Hoover, 175 F.3d at 567, 569 (university was MVRA victim of false statement offense in federal student loan program); Haggard, 41 F.3d at 1323-24, 1329 (mother of long-missing child was VWPA victim of false statement hoax directed at FBI); and Hand, 863 F.2d at 1102-05 (federal law enforcement agencies were VWPA victims of juror's contempt of court that caused convictions obtained at trial to be vacated).
[107] A direct and proximate causal link between obstruction of OSHA and a personal injury might be found, for example, in a case where OSHA made an unannounced inspection and directed the employer to have someone demonstrate a piece of machinery, such as an overhead crane; and the employer, knowing the equipment was in an unsafe condition, nonetheless ordered a worker to make the demonstration to OSHA; and while that was in progress the equipment failed and injured the operator, the OSHA inspector, or others in the vicinity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578974/ | 281 S.W.3d 123 (2008)
Elena Maria APODACA, Appellant,
v.
William Thad MILLER, M.D., Appellee.
No. 08-06-00226-CV.
Court of Appeals of Texas, El Paso.
August 7, 2008.
*125 Alfonso L. Melendez, El Paso, TX, for Appellant.
David S. Jeans, Ray, Valdez, McChristian & Jeans, El Paso, TX, for Appellee.
Before CHEW, C.J., McCLURE, J., and BARAJAS, C.J. (Ret.).
OPINION
DAVID WELLINGTON CHEW, Chief Justice.
This appeal arises from an order granting Dr. William T. Miller's motion to dismiss, for failure to provide a sufficient medical expert report pursuant to former Tex.Rev.Civ. Stat. Ann. art. 4590i. Ms. Elena Maria Apodaca raises two issues for review. In Issue One, Ms. Apodaca asserts that Dr. Miller waived his right to dismissal due to an inadequate expert report by waiting three years to file his motion. In Issue Two, she contends the trial court abused its discretion by determining the report was deficient.
On December 15, 1999, Ms. Apodaca underwent cosmetic surgery performed by Dr. Miller. Dr. Miller performed several procedures, including a rhytidectomy (facelift) and a bilateral upper and lower lid blepharoplasty with removal of the corrugator muscle (removal of fatty or excess tissue around the eyes).
On January, 7, 2000, Ms. Apodaca entered the emergency room at Sierra Medical Center in El Paso with complaints of pain and blurry vision. She was diagnosed with vertical diplopia, ptosis of the upper eyelid, and vertical strabismus. A malfunction in one of the muscles which controls the movement in Ms. Apodaca's right eye caused the eye to consistently deviate upward, while her left eye continued to *126 function normally. Because her eyes were unable to be properly directed at an object at the same time, Ms. Apodaca suffered from blurry and double vision. Ultimately, Ms. Apodaca was treated by Dr. Carlos Vasquez, an expert in eye muscle balance. Dr. Vasquez performed a left inferior rectus muscle recession on September 13, 2000, to repair the damaged muscle and control the deviation of Ms. Apodaca's right eye.
Ms. Apodaca filed her original petition in this lawsuit on December 14, 2001.[1] In part, she alleged that her double vision was caused by Dr. Miller's medical negligence during her December 1999 surgery. In accordance with the requirements of former Article 4590i, Ms. Apodaca filed a medical expert report by plastic surgeon, Dr. Mark Young on June 11, 2002. See former Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d)(repealed 2003). Over the next three years, the parties proceeded with discovery, entered into several agreed orders and took depositions. On May 25, 2005, Dr. Miller filed a motion to dismiss the case pursuant to former Article 4590i, sec. 13.01, challenging the sufficiency of Dr. Young's expert report. The hearing on the motion was continued until August 7, 2006. During the hearing, Ms. Apodaca's attorney argued the report was sufficient to meet the statutory requirements, and that Dr. Miller's delay in filing his motion while actively participating in the case constituted an implicit waiver of his right to dismissal. The trial court entered its order dismissing the case on August 7, 2006.
Standard of Review
We review the trial court's decision to grant or deny a motion to dismiss for an abuse of discretion. American Transitional Care Cntrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); see also Spinks v. Brown, 211 S.W.3d 374, 379 (Tex.App.-San Antonio 2006, no pet.)(trial court abused its discretion by granting defendant physician's motion to dismiss). A trial court abuses its discretion if it acts without reference to any guiding rules or principles, or acts in an arbitrary or unreasonable manner. Palafox v. Silvey, 247 S.W.3d 310, 314 (Tex.App.-El Paso 2007, no pet.). We may not substitute our own judgment for that of the trial court when reviewing a matter committed to the trial court's discretion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992).
Waiver
In Issue One, Ms. Apodaca contends the trial court erred by dismissing the case because Dr. Miller implicitly waived his right to dismissal due to an inadequate expert report. She asserts that by participating in discovery, requesting a discovery control plan, and taking part in trial preparation, Dr. Miller took a position inconsistent with his right to end a frivolous suit, thereby waiving his right to dismissal.
Section 13.01 of former Article 4590i requires a plaintiff to provide each *127 defending physician or heath care provider with one or more expert reports, including a curriculum vitae for each expert listed in the report, within 180 days of filing a heath care liability claim. Former Tex. Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d). Where an expert report is tendered, the defendant may challenge the adequacy of the report. See id. at § 13.01(l); Bustillos v. Rowley, 225 S.W.3d 122, 127 (Tex. App.-El Paso 2005, pet. denied). The trial court is authorized to grant a motion to dismiss, "only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section." Bustillos, 225 S.W.3d at 127, quoting Palacios, 46 S.W.3d at 878-79.
Section 13.01 imposed no statutory deadline for a defendant physician or health care provider to file a motion to dismiss.[2]Id. However, a defendant may waive the right to dismissal if the defendant's silence or inaction is inconsistent with the intent to rely upon that right. Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex.2003). The mere fact that a defendant waits to file a motion to dismiss is insufficient to establish waiver. Id. at 157. Waiver is largely a matter of intent. Id. For an implied waiver to be found based on a party's actions, intent must be clearly demonstrated by the surrounding circumstances. Id. at 156. There is no waiver of a right if the party sought to be charged with waiver says or does nothing which is inconsistent with an intent to rely upon such right. Id.
Implicit waiver is only inferred by Texas courts in extreme circumstances. See e.g., Jernigan, 111 S.W.3d at 157 ("For example, if the defendant fails to object to the report's inadequacy until after the case is disposed of on other grounds, waiver may be implied."); In re Sheppard, 197 S.W.3d 798, 802 (Tex.App.-El Paso 2006, orig. proceeding)(by announcing ready for trial following completion of discovery, defendant physician waived right to dismissal based on sufficiency of expert report); Spinks, 211 S.W.3d at 378-79 (dismissal based on physician's objection to expert report constituted an abuse of discretion where defendant waited until after trial to file motion to dismiss). The activities pointed to as evidence of Dr. Miller's intent to waive do not rise to the level of an implicit waiver. Rather, these types of activities represent an intent to investigate the merits of the case primarily by participation in discovery. While a three-year delay in filing a motion to dismiss may result in the defendant's forfeiture of the cost-reducing benefits of the statute, it is not a "clear demonstration" of an intent to waive the statutory right to dismissal. See Jernigan, 111 S.W.3d at 157; Kidd v. Brenham State Sch. Texas Dept. Of Mental Health and Mental Retardation, 93 S.W.3d 204, 208 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). Issue One is overruled.
Expert Report Sufficiency
In Issue Two, Ms. Apodaca asserts the trial court abused its discretion by determining Dr. Young's expert report did not constitute a good faith effort to comply with the requirements of Section 13.01(l). In response, Dr. Miller argues the trial court's determination that the report was *128 insufficient was not an abuse of discretion because Dr. Young's report failed to identify the applicable standard of care, failed to identify the purported breach, and provided only conclusory statements regarding causation while failing to link the alleged breach to Ms. Apodaca's injuries.
A timely filed expert report is subject to challenge by the defendant by a motion to dismiss challenging the report's sufficiency. See former Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d), (e) & (l). The trial court shall grant the motion to dismiss only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the statutory definition of an expert report. See former Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(l). An "expert report," is a written report by a qualified expert, and provides 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 or health care provider failed to meet the standard of care; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See former Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(r)(6).
Although a report need not marshal all the plaintiff's proof, it must include expert opinions on the three elements identified in the statute. Palacios, 46 S.W.3d at 878-79. In detailing these elements, the report must provide enough information to fulfill two purposes: (1) the report must inform the defendant of the specific conduct the plaintiff has called into question; and (2) the report must provide a basis for the trial court to conclude that the claims have merit. Id. at 879. All of the relevant information must be contained within the four corners of the report. Id. at 878. If a report omits any of the statutory elements it cannot constitute a good faith effort. Id. at 879.
The standard of care for a physician is what an ordinary prudent physician would do under the same or similar circumstances. Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex.App.-Texarkana 2003, pet. denied). At a minimum, the report must provide a "fair summary" of the standard of care, identifying what care was expected but not given. Palacios, 46 S.W.3d at 880; Bustillos, 225 S.W.3d at 130. Identification of the standard of care is critical to defining the alleged breach. Sutherland, 107 S.W.3d at 789. That is, whether the defendant breached his duty to the patient cannot be determined without an explanation about what the defendant should have done differently. Sutherland, 107 S.W.3d at 790. On the issue of causation, the report must contain more than conclusory insights about the alleged injury. Id. The expert must explain the basis of his causal conclusions by linking those conclusions to the facts of the case. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002).
Dr. Miller's motion to dismiss included challenges to the sufficiency of the report on all three statutory elements. In pertinent part, Dr. Young's report provides the following:
It is my opinion that Ms. Apodaca suffered from strabismus as a result of surgery performed by Dr. Miller on December 15, 1999. In order to have normal vision using both eyes, both eyes must be directed at an object at the same time. Strabismus occurs when there is a deviation from this perfect alignment so that one or both eyes cannot be directed at the same object at the same time. Ms. Apodaca's strabismus (right hypertropia) involved a deviation of her right eye upward. Ms. Apodaca's strabismus caused her double vision.
*129 It is my opinion that Ms. Apodaca suffered an injury to the superior oblique muscle during blepharoplasty by Dr. Miller on December 15, 1999. The superior rectus muscle elevates the eye and the superior oblique muscle depresses the eye. If there is an injury to the superior oblique muscle, this may weaken the muscle and cause hypertropia or deviation of one eye upward. During surgery on the right upper lid, while removing fat from the medial side of the eye, Dr. Miller injured the superior oblique muscle. This injury to Ms. Apodaca's superior oblique muscle in her right eye weakened the muscle and caused her right eye to deviate upward, resulting in double vision. The accepted standard of care of an ordinary and reasonable plastic surgeon performing upper eyelid surgery under the same or similar circumstances as the surgery performed by Dr. Miller on Ms. Apodaca on December 15, 1999, is to avoid trauma or injury to the superior oblique muscle while removing fat from the medical side. This type of trauma during surgery is preventable and is not a common surgical risk. It is my opinion that Dr. Miller breached the accepted standard of care by injuring the superior oblique muscle during surgery on December 15, 1999. It is my opinion that the breach of the accepted standard of care by Dr. Miller was a cause of injury and damages to Ms. Apodaca, including double vision, the need for corrective surgery, and physical impairment.
This report satisfies the statutory requirements. Dr. Young identifies the factual basis of Ms. Apodaca's injury (i.e., injury to the superior oblique muscle in her right eye) and explains that this type of injury leads to deviation of the eye resulting in double vision. He further opines that this is the type of injury that Ms. Apodaca has suffered. The report continues by explaining that the standard of care during this type of cosmetic surgery includes avoiding trauma to this muscle.
The report clearly states that, in Dr. Young's opinion, Dr. Miller breached the standard of care by traumatizing the superior oblique muscle during surgery. The reports concludes by linking Ms. Apodaca's complaints of double vision with injury to the muscle.
This report provides a fair summary of the standard of care, the alleged breach and causal connection between that breach, and Ms. Apodaca's alleged injuries. The report also satisfies the dual purposes of the statute. Therefore, the trial court abused its discretion by granting Dr. Miller's motion to dismiss. Issue Two is sustained.
Having determined that the trial court abused its discretion by granting Appellee's motion to dismiss, we reverse the order of dismissal and remand this cause to the trial court for further proceedings.
BARAJAS, C.J. (Ret.)(Sitting by Assignment).
NOTES
[1] In 2003, the Legislature replaced Article 4590i with Civil Practice and Remedies Code Chapter 74, effective September 1, 2003. See (Acts of 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2039-2053, amended by Acts of 1993, 73rd Leg., R.S., ch. 625, § 3, 1993 Tex. Gen. Laws 2347, 2347-49, amended by Acts of 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 985-989)(Former Tex.Rev.Civ. Stat. Ann. art. 4590i, §§ 1.01-16.02, "the Medical Liability and Insurance Improvement Act"), repealed by Acts of 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.001 et seq). (Vernon Supp.2008)(eff. Sept. 1, 2003). As this case was filed prior to the effective date of Chapter 74, we will refer to Article 4590i throughout this opinion.
[2] Under the current version of the statute, a defendant physician or health care provider must file and serve any objection to the sufficiency of an expert report no later than twenty-one days after being served with the report. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a)(Vernon Supp.2008). Absent a timely objection, the defendant waives all objections. See id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578979/ | 281 S.W.3d 474 (2008)
Robert F. DUNCAN, Jr. and InterAmerica Property Company, Appellants,
v.
F-STAR MANAGEMENT, L.L.C., F-Star Properties, Inc., F-Star Socorro, L.P., Five Star International Holdings Incorporated, Nine Star Investments Incorporated, Gerald C. "Jerry" Ayoub, Five on Site International, Inc. and Penta Estrella S. de R.L. de C.V., Appellees.
No. 08-06-00007-CV.
Court of Appeals of Texas, El Paso.
August 21, 2008.
*476 Susan Larsen, Austin, TX, for Appellants.
Randy Lee, Midland, TX, for Appellees.
Before CHEW, C.J., McCLURE, and CARR, JJ.
OPINION
DAVID WELLINGTON CHEW, Chief Justice.
Appellant Robert Duncan sued Appellees F-Star[1] for unpaid commission and tax-consulting fees. The trial court directed a verdict in favor of F-Star, and Mr. Duncan appeals that judgment. We find that the commission agreements between Mr. Duncan and F-Star are unenforceable under the Real Estate License Act, and that Mr. Duncan is barred from collecting tax-consulting fees because he was not a registered property-tax consultant, and we affirm the trial court's judgment.
Robert Duncan is a licensed real estate broker. He is the sole owner of InterAmerica Property Company, an El Paso brokerage dealing in commercial real estate along the United StatesMexico border. In 1997, Thomson Consumer Electronics wanted to consolidate its warehouse facilities in El Paso. Thomson wanted to find warehouse space with railroad access, close proximity to the border, foreign-trade zoning, and the possibility of property-tax abatements. Thomson entered an exclusive-representation agreement with Mr. Duncan to find an appropriate space. The agreement specified that Mr. Duncan should negotiate his commission with the landlord of the property. Several developers competed to provide Thomson with the warehouse space, including Five Star International, one of the companies owned by Appellee Gerald Ayoub.
After Mr. Ayoub learned about Thomson's proposed warehouse project, he asked InterAmerica to find railroad-accessible property in Socorro, which Mr. Ayoub could purchase and lease to Thomson. Mr. Duncan found a suitable piece of farmland. Nine Star Investments, another of Mr. Ayoub's companies, agreed to purchase the farmland from Wells Fargo Bank on October 29, 1997. The terms of the purchase were laid out in an earnest-money contract signed by Mr. Ayoub, Mr. Duncan, and a real-estate-asset manager from Wells Fargo. The earnest-money contract identified the land as "consisting of Tracts 15, 16 and 17, in Block 11, out of the Socorro Grant, El Paso County, Texas, consisting of not more than 145 acres." The earnest-money contract also specified that "Buyer shall pay Broker a fee as specified in a separate agreement between Broker and Buyer," with "Buyer" referring to Nine Star International and "Broker" referring to InterAmerica.
On November 15, 1997, Mr. Duncan sent Mr. Ayoub a letter stating that InterAmerica had procured Five Star Development, *477 yet another of Mr. Ayoub's companies, as a prospective buyer for property identified only as "Operation Campus View, Socorro, Texas." The letter stated that InterAmerica would receive a 6 percent commission if Five Star Development purchased the property. The letter also stated that the agreement would begin on November 15, 1997 and last for one year. Both Mr. Duncan and Mr. Ayoub signed the letter.
Thomson's corporate real estate officer determined that Mr. Ayoub's newly acquired property in Socorro would be the ideal site for Thomson's warehouse. On November 26, 1997, Mr. Duncan sent Mr. Ayoub another letter stating that InterAmerica had procured Thomson as a prospective tenant for the property in Socorro. The property was again identified only as "Operation Campus View, Socorro, Texas." The letter stipulated that InterAmerica would receive a commission of 1.4 percent of the total rent for the entire term.
On December 11, 1997, Thomson entered a lease with Mr. Ayoub's company Five Star International as landlord. Under the terms of the lease, Thomson would rent a 950,000 square foot building to be constructed by Five Star International. The building would be located on a 67 acre parcel of land, which the lease identified with addresses and a map. The legal description of the land was "a portion of Tracts 15-17, inclusive Block 11, Socorro Grant, El Paso County, Texas." The lease term was for twelve years.
After signing the lease with Thomson, Mr. Ayoub sought tax abatements on his newly purchased 145 acre tract in Socorro, including the 67 acres rented by Thomson. Mr. Duncan attended several meetings with taxing authorities on Mr. Ayoub's behalf, and he delivered a presentation to the Socorro Independent School District. The presentation was successfulon March 9, 1998, Mr. Ayoub's company F-Star Socorro entered a ten-year tax-abatement agreement with the school district.
Meanwhile, development of the property hit several snags. The land-sale closing was delayed three times, finally occurring on March 24, 1998. Mr. Ayoub also had difficulty obtaining a loan. In order to procure the loan, Mr. Ayoub asked Mr. Duncan to defer his commission until 1999. Mr. Duncan agreed to defer his commission, but he requested advances from Mr. Ayoub to keep his company afloat. In February 1998, Mr. Duncan received checks for $50,000 and $24,500 from Mr. Ayoub's company Five On-Site International. In April, Mr. Duncan received two more checks, for $25,500 and $20,000, also from Five On-Site International. As part of his agreement to defer his commission, Mr. Duncan requested that his commission on the lease be raised from 1.4 percent to 5 percent. On May 1, 1998, Mr. Duncan sent Mr. Ayoub a letter stating that InterAmerica would receive a commission of 5 percent of the total rent for the entire term of the lease. The letter also specified that F-Star Socorro would pay Mr. Duncan a consulting fee of $500,000 for his services in connection with the tax-abatement program. Both Mr. Duncan and Mr. Ayoub signed the letter.
Thomson occupied the Socorro warehouse site on July 1, 1998. Mr. Duncan and InterAmerica did not directly receive any further payments on the commission, although Mr. Ayoub testified that his companies paid third parties on Mr. Duncan's behalf.
On January 18, 2001, Mr. Duncan filed his third amended petition against Appellees Mr. Ayoub, F-Star Management, F-Star Properties, F-Star Socorro, Five Star International, Nine Star Investments, Five On-Site International, and Penta Estrella. In the petition, Mr. Duncan alleged that F-Star owed him more than $3 million in *478 unpaid commissions and $500,000 in tax-consulting fees. Mr. Duncan alleged breach of contract, quantum meruit, fraud, breach of fiduciary duty, and deceptive trade practices. After a jury trial, the trial judge issued a directed verdict, ordering that Mr. Duncan take-nothing on his claims.
A directed verdict is proper when (1) the opponent's pleadings are defective and insufficient to support a judgment, (2) the evidence conclusively proves a fact that establishes the movant's right to judgment as a matter of law, or negates the right of the nonmovant to judgment, or (3) the evidence offered is insufficient to raise a fact issue on the cause of action at issue. State ex rel. Tex. Dep't of Transp. v. Esquivel, 92 S.W.3d 17, 19 (Tex.App.-El Paso 2002, no pet.). In reviewing a trial court's grant of a directed verdict on an evidentiary basis, we determine whether there is any evidence of probative force to raise fact issues on the material issues presented. Id. at 19-20. We consider all of the evidence in a light most favorable to the party against whom the verdict was instructed and disregard all contrary evidence. White v. Sw. Bell Tel. Co., Inc., 651 S.W.2d 260, 262 (Tex.1983). If there is any conflicting evidence of probative force on any theory of recovery, the issue is for a jury. Id. In that case, a directed verdict is improper, and the case must be reversed and remanded for the jury's determination on the issue. Esquivel, 92 S.W.3d at 20.
In Issue One, Mr. Duncan argues that there was sufficient evidence to support his claim for commission from the lease between Thomson and Five Star International, and that the directed verdict was improperly granted on that claim.
At the time that Mr. Duncan filed his petitions in the trial court, the Real Estate License Act provided: "An action may not be brought in a court in this state for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged or signed by a person lawfully authorized by the party to sign it." Act of 1997, 75th Leg., R.S., ch. 839, § 27(b), 1977 Tex.Gen.Laws 2695, 2709 (amended 2001)(current version at Tex.Occ.Code Ann. § 1101.806(c)(Vernon 2004)). "Real estate" under the Act includes a leasehold. Tex. Builders v. Keller, 928 S.W.2d 479, 481 (Tex.1996).
To comply with the Act's requirements, a written commission agreement must provide a description of the real estate that would satisfy the statute of frauds. Keller, 928 S.W.2d at 481. In other words, the agreement must furnish, either within itself or by reference to some other existing document, the means or data by which the real estate may be identified. Id., citing Owen v. Hendricks, 433 S.W.2d 164, 166 (Tex.1968). A commission agreement does not have to contain a metes-and-bounds property description to be enforceable, but it must furnish the data to identify the property with reasonable certainty. Id., citing Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex.1972). Parol evidence may be used to clarify or explain the agreement, but not to supply the agreement's essential terms. Id. For example, a court of appeals held that a contract for the sale of "my ranch of 2200 acres" satisfied the statute of frauds where extrinsic evidence showed that the grantor owned one ranch, which contained 2200 acres. Jones v. Smith, 231 S.W.2d 1003, 1004 (Tex.Civ.App.-Austin 1950, writ ref'd n.r.e.). However, a commission agreement for the sale or lease of an unidentified portion of a larger, identifiable tract is not sufficient. See Keller, 928 S.W.2d at 482 (holding unenforceable a commission *479 agreement that specified the address of the leased property, but did not identify which 58,333 square feet of the property's total 100,000 square feet were being leased).
Mr. Duncan argues that the May 1 letter expresses his final agreement with Mr. Ayoub for a 5 percent commission on the lease to Thomson. The May 1 letter only identifies the property as "Build-to-Suit for Thomson Consumer Electronics Facility in Socorro, Texas (`Property')." Mr. Duncan does not argue that this is a sufficient description of the property. Rather, he argues that the May 1 letter should be read together with the December 11 lease, which specifies the size and location of the leased property.
But even assuming that the December 11 lease contains a sufficient description to identify the property, the May 1 letter does not explicitly refer to the December 11 lease. The first three paragraphs of the letter state as follows:
The purpose of this letter is to confirm that InterAmerica Property Company, as Broker, has procured Thomson Consumer Electronics ("Tenant"), as a prospective tenant for the Property. In the event a lease of the Property, or any part thereof, is consummated with Tenant, you agree to pay InterAmerica Property Company its commission as described below.
(1) For a net lease (where the Tenant pays all or a major portion of the cost of maintaining and operating the Property), an amount equal to five percent (5 %) of the total rent for the entire term, shall be paid by you to InterAmerica Property Company upon occupancy of the Property.
(2) The lease contains options to lease additional space in the Property. If such option is exercised, or if additional space is leased through subsequent modification of the lease or its terms, an additional commission computed as $2.58 of the $5.50 PSF construction management fee outlined in Paragraph 10(b) of the lease is earned and payable with respect to such additional space per Paragraph 10(b).
The prefatory paragraph and paragraph (1) appear to contemplate a lease to be signed at a future date. Although paragraph (2) refers to "the lease," it refers to a lease with a paragraph 10(b), regarding an option to expand. The December 11 lease has no paragraph 10(b). As far as we are able to determine, the only document in the record here with a paragraph 10(b) on expansion is an unsigned land-sale contract between F-Star Socorro and a third-party family trust.
We find that the May 1 letter is not an enforceable commission agreement because it does not sufficiently identify the leased property and does not specifically refer to another existing document that does identify the property. Accordingly, Issue One is overruled.
In Issue Two, Mr. Duncan argues that there was sufficient evidence to support his claim for commission from the land-sale contract between Wells Fargo and Nine Star Investments.
In support of this argument, Mr. Duncan relies on the November 15 letter, which stipulated that InterAmerica would receive a 6 percent commission on the sale of land identified only as "Operation Campus View, Socorro, Texas (`Property')." Mr. Duncan argues that the parties understood the phrase "Operation Campus View" to refer to a specific site in Socorro where the Thomson facility would eventually be located. He also argues that the November 15 letter should be read together *480 with the earnest-money contract, in which Nine Star agreed to purchase the 145 acre tract from Wells Fargo.
The record does not reflect that the phrase "Operation Campus View" was used unambiguously to refer to a single tract of land. Thomson used the phrase "Operation Campus View" to refer generally to its project of consolidating its warehouse facilities. The phrase appears in both the November 15 letter, describing the 145 acre tract that was sold to Nine Star, and the November 26 letter, describing the smaller 67 acre tract that was leased to Thomson. By itself, the term could not have connoted a specific tract of land with a specific acreage.
Moreover, the November 15 letter does not refer to the earnest-money contract or to any other land-sale contract. The only mention of an agreement between Five Star Development and Wells Fargo appears to be a contemplation of a future agreement: "In the event a sale of the Property or any part thereof is consummated with Buyer then you agree to pay IPC its commission as described below...."
The November 15 letter is not an enforceable commission agreement because it does not sufficiently identify the sold property and does not specifically refer to another existing document that does identify the property. Accordingly, Issue Two is overruled.
In Issue Three, Mr. Duncan argues that there was sufficient evidence to support his claim for tax-abatement consulting fees. F-Star responds by arguing that because neither Mr. Duncan nor InterAmerica is a registered property-tax consultant, they may not recover consultant fees under Section 1152.151(a) of the Occupations Code. Mr. Duncan did not respond to this argument in his reply brief. At oral argument, Mr. Duncan's counsel admitted that there was nothing in the record to show Mr. Duncan was a registered property-tax consultant, but argued that because the agreement concerned rural property, Mr. Duncan was not required to register.
In 1999, when Mr. Duncan claims to have performed tax-consulting services for Mr. Ayoub's companies, the Public Accountancy Act provided: "A person may not represent that an individual is a registered property tax consultant, agent, advisor, or representative unless the individual is a registered property tax consultant or registered senior property tax consultant." Act of 1995, 74th Leg., R.S., ch. 727, § 2(c), 1995 Tex.Gen.Laws 3833 (amended 2001)(current version at Tex. Occ.Code Ann. § 1152.151 (Vernon 2004)). But a consultant could be exempt from that section if he provided consulting services only for a single-family residence. Act of 1995, 74th Leg., R.S., ch. 727, § 2(d)(8), 1995 Tex.Gen.Laws 3833 (amended 2001)(current version at Tex. Occ.Code Ann. § 1152.002(a)(8)(Vernon 2004)). On June 1, 2003, the registration requirement was repealed and recodified at Section 1152.151 of the Occupations Code, while the single-family-residence exception was recodified at Section 1152.002(a)(8). On June 20, 2003, the single-family-residence exception was amended to provide that a consultant could be exempt from the registration requirement if he provided consulting services only for farms, ranches, or single-family residences. Tex.Occ.Code Ann. § 1152.002(a)(8).
The rural exception to the property-tax-consultant registration requirement was not in effect in 1999, when Mr. Duncan allegedly performed his tax-consulting services for Mr. Ayoub's companies. Therefore, Mr. Duncan's claim for property-tax-consulting fees is barred, as there is no evidence indicating that he was properly *481 registered under the Public Accountancy Act. Issue Three is overruled.
In Issue Four, Mr. Duncan makes two arguments: (1) that Mr. Ayoub judicially admitted that he owed Mr. Duncan a commission for the lease; and (2) that Mr. Ayoub partially performed by paying Mr. Duncan $120,000 in advances on the commission.
A party's testimonial declarations that are contrary to his position are considered "quasi-admissions." Mendoza v. Fidelity & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex.1980). Quasi-admissions are distinct from true judicial admissions, which are formal waivers of proof usually found in pleadings or the stipulations of the parties. Id. A quasi-admission will be treated as a judicial admission only if: (1) the declaration was made during the course of a judicial proceeding; (2) the statement is contrary to an essential fact embraced in the declarant's theory of recovery or defense; (3) the statement is deliberate, clear, and unequivocal; (4) giving conclusive effect to the declaration will be consistent with public policy; and (5) the statement is not destructive of the opposing party's theory of recovery. Mendoza, 606 S.W.2d at 694. A judicial admission is waived when evidence contrary to the purported admission is heard without objection on that ground. Field v. AIM Mgmt. Group, Inc., 845 S.W.2d 469, 473 (Tex.App.-Houston [14th Dist.] 1993, no writ); Indus. Disposal Supply Co., Inc. v. Perryman Bros. Trash Serv., 664 S.W.2d 756, 764 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.).
Mr. Duncan points to Mr. Ayoub's deposition testimony, in which Mr. Ayoub stated: "If you're asking if he was entitled to 1.4 percent or Inter America was entitled to 1.4 percent commission stated in the commission agreement of approximately $434 [thousand], yes, we goI've always agreed to that." But at trial, when Mr. Ayoub was asked why he used Five On-Site International to pay Mr. Duncan rather than one of the business entities involved in the Socorro transaction, Mr. Ayoub responded: "They were advances. And none of those companies you mentioned owed him any money." Mr. Duncan's counsel did not object to this remark. The latter statement made at trial plainly contradicts Mr. Ayoub's earlier deposition testimony. By not objecting, Mr. Duncan waived his judicial-admission contention. See Field, 845 S.W.2d at 473.
Mr. Duncan also argues that Mr. Ayoub and his companies partially performed on the agreement by paying Mr. Duncan $120,000 in advances. Partial performance of an otherwise-unenforceable agreement will sometimes relieve the performing party from the statute of frauds, but the partial performance must be unequivocally referable to the agreement and corroborative of the fact that an agreement was made. Leon Ltd. v. Albuquerque Commons P'ship, 862 S.W.2d 693, 702 (Tex.App.-El Paso 1993, no writ). What is done must itself supply the key to what is promised. Chevalier v. Lane's, Inc., 147 Tex. 106, 113, 213 S.W.2d 530, 534 (Tex. 1948).
The checks from Five On-Site International to Mr. Duncan do not unequivocally corroborate any of the unenforceable commission agreements involved in this case. Both commission agreements specify that commission should be paid to InterAmerica, but the checks are made out to Mr. Duncan individually. The checks are from Five On-Site International, which was not a party to either commission agreement. Moreover, the memo sections of the checks also do not indicate that they are commission payments. One check states that it is for a "Consulting Fee," another states that *482 it is to "Reimburse Expenses," and the other two have blank memo sections. Neither the sender nor the recipient of the checks was a party to the commission agreements, and the memo sections do not suggest that the checks were commission payments. The checks do not corroborate the commission agreements sufficiently to constitute partial performance and circumvent the statute of frauds. Issue Four is overruled.
In Issues Five and Six, Mr. Duncan argues that there was sufficient evidence to establish a fact question as to whether Mr. Ayoub had engaged in fraud through his alter ego companies.
In Mr. Duncan's third amended petition, he did not allege any fraud damages apart from his lost commissions and his lost tax-consulting fee. As discussed above, we find that Mr. Duncan's commission agreement and his tax-consulting agreement are both unenforceable. A real-estate broker may not allege fraud to recover commission on an unenforceable commission agreement, even if he can prove the elements of fraud. Keller, 928 S.W.2d at 482; see also Trammell Crow Co. No. 60 v. Harkinson, 944 S.W.2d 631, 633 (Tex.1997)(barring a broker's claims for tortious interference and civil conspiracy where there was no enforceable commission agreement and the broker only sought the commission as damages).
Because Mr. Duncan did not allege damages apart from his lost commissions and lost tax-consulting fees, both of which arise from unenforceable agreements, we find that his action for fraud is barred. Issues Five and Six are overruled.
We affirm the trial court's judgment.
NOTES
[1] We will refer to Appellees collectively as "F-Star" throughout this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304530/ | PORTRUM, J.
These suits grew out of an automobile accident. The salesman of Huntsman Brothers, while driving the company’s car, on the company’s mission, attempted to pass an on-coining car, upon the highway, in the nighttime, and was unable to see a parked truck upon the edge of the highway and, as a consequence, he ran into the truck at the time the two moving ears attempted to pass. The truck was owned and used by the Grocers Baking Company and was under the charge of its driver.
Each company sued the other for damages growing out of the accident, before a justice of the peace. The cases were carried to the circuit court and tried together; Huntsman Brothers, Inc., was successful and recovered a judgment. The Grocers Baking Company has appealed.
The drivers of the car and truck were the principal witnesses; their testimony was reduced to a narrative form and quotations therefrom will supple a statement of the facts.
The witness, Henry Peterson, salesman for Huntsman Brothers, states:
*536“About eight o’clock on the evening' of December 7, 1929, I was driving from Piney Flats toward Johnson City, returning from my day’s work for Huntsman Brothers, in the Chevrolet coupe belonging to Huntsman Brothers Company, Inc., a corporation organized and operating under the laws of the State of Tennessee, with its principal place of business in Bristol, Tennessee. A short distance on this side of Piney Flats a collision occurred between the Chevrolet coupe which I was driving and the truck which belonged to the Grocers Baking Company and was in charge of its driver, G. H. E'ads. About two hundred yards from the place of the collision I crossed the top of a hill and travelled a straight stretch of road all the way on a slight downward slope, to the place where the collision occurred. My headlights were both in good condition and shone about one hundred yards ahead of the car within which distance I could see any object on the highway. When I was about half the distance from the top of the slope to where it developed the Grocers Baking Company truck was standing, a car appeared coming from the opposite direction and its lights of course shone into my eyes, more and more as it came closer. Just about the time that the ear coming toward me and my car were about to pass I saw a large object just a few feet ahead in the highway, but inasmuch as the car coming toward me was just to my left on the highway I could only turn part way across the road to the left. After turning as far as I could to my left without hitting the ear which was passing me, the right side of my car struck the left side of the object which turned out to be the Grocers Baking Company truck. As a result of this collision my ear was damaged.
“The truck of the Grocers Baking Company had no lighted taillight of any description at the time I was driving from the top of the slope to the place the collision occurred. After the accident the driver of the truck, Mr. Eads, and I examined the truck and I asked him where his tail-light was but he said that he didn’t know, that he had expected some one to run into his truck ever since it had been standing there. Mr. Eads further told me that he was driving for the Grocers Baking Company to which concern his truck belonged, that he had been somewhere delivering bread' but had had trouble all the way back from Bristol, that this was the third time he had stopped and that he had put the jack under his left rear wheel three times since he had left Bristol. The jack was under the left rear axle of his truck at the time the accident occurred but the car was not pushed off the jack by the collision. The tail-light attachment on the truck, in which there was no light, was just to the rear of the place where the jack had been placed.
“At the time of the collision the truck was standing so that about three and one-half of its width covered the highway, the *537asphalt portion of the highway at this point being about sixteen and one-half feet in width and dirt shoulders on each side about two and one-half feet. I am positive that the truck had no taillight before the collision and 1 know that if there had been one burning I would have seen it.”
The witness, G. H. Eads, driver of the truck, says:
“That he was coming from Bluff City to Johnson City on the day above mentioned on the highway between Bluff City and Johnson City about a quarter of eight and his left rear tire became flat; that he pulled to the right side of the road as far as he could go in safety, being about 6 inches from a ditch along the side of the road; that he proceeded to the rear of the car and jacked up the left rear wheel of the car in order to change the tire; that he found out that he did not have an extra tire with him and he sent word to Johnson City to send out a tire; that he waited in the seat of the truck for help from Johnson City; that his head lights were burning but he is not positive about the tail light; that said highway is of macadam construction, being 16J feet in width and having a gravel shoulder of approximately 3 feet, leaving about 23 feet driving space; that his car covered approximately 6 feet of the surface, and that this left approximately 17 feet of the road open; that while he was sitting in the car the Peterson car ran right into him or his truck; that he made no statement to Peterson in regard to what Peterson testified to the effect that he knew some one was going to hit or run into him.”
The main contention of the plaintiff-in-error is that there is no liability on its part because the driver of the car was under the duty to keep his car under control at all times so as to be able to stop his car within the radius of his lights and prevent an accident. And since he was remiss in this duty there was no ground for complaint. In support of this contention the following authorities are cited: West Construction Co. v. White, 130 Tenn., 520, 172 S. W., 301; Knoxville Ry. & Light Co. v. VanGilder, 132 Tenn., 487, 178 S. W. 1117; Cleveland v. Clark, 6 Tenn. App., 364; Vartanian Tenn. Law of Automobiles, 55, 56.
In the West Construction Co. case the driver of a car ran into an unlighted concrete mixer parked on the wrong side of the street in Chattanooga, and the court said:
‘ ‘ It was negligence for the driver of the automobile to propel it in a dark place in which he had to rely upon the lights of his machine at a rate faster than enabled him to stop or avoid an obstruction within the radius of his light, or within the distance to which his lights would disclose the existence of an obstruction.”
In the VanGilder case, the driver was driving around a curve in the road on the inside of the curve and ran into an unlighted *538obstruction, caused by placing and leaving barrels in the road way. The court said:
“The fact that the bright lights from a large automobile were shining in the face of VanG-ilder, and that he was turning a curve where his own light did not shine directly in the way his machine was going around the curve, was a greater reason that he should have stopped or slowed up his machine, as to avoid running into a place of danger.”
In the Clark case the driver was operating his car through a fog, when his lights shone only a distance of ten or twelve feet, when he ran into an unlighted car, parked on the wrong side of the street. The court held the driver guilty of contributory negligence.
In each of these cases, the driver was not using that caution which the ordinary prudent man uses under like circumstances for his own protection.
In the case, at bar the drivers of the moving cars followed a course that all men pursue. They attempted to pass each other without stopping, which made it necessary for each to drive into a dark hole as the cars came along-side of each other. So far as visibility is concerned, the lights of each car diminished the length of the radius of the lights of the other to almost the vanishing point at the place of passing. It is this natural law that makes it impossible, to see the dark heavenly bodies, or dark stars, that give off no light.
It is not a question of the driver being blinded by the lights of the approaching car; he was not blinded, but because of a natural law he was unable to see, and by necessity had to drive into a dark place, or stop his car. The ordinary prudent person does not stop under such circumstances; he expects others who find themselves in this place of danger to. have regard for their own safety and display a light of warning.
There is an objection to the testimony of the mechanic, who estimated the iron-repairable damage to the car, because he did not see the ear before the accident. Counsel by cross-examination may have been able to show' that the witness could not estimate the non-repairable damage without a prior inspection, but this -was not done.
Judgment of the lower court affirmed with costs.
Snodgrass and Thompson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2393370/ | 707 S.E.2d 629 (2010)
STATE of North Carolina
v.
Jihad Rashid MELVIN.
No. 382PA09.
Supreme Court of North Carolina.
December 20, 2010.
*630 Roy Cooper, Attorney General, by Norma S. Harrell, Special Deputy Attorney General, for the State-appellant.
Staples S. Hughes, Appellate Defender, by Daniel R. Pollitt, Assistant Appellate Defender, for defendant-appellee.
EDMUNDS, Justice.
In this case we consider whether the trial court erred by failing to instruct the jury that it could not convict defendant of both first-degree murder and accessory after the fact to murder. Although we conclude that the trial court should have given the instruction, defendant failed timely to object to its omission. Because we find no plain error, we reverse the decision of the Court of Appeals.
On 10 July 2007, defendant was indicted for one count of first-degree murder and one count of accessory after the fact to murder. Because no evidence suggested that defendant had fired the shots that killed the victim, the first-degree murder charge against him was based on the theories of acting in concert and aiding and abetting. At a pretrial hearing held on 22 July 2008 to consider motions filed in the case, defendant argued that the two offenses in the indictment were inconsistent and moved to have the district attorney elect the State's theory of proof or, in the alternative, for the court to sever the offenses. During the discussion of these motions, the trial court asked counsel: "[I]s the jury instructed they can onlyif they were to find the defendant guilty of first-degree murder, they would not consider accessory after the fact, or do you allow them both to go and then the court arrests one judgment, as opposed to the other?" The State cited State v. Jewell, 104 N.C.App. 350, 409 S.E.2d 757 (1991), aff'd per curiam, 331 N.C. 379, 416 S.E.2d 3 (1992), to support its position that the latter course was proper, and defense counsel, "as an officer of the court," conceded that he believed the State had correctly cited the controlling case. The trial court then denied defendant's motion to sever the two offenses and determined that the State had made an election to proceed on the theory of acting in concert.
At trial, the State presented evidence that, at approximately 11:00 a.m. on 21 March 2007, defendant drove Robert Ridges (Ridges) and Tony Cole (Cole) to the home of Ridges's brother, Elijah. As Ridges, Cole, and defendant were driving away after the visit, they spotted the victim, Almario Millander. They waved the victim over to their car, and Ridges sold him a quantity of what was purported to be crack cocaine. As they attempted to leave, however, the car stalled. The victim walked over to the immobilized car, claimed Ridges had sold him counterfeit crack, and demanded his money back. When Ridges denied the accusation, the victim pulled out a sawed-off shotgun and pointed it at Ridges, who was unarmed. Defendant *631 was able to restart the car and drive away with Ridges and Cole without shots being fired.
In the aftermath of the encounter, an angry Ridges "swore on his son" that he was going to "get" the victim. Ridges left Cole and defendant for a time, then returned. As the three later "chilled" and smoked "weed" at a friend's house, Cole realized that Ridges had obtained a gun when he saw Ridges "pull[] it out" in defendant's presence. That same evening, defendant drove as he, Ridges, and Cole looked for the victim. They came across an individual named Ken Adams, who told them the victim was at Adams's residence. Cole exhorted Ridges: "[G]o in his house, you going to kill this man, you got to kill the other guy too. Can't be no eyewitnesses."[1] Defendant agreed with Cole but Ridges responded that the victim was the only one he wanted. During this discussion, defendant briefly took possession of Ridges's pistol, but Ridges retrieved it. Ridges, Cole, and defendant exited the car and walked toward Adams's residence. Defendant climbed the steps to the rear of the residence, while Ridges entered through the back door. Adams, who was inside, saw Ridges open fire on the victim. As the victim tried to escape through a window, Ridges shot him twice, hitting the victim behind one knee and inflicting a fatal wound to the victim's chest.
Defendant then drove Ridges and Cole from the scene. They stopped at a gas station, where Cole and Ridges made purchases while defendant waited in the car. After they left, a law enforcement officer attempted to stop defendant's car using his blue lights and siren. Defendant turned onto a dirt road and accelerated, raising a cloud of dust that caused the pursuing officer to drop back. The car stalled again, so defendant pulled to the side of the road, and he, Ridges, and Cole fled into nearby woods. The officer, who was acting on information indicating only that the vehicle's registration was faulty, stopped at the abandoned car, but, unable to find the occupants and seeing no evidence of a crime, left after a short wait.
Once the officer departed, defendant, Ridges, and Cole returned to the car, wiped it down to remove fingerprints, and attempted to set it on fire. They then dismantled the murder weapon and wiped all fingerprints off the pieces. They caught a ride, and, as they were driven to the home of the mother of defendant's child, each of the three threw components of the dismantled pistol from the car. Parts of the weapon were recovered during the investigation and identified by State Bureau of Investigation agent Jessica Rosenberry as belonging to the gun used to shoot the victim.
Defendant was convicted by a jury of both first-degree murder and accessory after the fact to murder. The trial court arrested judgment on the conviction of accessory after the fact but sentenced defendant to life imprisonment without parole for the first-degree murder conviction. On appeal, the Court of Appeals concluded that the trial court committed plain error by failing to instruct the jury that it could convict defendant of either charge, but not both. 199 N.C.App. at 479, 682 S.E.2d at 246. Accordingly, the Court of Appeals vacated the judgment and ordered a new trial. This Court allowed the State's petition for discretionary review.
We begin by defining the pertinent doctrines. "First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation." State v. Thomas, 350 N.C. 315, 346, 514 S.E.2d 486, 505 (citation omitted), cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388 (1999); see also N.C.G.S. § 14-17 (2009). The doctrine of acting in concert provides that "when two or more persons act together in pursuance of a common plan or purpose, each is guilty of any crime committed by any other in pursuance of the common plan or purpose." State v. Thomas, 325 N.C. 583, 595, 386 S.E.2d 555, 561 (1989). Specifically, acting in concert "allows a defendant acting with another person for a common purpose of committing some crime to be held guilty of a murder committed in the pursuit of that common plan even though the defendant did not personally *632 commit the murder." State v. Roache, 358 N.C. 243, 306, 595 S.E.2d 381, 421 (2004) (citation omitted). A defendant is guilty of aiding and abetting another in the commission of an offense if:
(i) the crime was committed by some other person; (ii) the defendant knowingly advised, instigated, encouraged, procured, or aided the other person to commit that crime; and (iii) the defendant's actions or statements caused or contributed to the commission of the crime by that other person.
State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999) (citation omitted). We have observed that "[t]he distinction between aiding and abetting and acting in concert, however, is of little significance. [Defendants convicted under either doctrine] are equally guilty and are equally punishable." State v. Williams, 299 N.C. 652, 656, 263 S.E.2d 774, 777 (1980) (internal citations omitted). On the other hand, "[a]n accessory after the fact is one who, knowing that a felony has been committed by another, receives, relieves, comforts or assists such felon, or who in any manner aids him to escape arrest or punishment." State v. Oliver, 302 N.C. 28, 55, 274 S.E.2d 183, 200 (1981) (citations omitted).
Murder and accessory after the fact to that murder are mutually exclusive offenses. See State v. McIntosh, 260 N.C. 749, 753, 133 S.E.2d 652, 655 (1963) ("A participant in a felony may no more be an accessory after the fact than one who commits larceny may be guilty of receiving the goods which he himself had stolen."), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302 (1964); see also State v. Jewell, 104 N.C.App. at 353, 409 S.E.2d at 759 (finding that murder and accessory after the fact to murder are mutually exclusive offenses). In addition, verdicts of guilty of both offenses would be both legally inconsistent and contradictory. See State v. Mumford, 364 N.C. 394, 398-402, 699 S.E.2d 911, 914-16 (2010) (reviewing the distinction between verdicts that are "merely inconsistent" and those that are "legally inconsistent and contradictory"). Accordingly, a defendant cannot be convicted of both offenses arising from a single killing.
Nevertheless, the State may join for trial two offenses when they "are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan," N.C.G.S. § 15A-926(a) (2009), even if the defendant cannot be convicted of both offenses "due to the mutually exclusive nature of those offenses," State v. Speckman, 326 N.C. 576, 578, 391 S.E.2d 165, 167 (1990) (citation omitted). When two such offenses are joined for trial and substantial evidence supports each offense, both should be submitted to the jury. See id. at 579, 391 S.E.2d at 167. "[H]owever, the trial court must instruct the jury that it may convict the defendant only of one of the offenses or the other, but not of both." Id. Because no such instruction was given here, the trial court erred.
Accordingly, we must now consider whether the error was prejudicial. During the charge conference conducted after the presentation of evidence and closing arguments, counsel and the trial judge discussed instructions on acting in concert, aiding and abetting, and accessory after the fact. Although defendant objected to other instructions, he neither requested an instruction that the jury could not convict of both first-degree murder and accessory after the fact nor objected to the absence of such an instruction. See N.C. R.App. P. 10(b)(2) (2008). When a party does not object to an omission from the jury charge despite having the opportunity to do so, we review for plain error. See id. 10(b)(4) (2008); State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 102-03 (2002).[2]
*633 In reviewing for plain error, this Court has stated that:
"[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (internal quotation marks omitted) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982) (alternations in original), cert. denied, 459 U.S. 1018, 103 S. Ct. 381, 74 L. Ed. 2d 513 (1982)). "It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Id. at 661, 300 S.E.2d at 378 (quotation marks omitted) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736, 52 L. Ed. 2d 203, 212 (1977)).
Defendant bears the burden of showing that an error rose to the level of plain error. State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). This burden is "much heavier . . . than that imposed by N.C.G.S. § 15A-1443 upon defendants who have preserved their rights by timely objection. This is so in part at least because the defendant could have prevented any error by making a timely objection." State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). In conducting plain error review, we normally examine the entire record to determine whether the error "had a probable impact on the jury's finding of guilt." Odom, 307 N.C. at 661, 300 S.E.2d at 378-79 (citation omitted). Because the error here led to mutually exclusive verdicts of guilty, we conduct the same review to determine whether the error had a probable effect on the outcome of the trial. See, e.g. State v. Nicholson, 355 N.C. 1, 50, 558 S.E.2d 109, 142 (declining to "conclude a different result would have been probable even if the trial court had explicitly specified the evidence the jurors were to consider" pertaining to an aggravating circumstance), cert. denied, 537 U.S. 845, 123 S. Ct. 178, 154 L. Ed. 2d 71 (2002); State v. Abraham, 338 N.C. 315, 347, 451 S.E.2d 131, 148 (1994) (concluding trial court did not commit plain error when erroneous jury instruction "had no effect on the outcome of the trial"). Our review of the whole record reveals no plain error requiring a new trial.
Defendant was convicted by the jury of first-degree murder and accessory after the fact. The evidence presented at trial showed that defendant was present at the original confrontation, heard Ridges swear "on his son" that he would "get" the victim, drove Ridges to find the victim knowing that Ridges had armed himself, joined Cole in encouraging Ridges to kill Adams along with the victim so there would be no witnesses, and walked with Ridges to the door of the residence where Ridges carried out the murder. This evidence was more than sufficient to support the murder conviction. Other discrete evidence supported the charge of accessory after the fact, such as defendant's helping Ridges dismantle the murder weapon and dispose of the parts.
The record reveals that defense counsel argued to the jury that the penalty for first-degree murder is life imprisonment without parole, confirming the jury's commonsense understanding that murder was the more serious offense. The jury, given the opportunity to consider separately the offenses of murder and accessory after the fact, convicted defendant of both, indicating its intent to hold defendant accountable to the fullest extent of the law. Accordingly, we are satisfied that the jury would have convicted defendant of the more serious offense had it been required to choose between the two charges. In light of the overwhelming evidence of first-degree murder, we cannot conclude *634 that a different result would have been probable if the trial court had given a proper instruction. See Nicholson, 355 N.C. at 50, 558 S.E.2d at 142.
Because the trial court vacated defendant's conviction of accessory after the fact, he suffers no collateral consequences as a result of that conviction and has not been prejudiced. Cf. Speckman, 326 N.C. at 580, 391 S.E.2d at 168 (reversing the defendant's convictions for mutually exclusive offenses when, even though the offenses were consolidated into a single judgment, the defendant nevertheless could suffer potentially severe adverse collateral consequences). Defendant has not satisfied his burden of demonstrating that the trial court committed plain error. The decision of the Court of Appeals is reversed and this case is remanded to that Court for consideration of defendant's remaining assignments of error.
REVERSED AND REMANDED.
NOTES
[1] The "other guy" apparently was Ken Adams.
[2] While defendant contends in a footnote to his brief that the error should be considered preserved because he objected repeatedly to joinder of the two offenses for trial, the issue of joinder vel non is entirely separate from issues pertaining to the correct jury instructions for two offenses that have been joined. In addition, because we conclude no plain error occurred here, we elect not to address the State's argument that defendant invited the error. See State v. Rouse, 339 N.C. 59, 81, 451 S.E.2d 543, 555 (1994) (finding no plain error in excluding evidence even though any error arguably had been invited), cert. denied, 516 U.S. 832, 116 S. Ct. 107, 133 L. Ed. 2d 60 (1995), overruled in part on other grounds by State v. Hurst, 360 N.C. 181, 199, 624 S.E.2d 309, 323, cert. denied, 549 U.S. 875, 127 S. Ct. 186, 166 L. Ed. 2d 131 (2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393371/ | 423 F. Supp. 1037 (1976)
FAIR OCEAN COMPANY, LTD., Plaintiff,
v.
CARGO OF the PERMINA SAMUDRA XII, In Rem, and Perusahaan Pertambangan Minjak Dan Gas Bumi Negara, In Personam, Defendants,
Far East Oil Trading Co., Ltd., Claimant.
Civ. No. 76-024.
United States District Court, D. Guam.
October 28, 1976.
Matthew Gruskin, Ferenz, Bramhall, Williams & Gruskin, Agana, Guam, Michael Marks Cohen, Burlingham, Underwood & Lord, New York City, for plaintiff.
Mark E. Cowan, Arriola & Cushnie, Agana, Guam, Stephen P. Kyne, Burke & Parsons, New York City, for defendants.
John C. Dierking, Agana, Guam, Bigham, Englar, Jones & Houston, New York City, D. Thomas McCune, Lillick, McHose & Charles, San Francisco, Cal., for claimant.
*1038 MEMORANDUM OPINION
DUENAS, District Judge.
On June 17, 1976, plaintiff, Fair Ocean Company, Ltd., filed an in rem action against the cargo of the PERMINA SAMUDRA XII and an in personam action against PERUSAHAAN PERTAMBANGAN MINJAK DAN GAS BUMI NEGARA (hereinafter referred to as "PERTAMINA"). Plaintiff asserted as a basis for the action a maritime lien against defendant PERTAMINA. Plaintiff is the owner of the PERMINA SAMUDRA XII and on July 3, 1972 entered into a Tanker Time Charter Party Agreement with defendant by which defendant agreed to charter the PERMINA SAMUDRA XII for a period of 132 consecutive calendar months.
Plaintiff's maritime lien arises from the alleged nonpayment of charter hire payments by PERTAMINA. Plaintiff asserts a lien in the amount of $19,807,565.60. It is not controverted that on or about June 9, 1976, plaintiff withdrew the PERMINA SAMUDRA XII from PERTAMINA's service while the ship was at open sea and loaded with 53,273 long tons (or 384,000 bls.) of Sumatran Light Waxy Residue bound for Japan, and ordered the ship to Guam for the purpose of bringing this action.
Within the complaint, plaintiff demands that the Court order defendant to proceed to arbitrate this dispute pursuant to Paragraph 49 of the Charter Party Agreement and 9 U.S.C., Sec. 8.
On June 21, 1976, defendant appeared and asked this Court to dismiss the action on the ground of the doctrine of forum non conveniens. Claimants to the cargo in question, Far East Oil Trading Co., Ltd. (hereinafter referred to as "FEO") and Sumitomo Shoji Kaisha Ltd. (hereinafter referred to as "SUMITOMO") joined in defendant PERTAMINA's motion on June 29, 1976. SUMITOMO has since been dropped rather mysteriously from the pleadings in the case and the Court is not quite sure of its status.
The Court denied the motion on July 7, 1976.
On July 19, 1976, defendant PERTAMINA noticed a motion for reargument of its motion to dismiss on the doctrine of forum non conveniens and set the motion for reargument on August 6, 1976, a date when I was to be off-island on vacation and at which time the Honorable William H. Orrick, District Judge for the Northern District of California was to be sitting in my place. Plaintiff filed a cross-motion for Order of Sale of Cargo on August 3, 1976. Upon motion of defendant PERTAMINA, Judge Orrick continued all motions until I returned from vacation.
Claimant FEO filed a motion for order vacating the attachment of cargo on August 16, 1976. On September 8, 1976, the Court denied defendant PERTAMINA's motion for reargument and FEO's motion to vacate the attachment. FEO's motion was denied on the ground that an evidentiary hearing would have to be held to resolve a dispute as to the ownership of the cargo. The Court also granted plaintiff's motion for an interlocutory sale of the cargo, and ordered said sale to be held on September 22, 1976.
Said sale was stayed by order of the Ninth Circuit Court of Appeals on September 17, 1976 as a result of a petition for writ of mandamus filed by FEO. On September 27, 1976, the Court of Appeals vacated its order of September 17 and returned the matter to this Court for expedited consideration of a new order of sale as well as possible concurrent determination of the issues of cargo ownership and the lien rights thereto.
On October 1, 1976, this Court ordered that an evidentiary hearing be held on October 18, 1976 to determine the issue of ownership of the cargo vis a vis PERTAMINA and FEO. The Court also ordered, notwithstanding the hearing on October 18, a sale of the cargo for October 19, subject to the confirmation of the Court. Due to the failure and inability of PERTAMINA and FEO to comply with necessary discovery requests prior to October 18, 1976, *1039 the Court adjourned the evidentiary hearing on October 15, 1976 and allowed the U.S. Marshal to proceed with the sale of the cargo on October 19, 1976. On October 18, 1976, defendant PERTAMINA arrested the PERMINA SAMUDRA XII pursuant to a warrant of arrest issued in the matter of PERUSAHAAN PERTAMBANGAN MINJAK DAN GAS BUMI NEGARA (PERTAMINA) v. THE M. T. PERMINA SAMUDRA XII, her engines, tackle, etc., Civil Case No. 76-047. The companion case has been consolidated with this one by order entered on stipulation of counsel dated October 22, 1976. Present at the sale were counsel for plaintiff Fair Ocean, defendant PERTAMINA, and claimant FEO. Also present was Mr. S. Yamagata, Assistant Director of Sales for FEO. The sale had been properly noticed pursuant to the order of the Court. In fact, this was the second said notice of sale, the sale ordered for September 22 having also been noticed. The U.S. Marshal advertised the sale of October 19, 1976, on ten days notice in each of the following publications: (1) Pacific Daily News, (2) The New York Times, (3) The National Edition of The Wall Street Journal, and (4) The Journal of Commerce. The sole bid at the sale was the bid of $1.00 by plaintiff Fair Ocean. Said bid was accepted by the U.S. Marshal and the money was immediately paid and deposited in the registry of the Court.
On October 22, 1976, the Court held a hearing on plaintiff's motion to confirm the sale. PERTAMINA and FEO oppose the motion to confirm on the ground that the consideration is grossly inadequate. No party has contended that the procedure or notice of the sale was inadequate or unlawful.
The Court feels that it is important to note for the record certain facts. The plaintiff is a Liberian Corporation, the beneficial ownership of which is owned by Hong Kong Chinese principals. The Vessel Permina Samudra XII is registered in Panama and is owned by plaintiff. PERTAMINA is the nationally owned oil company of the Country of Indonesia. PERMINA SAMUDRA XII and its cargo has been under arrest for more than 4½ months in Apra Harbor. The ship is moored to buoys in the harbor due to the lack of available pier space. Both FEO and PERTAMINA have answered the complaint in this case and neither party has denied the jurisdiction of this Court.
One of the major issues in this case is the relationship between PERTAMINA and FEO. Plaintiff asserts a lien on this cargo claiming that PERTAMINA is the title owner of this cargo and if it is not the title owner then at least it is the equitable owner. It cannot be said that PERTAMINA and FEO do not have considerable connections with each other. PERTAMINA owns 49.5% of the stock in FEO. The remainder of the stock is owned by 19 other companies and individuals all of which appear to be located in Japan. On March 11, 1968, PERTAMINA and FEO entered into a five-year contract whereby PERTAMINA agreed to provide large amounts of Sumatran Light Waxy Residue to FEO for a period of five years effective in 1971. On September 10, 1975, the contract was extended another five years, effective September 19, 1976. FEO contracted to buy the 384,000 bls. of oil from PERTAMINA at the agreed price of U.S. $12 a barrel or U.S. $4,608,000. It is undisputed that FEO has purchased U.S. $84,000,000 of identical cargo during the first six months of 1976 as well as more than U.S. $8,000,000 of identical cargo in September 1976. It also is admitted that after this action was filed and the cargo was arrested that PERTAMINA and FEO agreed in writing that FEO would not pay for the oil arrested in Guam until that oil arrived in Japan regardless of the length of time that may take. PERTAMINA also provided FEO with a substitute cargo. The fact remains that FEO has not paid for the cargo in question and continues to purchase identical cargo from PERTAMINA.
In ordinary circumstances, it would be expected that a claimant would post security and obtain the release of such a cargo especially if payment for the cargo had not been made. FEO has steadfastly maintained *1040 the position that it will not post a bond for the cargo and obtain its release but rather the Court should release the cargo to FEO on the ground that the cargo belongs to FEO. FEO has been requested by the Court to show what prejudice it would suffer if it were to post a bond for cargo for which payment has not been made and FEO has consistently responded that it need not post security to obtain the release of cargo for which it rightfully owns.
As the Court has previously indicated, this cargo has remained in Apra Harbor for almost five months. The cargo must be maintained at a relatively high temperature and there are no adequate storage facilities in Guam other than the ship in which to safely preserve this cargo. Plaintiff has advised the Court that the out-of-pocket expenses to maintain the vessel and thereby preserve the cargo in Guam amount to $4,143 daily. These expenses have been born by plaintiff since June 18, 1976. The Court takes judicial notice of the fact that Guam is situated in an area which is prone to a great number of serious typhoons. Supertyphoon Pamela hit Guam in May of this year leaving three ocean going freighters grounded in Apra Harbor, two tug boats grounded, two barges sunk and fifteen private yachts or sailboats destroyed. The Court also takes judicial notice that the month of November is the peak of typhoon season and that Typhoon Therese has already forced one emergency evacuation of the PERMINA SAMUDRA XII from the harbor.
The Court is most concerned with the environmental hazard caused by the presence of the PERMINA SAMUDRA XII in Apra Harbor as evidenced by a letter from the Captain of the Port, C. V. O'Neal, Commander, USCG, to Capt. Viru B. Phansalkar, Master of the PERMINA SAMUDRA XII. Commander O'Neal quotes in part:
"The T/V PERMINA SAMUDRA XII has been within Apra Harbor since 18 June 1976. During that period, the vessel has demonstrated that it can not maintain itself within the assigned anchorage grounds during adverse weather conditions. The vessel was transferred from the original mooring to the explosive anchorage buoy 701 in an effort to obtain a secure mooring at your request. During the first inclement weather, the vessel again failed to maintain itself with the anchorage and grounded. Its present anchorage is also considered inadequate for adverse weather conditions. The foregoing demonstrates that the T/V PERMINA SAMUDRA XII is unable to maintain a safe anchorage in Apra Harbor, Guam and therefore, is a clear threat to the safety of the port and other vessels. A large vessel such as the T/V PERMINA SAMUDRA XII when loaded with petroleum products presents a significant hazard to the environment. A major spill would cause catastrophic damage to the ecological systems in the harbor and the surrounding area. A prolonged presence of such a hazard is not acceptable."
FEO does not have cause to complain of the sale. In an answer to plaintiff's emergency cross-motion to vacate stay filed with the Court of Appeals on September 21, 1976, FEO complained that unless the sale of September 22, 1976 remain restrained, it would be unable to have representatives present and thus would have "no way of protecting itself from a distress sale if bids are otherwise inadequate." Based upon this representation and others, the Court of Appeals did not lift the stay on the sale until September 27. FEO appeared through counsel and its Assistant Director of Sales at the sale. FEO did nothing at the sale to protect itself, yet it had every opportunity to do so.
The Court has been made to believe that due to the special characteristics of this oil that Japan is the major if not the only market for the oil. The Court has had the opportunity to read parts of PERTAMINA's Reference Book which indicate that all Indonesian oil sold in the Japanese Market is sold through FEO. Certainly FEO is the most likely buyer of this cargo if not the only probable buyer.
*1041 FEO has complained that it would be unfair to confirm the sale before the Court and asks this Court to order another sale. Yet it offers no guarantee or even suggestion that if the Court set another sale within 30 days (the minimum time it would take to hold such sale) that the outcome would be any different. FEO makes no showing of willingness to purchase the oil itself or aid in locating a buyer.
The Court is of the opinion that it is in the best interest of the environment of the Territory of Guam and the safety of the cargo that the cargo be allowed to depart the Territory. The danger posed by the PERMINA SAMUDRA XII to Apra Harbor, the Commercial Port, the marine life, the shoreline, the beaches, and the inhabitants of Guam, and the defense establishments in and around the waters of Guam is too substantial and imminent to warrant the risk.
The Court is of the opinion that the best interests of all parties would best be protected if the vessel proceeded on its original voyage and discharged its cargo in Japan pursuant to appropriate security arrangements. Such arrangement would once again allow claimant and defendant an opportunity to protect their interests.
Based upon all prior proceedings had herein, and in the exercise of the Court's discretion and admiralty jurisdiction to supervise the sale of maritime property in custodia legis under Rule E(9) of the Federal Rules of Civil Procedure, and in the exercise of the Court's discretion and jurisdiction to protect the environment of the Territory of Guam under 28 U.S.C., § 1651, 33 U.S.C., § 1321(e) and § 1321(n), and Rule 83 of the Federal Rules of Civil Procedure, it is declared that the Court will confirm the sale of October 19, 1976 within 16 days of the entrance of the accompanying order unless FEO posts adequate and proper security in the amount of $4.5 million provided, that the plaintiff post adequate and proper security in the amount of $1.5 million in order to secure the release of the ship from the warrant of arrest in Civil Case No. 76-047 and assign to the Court for the protection of defendant PERTAMINA and claimant FEO a minimum interest in the vessel's hull and machinery insurance equal to the first $5 million of proceeds payable upon total or constructive loss of the vessel and agree to deliver said cargo to FEO in Japan, and in the event defendant PERTAMINA so desires, agree to return the ship to Guam and be sold pursuant to Supplemental Rule E(9)(b). An order shall issue.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393374/ | 703 S.E.2d 836 (2011)
FIRST MOUNT VERNON INDUSTRIAL LOAN ASSOCIATION, a Virginia Industrial Loan Association, Plaintiff,
v.
PRODEV XXII, LLC, a Virginia Limited Liability Company, Jonathan E. Friesen, Substitute Trustee, Norris G. Dillahunt, Sr. a/k/a Norris G. Dillahunt and Helen M. Dillahunt, Defendants.
No. COA10-8.
Court of Appeals of North Carolina.
January 4, 2011.
*837 The Law Offices of Lonnie M. Player, Jr., PLLC, by Lonnie M. Player, Jr., Fayetteville, for plaintiff-appellee.
Mills & Economos, L.L.P., by Larry C. Economos, Greenville, for Norris G. Dillahunt, Jr., appellant.
No brief filed on behalf of ProDev XXII, LLC.
GEER, Judge.
Plaintiff First Mount Vernon Industrial Loan Association ("FMV") and defendant ProDev XXII, LLC each filed motions seeking to have non-party appellant Norris G. Dillahunt, Jr. ("Dillahunt") held in contempt of court under N.C.R. Civ. P. 45(e)(1) for failure to appear for a deposition in accordance with a duly served subpoena. Dillahunt appeals from the orders granting the motions and ordering him, pursuant to N.C.R. Civ. P. 37(d), to pay attorneys' fees and expenses associated with the deposition and the motion. While the trial court could properly hold Dillahunt in contempt of court under Rule 45(e)(1) for failure, without adequate excuse, to obey the subpoena, we hold that the trial court could not impose sanctions against non-party Dillahunt under Rule 37(d) because Rule 45(e)(1) specifically provides that such sanctions may only be imposed on a party to the action. We, therefore, affirm in part and reverse and remand in part.
Facts
Plaintiff FMV commenced this action on 6 May 2008 by filing a complaint against defendants ProDev, substitute trustee Jonathan E. Friesen, Norris G. Dillahunt, Sr., and Helen M. Dillahunt, seeking judicial foreclosure on two pieces of real property and nullification of fraudulent liens. A deed of trust on one of *838 the tracts of property ("the primary property") secured a note pursuant to which FMV had loaned ProDev $275,000.00. Norris G. Dillahunt, Sr. and Helen M. Dillahunt (Dillahunt's parents) had signed a personal guaranty of the note that was secured by an indemnity deed of trust on real property held by the guarantors ("the guaranty property").
The complaint alleged that ProDev was in default on the note and sought to foreclose on both the primary property and the guaranty property. The complaint further alleged that Norris G. Dillahunt, Sr. had caused certain fraudulent liens to be placed on the guaranty property for the purpose of encumbering the guaranty property and hindering legitimate creditors.
On 8 August 2008, Dillahunt and his wife, Josietta Dillahunt, filed an action against, among others, FMV and ProDev collaterally attacking FMV's foreclosure action. Dillahunt and his wife alleged that they lived on the primary property. They claimed that title to the primary property had been fraudulently transferred to ProDev and sought to have title returned to them.
On 8 January 2009, Helen M. Dillahunt was deposed in this action. As a result of that deposition, FMV and ProDev determined that they needed to depose Dillahunt, who was not a party to this action. On 13 February 2009, Dillahunt was served with a subpoena and notice of video deposition to be held in New Bern, North Carolina on 24 February 2009. Dillahunt failed to appear for the deposition.
On 11 March 2009, FMV filed a motion, pursuant to Rules 45 and 37(d), seeking an order holding Dillahunt in contempt and requiring Dillahunt, in order to purge himself of contempt, to submit to a deposition and to pay FMV's attorneys' fees and costs associated with Dillahunt's failure to comply with the subpoena. On 23 March 2009, ProDev also moved under Rule 45(e) and Rule 37(d) for an order holding Dillahunt in contempt and seeking an award of attorneys' fees. The trial court entered a separate order for each motion.
On 15 April 2009, the court granted FMV's motion. The trial court found that Dillahunt was properly served with the subpoena scheduling his deposition for 24 February 2009, but that Dillahunt failed to appear for that deposition "without good cause and despite his having been subpoenaed to do so." The court found that FMV's expenses associated with the failed deposition and the motion were $4,600.00. This total included attorneys' fees of $4,400.00 (representing 16 hours of attorney time billed at $275.00 per hour) and $200.00 for the court reporter's appearance fee and preparation of the certificate of non-appearance.
The trial court then made a single conclusion of law:
Having made the preceding Findings of Fact, the Court now, therefore, concludes as a matter of law, pursuant to Rule 45(e)(1) of the North Carolina Rules of Civil Procedure, that the failure of Norris G. Dillahunt, Jr. to comply with the terms of his Deposition Notice and Subpoena without good cause is an omission in contempt of this Court entitling Plaintiff to sanctions as against Mr. Dillahunt, pursuant to Rule 37(d) of the North Carolina Rules of Civil Procedure, inclusive of a charge of the reasonable expenses associated with the failed deposition, including, but not limited to, an assessment of attorney's fees for said failed deposition as well as for the bringing and argument of this motion and Plaintiff, in the amount of $4,600.00.
The court ordered that Dillahunt could purge himself of the contempt by payment of FMV's fees and costs associated with Dillahunt's failure to comply with the subpoena and with the filing of the motion. The order required Dillahunt to pay the sanction within 30 days of the filing and service of the order. The order did not require Dillahunt to appear for a deposition.
The trial court granted ProDev's motion on 28 April 2009. In the order, the trial court made substantially the same findings of fact as in the FMV order, although, as to ProDev, the court found that its expenses related to the failed deposition and the contempt motion totaled $4,277.52. This amount included $3,878.00 in attorneys' fees (representing 14.8 hours of attorney time billed at *839 $260.00 per hour) and $299.52 in mileage reimbursement for travel by counsel from Raleigh to New Bern for both the deposition and the hearing of the contempt motion. The ProDev order included a conclusion of law almost identical to the one in the FMV order. The court similarly ordered that Dillahunt could purge himself of contempt by paying attorneys' fees and expenses to ProDev's counsel within 30 days. This order also did not require that Dillahunt appear for a deposition. Dillahunt appealed to this Court from both orders on 15 May 2009.
Discussion
Dillahunt first contends that the trial court erred in finding him in contempt of court under Rule 45(e)(1) for failing to appear at the deposition scheduled for 24 February 2009.[1] Rule 45(e) provides:
Contempt; Expenses to Force Compliance With Subpoena.
(1) Failure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt of court. Failure by any party without adequate cause to obey a subpoena served upon the party shall also subject the party to the sanctions provided in Rule 37(d).
(2) The court may award costs and attorney's fees to the party who issued a subpoena if the court determines that a person objected to the subpoena or filed a motion to quash or modify the subpoena, and the objection or motion was unreasonable or was made for improper purposes such as unnecessary delay.
In reliance upon Rule 45(e)(1), the trial court, after finding Dillahunt in contempt, awarded attorneys' fees under Rule 37(d), which states:
Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection.If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (i) to appear before the person who is to take his deposition, after being served with a proper notice, or (ii) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (iii) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subdivisions a, b, and c of subsection (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Dillahunt first argues that the trial court's determination that he was in contempt was not supported by sufficient findings of fact because the order contained no finding that he was "willfully disobedient" in failing to attend the scheduled deposition. Dillahunt appears to be basing his contention on general contempt law. In his brief, Dillahunt cites N.C. Gen.Stat. § 5A-11(a)(3) (2009), which defines "criminal contempt" as including "[w]illful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution." The trial court, however, did not base its contempt order on N.C. Gen.Stat. § 5A-11(a)(3), but rather on Rule 45(e).[2]
*840 The plain language of Rule 45(e) does not require willful disobedience, but rather provides that a "[f]ailure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt of court." (Emphasis added.) Indeed, Dillahunt cites no authority requiring a finding of "willful disobedience" when the contempt order is based on Rule 45(e).
It is an established rule of statutory construction that when "a statute is intelligible without any additional words, no additional words may be supplied." State v. Camp, 286 N.C. 148, 151, 209 S.E.2d 754, 756 (1974). As Rule 45(e) contains no express requirement of willfulness, we may not impose such a requirement. See American Imps., Inc. v. G.E. Employees W. Region Fed. Credit Union, 37 N.C.App. 121, 124, 245 S.E.2d 798, 800 (1978) (refusing to require finding of willfulness as precondition to imposing sanctions under Rule 37(d) when rule did not include any language referring to willfulness). Consequently, the trial court was required, in this case, to determine only whether Dillahunt lacked "adequate cause" for failing to comply with the deposition subpoena.
Dillahunt does not, however, address whether the trial court had a basis for finding that he lacked adequate cause for failing to comply with the subpoena. At the hearing, Dillahunt presented no evidence explaining his absence. He neither submitted an affidavit nor provided sworn live testimony at the hearing. On appeal, in arguing that he was not "willfully disobedient" in failing to appear for the deposition, Dillahunt relies only upon his own unsworn statements made during oral argument, claiming that his attorney sent him an email that implied the deposition had been postponed for one week. Unsworn statements during oral argument are not evidence. See Ronald G. Hinson Elec., Inc. v. Union County Bd. of Educ., 125 N.C.App. 373, 379, 481 S.E.2d 326, 330 (1997) (stating that "[unsworn] statements by a party's attorney at trial are not considered evidence").[3]
This Court's review of contempt orders "is limited to whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law." Adkins v. Adkins, 82 N.C.App. 289, 292, 346 S.E.2d 220, 222 (1986). Thus, as the record contains no evidence of an adequate excuse for Dillahunt's failure to comply with the subpoena, we must uphold the trial court's finding of fact that Dillahunt lacked an adequate excuse and its decision, based on that finding, to hold Dillahunt in contempt of court pursuant to Rule 45(e) for failure to comply with the deposition subpoena.
Dillahunt next argues that, even if the trial court properly held him in contempt, the court erred in imposing sanctions under Rule 37(d) because he was not a party to the action. The first sentence of Rule 45(e)(1) allows a court to hold "any person" in contempt of court. The second sentence, however, provides that when "any party" fails without adequate cause to obey a subpoena served upon "the party," then "the party" is subject to the sanctions set out in Rule 37(d). Dillahunt argues that by referencing "any person" in the first sentence, but "any party" in the second sentence, the General Assembly was expressing an intent to limit the imposition of Rule 37(d) sanctions for violation *841 of a subpoena to parties to the action. We agree.[4]
"`Statutory interpretation properly begins with an examination of the plain words of the statute.'" State v. Byrd, 363 N.C. 214, 219, 675 S.E.2d 323, 325 (2009) (quoting Correll v. Div. of Soc. Servs., 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992)). "Because the actual words of the legislature are the clearest manifestation of its intent, we give every word of the statute effect, presuming that the legislature carefully chose each word used." N.C. Dep't of Corr. v. N.C. Med. Bd., 363 N.C. 189, 201, 675 S.E.2d 641, 649 (2009).
Here, the General Assembly could have referred to "any person" throughout Rule 45(e)(1), but chose to use the more limiting language of "any party" when talking about Rule 37(d) sanctions. This distinction makes sense as the plain language of Rule 37(d) itself is limited to parties and individuals appearing for a deposition on behalf of parties pursuant to Rule 30(b)(6) or 31(a). Rule 37(d) also authorizes sanctions for conduct that can only be committed by a party, such as a failure to respond to interrogatories.
Rule 37(a) demonstrates further that the General Assembly has purposefully distinguished between parties and non-parties. Rule 37(a) provides for the filing of motions to compel discovery, and Rule 37(a)(1) specifies that such a motion may be directed "to a party or a deponent who is not a party." Rule 37(a)(2) states that "the discovering party may move for an order" compelling discovery "[i]f a deponent fails to answer a question propounded or submitted under Rules 30 or 31" or if "a party" fails to answer an interrogatory or fails to permit inspection of documents.
Because Dillahunt was not a party, he was not subject to sanctions under Rule 37(d). We hold that the trial court, therefore, erred in basing its award of attorneys' fees and costs on Rule 37(d).
We note that under Rule 37(a)(4), "[i]f the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust." (Emphasis added.) Consequently, if FMV and ProDev had filed a motion to compel Dillahunt to appear for his deposition under Rule 37(a), the trial court, upon granting the motion, could have awarded attorneys' fees and expenses as provided under Rule 37(a)(4).
We cannot, however, rely upon Rule 37(a)(4) as a basis for upholding the decision below. FMV's and ProDev's motions did not cite Rule 37(a), the trial court specifically based its decision on Rule 37(d), and the trial court's orders did not compel Dillahunt to submit to the deposition.
Even though the trial court could not require Dillahunt to pay attorneys' fees as a sanction under Rule 37(d), we must consider whether the trial court had authority to award attorneys' fees as part of its contempt power. Our courts have consistently held that a court may not require that a person held in contempt pay the opposing party's attorneys' fees in the absence of a statute authorizing the award of attorneys' fees.
In Blevins v. Welch, 137 N.C.App. 98, 103, 527 S.E.2d 667, 671 (2000) (quoting Glesner v. Dembrosky, 73 N.C.App. 594, 599, 327 S.E.2d 60, 63 (1985)), this Court explained that "[g]enerally speaking, `[a] North Carolina court has no authority to award damages to a private party in a contempt proceeding. Contempt is a wrong against the state, and moneys collected for contempt go to the state alone.'" Our courts may only award attorneys' fees in contempt matters "when specifically authorized by statute." Id. (reversing award of attorneys' fees because, in contempt actions involving easements, "there is no specific statutory authorization for the award of attorney's fees"). See also Moss Creek Homeowners Ass'n v. Bissette, ___ N.C.App. ___, ___, 689 S.E.2d 180, 188 (reversing award of attorneys' fees *842 incurred in enforcing trial court's contempt orders because "[c]ourts can award attorneys' fees in contempt matters only when specifically authorized by statute"), disc. review denied, 364 N.C. 242, 698 S.E.2d 402 (2010); Watson v. Watson, 187 N.C.App. 55, 69, 652 S.E.2d 310, 320 (2007) ("Generally, attorney's fees and expert witness fees may not be taxed as costs against a party in a contempt action."), disc. review denied, 362 N.C. 373, 662 S.E.2d 551 (2008); Sea Ranch II Owners Ass'n v. Sea Ranch II, Inc., 180 N.C.App. 230, 234, 636 S.E.2d 307, 309 (2006) ("Courts can award attorney fees in contempt matters only when specifically authorized by statute."), disc. review denied, 361 N.C. 357, 644 S.E.2d 233 (2007).
FMV has not cited any statutory authorization for an award of attorneys' fees based on a finding of contempt under Rule 45(e). We recognize that Rule 45(e)(2) does provide for an award of "costs and attorney's fees to the party who issued a subpoena if the court determines that a person objected to the subpoena or filed a motion to quash or modify the subpoena, and the objection or motion was unreasonable or was made for improper purposes such as unnecessary delay." Here, however, Dillahunt neither objected to the subpoena nor moved to quash the subpoena, as provided in Rule 45(c), and, therefore, Rule 45(c) cannot support the decision below.
We observe, however, that it does not seem reasonable that fees can be awarded with respect to a person who acknowledges but opposes the subpoena, while fees cannot be awarded when a person wholly disregards the subpoena. Nonetheless, given the specific language of Rule 45(e)(2), it does not authorize an award of attorneys' fees under the circumstances in this case. This is a discrepancy that the General Assembly may want to revisit.
Still, we agree with the comment to the federal Rule 45:
It is the contempt remedy that backs a subpoena. There is nothing new about that. When the subpoenaed person is not a party to the action, the threat of contempt is the only remedy, whether the disobedience is of the subpoena itself or of a court order entered somewhere further along the way directing the nonparty to do something. With a party there may be a variety of other sanctions available as wellin the case of a party, more often for the disobedience of a court order than of a subpoenaup to and including the declaration of a default, see Rule 37(b)(2), but these are threats that impact on the party's interests in the action and they therefore hold no terror for a nonparty. Hence the special role that contempt plays in enforcing subpoenas against nonparty witnesses.
Fed R. Civ. P. 45 cmt. C45-26. Therefore, we must remand to the trial court for a determination of the appropriate sanction given Dillahunt's disregard of the subpoena in this case.
In sum, the trial court properly concluded that Dillahunt was in contempt of court under Rule 45(e) for failing to comply with the subpoena without adequate cause. The court was not, however, permitted to award FMV and ProDev attorneys' fees as part of its order holding Dillahunt in contempt. Therefore, although we affirm the trial court's decision to hold Dillahunt in contempt, we must reverse the award of attorneys' fees and costs and remand both orders for further proceedings regarding the appropriate sanction.
Affirmed in part; reversed and remanded in part.
Judges JACKSON and BEASLEY concur.
Judge JACKSON concurred prior to 31 December 2010.
NOTES
[1] While this appeal is interlocutory since the action is still pending, an order holding a party "in contempt for noncompliance with a discovery order or .. . [assessing them] with certain other sanctions," affects a substantial right and is thus immediately appealable. Cochran v. Cochran, 93 N.C.App. 574, 576, 378 S.E.2d 580, 581 (1989).
[2] While both Dillahunt and FMV contend that Dillahunt was held in criminal, and not civil, contempt, we disagree. This Court has stated that "`since the [F]ederal ... [R]ules [of Civil Procedure] are the source of [the North Carolina Rules of Civil Procedure], we will look to, the decisions of [federal courts] for enlightenment and guidance.'" Moody v. Sears Roebuck & Co., 191 N.C.App. 256, 266, 664 S.E.2d 569, 576 (2008) (quoting Sutton v. Duke, 277 N.C. 94, 101, 176 S.E.2d 161, 165 (1970)). Fed.R.Civ.P. 45(e) is essentially identical to the first sentence of the North Carolina version of Rule 45(e). The comment to the federal rule states: "The contempt most often associated with the disobedience of a subpoena is the category of `civil' contempt, the purpose of which is to enforce compliance in the particular case, with any penalty imposed designed to further the rights of the party in whose behalf the subpoena issued." Fed R. Civ. P. 45(e) cmt. C45-26. See also United States S.E.C. v. Hyatt, 621 F.3d 687, 692-93 (7th Cir.2010) (stating that contempt under Rule 45(e) is civil contempt); Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1342 (8th Cir.1975) (characterizing contempt for failure to comply with subpoena issued under Rule 45 as being "civil in nature"). Because the ultimate purpose of holding an individual in contempt under Rule 45(e) is to obtain compliance with subpoenas issued for the benefit of parties to a civil action, it is civil in nature.
[3] Statements by Dillahunt may, however, be relied upon by opposing parties FMV and ProDev as admissions under Rule 801 of the Rules of Evidence.
[4] FMV has conceded this error in its appellee brief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393375/ | 423 F. Supp. 895 (1976)
UNITED STATES of America ex rel. George R. JACQUES, Petitioner,
v.
Gary HILTON, Superintendent, New Jersey State Prison at Trenton, Respondent.
Civ. A. No. 76-1566.
United States District Court, D. New Jersey.
December 17, 1976.
*896 *897 George R. Jacques, pro se.
Robert J. Genatt, Deputy Atty. Gen., East Orange, N. J., for respondent.
STERN, District Judge.
This is a petition for a Writ of Habeas Corpus to compel the release of George Jacques from state custody. Jacques was convicted of first degree murder after a four day jury trial in 1974. He was sentenced to the mandatory term of life imprisonment. His conviction was affirmed on direct appeal by the Appellate Division in an unreported opinion. State v. Jacques, No. A-2875-73 (App.Div., Nov. 12, 1975). Certification was denied by the New Jersey Supreme Court. State v. Jacques, 71 N.J. 340, 364 A.2d 1072 (1976). Upon the denial of his petition for certification petitioner commenced the instant lawsuit. The State concedes, and the record demonstrates, that petitioner has exhausted his state remedies with respect to the claims he now advances. 28 U.S.C. § 2254(b); Zicarelli v. Gray, 543 F.2d 466 (3rd Cir. 1976) (en banc).
Petitioner was charged with the murder of Edmund Kornacki in Middlesex County Indictment No. 28-73. He pleaded not guilty to the charges. An initial trial ended in a mistrial after the jury had retired when it was discovered that one of the jurors had been exposed to a newspaper article concerning the case. Retrial followed immediately. The multiple assertions of error made by the petitioner require a review of the testimony adduced at the second trial, which resulted in his conviction.
On March 18, 1973, two boys discovered a body in a deserted wooded area of South Plainfield. Police investigation revealed that the decedent, identified as Edmund Kornacki, had been shot four times. One of the bullet wounds was in the back of the head. The other three wounds formed a small pattern on the back of the corpse. The surrounding earth was not disturbed. Three bullets were recovered from the ground immediately underneath the torso of the victim. The fourth bullet was removed from Kornacki's head at the time of the autopsy. Expert ballistics testimony established that all four bullets recovered from Kornacki's body had been fired from the same weapon. While the type of weapon could not be precisely identified from the markings on the slugs, the State's expert testified that the rifling marks were consistent with the inference that the weapon was a Czech .32 automatic pistol.
*898 The next witnesses for the State were presented in order to cast light on Kornacki's state of mind immediately prior to his disappearance. His landlady and several friends indicated that he altered his established patterns of behavior in the days prior to his death. Craig Brizak, a friend of Kornacki's, further testified that Kornacki told him that he was in fear of petitioner and expected to be killed. Brizak described Kornacki as having been nervous. He testified that Kornacki gave him a stack of his most prized record albums, an unusual action, just before his death. The State contended that this action on the part of Kornacki was in the nature of a bequest. On cross-examination Brizak conceded that others had threatened Kornacki. The witness admitted that while he had reported the other threats to the police at the time of the initial investigation, he had not mentioned petitioner until some months later.
The murder weapon was not recovered by the authorities. The State, however, was able to present substantial circumstantial evidence linking such a weapon to petitioner. One informant described an incident at petitioner's house in February 1973. At that time petitioner was sprayed with water from a malfunctioning sump pump hose next to his house. The informant told police that petitioner, enraged, went to his car, took out an automatic pistol, and fired a round into the pump hose. On the basis of this information the police obtained a search warrant for the earth near the house. When the warrant was executed the earth around the house was excavated and a bullet was recovered. Comparative ballistics examination revealed that this bullet was fired from the weapon used to kill Kornacki.
The State next presented the testimony of Craig Smith. Smith testified that he was a close associate of petitioner during the winter of 1972-1973. He stated that petitioner owned a Czech .32 automatic at that time, and identified a State's exhibit as being of a similar make and model. Smith in fact testified that he had once been awakened by petitioner holding the gun to his head in a macabre sort of jest.
Smith told the jury that petitioner had a motive to kill Kornacki. Smith stated that Kornacki had frightened petitioner's sister-in-law in the autumn of 1972, and that petitioner and his brother had vowed to take vengeance. Smith testified to several attempts made by petitioner to locate Kornacki, with the expressed intention of beating him up or killing him. Smith himself was recruited to aid in these efforts to find Kornacki in February 1973. Smith recounted a conversation with petitioner during this period when petitioner stated that the "professional way" to kill someone was to shoot the victim in the back of the head and then to fire the remaining bullets into the torso.
Finally, Smith testified to two highly incriminating conversations with petitioner. The first of these conversations took place several days before Kornacki's disappearance. At that time petitioner showed Smith a piece of paper which had Kornacki's address on it. Petitioner indicated by word and gesture that he intended to make use of the information. The last conversation recounted by Smith took place on the day that the body was discovered. Smith testified that petitioner admitted the killing to him, and described the circumstances and a ruse used to lure Kornacki into petitioner's car. According to Smith, petitioner was in high spirits at the successful outcome of his efforts.
On cross-examination, the defense directly attacked Smith's credibility as a witness. The defense was at pains to review the rather substantial plea bargaining between Smith and the State with respect to other pending cases. The bargain included a prosecutorial recommendation of a non-custodial sentence on all pending cases, although Smith's potential exposure was in excess of twenty years.
In an effort to bolster Smith's credibility the State next presented the testimony of an expert polygraph examiner. The examiner described to the jury the formulation of a series of test questions which included *899 affirmative reference to the salient points of Smith's trial testimony. The examiner offered the unqualified opinion that Smith was telling the truth when he answered each of the test questions in the affirmative. The State then offered the gun from its labs, which was identified by Smith as having been similar to that owned by petitioner, into evidence and rested its case.
Petitioner offered the testimony of several witnesses from his job in an effort to establish an alibi for the estimated time of death based upon the medical evidence. Petitioner did not testify. After some nine hours of deliberation the jury found petitioner guilty of murder in the first degree.
Petitioner now claims that a variety of errors entitle him to a Writ of Habeas Corpus. His first claim is that the trial court erred in permitting the State to introduce hearsay evidence through the testimony of Craig Brizak relating to the decedent's state of mind. (Tr. 5/8/74, at 12-14) Petitioner further contends that the trial court erred in permitting the prosecutor to argue to the jury that such evidence could also be considered on the issue of identity. (Tr. 5/10/74, at 43) In support of his position petitioner relies upon the case of United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758 (1974). In the context of this proceeding, petitioner's argument is without merit.
Petitioner contends here that although the evidence offered by Brizak might be admissible, in his case the trial court erred in not exercising its discretion to exclude. The admission of this testimony simply raises no federal constitutional issue. It was within the scope of the New Jersey Rules of Evidence, see N.J.R.Ev. 63(12). It would be admissible under the Federal Rules of Evidence, see F.R.Ev. 803(3). While the court in United States v. Brown, supra, reversed a federal conviction on similar grounds, it did not purport to lay down a constitutional rule in doing so. The Supreme Court has explicitly stated that the constitutionally guaranteed right of confrontation does not preclude the use of hearsay evidence, see Dutton v. Evans, 400 U.S. 74, 80-82, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970). Similarly, even evidence admitted in violation of a state hearsay rule may not necessarily violate the right to confrontation. See California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). The trial court's decision to receive the initial evidence presented by Brizak was well within the scope of discretion confided to the New Jersey courts. The subsequent argument by the prosecutor of which petitioner complains passed entirely without objection from the defense. Cf. Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). No constitutional error was committed, and the first ground for relief is without merit.
Petitioner next contends that the introduction of a weapon described by several witnesses as "similar to" the gun owned by petitioner was error. The admission of this weapon into evidence would be discretionary with either a New Jersey or a federal trial court. An adequate foundation was laid through the testimony of the ballistics expert and that of Craig Smith. The jury was explicitly told that the weapon came from the gun collection of the State Police. No possible constitutional error appears here.
The third contention raised by the petitioner is that various errors were committed during the course of the trial court's charge. Petitioner first complains that four errors occurred during the trial court's charge to the jury, including an erroneous instruction on the use of prior inconsistent statements, an erroneous instruction on the use of prior convictions, inadequate instruction on the use of circumstantial evidence, and an instruction that any verdict reached had to be unanimous. None of these points were objected to by defense counsel at the time of the trial. After a careful review of the entire charge, see Cupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973), this Court finds each and every one of the alleged claims of error to be insubstantial. In view of the acquiescence of the defense in the alleged "errors", there is absolutely no federal issue raised. See Estelle *900 v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).
Next, petitioner makes a variety of attacks on rulings of the trial court with respect to communications with the jury. Petitioner claims that the trial court erred when it complied with a jury request to have the testimony of Craig Smith and that of the polygraph examiner re-read. Petitioner contends that it was error for the trial court to refuse the defense request that such a reading be accompanied with the portion of the charge relating to their credibility. This contention is without constitutional basis. Petitioner next claims that the trial court erred in refusing a defense request that the jury be instructed to avoid all reportage, movies, television shows, documentaries or newspaper accounts of any crime during the duration of the trial. The trial court correctly required the jurors to avoid all publicity about the instant case. No more was constitutionally required, and this contention is not even coupled with a claim that this case was attended with any massive publicity. Similarly, the trial court refused to interrogate jurors on a daily basis concerning their adherence to his instructions. This too raises no claim for review on habeas jurisdiction, and in fact might well have been harmful, rather than helpful to petitioner.
Finally, petitioner contends that he was denied due process of law in that the trial court refused his request to charge the jury on manslaughter. Such an instruction was utterly unwarranted under the circumstances of this case, a gangland style "execution", and raises no constitutional issue. See United States ex rel. Wilson v. Essex County Court, 406 F. Supp. 991, 999-1000 (D.N.J.1976); United States ex rel. Victor v. Yeager, 330 F. Supp. 802-805 (D.N.J. 1971); United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3rd Cir. 1974) is clearly distinguishable.
Petitioner next argues that he was deprived of exculpatory information concerning the plea bargaining between the State and Craig Smith. It is beyond question that the State has an obligation to disclose arrangements made to secure the testimony of a witness in a criminal proceeding. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); United States ex rel. Dale v. Williams, 459 F.2d 763 (3rd Cir. 1972). But the record of the instant case demonstrates that the full extent of such promises was brought to the attention of the jury both on direct and on cross examination. That the jury ultimately chose to reject the defense attack on the credibility of Smith's testimony does not raise an issue for a federal court on habeas jurisdiction.
Petitioner further contends that he was denied due process by several rulings as to the conduct of the trial, including the failure to sequester jurors, the permission granted to a detective to remain at counsel table during trial after petitioner alleged that he might be called as a defense witness (he was not). Neither of these rulings violated any constitutionally secured right. See Young v. Alabama, 443 F.2d 854 (5th Cir. 1971), cert. denied, 405 U.S. 976, 92 S. Ct. 1202, 31 L. Ed. 2d 251 (1972); United States ex rel. Mayberry v. Yeager, 321 F. Supp. 199 (D.N.J.1971); United States v. Weinberg, 345 F. Supp. 824 (E.D.Pa.1972), modified on other grounds, 478 F.2d 1351 (3rd Cir. 1972), cert. denied, 414 U.S. 1005, 94 S. Ct. 363, 38 L. Ed. 2d 242 (1973); United States v. Rollins, 522 F.2d 160 (2nd Cir. 1975), cert. denied, 424 U.S. 918, 96 S. Ct. 1122, 47 L. Ed. 2d 324 (1976).
Petitioner's next assertion of error is the admission into evidence of the expert testimony from the polygrapher who examined Craig Smith. Such evidence is still debated in a variety of jurisdictions, see United States v. Alexander, 526 F.2d 161 (8th Cir. 1975); United States v. Oliver, 525 F.2d 731 (8th Cir. 1975), cert. denied, 424 U.S. 973, 96 S. Ct. 1477, 47 L. Ed. 2d 743 (1976); United States v. Demma, 523 F.2d 981 (9th Cir. 1975). New Jersey permits such evidence to be introduced upon the knowing, voluntary and intelligent stipulation *901 of both parties, State v. McDavitt, 62 N.J. 36, 297 A.2d 849 (1972). Here the record discloses just such a voluntary, knowing and intelligent stipulation on the part of petitioner; see Tr. (Motion Hearing) 29, 33-35, 36, 38. Under the circumstances of this case, the admission of the testimony presents no constitutional issue.
Petitioner then claims that the prosecutor's summation contained inflammatory material. This contention is without merit. United States ex rel. Ford v. New Jersey, 400 F. Supp. 587 (D.N.J.1975).
Finally, petitioner claims that he was denied due process when he was sentenced without the preparation of a presentence report. This contention is without merit. Petitioner specifically waived the preparation of such a report. The only discretion which the judge was in a position to exercise was whether to make the life term to be imposed consecutive to or concurrent with other sentences petitioner was serving. Petitioner refused to say anything at sentence. His tactical election to proceed to sentence without a report raises no issue here. See Lawson v. Riddle, 401 F. Supp. 410 (W.D.Va.1975).
For the foregoing reasons, petitioner's petition for a Writ of Habeas Corpus will be denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/684426/ | 42 F.3d 1331
Lynn HELLEBUST, John R. Craft, Kansas Natural ResourceCouncil, and Common Cause of Kansas,Plaintiffs-Counter-Defendants/Appellees,v.Sam BROWNBACK, in his official capacity as Secretary of theKansas State Board of Agriculture; Jay Armstrong; VictorKrainbill; Alvin Epler; Altis Ferree; Thayne Larson;Ralph H. Rindt; F.E. Bliss; Lois Schlickau; Floyd O.Coen; Bob L. Moore; Anne Marie Worley; Art Howell, intheir capacities as members of the Kansas Board ofAgriculture, Defendants-Counter-Claimants/Appellants.
Nos. 93-3164, 93-3238.
United States Court of Appeals,Tenth Circuit.
Dec. 19, 1994.
William J. Craven (Donn J. Everett of Everett, Seaton, Miller, and Bell, Manhattan, KS, with him on the briefs), Lecompton, KS, for plaintiffs-counter-defendants/appellees.
David D. Plinsky, Asst. Atty. Gen. (Robert T. Stephan, Atty. Gen., with him on the briefs), Topeka, KS, for defendants-counter-claimants/appellants.
Before MOORE, LAY,* and MCWILLIAMS, Circuit Judges.
JOHN P. MOORE, Circuit Judge.
1
This appeal involves the constitutionality of the procedure of electing members to the Kansas State Board of Agriculture (Board). Challenged here is the district court's order declaring the current statutory method violates the Equal Protection Clause of the Fourteenth Amendment and enjoining the Board from conducting further elections until the Kansas State Legislature enacts a scheme consistent with the principles set out in Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Hellebust v. Brownback, 824 F. Supp. 1511 (D.Kan.1993) (Hellebust I ). Finding no error in the district court's analysis of the constitutional violation or its choice of a remedy, we affirm.
I. Background
2
Because the district court's order fleshes out the facts and history of this case, id. at 1512-14, we shall simply note its skeletal frame for our review. By statute, Kan.Stat.Ann. Secs. 74-502 and 74-503, delegates from Kansas agricultural organizations1 attend the Board's annual meeting where they elect either all twelve Board members, or fewer, depending upon when terms expire. Board members then elect their Secretary. Plaintiffs charged this method violates the principle of one person, one vote because the Board, a state governmental agency, exercises broad authority affecting arguably all Kansans and is not limited solely to agriculture or agribusiness interests.
3
In their effort to persuade the district court otherwise, defendants, Sam Brownback, Secretary of the Board, and its twelve members contended not only that the election process is constitutional; but, also, in the absence of the legislature as a necessary party, the court should defer to that body to remedy the present system. Rejecting both arguments, the district court subsequently declared the terms of the present Board and Secretary expired and appointed the Governor of the State of Kansas receiver for the Board. Hellebust v. Brownback, 824 F. Supp. 1524, 1527 (D.Kan.1993) (Hellebust II ).
4
Central to its legal conclusion and remedy was the district court's factual finding the Board's reach far extends the fields of agriculture and agribusiness. While the Board insisted the approximately eighty laws which the legislature has entrusted it to enforce are confined to the narrow purposes of the state's agricultural industries, the court found, for example, anyone who pumps gas in Kansas relies on a facility subject to the Board's inspection. "Any commercial pump or scale used in Kansas, such as the ones used to fill cars with gasoline at the local filling station, is subject to inspection by the Board of Agriculture. Kan.Stat.Ann. Sec. 83-206 (Supp.1992)." Hellebust I at 1514. All meat and dairy inspection is entrusted to the Board whose appointee, the State Dairy Commissioner, has the authority to enter any business premises, conduct inspections, issue subpoenas, and otherwise enforce state regulations on safe dairy and meat products. The Secretary regulates the use of pesticides whether applied to residential lawns or farmlands. The Board's Chief Engineer of the Division of Water Resources controls not only farm and agricultural water uses but also "water rights held by cities, utilities and individuals not connected with agriculture." Id.
5
With its approximately 330 employees and a budget of about $15 million allocated from the general fund, the district court found the Board "is not simply an agricultural promotion or marketing agency or an entity which deals with matters disproportionately affecting those who elect it. The Board has broad regulatory powers which affect all residents of Kansas daily." Id. at 1513.
6
The Board challenges these findings and the conclusions of law they propagate, arguing: (1) the district court should have permitted the Kansas legislature to remedy the voting procedures;2 (2) the legislature is an indispensable party; (3) the Secretary and Board members have been constitutionally appointed by operation of law; (4) the Board cannot independently exercise legislative powers; and (5) the voting procedures are subject only to rational review to uphold their constitutionality. That is, the Board maintains the voting procedure here is preserved by the explicit reservation for "a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents." Avery v. Midland County, Tex., 390 U.S. 474, 483-84, 88 S. Ct. 1114, 1119-20, 20 L. Ed. 2d 45 (1968). The Court articulated this exception in Salyer Land Co. v. Tulare Lake Basin Water Stor. Dist., 410 U.S. 719, 93 S. Ct. 1224, 35 L. Ed. 2d 659 (1973), and Ball v. James, 451 U.S. 355, 101 S. Ct. 1811, 68 L. Ed. 2d 150 (1981); and the Board urges we apply it here.
II. One Person, one vote
7
Our review must begin with the principle announced in Reynolds and recited in its progeny that "in an election of general interest, restrictions on the franchise other than residence, age, and citizenship must promote a compelling state interest in order to survive constitutional attack." Hill v. Stone, 421 U.S. 289, 295, 95 S. Ct. 1637, 1642, 44 L. Ed. 2d 172 (1975) (citing Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969)). The breadth of this mandate does not tolerate constitutional distinctions on the basis of the purpose of the election or the function--legislative or administrative--of the elected official. Hadley v. Junior College Dist., 397 U.S. 50, 54-56, 90 S. Ct. 791, 794-95, 25 L. Ed. 2d 45 (1970). In the line of cases stemming from Reynolds, "[t]he consistent theme ... is that the right to vote in an election is protected by the United States Constitution against dilution or debasement." Id. 397 U.S. at 54, 90 S. Ct. at 794.
8
The Court has fashioned a narrow exception to this rule. In Ball, 451 U.S. at 355, 101 S.Ct. at 1812-13, and Salyer Land Co., 410 U.S. at 719, 93 S.Ct. at 1225, the Court held the one person, one vote rule does not apply to units of government having a narrow and limited focus which disproportionately affects the few who are entitled to vote. In Salyer, the Court reasoned the defendant water district had relatively limited authority because it provided only for the acquisition, storage, and distribution of water for farming in a localized basin. The Court specifically noted the water district offered "no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body." 410 U.S. at 728-29, 93 S.Ct. at 1229-30. Nor did it exercise "what might be thought of as 'normal governmental' authority, but its actions disproportionately affect landowners" in the Tulare Lake Basin. Id. at 729, 93 S.Ct. at 1230.
9
In Ball, the water district provided additional services, "more diverse and affect[ing] far more people," 451 U.S. at 365, 101 S.Ct. at 1818, generating electricity and selling it to Phoenix and other cities to meet most of the district's revenue needs. These added services, however, did not create distinctions which "amount to a constitutional difference." Id. at 366, 101 S.Ct. at 1818. The Court summarized:
10
[T]he District simply does not exercise the sort of governmental powers that invoke the strict demands of Reynolds. The District cannot impose ad valorem property taxes or sales taxes. It cannot enact any laws governing the conduct of citizens, nor does it administer such normal functions of government as the maintenance of streets, the operation of schools, or sanitation, health, or welfare services.
11
Id. (emphasis added). Thus, while an entity's "nominal public character," id. at 368, 101 S.Ct. at 1819, may shield it from the demands of the Fourteenth Amendment and permit a rational relationship analysis, once the line is crossed into the governmental powers arena, one person, one vote applies.
12
With these distinctions in mind, we turn to the findings of the district court. After reviewing the numerous state laws providing the Board with its supervisory and enforcement authority, the district court stated:
13
These examples of the Board's regulatory functions, although significant for the determination of this case, are not exhaustive of the powers of the Board to regulate for the benefit of the health, safety, and welfare of the general public. Suffice it to say, the Board exercises basic, general governmental powers.
14
Hellebust I at 1514-15. That conclusion embraced each of the Board's powers, which the district court discussed, ranging, as noted, from regulating the healthfulness of milk and meat sold in the state to generally regulating all weights and measures, including those commercially used by entities outside the agricultural industry. The court pointed out the Board has "significant" control over the use of water, not only by farmers and ranchers, but also by cities, utilities, and individual non-agricultural users. Id. at 1514. The Chief Engineer of the Division of Water Resources within the Board also controls interstate water diversions. Concomitantly, agents of the Board have enforcement authority to carry out its orders and regulations which extend beyond the agricultural industry.
15
The Board argues from a listing of the laws subject to its authority, "[i]t is obvious ... every one of them is related to agricultural products, the marketing of agricultural products, the protection of agricultural consumers, statistical and scientific studies related to agriculture, and administrative matters facilitating the serving of agricultural needs of Kansas." Even accepting that statement as accurate, it begs the issue here. Our focus is not whether some of the Board's activities deal exclusively with agriculture, but whether its powers transcend that ground and materially affect residents of Kansas who are not represented by the present method of Board selection.
16
Thus, that some of the Board's oversight is only of nominal public character does not abridge the range of its general powers. Indeed, asked where to draw the line when specialized purposes and general powers coincide, the Board was unable to direct us to any authority permitting the specialized to override the general once general powers are found or providing a balance for the two. Instead, it suggested the test should be that those primarily interested in the election should vote. Because all qualified voters in Kansas meet that definition given the breadth of oversight exercised, the district court correctly permitted those who are regulated and taxed to reflect their interest in the Board's membership.
17
Moreover, the constitutional significance of these facts cannot be obscured by the Board's gloss that its powers are limited because it is subject to legislative and executive controls in other areas. The Board's partial dependence on the actions of other state entities does not restrict the range of governmental powers it wields. Indeed, in a traditional system in which one branch of government is subject to the checks and balances of another, such dependence is the norm. Consequently, the incidental effect other entities have on the Board does not minimize its authority nor vitiate the requirement for selection reform.3
18
Once a state agency has the authority to affect every resident in matters arising in their daily lives, its powers are not disproportionate to those who vote for its officials. The quality of meat and dairy products consumed by everyone in the state; the accuracy of the scales upon which people are charged for consumer goods; the right to divert and use water; the use of pesticides on residential lawns, city parks, and farmlands are not services disproportionate to those who attend the annual meeting of the Board. Those matters unremittingly influence every person within the State of Kansas. Moreover, as correctly determined by the district court, those matters fall within the state's police powers and comprise part of the normal functions of state government. Thus, although the Board exercises powers that uniquely benefit the agricultural industry, its core governmental powers deprive the Board of the umbra of Ball and Salyer.
III. Presence of the Kansas State Legislature
19
The Board reasserts the district court erred in failing to hold the state legislature is a necessary party without whom the court cannot order complete relief. Fed.R.Civ.P. 19(a). The Board maintains the legislature is "the only entity capable of providing such relief." However, the district court held there was no need to join the legislature as a party because "plaintiffs' actual injury results from (1) the board administering an unconstitutional election, and (2) their being governed by an unconstitutionally elected body." Hellebust I at 1521. Moreover, the district court found the presence of the legislature was unnecessary for the relief requested.
20
Reviewing this matter de novo, Dickinson v. Indiana State Election Bd., 933 F.2d 497, 500 (7th Cir.1991), we find no error in the district court's reasoning. In this case, plaintiffs sought to declare their Fourteenth Amendment rights were being violated and to enjoin that violation. The Board is the source of that violation, and prohibiting its unconstitutional exercise of power remedies that grievance. Further, in granting relief, the district court has left the door open for the state legislature to submit a remedy and to intervene under its continuing supervision of this action.4 In Dickinson, a case under Section 2 of the Voting Rights Act, the court held the legislature, while not a necessary party, could, if it desired, intervene, and observed its interests were already represented. Id. at 500. We believe the same analysis applies here.
IV. Remedy
21
Despite the Board's representations from the onset of this lawsuit through oral argument that bills have been introduced to the Kansas State Legislature to alter the selection process, none has yet been acted upon. Nevertheless, the Board continues to urge, in the absence of legislative action, the district court abused its discretion in imposing a remedy rather than deferring to the legislature.
22
However sensitive we are to the important role of the state legislature in remedying an unconstitutional procedure of its own making, and however reluctant we are to utilize judicial tools in a legislative process, we fully recognize "[i]t is enough to say now that, once a State's ... [election] scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan." Reynolds, 377 U.S. at 585, 84 S.Ct. at 1393 (emphasis added). Aside from the Board's assurances, it indicates nothing to us to make this the "unusual case" in which we should leave the constitutional violation in place.
23
The contour for a remedy in any equitable case is set by "the nature of the violation." Milliken v. Bradley, 418 U.S. 717, 738, 94 S. Ct. 3112, 3124, 41 L. Ed. 2d 1069 (1974) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S. Ct. 1267, 1276, 28 L. Ed. 2d 554 (1971)). Thus, "[r]emedial techniques ... will probably often differ with the circumstances of the challenged ... [practice] and a variety of local conditions." Reynolds, 377 U.S. at 585, 84 S.Ct. at 1393. The district court recognized these parameters and sought to tailor its relief to the unique circumstances of this case.
24
Consequently, in fashioning the remedy, the district court observed the Governor of Kansas would be the logical and most effective official to oversee the agency, bringing the executive authority of the governor's office to the Board's helm. Rejecting more intrusive remedies like "blocking appropriations to the KSBA, stripping away general governmental authority from the defendants, convening a special session of the Kansas Legislature," Hellebust II at 1526, the district court instead declared the terms of members of the Board to be expired and appointed the governor receiver for the Board.
25
We believe the district court thoughtfully crafted this relief to cure the violation without unnecessarily overstepping the circumstances of this case. The district court did not infringe the state legislature's authority by dictating a new election procedure for the selection of the Board, but left to legislative prerogative the method of changing the process.5 Nevertheless, we suggest the district court establish a deadline by which the legislature must act, to prod the legislature to address these orders and to provide the district court an outer limit for its supervision.
26
We, therefore, hold the district court did not abuse its discretion in remedying the established violation of the Fourteenth Amendment. The judgment is AFFIRMED, and the case is REMANDED so the district court may retain jurisdiction until a constitutionally acceptable selection process is enacted.
*
The Honorable Donald P. Lay, Senior Circuit Judge for the United States Court of Appeals for the Eighth Circuit, sitting by designation
1
The district court enumerated the state organizations sending delegates:
county agricultural societies, each state fair, each county farmer's institute, each livestock association having a statewide character, and each of the following with at least 100 members: county farm bureau associations, county granges, county national farmer's organizations, and agricultural trade associations having a statewide character. Kan.Stat.Ann. Sec. 74-502(a) (1992). In addition, if 100 residents of a single county who are not members of any of the groups just listed sign a petition, they may send a delegate to the annual meeting. Kan.Stat.Ann. Sec. 74-502(b) (1992).
Hellebust v. Brownback, 824 F. Supp. 1511, 1513 (D.Kan.1993).
2
Three different measures were evidently introduced during the 1993-1994 legislative session. During oral argument on September 28, 1994, counsel for the Board advised us no action had been taken as of that time on any of those measures
3
Similarly, the Board's contention at oral argument that the district court's enjoining further elections triggered a legislative holdover provision, making each holdover Board member a de facto appointee by the legislature, hardly validates the present procedure
4
As noted, the legislature may intervene at any time. Moreover, "sovereign immunity does not protect governmental entities from action for equitable or extraordinary relief." State ex. rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 687 P.2d 622, 627 (1984) (action in mandamus brought on relation of attorney general to determine constitutionality of statute)
5
Nothing in this opinion suggests the members must be selected by election. We merely hold if the election process is chosen, the right to vote must be extended to all qualified voters throughout the State of Kansas | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/730893/ | 101 F.3d 1324
65 USLW 2455, 1996-2 Trade Cases P71,639, 96 CJ C.A.R. 1982
Arlene M. BROWN, M.D.; Family Practice Associates, P.C.,Plaintiffs-Appellees,v.PRESBYTERIAN HEALTHCARE SERVICES; Valerie Miller; VickieWilliams, D.O., Defendants-Appellants,andSierra Blanca Medical Associates, P.A.; Gary Jackson, D.O.,Defendants.Arlene M. BROWN, M.D., Family Practice Associates, P.C.,Plaintiffs-Appellants,v.PRESBYTERIAN HEALTHCARE SERVICES, Valerie Miller, SierraBlanca Medical Associates, P.A., Vickie Williams,D.O., Gary Jackson, D.O., Defendants-Appellees.
Nos. 95-2293, 96-2013.
United States Court of Appeals,Tenth Circuit.
Nov. 29, 1996.
Thomas C. Bird (David W. Peterson of Keleher & McLeod, P.A.; and Phil Krehbiel of Krehbiel, Bannerman, Horn & Hisey, P.A., Albuquerque, NM, with him on the briefs) of Keleher & McLeod, P.A., Albuquerque, NM, for Plaintiffs-Appellees.
Bruce Hall (Edward Ricco and Theresa W. Parrish with him on the briefs) of Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Defendants-Appellants.
Before BRORBY, RONEY,* and LOGAN, Circuit Judges.
BRORBY, Circuit Judge.
1
Dr. Arlene Brown, a family physician, and her professional association, Family Practice Associates, P.C. (hereinafter collectively referred to as "Dr. Brown"), brought suit against Presbyterian Healthcare Services, Valerie Miller, Vickie Williams, D.O., Sierra Blanca Medical Associates, P.A., and Gary Jackson, D.O., seeking injunctive relief and damages for violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2 (1994), unreasonable restraint of trade and unfair trade practices in violation of Section 57 of the New Mexico Annotated Statutes, bad faith breach of contract, intentional interference with contract, defamation, and prima facie tort. Dr. Brown's causes of action arose from the revocation of her obstetrical hospital staff privileges by Lincoln County Medical Center,1 and from the hospital's subsequent report of this revocation to the National Practitioner Data Bank under the category of "Incompetence/ Malpractice/Negligence." According to Dr. Brown, the defendants' "anticompetitive motives" were at the heart of these actions.
2
After a three week jury trial, the jury rendered a verdict in favor of Dr. Brown on the defamation claim, tortious interference with contract claim, and certain of her antitrust claims. Thereafter, the district court set aside the jury's awards of damages on the tortious interference with contract claim, and the jury's award of punitive damages against Dr. Williams on the antitrust claims. Dr. Brown and Defendants Presbyterian Healthcare Services, Ms. Miller and Dr. Williams appeal from the district court's order and amended judgment.
I. Factual Background
3
Dr. Arlene Brown, a Board-certified family physician, began practicing family medicine in Ruidoso, New Mexico, in 1983. Dr. Brown joined the medical staff of Lincoln County Medical Center, and in 1992 she held clinical privileges at the hospital in obstetrics and other areas. Dr. Vickie Williams, a physician specializing in obstetrics and gynecology in Ruidoso, is an economic competitor of Dr. Brown.
4
In early 1992, Dr. Williams participated in an informal peer review of three patients treated by Dr. Brown. Dr. Williams expressed concerns about the quality of care reflected in the patients' charts and prepared typewritten comments on the charts. Valerie Miller, Lincoln County Medical Center's Administrator, then referred the charts to specialists outside the hospital for review. The outside reviewing physicians' comments were submitted to Lincoln County Medical Center's Executive Committee. At a meeting of the Executive Committee on July 13, 1992, Dr. Brown agreed to a requirement to consult with an obstetrics specialist in treating high-risk obstetrical patients.
5
In February 1993, Valerie Miller instituted formal peer review proceedings against Dr. Brown by sending a complaint to the Medical Staff Executive Committee, charging Dr. Brown with failure to abide by the consultation agreement. The Executive Committee instituted formal peer review proceedings against Dr. Brown by appointing a panel of three physicians to conduct a hearing on the complaint. At the hearing in April 1993, the panel reviewed the charts of two patients treated by Dr. Brown and heard testimony from Dr. Williams and Dr. Brown. The next day, the hearing panel issued its report, concluding Dr. Brown breached her agreement to obtain appropriate consultation and recommending removal of Dr. Brown's obstetrical privileges. Thereafter, the Medical Executive Committee approved the panel's recommendation and Lincoln County Medical Center's Board of Trustees adopted the recommendation.2
6
Following the Board of Trustees' disciplinary action, Lincoln County Medical Center submitted a report to the National Practitioner Data Bank concerning the revocation of Dr. Brown's obstetrical privileges.3 Glenda Perry, the hospital's medical staff coordinator, prepared the report in collaboration with Ms. Miller. One blank on the report called for insertion of an "Adverse Action Classification Code." Ms. Perry and Ms. Miller settled on the code entitled "Incompetence/ Malpractice/ Negligence."
7
When Dr. Brown received a copy of the hospital's data bank report, she submitted a report of her own to the National Practitioner Data Bank stating Lincoln County Medical Center never found her negligent, incompetent or guilty of malpractice. The National Practitioner Data Bank then notified Lincoln County Medical Center of Dr. Brown's objection to the report, and provided the hospital with an opportunity to revise its report. However, the hospital elected not to amend the data bank report.
8
Although unrelated to the revocation of Dr. Brown's obstetrical privileges, in 1992 a family practice physician named Dr. Mark Reib contacted a Presbyterian Healthcare Services recruiter to discuss family medicine practice opportunities in Ruidoso, New Mexico. When Dr. Reib expressed an interest in joining Dr. Brown's practice, the recruiter informed Dr. Reib the hospital would only offer him a financial recruitment package if he were to go to work for Lincoln County Medical Center or in direct competition with Dr. Brown. Dr. Reib chose not to join Dr. Brown's medical practice.
II. Trial and Subsequent Procedural History
9
In March 1995, the trial of this action commenced before a jury. Almost three weeks later, the jury returned a special verdict in Dr. Brown's favor on her defamation claim, intentional interference with contract claim, and on certain of her antitrust claims.4 The district court entered judgment in accordance with the jury's findings, trebling, as required by law,5 the antitrust damages against Ms. Miller and Dr. Williams. Thereafter, pursuant to Fed.R.Civ.P. 50(b) and 59(c), the defendants filed a motion for judgment as a matter of law or to alter or amend the judgment or for a new trial. In a comprehensive and detailed "Memorandum Opinion and Order," the district court set aside the jury's award of compensatory and punitive damages against Presbyterian Healthcare Services on the intentional interference with contract claim, and the jury's award of punitive damages against Dr. Williams on the antitrust claim.6 The district court rejected all of the defendants' remaining arguments and entered an amended judgment in conformity with its opinion.
10
Dr. Brown appeals the district court's amended judgment, raising two issues: (1) whether the district court erred in vacating the compensatory and punitive damages awards for tortious interference with contract and (2) whether the district court erred in vacating the punitive damages award against Dr. Williams. The appeal of Presbyterian Healthcare Services, Ms. Miller and Dr. Williams raises four issues: (1) whether the district court erred in determining the defendants were not immune as a matter of law from damages resulting from the revocation of Dr. Brown's obstetrical privileges; (2) whether the district court erred in determining the defendants were not immune as a matter of law from damages resulting from the data bank report; (3) whether the district court erred in denying the defendants' motion for judgment as a matter of law on the merits of Dr. Brown's antitrust claims; and (4) whether the district court erred in denying the defendants' motion for judgment as a matter of law on the merits of Dr. Brown's defamation claim. After thoroughly reviewing the parties' briefs, the district court's Memorandum Opinion and Order, and all relevant statutes and case law, we conclude the district court erred in setting aside the jury's awards of damages on Dr. Brown's intentional interference with contract claim. However, with respect to the remaining issues raised by the parties on appeal, we find the district court's rulings were proper and in accordance with law.
III. Dr. Brown's Appeal
11
Dr. Brown first contends the district court erred in vacating as a matter of law the jury's award of compensatory and punitive damages against Presbyterian Healthcare Services on the tortious interference with contract claim. The Court reviews the district court's order granting judgment as a matter of law de novo, applying the same standard as the district court. Thompson v. State Farm Fire & Casualty Co., 34 F.3d 932, 941 (10th Cir.1994). The legal standard for granting judgment as a matter of law is identical to the standard for granting summary judgment under Fed.R.Civ.P. 56. Pendleton v. Conoco, Inc., 23 F.3d 281, 286 (10th Cir.1994). When applying this standard, a court is to examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing the motion for summary judgment or judgment as a matter of law. Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995) (citing Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990)). Judgment as a matter of law should be affirmed only if the evidence is insufficient to permit a jury to properly return a verdict in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S. Ct. 2505, 2514-15, 91 L. Ed. 2d 202 (1986).
12
In the present case, the jury found Presbyterian Healthcare Services liable for tortious interference with contract and awarded Dr. Brown $7,500.00 in compensatory damages and $75,000.00 in punitive damages on this claim. In its Memorandum Opinion and Order, however, the district court vacated the award of compensatory damages, concluding Dr. Brown had failed to present adequate proof of actual damages on this claim. Since the punitive damages award for tortious interference "was connected only to the jury's finding that [Presbyterian Healthcare Services] intentionally interfered with plaintiffs' contractual relations," the district court also set aside the $75,000.00 punitive damages award.
13
Dr. Brown claims the district court erred in vacating the awards of damages for tortious interference with contract because the record contains sufficient evidence to support the jury's awards. Presbyterian Healthcare Services, on the other hand, contends Dr. Brown did not establish damages for tortious interference with "reasonable certainty" and therefore, the district court properly set aside the jury's awards of damages on this claim. As noted by the district court, damages that are based on conjecture, speculation, or guesswork are not recoverable. Smith v. Babcock Poultry Farms, Inc., 469 F.2d 456, 459 (10th Cir.1972) (citing United States v. Griffith, Gornall & Carman, Inc., 210 F.2d 11 (10th Cir.1954)). However, the fact damages are difficult to ascertain will not necessarily bar recovery. Id. Under New Mexico law, which is applicable in the present case, "[t]he lack of certainty that will prevent a recovery is uncertainty as to the fact of damages, not as to the amount." Camino Real Mobile Home Park Partnership v. Wolfe, 119 N.M. 436, 891 P.2d 1190, 1201 (1995). Damages need not be computed with "mathematical certainty" and recovery will not be denied where the evidence "afford[s] a reasonable basis for estimating [plaintiff's] loss." Archuleta v. Jacquez, 103 N.M. 254, 704 P.2d 1130, 1134 (App.1985). In reviewing a jury's award of damages, the court should sustain the award unless it is clearly erroneous or there is no evidence to support the award. Hudson v. Smith, 618 F.2d 642, 646 (10th Cir.1980).
14
Here, Dr. Brown's alleged damages for intentional interference with contract stem from Presbyterian Healthcare Services' interference with Dr. Brown's attempts to hire Dr. Mark Reib. In an effort to prove the hospital's interference with Dr. Reib caused her damages, Dr. Brown presented testimony at trial from Dr. Michael McDonald, an economic expert. Dr. McDonald testified regarding the additional patient receipts Dr. Steven Frey,7 a family practitioner who joined Dr. Brown's practice in May 1992, brought in to Dr. Brown's practice in 1992 and 1993. According to Dr. McDonald, Dr. Frey's patient receipts averaged around $6,000.00 per month in 1992, and almost $15,000.00 per month in 1993. Dr. McDonald also testified concerning the additional costs Dr. Brown would have incurred in obtaining additional patient revenues. Based on Dr. Brown's 1993 financial statements, Dr. McDonald determined Dr. Brown's costs would increase by 34.1 cents for every dollar of additional receipts. Hence, Dr. McDonald concluded "65.9 percent of any increment in patient receipts will go to the bottom line, the net income of [Dr. Brown's practice]."
15
Dr. George Rhodes, Jr., an economist for the defense, also testified concerning the additional revenue Dr. Frey brought in to Dr. Brown's practice in 1992 and 1993. Dr. Rhodes testified the hiring of Dr. Frey increased the revenue to Dr. Brown's practice by $15,000.00 to $20,000.00 per month in 1993. Additionally, Dr. Rhodes firmly concluded the addition of another physician to Dr. Brown's practice would result in an increase in the practice's revenue.
16
From the above testimony, it is clear Presbyterian Healthcare Services' interference with the hiring of Dr. Reib caused financial harm to Dr. Brown's practice. Although the testimony of Dr. McDonald and Dr. Rhodes does not provide a precise model for determining the extent of Dr. Brown's damages, it does provide a reasonable basis for estimating the plaintiff's loss. From the testimony regarding the amount of additional revenue Dr. Frey brought into Dr. Brown's practice, the jury could have reasonably determined the hiring of Dr. Reib would have resulted in a similar increase in revenue. Such a determination finds support in New Mexico law (see, e.g., Ranchers Exploration & Dev. Corp. v. Miles, 102 N.M. 387, 696 P.2d 475, 477 (1985) (historic profits of established business may be considered in determining lost profits) (citing J.R. Watkins Co. v. Eaker, 56 N.M. 385, 244 P.2d 540, 544 (1952)), and is particularly sound in light of the similar training and professional backgrounds of Dr. Frey and Dr. Reib, and the temporal proximity of the period in which Dr. Frey began his employment with Dr. Brown to the period in which Presbyterian Healthcare Services interfered with the hiring of Dr. Reib. Finally, from Dr. McDonald's testimony concerning the amount of additional costs Dr. Brown would have incurred from increased patient revenues, the jury could have reached a rational conclusion as to the amount of lost profits Dr. Brown's practice incurred due to Presbyterian Healthcare Services' tortious interference with contract.
17
As explained in Restatement (Second) of Torts, once an injured person establishes his business or transaction would have been profitable,
18
it is not fatal to the recovery of substantial damages that he is unable to prove with definiteness the amount of the profits he would have made or the amount of harm that the defendant has caused. It is only essential that he present such evidence as might reasonably be expected to be available under the circumstances.
19
Restatement (Second) of Torts § 912(d), at 483 (1979). Given the circumstances of this case, we believe the evidence concerning the increase in revenues resulting from the recruitment of Dr. Frey was a reasonable method of establishing damages. This is especially so in light of the fact that the certainty of damages "was 'made hypothetical by the very wrong' of the defendant." See Restatement (Second) of Torts § 774A comt. c (1979). We find the jury's award of compensatory damages to be reasonably based upon sufficient evidence in the record, and we therefore reverse the district court's order vacating this award.
20
Having reversed the district court's order vacating the jury's award of compensatory damages for tortious interference with contract, we must next determine whether its order setting aside the jury's award of punitive damages on this claim should stand. The district court set aside the punitive damages award solely because it was dependent on the jury's award of compensatory damages on the tortious interference claim. Since we have reinstated the compensatory damages award, the punitive damages award likewise must be reinstated. We therefore reverse the district court's order vacating the jury's award of punitive damages on the tortious interference with contract claim.
21
Dr. Brown also contends the district court erred in setting aside the jury's award of punitive damages against Dr. Williams on the antitrust claim. The district court did so pursuant to Fed.R.Civ.P. 59(e), which ruling we review for abuse of discretion. Webber v. Mefford, 43 F.3d 1340, 1345 (10th Cir.1994). Under the abuse of discretion standard,
22
a trial court's decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances. When we apply the "abuse of discretion" standard, we defer to the trial court's judgment because of its firsthand ability to view the witness or evidence and assess credibility and probative value.
23
Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir.1994) (quoting McEwen v. City of Norman, 926 F.2d 1539, 1553-54 (10th Cir.1991)). In this circuit, abuse of discretion is defined as " 'an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.' " FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir.1994) (quoting United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir.1991)).
24
In the present case, the jury found Dr. Williams liable on the antitrust conspiracy claims and awarded punitive damages against her in the amount of $75,000.00. Thereafter, in accordance with 15 U.S.C. § 15(a) (1994),8 the district court entered an award of treble damages against Dr. Williams on the antitrust claims. However, the district court vacated the jury's award of punitive damages against Dr. Williams, noting such an award would be duplicative because the treble damages provision already embodies punitive damages.
25
Dr. Brown now contends the district court erroneously set aside the punitive damages award because "[t]he Defendants proposed a verdict form calling for punitive damages for antitrust violations." According to Dr. Brown, the defendants "invited" the jury to erroneously award punitive damages against Dr. Williams, and consequently, the defendants are now precluded from seeking judicial review of this "invited error." As an initial matter, the court notes it is clearly improper to allow a plaintiff to recover punitive damages along with trebled damages on an antitrust claim. "Punitive damages beyond the statutory trebled damages cannot be awarded for an antitrust violation. The enhancement of damages in an antitrust case is the damages trebled." McDonald v. Johnson & Johnson, 722 F.2d 1370, 1381 (8th Cir.1983) (citing Clark Oil Co. v. Phillips Petroleum Co., 148 F.2d 580, 582 (8th Cir.) (treble damage provision encompasses both punitive and compensatory damages), cert. denied, 326 U.S. 734, 66 S. Ct. 42, 90 L. Ed. 437 (1945)). See also Spence v. Southeastern Alaska Pilots' Ass'n, 789 F. Supp. 1014, 1029 (D.Alaska 1992) ("[p]unitive damages are not available on federal anti-trust claims").
26
Notwithstanding the patent impropriety of allowing a plaintiff to recover punitive damages on an antitrust claim, Dr. Brown argues Dr. Williams' failure to object to the jury instructions and verdict sheet that permitted the recovery of such damages serves to preclude subsequent judicial review of the jury's award of punitive damages. As Dr. Brown points out, an appellant may not generally complain on appeal of errors he has himself induced or invited. See, e.g., Meredith v. Beech Aircraft Corp., 18 F.3d 890 (10th Cir.1994) (citing Gundy v. United States, 728 F.2d 484, 488 (10th Cir.1984)). However, where the jury has returned a special verdict, the trial judge is obligated to apply appropriate legal principles to the facts found by the jury. Thedorf v. Lipsey, 237 F.2d 190, 193 (7th Cir.1956). "[I]t is for the court to decide upon the jury's answers ... what the resulting legal obligation is." Id. Moreover, in determining whether to grant or deny a Rule 59(e) motion to alter or amend the judgment, the district court is vested with considerable discretion. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir.1993) (citing Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir.1990)). The district court may grant a motion to alter or amend the judgment where it is necessary to correct manifest errors of law. Charles Alan Wright et al., Federal Practice and Procedure: Civil 2d § 2810.1, at 124-25 (1995).
27
In the case at bar, the jury instructions and special verdict form were exhaustive and labyrinthine. The jury's responsibilities included determining the liability of six defendants for as many as seven distinct claims. The special verdict form alone was twelve pages and contained more than thirty individual questions. Given the numerous parties, claims and overall complexity of the case, we do not believe the trial judge abused his discretion in vacating the jury's award of punitive damages against Dr. Williams. As stated in the district court's Memorandum Opinion and Order, "it would have been impractical and confusing to the jury to have drafted the special verdict to include all of the combinations of circumstances under which punitive damages could or could not have been awarded against various defendants." The district court's decision to vacate the award of punitive damages served to correct a manifest error of law and did not prejudice Dr. Brown. Under these circumstances, we are not left with "a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Hence, we affirm the district court's order vacating the award of punitive damages against Dr. Williams.
28
IV. Appeal of Presbyterian Healthcare Services, Dr. Williams and Ms. Miller
29
Presbyterian Healthcare Services, Dr. Williams and Ms. Miller contend the district court erred in: (1) failing to find the defendants immune, as a matter of law, from antitrust and defamation damages under the Health Care Quality Improvement Act and (2) failing to grant judgment as a matter of law in the defendants' favor on the merits of Dr. Brown's antitrust and defamation claims. As stated, we review the denial of a motion for judgment as a matter of law de novo, applying the same legal standard used by the district court. Thompson, 34 F.3d at 941. Judgment as a matter of law should only be granted if the evidence, when viewed in the light most favorable to the party opposing the motion, could not support a verdict in that party's favor. Anderson, 477 U.S. at 257, 106 S.Ct. at 2514-15.
30
First, the defendants argue the trial court erred in failing to find them immune, as a matter of law, from damages resulting from the revocation of Dr. Brown's obstetrical privileges, under the Health Care Quality Improvement Act. In 1986, Congress adopted the Health Care Quality Improvement Act in response to "[t]he increasing occurrence of medical malpractice and the need to improve the quality of medical care." See 42 U.S.C. § 11101(1), (2) (1994). Recognizing "[t]he threat of private money damage liability ... unreasonably discourages physicians from participating in effective professional peer review," see 42 U.S.C. § 11101(4), Congress deemed it essential for the legislation to provide qualified immunity from damages actions for hospitals, doctors and others who participate in professional peer review proceedings. Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026, 1028 (4th Cir.1994). Thus, under the Health Care Quality Improvement Act, a peer review participant is immune from private damage claims stemming from the peer review action provided the review action is taken:
31
(1) in the reasonable belief that the action was in the furtherance of quality health care,
32
(2) after a reasonable effort to obtain the facts of the matter,
33
(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and
34
(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).
35
42 U.S.C. §§ 11111(a)(1), 11112(a) (1994). A peer review action is presumed to have met the preceding standards necessary for immunity. 42 U.S.C. § 11112. However, if a plaintiff challenging a peer review action proves, by a preponderance of the evidence, any one of the four requirements was not satisfied, the peer review body is no longer afforded immunity from damages under the Health Care Quality Improvement Act. 42 U.S.C. § 11112(a); see, e.g., Islami v. Covenant Medical Center, Inc., 822 F. Supp. 1361, 1377-78 (N.D.Iowa 1992) (review participants not entitled to immunity as matter of law because plaintiff presented sufficient evidence for a jury to conclude review participants did not provide plaintiff with fair and adequate process). Courts apply an objective standard in determining whether a peer review action was reasonable under 42 U.S.C. § 11112(a). See, e.g., Mathews v. Lancaster Gen'l Hosp., 87 F.3d 624, 635 (3d Cir.1996); Austin v. McNamara, 979 F.2d 728, 734 (9th Cir.1992).
36
In the present case, the formal peer review hearing was held to determine whether Dr. Brown had agreed to seek consultation for high-risk obstetrical patients and if so, whether Dr. Brown had breached this agreement. During the hearing, Ms. Miller outlined the hospital's position, and the Panel reviewed the charts of two patients Dr. Brown treated. Both Dr. Williams and Dr. Brown testified at the hearing. Following approximately two hours of deliberations, the review panel concluded Dr. Brown had breached her agreement to obtain appropriate consultation and recommended removal of Dr. Brown's privileges to practice obstetrics at Lincoln County Medical Center.
37
At trial, Dr. Brown presented sufficient evidence for a reasonable jury to find, by a preponderance of the evidence, the peer review action was not taken after a "reasonable effort to obtain the facts of the matter." Dr. Norman Lindley, a physician specializing in obstetrics and gynecology, testified on behalf of Dr. Brown. Dr. Lindley reviewed the charts for every obstetrics patient Dr. Brown treated for the six-month period preceding her revocation and concluded Dr. Brown recognized high-risk obstetrics patients and obtained appropriate consultation when necessary. Dr. Lindley also testified the peer review panel's review of only two charts prior to revoking Dr. Brown's obstetrical privileges was unreasonably narrow and did not provide a reasonable basis for concluding Dr. Brown posed a threat to patient safety.
38
Thus, from Dr. Lindley's testimony, a reasonable jury could have found the panel's review to be unreasonably restrictive and not taken after a "reasonable effort to obtain the facts." Such a finding removes the defendants from the qualified immunity provided by the Health Care Quality Improvement Act. Hence, we conclude the district court did not err in failing to find Presbyterian Healthcare Services, Ms. Miller and Dr. Williams immune, as a matter of law, from damages stemming from the revocation of Dr. Brown's obstetrical privileges.9
39
Next, Ms. Miller argues the district court erred in failing to find her immune, as a matter of law, from damages on Dr. Brown's defamation claim. The Health Care Quality Improvement Act confers immunity on any person who makes a report to the National Practitioner Data Bank "without knowledge of the falsity of the information contained in the report." 42 U.S.C. § 11137(c) (1994). Thus, immunity for reporting exists as a matter of law unless there is sufficient evidence for a jury to conclude the report was false and the reporting party knew it was false.
40
Although the data bank report in this case listed the reason for Lincoln County Medical Center's disciplinary action as "negligence/incompetence/malpractice," the record reveals neither the review panel nor the hospital's Board of Trustees ever found Dr. Brown negligent, incompetent or guilty of malpractice. Rather, the review panel merely determined Dr. Brown breached her agreement to obtain appropriate consultation. Although the panel members were "concerned that [Dr. Brown] does not recognize complicated obstetrics or is reluctant to refer such cases," the panel "felt that Dr. Brown was competent to do uncomplicated obstetrics." Ms. Miller, who was involved in the preparation and review of the report, received a copy of the committee's written findings and was fully aware of the committee's conclusions and the Board of Trustee's action against Dr. Brown. Thus, the record contains sufficient evidence from which a reasonable jury could have concluded the data bank report was false and Ms. Miller knew of its falsity. We therefore affirm the district court's determination Ms. Miller is not immune from defamation damages, as a matter of law, under the Health Care Quality Improvement Act.
41
Presbyterian Healthcare Services, Ms. Miller and Dr. Williams also claim the district court erred in failing to enter judgment as a matter of law in their favor on the merits of Dr. Brown's antitrust claims. The jury in this case determined Ms. Miller and Dr. Williams joined in a conspiracy to exclude Dr. Brown from competing in the Ruidoso, New Mexico, market. However, the jury did not conclude Presbyterian Healthcare Services participated in the conspiracy. Since the decision to revoke Dr. Brown's medical privileges was made by an independent, nonconspirator (Lincoln County Medical Center's Board of Trustees), the defendants contend Ms. Miller and Dr. Williams could not have proximately caused the revocation and, therefore, cannot be held liable for Dr. Brown's injuries.
42
A private plaintiff seeking to invoke the antitrust laws must show the defendants caused her alleged injury. Todorov v. DCH Healthcare Authority, 921 F.2d 1438, 1459 (11th Cir.1991) (citing Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 107 S. Ct. 484, 93 L. Ed. 2d 427 (1986)). The key question in determining the defendants' ability to "cause a restraint [of trade] to be imposed" is whether the defendants had control over the decisionmaking process, or the ability to coerce or unduly influence the decision. See Oksanen v. Page Memorial Hosp., 945 F.2d 696, 705-06 (4th Cir.1991) (medical staff had no control where Board of Trustees requested and encouraged medical staff to take corrective action), cert. denied, 502 U.S. 1074, 112 S. Ct. 973, 117 L. Ed. 2d 137 (1992); Weiss v. York Hosp., 745 F.2d 786, 819 n. 57 (3d Cir.1984) (given dominant role of medical staff and limited nature of review, evidence supported jury's finding medical staff violated antitrust laws), cert. denied, 470 U.S. 1060, 105 S. Ct. 1777, 84 L. Ed. 2d 836 (1985); Islami v. Covenant Medical Center, Inc., 822 F. Supp. 1361, 1383 (N.D.Iowa 1992) (medical staff had ability to coerce or unduly influence decision). Where a reasonable jury could conclude from the evidence that the defendants controlled, coerced, or unduly influenced the decision that resulted in a restraint of trade, a genuine issue of material fact exists on the issue of causation. Oksanen, 945 F.2d at 705-06; Weiss, 745 F.2d at 819 n. 57; Islami, 822 F. Supp. at 1383.
43
Here, neither Ms. Miller nor Dr. Williams voted on the decision to revoke Dr. Brown's obstetrical privileges. However, the record reveals both Ms. Miller and Dr. Williams played an influential role in bringing about the revocation. The jury heard evidence at trial which tended to show Dr. Williams, a competitor of Dr. Brown, and Teresa McCallum, a nurse who had made anti-semitic remarks about Dr. Brown in Dr. Williams' presence, were responsible for identifying all five of Dr. Brown's charts that were reviewed during the two peer review proceedings. Dr. Williams authored the criticisms that Ms. Miller sent to the outside reviewing physicians, and she testified against Dr. Brown at the revocation peer review proceeding. Ms. Miller asked Dr. Williams to prepare the summary of criticisms that were attached to the cases sent to the outside reviewing physicians even though Dr. Brown had complained to Ms. Miller about a personality conflict between Dr. Williams and Dr. Brown. Furthermore, Ms. Miller instituted the formal peer review proceedings against Dr. Brown by sending a complaint to the Medical Staff Executive Committee, she presented the "hospital's position" at the formal review proceeding, and she served on the Board of Trustees.
44
Thus, the record is replete with evidence tending to show Ms. Miller and Dr. Williams were the catalysts behind, or played a crucial role in, every step of the proceedings against Dr. Brown. Viewing the entire evidence in the light most favorable to Dr. Brown, we believe a reasonable jury could have concluded Dr. Williams and Dr. Brown controlled, coerced or unduly influenced the decisionmaking process. We therefore affirm the district court's denial of the defendants' motion for judgment as a matter of law on the merits of Dr. Brown's antitrust claims.
45
Finally, Ms. Miller argues the district court erred in failing to grant judgment as a matter of law in her favor on the merits of Dr. Brown's defamation claim. According to Ms. Miller, Dr. Brown failed to establish the data bank report caused actual injury to her reputation. Under New Mexico law, a plaintiff must prove actual injury to state a claim for defamation; damages cannot be presumed in a defamation action. Newberry v. Allied Stores, Inc., 108 N.M. 424, 773 P.2d 1231, 1236 (1989) (citing Poorbaugh v. Mullen, 99 N.M. 11, 653 P.2d 511, 520 (App.), cert. denied, 99 N.M. 47, 653 P.2d 878 (1982)). However, actual injury is not limited to out-of-pocket loss. Id.; see also Cowan v. Powell, 115 N.M. 603, 856 P.2d 251, 253 (App.1993). As stated by the New Mexico Supreme Court in Newberry, "the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering." 773 P.2d at 1236 (quoting Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462, 470 (1982)).
46
In the case at bar, the record reveals Dr. Brown sought to obtain obstetrical privileges at Gerald Champion Memorial Hospital after the revocation by Lincoln County Medical Center. Pursuant to federal regulations, every hospital that receives an application for clinical privileges must check with the National Practitioner Data Bank for reports on the applicant. 45 C.F.R. § 60.10(a)(1) (1995). Thus, as part of the application process at Gerald Champion Memorial Hospital, Dr. Brown had to undergo a hearing and explain the reason Lincoln County Medical Center revoked her obstetrical privileges. As the district court found, we believe sufficient evidence exists for a jury to have concluded Dr. Brown suffered impairment of reputation and standing in the community or personal humiliation when she had to explain why Lincoln County Medical Center revoked her privileges based on "negligence/incompetence/malpractice." Although Gerald Champion Memorial Hospital ultimately granted obstetrical privileges to Dr. Brown, "an opportunity for rebuttal seldom suffices to undo harm [sic] of defamatory falsehood." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 n. 9, 94 S. Ct. 2997, 3009 n. 9, 41 L. Ed. 2d 789 (1974). We therefore affirm the district court's decision to deny the defendants' motion for judgment as a matter of law on the merits of Dr. Brown's defamation claim.
V. Conclusion
47
For the reasons stated above, we REVERSE the district court's order and judgment vacating the jury's award of compensatory and punitive damages on Dr. Brown's tortious interference with contract claim. We AFFIRM the judgment of the district court in all other respects.
*
The Honorable Paul H. Roney, Senior United States Circuit Judge for the Eleventh Circuit, sitting by designation
1
Defendant Presbyterian Healthcare Services, a nonprofit New Mexico corporation, manages and operates Lincoln County Medical Center under an agreement with Lincoln County, New Mexico
2
Dr. Brown subsequently appealed the Board of Trustees' decision. However, on May 20, 1993, the Board's Appeal Panel affirmed the Board of Trustees' decision, with one minor modification. The modification allowed Dr. Brown to reapply for privileges after fulfilling certain training requirements
3
The National Practitioner Data Bank is an organization created under the Health Care Quality Improvement Act to collect information on physicians, including reports of adverse peer review actions. See 45 C.F.R. Part 60 (1995). "Each health care entity must report to the Board of Medical Examiners ... [a]ny professional review action that adversely affects the clinical privileges of a physician." 45 C.F.R. § 60.9(a). The Board of Medical Examiners must in turn report this information to the National Practitioner Data Bank. 45 C.F.R. § 60.9(b)
4
Specifically, the jury entered the following awards of damages: (1) $112,000.00 against Ms. Miller and Dr. Williams on the antitrust claims; (2) $30,000.00 against Ms. Miller on the defamation claim; (3) $7,500.00 in compensatory damages and $75,000.00 in punitive damages against Presbyterian Healthcare Services on the intentional interference with contract claim; (4) $75,000.00 in punitive damages against Ms. Miller on the antitrust and defamation claims; and (5) $75,000.00 in punitive damages against Dr. Williams on the antitrust claims. The jury found in favor of defendants Dr. Jackson and Sierra Blanca Medical Associates with respect to all claims against them
5
See 15 U.S.C. § 15(a) (1994)
6
The court set aside the former pursuant to Fed.R.Civ.P. 50(b), and the latter pursuant to Fed.R.Civ.P. 59(e)
7
The court notes the credentials and background of Dr. Frey and Dr. Reib are strikingly similar. Dr. Frey completed a family practice residency in 1983, while Dr. Reib completed a family practice residency in 1984. Following completion of their respective residency programs, Dr. Frey and Dr. Reib each spent three to four years in the Navy. Apparently, the two doctors were stationed together on Guam and became friends. Dr. Frey and Dr. Reib each entered a private family medicine practice after their respective stints in the Navy
8
15 U.S.C. § 15(a) provides in pertinent part, "any person who shall be injured ... by reason of anything forbidden in the antitrust laws ... shall recover threefold the damages by him sustained."
9
The defendants appear to argue the testimony of Dr. Lindley is irrelevant because the defendants presented evidence from a number of doctors who testified the review panel's actions satisfied the requirements of 42 U.S.C. § 11112(a). According to the defendants, "a difference of opinion among experts" does not raise an issue as to the objective reasonableness of the inquiry. We are not persuaded by the defendant's view. Under its theory, a peer review participant would be absolutely immune from liability for its actions so long as it produced a single expert to testify the requirements of 42 U.S.C. § 11112(a) were satisfied. This would be in direct contravention to Congress' intention to provide "qualified immunity." Moreover, to remove a plaintiff's claims from the jury simply because "a difference of opinion among experts" exists would abrogate the jury's responsibility to weigh the evidence and determine the credibility of witnesses. See, e.g., Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 930 (10th Cir.) ("entire jury system is anchored to the jurors' determination of credibility of witnesses and the weight to be given their testimony"), cert. denied, 469 U.S. 853, 105 S. Ct. 176, 83 L. Ed. 2d 110 (1984). Thus, in determining whether a peer review participant is immune under the Health Care Quality Improvement Act, the proper inquiry for the court is whether Dr. Brown has provided sufficient evidence to permit a jury to find she has overcome, by a preponderance of the evidence, any of the four statutory elements required for immunity under 42 U.S.C. § 11112(a). See, e.g., Austin, 979 F.2d at 734. In this case, we believe Dr. Brown presented sufficient evidence to overcome the presumption and allow the issue to be decided by the jury | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1543919/ | 567 A.2d 1134 (1990)
STATE
v.
Timothy HOFFMAN.
No. 88-468-C.A.
Supreme Court of Rhode Island.
January 4, 1990.
James E. O'Neil, Atty. Gen., Jane McSoley, Sp. Asst. Atty. Gen., for plaintiff.
John Cicilline, Providence, for defendant.
OPINION
KELLEHER, Justice.
This is the state's appeal from the grant by a Superior Court justice of the defendant's motion to suppress certain evidence seized by personnel of the Office of the State Fire Marshal, the East Greenwich Fire District, and the East Greenwich police department as a result of an explosion and a fire that occurred at the defendant's home. The defendant has been charged with the commission of first-degree arson in that he did knowingly cause, procure, aid, counsel, and create by means of fire and explosion, damage to his residence, a violation of G.L. 1956 (1981 Reenactment) § 11-4-2, as amended by P.L. 1983, ch. 185, § 1. Hereafter we shall refer to the defendant, Timothy Hoffman, by his last name.
The record indicates that on November 9, 1985, sometime around midnight, an explosion occurred at Hoffman's residence, located on First Avenue in East Greenwich. The residence was a single-family dwelling usually called a ranch house. The upper level of the residence was the family's living area. It contained bedrooms, a bath, a living room, a kitchen, and a porch. Entry to the basement area was through the kitchen. The basement area contained a heating room, a garage, an office used by Hoffman, and a laundry area. Situated in the heating room was an oil-burning *1135 furnace that supplied heat and a gas hot-water heater.
The damage caused by the explosion might be described as catastrophic. The entire rear wall of the premises was blown away with the wall framing ripped out from the foundation to the floor joist. The picture window from the front of the house was found on the front lawn. The house had been moved from its foundation. The garage door was discovered approximately seventy feet away from its original location. The interior walls of the basement were blown to the ground by the force of the explosion.[1] In the examination of the cellar, the investigators observed above the furnace a twenty-four-hour timer clock that was affixed to a joist supporting the first floor. An examination of the face of the clock revealed that the device was set to trip on at 12 midnight and to trip off at 8 a.m. An examination of the hot-water heater revealed that the pipe feeding gas to the gas burner had been separated from the hot-water regulator. A thermocouple that controlled the pilot light had been removed. The removal extinguished the pilot light. The state maintains that when the timer tripped on, the resulting spark was the "ignition source" that caused the explosion.
At the hearing on the motion to suppress, Sean Brennan (Brennan), an inspector for the fire district, told the trial justice who was considering the suppression motion that when he arrived at Hoffman's residence, the firefighters had left the interior of the damaged premises. One engine company remained at the scene for the purpose of supplying illumination if needed. On his arrival, other fire officials informed Brennan that they believed that gas had been involved in the explosion. As a consequence they had shut off the gas main and summoned officials from the Providence Gas Company.
Brennan initiated his investigation by walking around the exterior of the premises. Later he was assisted by an East Greenwich detective and a specialist from the State Fire Marshal's staff whose expertise is employed in a variety of circumstances, such as an explosion or the removal of a bomb. The investigation began with an examination of the first floor. Upon completion of the first-floor examination, the trio entered the basement area. Numerous pictures were taken of the interior of the premises as the investigation continued.
During this period the engine company returned to its station. It was now sometime between 1:30 and 2 a.m. The investigation concluded sometime prior to 5 a.m. on the morning of November 10. The East Greenwich detective testified that he left the explosion scene at 3:30 a.m. and returned at 10 a.m., without a warrant, and took additional photographs. He also testified that he reentered the premises on November 11 for the alleged purpose of retrieving clothing for Hoffman and his family. Hoffman, however, denied making such a request or that he had consented to anyone's entering the premises.
The trial justice granted Hoffman's motion to suppress the photographs taken at his premises and barred any use of the gas pipe, the timer, and the hot-water regulator at the trial. In taking this action, the trial justice expressed the belief that the warrantless entry violated art. 1, sec. 6, of the Rhode Island Constitution and the Fourth Amendment of the United States Constitution. He found that the entry by Brennan and his associates was detached from the legal entry of the fire personnel and that Hoffman retained a legitimate privacy interest in his fire/explosion-damaged home. In reaching this conclusion, the trial justice relied on Justice Stevens's concurring opinion in Michigan v. Clifford, 464 U.S. 287, 301, 104 S. Ct. 641, 651, 78 L. Ed. 2d 477, 489 (1984), where Justice Stevens observed, "`[O]nce the fire has been extinguished and the firemen have left the premises, the emergency is over.' Id. [Michigan v. Tyler], [436 U.S. 499] at 516 [98 S. Ct. 1942, 1953, 56 L. Ed. 2d 486]. I would only add that the departure of the firemen should also establish a presumption that the fire has been extinguished and that any danger *1136 of rekindling is thereafter too slight to provide independent justification for a second entry * * *."
In reviewing a decision in which constitutional rights are involved, as in the instant dispute, this court "shall independently examine the facts, findings and the record of the lower court" to determine whether the trial justice erred in ruling on the motion to suppress. State v. Sundel, 121 R.I. 638, 644, 402 A.2d 585, 589 (1979). It is a well-settled principle that a warrantless entry into a home to conduct a search is unreasonable under the Fourth Amendment, except in special circumstances. Steagald v. United States, 451 U.S. 204, 211, 101 S. Ct. 1642, 1647, 68 L. Ed. 2d 38, 45 (1981). A burning building clearly creates an exigency that justifies a warrantless entry by fire officials to fight a blaze. Michigan v. Clifford, 464 U.S. at 293, 104 S. Ct. at 646, 78 L.Ed.2d at 483. Once firefighters enter a building for this purpose, they may seize evidence of arson that is in plain view. Id. at 294, 104 S. Ct. at 647, 78 L.Ed.2d at 484; see Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S. Ct. 2022, 2037-38, 29 L. Ed. 2d 564, 582-83 (1971). Moreover, "officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished." Michigan v. Tyler, 436 U.S. 499, 510, 98 S. Ct. 1942, 1950, 56 L. Ed. 2d 486, 499 (1978).
An immediate threat that the blaze might rekindle also presents an exigency that justifies a warrantless and nonconsensual postfire investigation. Clifford, 464 U.S. at 293 n. 4, 104 S. Ct. at 647 n. 4, 78 L. Ed. 2d at 484 n. 4.
The Supreme Court, in Tyler, held that fire officials were entitled to enter fire-damaged premises approximately four hours after a fire had been extinguished and all firefighters had departed the scene, without obtaining a warrant. 436 U.S. at 511, 98 S.Ct. at 1950-51, 56 L. Ed. 2d at 499. The Court found this entry was actually a continuation of the initial lawful entry by the firefighters. Id. The Court invalidated searches of the premises conducted a few weeks after the fire, however, because they were clearly detached from the original exigency and warrantless entry. Id.
Six years after Tyler, the Supreme Court attempted "to clarify doubt that appears to exist as to the application of our decision in Tyler." Clifford, 464 U.S. at 289, 104 S. Ct. at 645, 78 L.Ed.2d at 481. In a plurality opinion Justice Powell set forth three factors to be utilized in analyzing the constitutionality of warrantless and nonconsensual entries onto fire-damaged premises: (1) whether there are legitimate privacy interests in the fire-damaged property that are protected by the Fourth Amendment, (2) whether there are exigent circumstances that justify the governmental intrusion regardless of any reasonable expectation of privacy, and (3) whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity. Id. at 292, 104 S.Ct. at 646, 78 L. Ed. 2d at 483.
In Clifford all fire officials and police left the premises at approximately 7 a.m. when the fire was extinguished. Id. at 290, 104 S.Ct. at 645, 78 L. Ed. 2d at 481. Five hours later, arson investigators arrived at the scene to investigate the cause of the blaze and found a work crew in the process of boarding up the defendant's house. Id. at 290, 104 S. Ct. at 645, 78 L.Ed.2d at 482. The investigators entered the residence and conducted an extensive search without obtaining either consent or a warrant. Id. at 290-91, 104 S.Ct. at 645, 78 L. Ed. 2d at 482. The Court found that the Cliffords had taken measures to secure their house against invasion; therefore, they maintained a reasonable expectation of privacy in their fire-damaged property. Id. at 296-97, 104 S. Ct. at 648, 78 L.Ed.2d at 486. As a result the Court held that the search violated the Fourth Amendment. Id. at 298, 104 S. Ct. at 649, 78 L.Ed.2d at 487.
This court has addressed the validity of a warrantless search of a fire-damaged residence in State v. Moretti, 521 A.2d 1003 (R.I. 1987). In Moretti we relied upon the principles set forth in Tyler and subsequently delineated in Clifford.
*1137 It appears that the trial justice, in relying on Justice Stevens's theory that a fire emergency would terminate at that point when the flames have been extinguished and the firefighters have returned to their stations, apparently overlooked Justice Stevens's initial comments where he emphasized:
"There is unanimity within the Court on three general propositions regarding the scope of Fourth Amendment protection afforded to the owner of a fire-damaged building. No one questions the right of the firefighters to make a forceful, unannounced, nonconsensual, warrantless entry into a burning building. The reasonableness of such an entry is too plain to require explanation. Nor is there any disagreement concerning the firemen's right to remain on the premises, not only until the fire has been extinguished and they are satisfied that there is no danger of rekindling, but also while they continue to investigate the cause of the fire." Clifford, 464 U.S. at 299-300, 104 S. Ct. at 650, 78 L.Ed.2d at 488.
Turning to the issue of whether exigent circumstances existed that would justify the warrantless entries made by Brennan and his associates, we are of the belief that the exigency created by the explosion and the fires was still present when their investigation began. Even though some fire officials who initially responded to the call to Hoffman's residence had departed from the premises, a number of other officials remained at the scene.
Brennan testified that he perceived the greatest danger confronting him to be an imminent collapse of the building. He stated that half of the building on the north side was suspended in air because the supports from the basement had been knocked out by the force of the explosion. The fire marshal's specialist testified that the first floor of the structure could have collapsed onto the piping and the boiler.
A representative from the Providence Gas Company testified that when he entered Hoffman's premises, he was aware that the structural integrity of certain areas of the ranch house was questionable.
It is our belief that the trial justice erred in concluding that the exigency had expired at the time Brennan was conducting his investigation. Although it is conceded that rekindling did not appear to be imminent, we find that legitimate concerns regarding additional structural collapse did persist at the time Brennan began his search. We subscribe to the Supreme Court's position that "[i]mmediate investigation may * * * be necessary to preserve evidence from intentional or accidental destruction." Tyler, 436 U.S. at 510, 98 S. Ct. at 1950, 56 L.Ed.2d at 499. Because of the havoc wrought by the explosion, we consider Brennan's entrance as an extension of the initial lawful entry made by the firefighters. The evidence initially seized by the investigators was in "plain view" and consequently not subject to a warrant requirement. See Tyler, 436 U.S. at 509, 98 S. Ct. at 1950, 56 L.Ed.2d at 498.
We do not contend that the exigency existed until such time as Brennan and his colleagues terminated their investigation, but we do acknowledge that their right to remain was limited to a "reasonable time" during which they could "investigate the cause of a blaze after it has been extinguished." Tyler, 436 U.S. at 510, 98 S. Ct. at 1950, 56 L.Ed.2d at 499.
Consequently the subsequent entries by the East Greenwich detective at 10 a.m. on November 10 and again on November 11 were clearly detached from the initial emergency and investigation, and the trial justice quite properly barred the use of any evidence collected on those occasions.
Finally, this court rejects defendant's assertion that the investigators in this matter were searching to gather evidence of criminal activity. When Brennan became aware of the dismantled hot-water tank, there was, at that point, no foregone conclusion that criminal activity was involved in the explosion. Although the possibility of arson was apparent from the outset of the investigation, it was not confirmed until the discovery of the timer. As the Supreme Court of Pennsylvania stated in Commonwealth v. Smith, 511 Pa. 36, 47, 511 A.2d 796, 801 (1986), "A mere suspicion without more * * * does not convert an investigation *1138 of the cause of a fire into a search to gather evidence of criminal activity * * *."
The Supreme Court has recognized that "determining the cause and origin of a fire serves a compelling public interest." Clifford, 464 U.S. at 293, 104 S.Ct. at 647, 78 L. Ed. 2d at 484. We believe that the same sentiments are applicable in determining the nature and origin of an explosion such as the one that played havoc with the structure that formerly served as home to the Hoffman family.[2]
The state's appeal is sustained in part and denied in part. The evidence obtained during the period when Inspector Brennan was on the premises shall be admissible into evidence. The evidence procured by the East Greenwich detective upon his return to the premises at 10 a.m. on November 10 and his reentry on November 11 will not be admissible at trial.
NOTES
[1] Hoffman's residence was unoccupied when the explosion occurred.
[2] Two days after the explosion the East Greenwich building inspector, acting pursuant to the pertinent provisions of the State Building Code, to wit, G.L. 1956 (1985 Reenactment) §§ 23-27.3-124.1(5) and 23-27.3-124.2, notified Hoffman and his wife that "the structure situated at 183 First Avenue * * * is declared unsafe and its use for occupancy has been prohibited." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3044893/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3578
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Edward Keith Dembry, also known as *
Edward Keith, also known as Edward *
Wilson, *
*
Defendant - Appellant. *
___________
Submitted: June 10, 2008
Filed: July 28, 2008
___________
Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
___________
MURPHY, Circuit Judge.
Edward Dembry was found guilty of being a felon in possession of ammunition
in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to 265 months
imprisonment. He now appeals, challenging a pretrial suppression ruling by the
district court1 and the reasonableness of his sentence. We affirm.
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
I.
On the night of August 27, 2006, Officer Doug Roling and Sergeant Douglas
Carden of the Coralville, Iowa Police Department were conducting a foot patrol of
apartment buildings where there had been an increase in drug activity and violence.
As the officers were standing outside one, Officer Roling saw a black male leave the
building, make eye contact with the officers, and run back inside. The black male was
later identified as Edward Dembry. Roling followed in pursuit and saw Dembry reach
behind his back when he was halfway up an interior stairway and pull a handgun from
under his shirt. The chase continued up the rest of the stairwell and onto a landing
where Roling saw Dembry make a motion towards a nearby wooden locker and heard
a sound like metal striking wood. Dembry then walked back towards Roling with his
hands raised.
Sergeant Carden caught up with them, and Roling asked him to watch Dembry
while he inspected the lockers. In one of them Roling found a .40 caliber semi-
automatic handgun. Sergeant Carden placed Dembry under arrest and searched him.
He found a loaded .40 caliber magazine in Dembry’s front pocket. A subsequent
consensual search of Dembry’s apartment uncovered a box of .40 caliber ammunition,
a .40 caliber magazine, and a holster.
Dembry was indicted for being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment also
sought criminal forfeiture of the firearm and ammunition connected to his arrest,
pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c). A forfeiture order was later
entered by the court. Dembry moved to suppress the firearm and ammunition because
of insufficient probable cause for his arrest in violation of the Fourth Amendment. A
magistrate judge conducted an evidentiary hearing and issued a recommendation that
the motion be denied. Over Dembry’s objection, the district court adopted the
recommendation and denied the motion to suppress. Prior to this ruling Dembry filed
-2-
a motion to suppress incriminating statements he made after his arrest. Following a
hearing the district court denied the second motion, and the case proceeded to trial.
At trial Dembry moved for judgment of acquittal at the close of the
government’s case. After the motion was denied, Dembry chose not to present any
evidence and the case was submitted to the jury. Following half an hour of
deliberation the jury unanimously found Dembry guilty of possessing ammunition but
not of possessing the firearm found by Officer Roling.
At sentencing Dembry argued that he should not be sentenced under the ACCA
because his drunk driving convictions should not count as predicate violent offenses
and one of his three robbery convictions had not been counseled. The government
introduced evidence establishing that Dembry had been represented during that
robbery prosecution, however. The district court determined that his three prior
robbery convictions and two prior felony drunk driving convictions all qualified as
violent felonies under the ACCA and that 18 U.S.C. § 924(e) required a mandatory
minimum sentence of fifteen years. Armed career criminal status also elevated
Dembry’s advisory guideline offense level to 33 and his criminal history category to
VI consistent with United States Sentencing Guidelines Manual (U.S.S.G.) § 4B1.4.
The resulting advisory guideline range was 235-293 months.
Dembry requested a variance from the guideline range based on the factors
listed in 18 U.S.C. § 3553(a). The district court indicated that it might have varied
from the sentencing guidelines had the robberies Dembry committed at age eighteen
been the only blemishes on his record, but it declined to do so in light of numerous
subsequent convictions. After taking the § 3553(a) factors into account, the court
determined that a sentence within the advisory guideline range was appropriate and
sentenced him to 265 months.
-3-
II.
Dembry appeals. He argues that the district court erred in denying his motion
to suppress evidence obtained through an illegal search. Additionally, he argues that
his classification as an armed career criminal with its sentencing consequences under
U.S.S.G. § 4B1.4 is unreasonable. While a district court’s denial of a motion to
suppress is reviewed de novo, the court’s underlying factual findings are reviewed for
clear error, affording “due weight to the inferences of the district court and law
enforcement officials.” United States v. Anderson, 339 F.3d 720, 723 (8th Cir.
2003)(quoting United States v. Replogle, 301 F.3d 937, 938 (8th Cir. 2002)).
Dembry argues that it was clear error for the district court to adopt the fact
findings of the magistrate judge and to accept Officer Roling’s testimony that he saw
Dembry remove a firearm from his clothing. Dembry contends that probable cause
for his arrest was completely dependent upon Officer Roling’s observations and his
inconsistent testimony, and that the district court erred in relying on it to find probable
cause and deny the motion to suppress. Dembry also suggests that the lack of a guilty
verdict for possessing the firearm should influence this court’s assessment of whether
there was probable cause and whether the district court erred in its pretrial rulings.
An officer has probable cause to make a warrantless arrest when circumstances
would lead a reasonable person to believe a defendant has committed or is in the midst
of committing an offense. See United States v. Torres-Lona, 491 F.3d 750, 755-56
(8th Cir. 2007) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). In this case officers
observed Dembry running away from them in an area known for criminal activity.
The district court accepted Officer Roling’s testimony that he saw Dembry with a gun
and his attempt to dispose of it. The evidence supports the findings, and the
credibility determinations of the district court are entitled to deference. See United
States v. Guel-Contreras, 468 F.3d 517, 521 (8th Cir. 2006) (holding that credibility
determinations are “virtually unassailable on appeal”)(quoting United States v.
-4-
Rodriguez, 414 F.3d 837, 845 (8th Cir. 2005)). In light of the circumstances
surrounding their interaction with Dembry, it was reasonable for Officer Roling and
Sergeant Carden to believe he was committing a crime and there was thus probable
cause to arrest and search him.
The fact that the jury did not find Dembry guilty of possessing the firearm does
not invalidate the district court’s pretrial findings of probable cause and admissibility.
See United States v. Mendoza, 421 F.3d 663, 667 (8th Cir. 2005) (holding that “police
need not have amassed enough evidence to justify a conviction prior to making a
warrantless arrest”). The preponderance of evidence standard for pretrial rulings is
lower than the reasonable doubt standard required for a jury to convict. We find no
clear error in the district court’s determination that there was probable cause or in its
denial of Dembry’s motion to suppress.
Dembry also challenges his 265 month sentence, arguing that application of the
ACCA with its consequences overstated the seriousness of his criminal history. He
contends correctly that drunk driving felonies do not count as predicate offenses under
the ACCA since the Supreme Court’s decision in Begay v. United States,128 S. Ct.
1581 (2008), and he argues that the court should have varied downward in
consideration of the § 3553(a) factors and because his three robbery offenses occurred
in 1981 when he was only eighteen years old. See United States v. Boss, 493 F.3d
986, 987 (8th Cir. 2007) (holding that a district court abuses its sentencing discretion
if it fails to consider a relevant factor that should have received significant weight).
Reasonableness of a sentence is reviewed for abuse of discretion. United States v.
Bonahoom, 484 F.3d 1003, 1005 (8th Cir. 2007). Because Dembry’s sentence was
within the advisory guideline range of 235-293 months it is presumptively reasonable.
See United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005).
While the district court relied on circuit precedent in treating Dembry’s drunk
driving convictions as violent felonies for ACCA purposes, that has been shown to be
-5-
error by the intervening Supreme Court decision in Begay. 128 S. Ct. at 1583. There,
the Court held that felony drunk driving offenses are not violent felonies within the
meaning of 18 U.S.C. § 924(e)(1). Id. Dembry nonetheless qualifies as an armed
career criminal because his three robbery convictions still qualify as predicate violent
felonies (one was for armed robbery). See 18 U.S.C. § 924(e) (listing burglary, arson,
extortion, or use of explosives as violent felonies and otherwise classifying a violent
felony as one that is punishable by imprisonment for a term exceeding one year and
has an element of use, attempted use, or threatened use of physical force against the
person of another).
Dembry does not contend that he did not qualify as an armed career criminal,
but instead argues he is entitled to a downward variance because the remaining
predicate felonies were all committed at age eighteen making punishment under the
ACCA and U.S.S.G. § 4B1.4 unreasonably harsh for him. The district court
disagreed, concluding armed career criminal status did not overstate Dembry’s
criminal history since he had “as long of a criminal history as I have seen,” with
numerous convictions coming after his predicate offenses. The court also observed
that Dembry displayed no remorse for what he had done. Before finding that a
sentence in the middle of the advisory guideline range was reasonable under the
circumstances, the court expressly addressed each of the § 3553(a) factors. We
conclude that his sentence was reasonable under all the circumstances.
For these reasons we affirm the judgment of the district court.
______________________________
-6- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1918282/ | 101 B.R. 594 (1989)
In re Jerald Patrick GALLAGHER Sharon Lee McQueen Gallagher, Debtors.
Arthur B. FEDERMAN, Trustee, Plaintiff,
v.
Jerald Patrick GALLAGHER, et al., Defendants,
and
Air Line Pilots Association, Intervenors.
Bankruptcy No. 86-03874-SJ, Adv. No. 86-0569-SJ.
United States Bankruptcy Court, W.D. Missouri, W.D.
July 14, 1989.
*595 *596 Arthur B. Federman, Mark Stingley, Linde, Thomson, Fairchild Langworth, Kohn & Van Dyke, Kansas City, Mo., for plaintiff/trustee.
Julie R. Cooper, North Kansas City, Mo., for debtors, Gallagher.
Larry McEnroe, Trans World Airlines, Inc., Kansas City, Mo., Joseph T. Moldovan, Baer Marks & Upham, New York City, for Trans World Airlines.
Judy K. Mencher, Goodwin, Proctor & Hoar, Boston, Mass., for Boston Safe Deposit & Trust Co.
Michael Abram, Michael Winston, Cohen, Weiss and Simon, New York City, William G. Beck, Kansas City, Mo., for Air Line Pilots Ass'n.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
KAREN M. SEE, Bankruptcy Judge.
The matter before the court is the Chapter 7 Trustee's complaint for turnover of funds in three pension plans in which Jerald Patrick Gallagher ("Gallagher"), one of the debtors in Bankruptcy Case No. 86-03874-SJ, is a member and beneficiary. Also joined as defendants are Trans World Airlines ("TWA"), Gallagher's employer and the administrator for each of the pension plans at issue, and Boston Safe Deposit & Trust Company and Morgan Guarantee Trust Company of New York, the trustees of the pension plans at issue ("Plan Trustees"). The Air Line Pilots Association International ("ALPA"), the airline pilots union, appears as intervenor. The Court has jurisdiction over this matter and enters its final order and judgment pursuant to 28 U.S.C. §§ 1334 and 157(b)(2).
FINDINGS OF FACT
1. Gallagher began his employment for TWA in 1966. As a pilot for TWA, Gallagher has an interest in three pension/retirement plans: i) Retirement Plan for Pilots and Flight Engineers ("Plan A"); ii) Trust Annuity Plan for Pilots ("Plan B"); and iii) Trust Plan for Flight Engineers ("Plan C"), (hereinafter collectively referred to as the "Plans").
2. ALPA negotiated the terms of the Plans with TWA. The Plans comply with the provisions of The Employment Retirement Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., contain the antialienation provisions prescribed by 29 U.S.C. § 1056(d), and qualify for beneficial tax treatment pursuant to 26 U.S.C. §§ 401(a) and 501(a).
3. During his employment with TWA, Gallagher never served as an officer, director, or shareholder of TWA, nor did he serve as an officer or director of ALPA.
4. Gallagher's bankruptcy case was filed on September 3, 1986; the adversary action herein was filed December 10, 1986; trial of the action was held on April 2, 1987. At the time he filed his petition, Gallagher was on inactive flying status with TWA due to illness; by the time that the trial was held, Gallagher had regained active status.
5. At the time of trial, Gallagher was fifty-one years old. He and his wife have no minor children and no other dependents. At the time of trial, his monthly living expenses were $2,168.93 and his monthly reaffirmed debt payments were $546.29; thus, his total monthly expenses and debt payments were $2715.22. No testimony *597 was offered regarding Gallagher's projected income and living expenses. His monthly income at the time of the trial was $4,277.01.
PLAN A
6. Due to his participation in a prior TWA pension plan, Gallagher automatically became a member of Plan A, which became effective October 1, 1981 (Article 3.2, Plan A). Plan A is a qualified defined benefit pension plan created to comply with and satisfy the applicable provisions of 26 U.S.C. § 414(j).
7. TWA made contributions to Plan A on Gallagher's behalf in an amount equal to 4% of Gallagher's monthly earnings (Article 5.1, Plan A), plus any additional amounts necessary to fund the defined benefit pension plan (Article 5.3, Plan A).
8. Plan A provides that Gallagher's interest in benefits vest upon completion of five years of continuous service with TWA, or in the alternative, upon reaching age 45 (Articles 8.1, 8.2, and 8.3, Plan A). Due to both his age and years of continuous service with TWA, Gallagher's interest in Plan A had vested as of the date that he filed bankruptcy.
9. Plan A also provides that if Gallagher had terminated his employment with TWA: i) with less than five years of continuous service; ii) prior to reaching age 45; or iii) as the result of certain disabilities, he would have been paid a cash payment equal to the accumulated contributions made by TWA on his behalf (Article 8.1, Plan A).
10. As a vested member in Plan A, Gallagher is entitled to fund payments and distributions upon: i) retirement; ii) death; or iii) termination of employment. Plan A gives Gallagher various retirement options in that he could retire at age 60, extend his service with TWA beyond age 60 (with TWA's consent), or take early retirement after reaching age 45 ("Normal, extended or early retirement") (Articles 4.1, 4.2, and 4.3, Plan A). Plan A gives Gallagher various options regarding the form of income by which his benefits from Plan A would be paid: i) Automatic Qualified Joint and Survivor Annuity; ii) Joint and Survivor Annuity; iii) Life Annuity: iv) Option Providing Payments for a Specified Number of Years; and v) Single Life Annuity (Articles 9.2, 9.3, 9.4, 9.5, 9.7, 9.8, and 9.9, Plan A). Furthermore, Gallagher has the option of transferring Retirement Income (as defined in Article 1.7, Plan A) from Plan A to Plan B in order to equalize his benefit payments (Article 9.11, Plan A; Article 5.7, Plan B). In addition, under certain circumstances, Gallagher has the option of taking a lumpsum payment of his contributions in addition to the payment plans described above (Articles 8.4, Plan A).
11. Plan A does not allow any voluntary or involuntary encumbrance or alienation of Gallagher's interest in payments from Plan A (Article 12, Plan A).
12. Plan A states that the validity, construction and rights thereunder are to be governed by the laws of the State of New York. The terms of the Master Trust state that it is to be governed by the laws of the State of Massachusetts.
13. No proof was presented at trial of the total value of Gallagher's interest in Plan A as of September 3, 1986, the date that Gallagher's petition was filed.
PLAN B
14. Due to his participation in a prior TWA pension plan, Gallagher automatically became a member of Plan B, which became effective October 1, 1981 (Article 3.2, Plan B). Plan B is a qualified defined contribution plan created to comply with and satisfy the applicable provisions of 26 U.S.C. § 414(i).
15. TWA made contributions to Plan B on Gallagher's behalf in an amount equal to 11% of Gallagher's monthly earnings (Article 5.4, Plan B). Gallagher has the option, which he had not exercised as of the date of the trial, of contributing up to 10% of his monthly earnings to Plan B (Article 5.1, Plan B). Although TWA's contribution was based entirely on the level of Gallagher's earnings, they did not reduce his salary that was actually paid to him.
16. Plan B provides that Gallagher's interest in benefits vest upon completion of five years of continuous service with TWA, or in the alternative, upon reaching age 45 *598 (Article 8.2, Plan B). Due to both his age and years of continuous service with TWA, Gallagher's interest in Plan B had vested as of the date that he filed bankruptcy.
17. As a vested member in Plan B, Gallagher is entitled to fund payments and distributions upon: i) retirement; ii) death; or iii) termination of employment. Plan B gives Gallagher various retirement options in that he could retire at age 60, extend his service with TWA beyond age 60 (with TWA's consent), or take early retirement after reaching age 45 ("Normal, extended or early retirement") (Articles 4.1, 4.2, 4.3, and 4.4, Plan B). Plan B also gives Gallagher various options regarding the form of income by which his benefits from Plan B would be paid: i) Life Annuity; ii) Option Providing Payments for a Specified Number of Years; iii) Automatic Qualified Joint and Survivor Annuity; iv) Joint and Survivor Annuity; and v) Single Life Option (Articles (9.1, 9.2, 9.3, 9.4, and 9.5, Plan B). Furthermore, Gallagher has the option of transferring Retirement Income into Plan B from Plan A in order to equalize his benefit payments (Article 9.11, Plan A; Article 5.7, Plan B). Furthermore, if Gallagher elects to make contributions to Plan B pursuant to Article 5.1, he has the option of taking a lump-sum payment of his contributions in addition to the payment plans described above (Article 8.6, Plan B). In addition, under certain circumstances, Gallagher has the option of taking a lump-sum payment in addition to the payment plans described above (Article 8.7, Plan B).
18. Plan B does not allow any voluntary or involuntary encumbrance or alienation of Gallagher's interest in payments from Plan B (Article 12, Plan B).
19. Plan B does not contain a clause stating the laws of the state for which its validity, construction and rights thereunder are to be governed; the terms of the Master Trust state that it is to be governed by the laws of the State of Massachusetts.
20. No proof was presented at trial of the total value of Gallagher's interest in Plan B as of September 3, 1986, the date that Gallagher's petition was filed; proof was presented that he would have been entitled to a single sum distribution of $203,926 as of September 1, 1986, two days before the bankruptcy petition was filed on September 3, 1986.
PLAN C
21. Due to his participation in a prior TWA pension plan, Gallagher automatically became a member of Plan C, which became effective October 1, 1981 (Article 3.1, Plan C). Plan C is a qualified defined contribution plan created to comply with and satisfy the applicable provisions of 26 U.S.C. § 414(i).
22. TWA made contributions to Plan C on Gallagher's behalf in an amount equal to 11% of Gallagher's monthly earnings (Article 5.1, Plan C). Gallagher has the option, which he had not exercised as of the date of the trial, of contributing up to 10% of his monthly earnings to Plan C (Articles 5.2, 5.3, and 5.4, Plan B). Although TWA's contribution was based entirely on the level of Gallagher's earnings, they did not reduce his salary that was actually paid to him.
23. Plan C provides that Gallagher's interest in benefits immediately vest. (Articles 8.1 and 8.3, Plan C). Gallagher's interest in Plan C had vested as of the date that he filed bankruptcy.
24. As a vested member in Plan C, Gallagher is entitled to fund payments and distributions upon: i) retirement; ii) death; or iii) termination of employment. Plan C gives Gallagher various retirement options in that he could retire at age 60, extend his service with TWA beyond age 60 (with TWA's consent), or take early retirement after reaching age 50 ("Normal, early optional, or deferred retirement") (Articles 4.1, 4.2, 4.3, and 4.4, Plan C). Plan C also gives Gallagher various options regarding the form in which his benefits from Plan C would be paid: i) Automatic Qualified Joint and Survivor Annuity; ii) Installment Option; iii) Alternative Installment Option; iv) Single Sum Payment Option; and v) Annuity Option (Articles 9.1 and 9.2, Plan C). In addition, under certain circumstances, Gallagher has the option of taking a lump-sum payment in addition to the payment *599 plans described above (Articles 8.2 and 8.4, Plan C).
25. Plan C does not allow any voluntary or involuntary encumbrance or alienation of Gallagher's interest in payments from Plan C (Article 12, Plan C).
26. Plan C does contain a clause stating the laws of the State of New York shall govern except to the extent governed by federal law.
27. No proof was presented at trial of the value of Gallagher's interest in Plan C as of September 3, 1986, the date that Gallagher's petition was filed; proof was presented that he would have been entitled to a single sum distribution of $5,690 as of September 1, 1986, which was two days before the bankruptcy petition was filed on September 3, 1986.
CONCLUSIONS OF LAW
In summary, the Court concludes as follows. Gallagher's interests in Plan A, Plan B, and Plan C constitute legal and equitable interests in property that are part of his bankruptcy estate. Neither Plan A, Plan B, nor Plan C constitute spendthrift trusts; accordingly, the provisions of 11 U.S.C. § 541(c)(2) do not prevent the inclusion of Gallagher's interests in Plan A, Plan B and Plan C in his bankruptcy estate. Gallagher's interests in Plan A, Plan B, and Plan C are not exempt pursuant to Mo.Rev. Stat. § 513.430(10)(e). Accordingly, the Trustee is entitled to turnover of those funds equivalent to the interests of Gallagher in Plan A, Plan B, and Plan C as of September 3, 1986, pursuant to 11 U.S.C. § 542(a).
The Court's decision involves the interaction of 11 U.S.C. §§ 522, 541(a), 541(c)(2), and Mo.Rev.Stat. § 513.430. Decisions rendered by the Eighth Circuit, the District Court for the Western District of Missouri, and this Court provide controlling authority and great assistance to the Court in this matter: In re Graham, 726 F.2d 1268 (8th Cir.1984); In re Swanson, 873 F.2d 1121 (8th Cir.1989); In re O'Brien, 94 B.R. 583 (W.D.Mo.1988); and In re Bartlett, 67 B.R. 455 (Bankr.W.D.Mo.1986).
Graham describes in great detail the method of analyzing pension plans in the bankruptcy context:
1) The bankruptcy estate of a debtor is comprised of all legal and equitable interests of the debtor pursuant to Section 541(a);
2) The interests of a debtor in a spendthrift trust shall be excluded from the bankruptcy estate pursuant to Section 541(c)(2), thus never becoming part of the debtor's bankruptcy estate under Section 541(a);
3) The interests that have become part of the estate (those not excluded by Section 541(c)(2)) may be exempted from the estate pursuant to Section 522(f).
Graham, 726 F.2d at 1271-72. The validity of Graham was reaffirmed by the Eight Circuit in Swanson.
Thus, in the matter at hand, the issues before the Court are:
1) Are Gallagher's interests in Plan A, Plan B, or Plan C the type of property that is property of his bankruptcy estate?
2) If so, do those interests constitute interests in spendthrift trusts that are excluded from Gallagher's bankruptcy estate?
3) If not, may Gallagher exempt his interests pursuant to Missouri law?
In order to achieve the intended policies of the Bankruptcy Code, Section 541(a) is interpreted broadly and Section 541(c)(2) is interpreted narrowly. Graham, 726 F.2d at 1270; Swanson, 873 F.2d at 1124. Given the broad scope of Section 541(a), Gallagher's interests in the Plans constitute legal and equitable interests that are included in his estate. Even though TWA may not have permitted Gallagher to actually make withdrawals from the Plans as of the date that he filed bankruptcy due to his inactive status,[1] it cannot be said that he had no absolutely no legal or equitable *600 interest in each of the Plans at that time. In addition, although TWA made the only contributions to the Plans, Gallagher is vested in all three of the Plans and entitled to benefits which cannot be retracted or denied. He can exercise payment procedure options, make contributions, and receive distributions. Clearly, his interests have monetary value. Indeed, the statutory language at issue in Swanson, concerning a state teachers retirement plan, provided, in part, that "all moneys to the credit of the debtors' account belonged to the state of Minnesota." Despite this language, the debtors' interests were found to be property of the estate. Swanson, 873 F.2d at 1122-23. Thus, in response to the first issue that the Court must decide, Gallagher's interests in the Plans are the type of property that can be, and hereby are, included in his bankruptcy estate.
The next issue that must be addressed is whether Plan A, Plan B, or Plan C constitute spendthrift trusts. Section 541(c)(2) was intended by Congress to preserve the status of traditional spendthrift trusts as recognized by state law by excluding them from the bankruptcy estates of debtors. Graham, 726 F.2d at 1271; Swanson, 873 F.2d at 1123. Therefore, each plan must be reviewed independently to determine whether the spendthrift protection is applicable.
As the Swanson and O'Brien courts recognized, a trust that contains spendthrift provisions cannot be a spendthrift trust if:
1) The settlor of the trust is also the beneficiary of the trust;
2) The beneficiary has dominion or control over the trust;
3) The beneficiary may revoke the trust; or
4) The beneficiary has powers in the trust.
Swanson, 873 F.2d at 1124; O'Brien, 94 B.R. at 587. Gallagher, TWA and ALPA raise the issue as to the application of New York and Massachusetts law to the Plans. Spendthrift trusts are valid trusts under the laws of Missouri, Massachusetts, and New York; however, each of these jurisdictions recognize that trusts containing spendthrift provisions may not qualify as a spendthrift trust if the trusts contain other defects. O'Brien, supra; State Street Bank v. Reiser, 7 Mass.App. 633, 389 N.E.2d 768, 770 (1979); Plymouth Rock Fuel v. Bank of New York, 91 Misc.2d 837, 398 N.Y.S.2d 814 (1977). In the matter at hand, each of the Plans contain provisions limiting the voluntary and involuntary encumbrance or alienation of Gallagher's interests, which without doubt are characteristic spendthrift provisions. However, the method of analysis prescribed by the Eighth Circuit in Swanson leads this court to conclude that each of the Plans are not state law spendthrift trusts, regardless of the application of Missouri, New York or Massachusetts law.
Plans B and C clearly are not spendthrift trusts. Both plans give Gallagher the rights and the powers to make voluntary contributions from his earnings in amounts that are almost equal to the contributions that TWA was required to make. Thus, Gallagher has the right of contribution to Plans B and C. These powers effectively made Gallagher a settlor of the trusts represented by Plans A and B, and as such, they are not spendthrift trusts. Swanson, 873 F.2d at 1124.
In addition, Plans B and C effectively grant Gallagher the power to revoke the trusts, as well as dominion and control over the assets in the plans. Both Plans B and C have lump-sum payment provisions and also give Gallagher control over the time at when he shall receive his benefits. Thus, he has the power to revoke the trusts. Both Plans B and C allow Gallagher to chose the payment vehicle by which he shall receive benefits; thus, he has dominion and control over trust assets. The Court recognizes that the only lump-sum payment option available under Plan B contains the condition that Gallagher must be on furlough and that he terminate his employment with TWA; the existence of this right of control, however limited, is inimical to Plan B. Plan C not only contains the "furlough" lump-sum option, but it also *601 grants Gallagher an unfettered single-sum retirement option.
In summary, both Plans B and C contain provisions that render them self-settled trusts, grant Gallagher revocation powers, and give him dominion and control. As such, Plans B and C are not spendthrift trusts. Swanson, supra.
The provisions of Plan A provide a closer question than that posed by Plans B and C because Plan A does not provide Gallagher with the power to make contributions. Indeed, because Plan A is a benefit pension plan, it differs by definition from Plans B and C, which are contribution plans. See, 26 U.S.C. § 414(i) and (j); Chapter 7 Cases; Do ERISA and the Bankruptcy Code Conflict as to Whether a Debtor's Interest in or Rights Under a Qualified Plan Can be Used to Pay Claims?, 61 Am.Bankr.L.J. 219, 221-23 (1987). However, Plan A does give Gallagher certain rights and privileges which preclude any conclusion that it is a spendthrift trust. Like Plan B, Plan A gives Gallagher a conditional right to a furlough lump-sum payment; like Plans B and C, Plan A gives Gallagher revocation powers in that he may select the time which he begins to receive benefits, and gives him dominion and control over the form of payment. In addition, Plan A gives Gallagher further dominion and control in that he can transfer funds from Plan A to Plan B to equalize benefit payments. Accordingly, Gallagher, as the beneficiary of Plan A, has sufficient dominion and control over the trust assets of Plan A that does not permit the Court to treat Plan A as a spendthrift trust.
The Court is aware that each of the powers granted to Gallagher in the Plans contribution, revocation, dominion and controlhad not been exercised by Gallagher prior to the trial of the matter. However, it is the existence of the powers, rather than the exercise of the powers, that denies the Plans spendthrift status. As the Court stated in Swanson:
. . . if the beneficiary has the power to revoke the trust and exercise dominion and control over the trust res, most jurisdictions do not give the trust the protections that are generally afforded spendthrift trusts.
(emphasis added) Swanson, 873 F.2d at 1123. Indeed, the facts in Swanson show that the debtors had not actually exercised their right to terminate their employment, but only had the power to do so. In addition, the Court recognizes that the limited powers granted to Gallagher in the Plans are not as substantial as the powers that the debtor in Graham enjoyed; however, as the Swanson court held, the ability to control the trust in any way is contrary to the underlying policies of spendthrift trusts. Swanson, 873 F.2d at 1124. Furthermore, it is TWA's position that the ability to reach trust assets by reason of termination of employment does not disqualify a spendthrift trust. This argument was rejected by the Eighth Circuit in Swanson as the Court expressly found that the control held by the debtors was premised upon termination of employment, and as such was "a very limited right of control". Swanson, supra.
The Court also notes that although the contributions of TWA to the Plans did not actually reduce Gallagher's salary, they are substantially based upon his earnings. TWA received a tax deduction for the contributions made to Plan A on Gallagher's behalf; Gallagher will be taxed on the amounts of these contributions once he actually or constructively receives benefits under Plan A. 26 U.S.C. §§ 402(a)(1) and 404(a). Thus, Gallagher essentially deferred earnings and compensation.
We believe that the Fund is actually a form of deferred compensation, whereas a spendthrift trust is generally used to provide the maintenance and support of its beneficiaries.
Swanson, 873 F.2d at 1124. Accordingly, in addition to the reasoning that Plan B and Plan C are self-settled trusts, that Gallagher can revoke the Plans, and that he has dominion and control over the Plans, the Plans do not qualify as spendthrift trusts because contributions made by TWA were essentially deferred compensation.
*602 Thus, in response to the second issue that the Court must decide, neither Plan A, Plan B, nor Plan C constitute spendthrift trusts. The existence of the anti-alienation provisions do not in and of themselves convert the Plans into spendthrift trusts; the inclusion in the Plans of provisions giving Gallagher contribution rights, revocation powers, and control and dominion over assets show that the Plans are not spendthrift trusts. Thus, based upon the provisions in the plans and the Eighth Circuit's direction that Section 541(c)(2) is to be interpreted narrowly, this court concludes that Gallagher's interests in the Plans are not excluded from his bankruptcy estate.
This Court's holding should not be interpreted as a ruling that all pension plans, including ERISA plans, are not spendthrift trusts. Each plan must be independently reviewed. The effect of the Eighth Circuit's decision in Swanson will necessarily limit those pension plans that may possibly qualify as spendthrift trusts; however, it is conceivable that a plan may satisfy the spendthrift limitations.
Since the provisions of Section 541(c)(2) do not apply to exclude Gallagher's interests in the Plans from his estate, Section 541(c)(1) is effective. Accordingly, Gallagher's interests in the Plans are property of his bankruptcy estate notwithstanding any provision to the contrary in the Plans. 11 U.S.C. § 541(c)(1)(A).
The final issue is whether Gallagher's interest may be exempted from his estate. The provisions of Mo.Rev.Stat. § 513.427 limit Gallagher to exemptions allowed by the laws of the state of Missouri and, except for those allowed under the Bankruptcy Code, exemptions permitted under federal law. Gallagher has attempted to exempt his interests in the Plans under the provisions of Mo.Rev.Stat. § 513.430(10)(e):
The following property shall be exempt from attachment and execution to the extent of any person's interest therein:
. . . (10) such person's right to receive:
. . . (e) A payment under a . . . pension . . . or similar plan . . . to the extent reasonably necessary for the support of such person and any dependent of such person . . .
These exemption provisions are nearly identical to the federal exemption provisions allowed pursuant to 11 U.S.C. § 522(d)(10)(E).
Thus, the Court, in its discretion, must determine whether the Plans are "reasonably necessary" for the support of Gallagher and his dependents. In this instance, the Court concludes that Gallagher's interests in the Plans are not reasonably necessary for his, and his dependents, support.
This Court established guidelines in determining whether pension plans are reasonably necessary for the support of a debtor in In re Bartlett, 67 B.R. 455, 457 (Bankr.W.D.Mo.1986):
1) Debtor's present and anticipated living expenses;
2) Debtor's present and anticipated income from all sources;
3) Age of Debtor and dependents;
4) Health of the debtor and all dependents;
5) Debtor's ability to work and earn a living;
6) Debtor's job skills, training, and education;
7) Debtor's other assets, including exempt assets;
8) Liquidity of other assets;
9) Debtor's ability to save for retirement;
10) Special needs of debtor and dependents; and
11) Debtor's financial obligations, e.g., alimony or support payments.
These guidelines are reviewed within the context that exemptions are not intended to insure against all future contingencies that could possibly lower the debtor's standard of living, and that if the funds are accessible outside of bankruptcy, the debtor must show a present or future need for the funds. Bartlett, 67 B.R. at 457.[2]
*603 At the time of trial of this matter, Gallagher's monthly income exceeded his monthly expenses by more than $1,500. Gallagher has been a qualified commercial airline pilot for more than twenty years, evidencing an ability to work and a high level of job skills, training and education. At the time of trial, Gallagher was fifty-one years old; as such he was qualified to fly and to earn a commercial airline pilot's salary for at least an additional nine years. Each of the Plans envision deferred retirement, implicitly recognizing that Gallagher may be eligible for employment with TWA beyond age sixty, either as a pilot or otherwise. In addition, even if Gallagher may not continue as a commercial pilot beyond age sixty, there does not appear to be any limitations on his employment in other fields of endeavor. Thus, Gallagher will have at least an additional nine years in which to rebuild his pension as a TWA pilot (and fourteen years until he reaches the routine retirement age of sixty-five). In certain circumstances nine years would not be sufficient to rebuild a retirement fund. However, Gallagher will have substantial discretionary income and earning power such that he has the ability to rebuild his retirement benefits. The Court is aware that Gallagher has had health problems in the past that caused him to take inactive flying status with TWA; however, at the time of trial, he was once again on active duty. Furthermore, the problems do not appear to limit his employment in other fields. In sum, given these factors, and the lack of evidence of Gallagher's present need for the benefits now or in the future, Gallagher's interests in Plans A, B, and C are not exempt under Missouri law.
In addition, there is some question as to whether a state may grant exemption rights to protect pension plans that "relate to" ERISA. In Mackey v. Lanier Collections, 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), the Supreme Court held that 29 U.S.C. § 1144(a) preempts any attempt by the states to protect vacation and holiday funds from garnishment. One court has interpreted these provision to hold that state law exemptions cannot be used to exempt ERISA benefits. In re Komet, 93 B.R. 498 (Bankr.W.D.Tex.1988). Another analysis has suggested that, in certain circumstances, a debtor may not be entitled to any exemption rights in pension plans. Supreme Court Decision Suggests Arizona's Pension Plan Exemption Statute is Preempted by ERISA, Norton Bankruptcy Law Adviser, 1988-No. 9, pp. 2-3. However, given the conclusion of the Court that Gallagher would not be entitled to exempt his interests in the Plans under Missouri law, it is not necessary for the Court to rule on this issue.
Gallagher, TWA, and ALPA generally emphasize the benefits Congress intended to confer upon individuals under ERISA. The provisions of the Bankruptcy Code likewise grant substantial benefits to individuals. However, bankruptcy benefits are not conferred without burden to the debtor, among which may involve the loss of nonexempt assets. In this case, one of the costs that Gallagher must bear in exchange for the enjoyment of his bankruptcy benefits is the loss of his non-exempt prepetition pension benefits.
Gallagher, TWA and ALPA also raise the issue of the tax impact that this Court's ruling will have on TWA and nondebtor members of the Plans, citing as precedent Internal Revenue Service Private Letter Ruling 8131020 (despite the statutory prohibition on the reliance of letter rulings as precedent. 26 U.S.C. § 6110(j)(3)). The provisions of the Bankruptcy Code, and the precedent established in this circuit, do not permit this Court to either except or exempt the interests of a debtor in a pension plan because of the *604 contingent potential tax ramifications on nondebtors. In addition, the turnover of funds to a Chapter 7 trustee is not detrimental to the anti-alienation provisions of ERISA. Indeed, several implicit exceptions to federal antialienation provisions are recognized and accepted such as settlements of contested ERISA cases, court ordered divorce settlement and support payments, and garnishment to recover funds from employee engaged in criminal conduct. Stobnicki v. Textron, 868 F.2d 1460 (5th Cir.1989); St. Paul Fire and Marine Insurance v. Cox, 752 F.2d 550 (11th Cir. 1985). Accordingly, the issuance of a turnover order by this Court is not an event that causes disqualification of the Plans. See, Regan v. Ross, 691 F.2d 81 (2nd Cir. 1982); In re Babo, 97 B.R. 827 (Bankr.W. D.Pa.1989); In re Gribben, 84 B.R. 494 (S.D.Ohio, 1988); In re DiPiazza, 29 B.R. 916 (Bankr.N.D.Ill.1983).
The last matter which this Court must address is the value of the interests which must be turned over to the trustee. Pursuant to Section 541(a), Gallagher's estate is comprised of those interests existing as of the date in which the case was filed. Accordingly, contributions to the Plans made by TWA subsequent to September 3, 1986 are not included in Gallagher's estate and shall not be turned over. In addition, the turnover order will result in the creation of a tax obligation and penalty for the estate. See, In re Kochell, 804 F.2d 84 (7th Cir.1986). Thus, the Trustee is entitled to turnover of funds representing Gallagher's interests valued as of September 3, 1986, from which he shall pay those tax obligations and penalties incurred by the estate. The Court notes that evidence was presented at trial regarding the amount of lump-sum payments from Plans B and C effective September 1, 1986; it is possible that no contributions were made in that two-day period prior to the filing of Gallagher's petition and that the amount of funds that must be turned over to the Trustee from Plans B and C are equal to the stated September 1, 1986 amounts. There was no evidence presented regarding a lump sum payment amount from Plan A; this amount can be determined by the parties as a function of the equivalent actuarial value of Gallagher's accrued vested benefit as of September 3, 1986, on the basis of 1.5% over the interest rate of the Pension Benefit Guaranty Corporation for immediate annuities, prevailing as of September 3, 1986, and the mortality table used by the Actuary as of September 3, 1986 (See, Article 8.4, Plan A).
ORDER
WHEREFORE, IT IS HEREBY ORDERED that the Trustee is entitled to judgment in the amount equal to Gallagher's accrued vested interests in Plans A, B, and C, as of September 3, 1986, plus interest that has accrued at the judgment rate from and after December 10, 1986; it is further
ORDERED that the trustee shall pay the tax obligations and penalties incurred by the estate as the result of the turnover ordered herein.
NOTES
[1] Testimony was presented at the trial that Gallagher would not have access to his interests in the Plans while on inactive status. However, neither Gallagher, TWA, nor ALPA cited those provisions of the Plans which express this limitation.
[2] The application of the Bartlett present needs test requires a showing that funds are reasonably necessary for support when they are available to the debtor, either at the time of bankruptcy or at the time of retirement. For example, if a debtor has an IRA or Keogh account, he has access to the that account at the time of bankruptcy, subject to withdrawal penalty. If the debtor presents evidence that those funds are necessary for support at the time of the bankruptcy, they can be exempted. If the funds are not accessible at the time of bankruptcy, the debtor may only exempt those funds upon a showing that they are reasonably necessary for support at retirement, since that is when the funds would be available. | 01-03-2023 | 10-30-2013 |
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