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https://www.courtlistener.com/api/rest/v3/opinions/3044905/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-5-2009
William A Graham Com v. Thomas Haughey
Precedential or Non-Precedential: Precedential
Docket No. 08-2007
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2007
WILLIAM A. GRAHAM COMPANY,
d/b/a The Graham Company,
Appellant
v.
THOMAS P. HAUGHEY; USI MIDATLANTIC, INC.
No. 08-2111
WILLIAM A. GRAHAM COMPANY,
d/b/a The Graham Company
v.
THOMAS P. HAUGHEY; USI MIDATLANTIC, INC.,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 05-cv-00612)
District Judge: Honorable Harvey Bartle, III
Argued March 3, 2009
Before: SCIRICA, Chief Judge, SLOVITER, and HARDIMAN,
Circuit Judges
(Filed: June 5, 2009 )
____
Aleksander J. Goranin
Matthew A. Pearson
David J. Wolfsohn (Argued)
Woodcock Washburn
Philadelphia, PA l9l04
Attorneys for Appellant in No. 08-2007
Appellee in No. 08-2111
Floyd Abrams (Argued)
Katherine Vogele
Cahill, Gordon & Reindel
New York, NY 10005
Thomas E. Zemaitis
Pepper Hamilton
Philadelphia, PA l9l03
Attorneys for Appellee in No. 08-2007
Appellant in No. 08-2111
Jason R. Heller
Cahill, Gordon & Reindel
New York, NY 10005
Matthew R. Skolnik
Bazelon, Less & Feldman
Philadelphia, PA l9l02
Attorneys for Appellant in No. 08-2111
OPINION OF THE COURT
2
SLOVITER, Circuit Judge.
We face an issue of first impression for this
court–whether the discovery rule or the injury rule governs the
accrual of claims under the Copyright Act, which has a three-
year statute of limitations for civil actions, 17 U.S.C. § 507(b).
Under the injury rule, a claim accrues, and the statute of
limitations begins to run, when the plaintiff suffers a legally
cognizable injury. Therefore, if the injury rule applies in this
case, appellant/cross-appellee William A. Graham Company
(“Graham”) cannot recover on its claims that appellees/cross-
appellants USI MidAtlantic, Inc. and Thomas P. Haughey
(collectively, “USI”) infringed its copyrights more than three
years before Graham filed suit. Conversely, if the discovery rule
applies, then Graham’s cause of action for each act of
infringement did not accrue until Graham discovered, or with
reasonable diligence should have discovered, the injury
underlying its claim. Thus, if the discovery rule applies, Graham
may be able to recover on acts of infringement that occurred
more than three years before it filed suit.
The District Court concluded that the discovery rule
applied to civil actions under the Copyright Act and the case
proceeded to a jury trial. The jury found that Graham was not on
notice of USI’s infringement prior to February 9, 2002–leading
to its conclusion that none of Graham’s infringement claims was
time-barred. That jury entered a verdict in Graham’s favor in the
amount of $16,561,230 against USI MidAtlantic and $2,297,397
against Haughey. However, the District Court set aside the
jury’s finding and ultimately held that Graham was time-barred
from recovering for acts of infringement that occurred more than
three years before it filed suit in light of certain “storm
warnings” of those earlier acts of infringement.
The case then proceeded to a second jury trial on the issue
of damages for the three year period preceding Graham’s filing;
the second jury entered a verdict for Graham in the amount of
$1.4 million against USI MidAtlantic and $268,000 against
Haughey. Thus, if we determine that the District Court correctly
3
held that the discovery rule governs the accrual of claims under
the Copyright Act, we must then decide whether the Court
correctly applied that rule to the facts of this case.
Finally, USI cross-appeals and renews its contention,
rejected by the District Court, that Graham cannot recover on
any of its claims because it failed to prove a legally sufficient
causal nexus between the infringement and USI’s profits
awarded to Graham as compensation for the infringement.
I.
BACKGROUND
A. Facts
Graham is an insurance brokerage firm that provides
property and casualty insurance services to businesses. Haughey
worked for Graham as a producer (salesperson) from January
1985 through September 1991. Producers serve as
intermediaries between their clients and insurance companies.
Graham’s producers solicit clients by first preparing a risk
assessment study, called a survey and analysis, that evaluates the
client’s needs. In order to prepare the survey and analysis, a
producer generally must spend a significant amount of time
learning the client’s business, assessing its insurance needs, and
reviewing its current policies. The producer then prepares a
written proposal that contains recommendations addressing the
client’s needs as identified in the survey and analysis. If the
client agrees to Graham’s proposal, it places the client with an
insurance company that actually writes the insurance. Graham
receives a commission from the insurance company which issues
the policy and in addition receives a service fee from its client.
In the 1980s, Graham’s president, William Graham,
developed form language called the Standard Paragraphs to be
used by Graham’s producers to prepare survey and analysis
documents and coverage proposals. The Standard Paragraphs
were not copyrighted.
4
Sometime in 1990, Graham began to prepare the Standard
Survey and Analysis and the Standard Proposal (collectively, the
“Standard Works” or the “Works”). The Standard Works, which
were each hundreds of pages long, included some language from
the Standard Paragraphs as well as new material. After draft
versions of the Standard Works were distributed to Graham’s
eight producers, including Haughey, the first edition of the
Standard Survey was completed around March or April 1991 and
it was then copyrighted. The first edition of the Standard
Proposal was completed in the fall of 1991 and it also was
copyrighted. Graham placed copyright notices on client
documents that incorporated the Standard Works and registered
certain portions of the Works with the Copyright Office.
Graham’s producers use the Standard Works as templates
for client-specific proposals. The Standard Works include plain
English explanations of insurance policies and concepts that
Graham’s producers can copy into client-specific materials and
that clients can easily understand. The Standard Works also
serve as reference materials to guide Graham’s producers in the
development of client-specific materials. Graham’s president
testified that the Standard Works are “absolutely essential” to
Graham’s business “[b]ecause they are probably the most
important way that we can establish creditability [sic] with a
perspective [sic] client.” App. at 371.
Haughey’s employment with Graham was terminated in
September 1991, apparently because Haughey’s clients were
primarily smaller, family-run businesses and Graham sought at
that time to attract larger businesses as clients. Haughey testified
at trial that he left Graham on amicable terms and he received a
thirty-thousand dollar severance package payable over three
months. Graham and Haughey also entered into a termination
agreement in which Haughey reaffirmed his promise in his
employment contract to keep company information confidential
and to turn over all of Graham’s “papers and the information
contained therein” in Haughey’s possession upon termination of
his employment. App. at 1987. Nonetheless, following his
termination Haughey retained binders that contained at least part
of the Standard Works.
5
Shortly thereafter, Haughey got a job at a smaller
insurance brokerage firm, Flanigan, O’Hara & Gentry (“FOG”).
At about the same time that Haughey joined FOG, Haughey
solicited certain of Graham’s clients in violation of his
termination agreement. Graham’s executive vice president
(Judith Dooling) sent Haughey a letter memorializing a
conversation in which Haughey agreed to cease such solicitation
pending negotiation of an agreement to sell FOG and Haughey
certain accounts.1
In November 1991, Graham, FOG and Haughey entered
into an agreement in which Graham sold FOG six of Haughey’s
prior accounts. Graham provided FOG and Haughey with
materials related to those six accounts, including proposals made
to those clients in the current and prior year which included
Graham’s copyrighted materials. Haughey also specifically
promised to hold all “knowledge and information concerning”
the Standard Works “in trust [and] in confidence for the sole
benefit of Graham,” to return all “papers and information”
obtained from Graham other than information related to the
accounts sold, app. at 2084, and not to “use, divulge, or
otherwise disclose” any of Graham’s confidential information,
app. at 2082.
Notwithstanding his promise, Haughey subsequently
infringed Graham’s copyrighted material in the Standard Works
by including it in proposals to FOG’s clients. Haughey first
included Graham’s copyrighted material in a proposal to a client
in July 1992.2 It is unclear whether Haughey copied this
1
This letter was not presented in evidence before the first
jury, which, as previously stated, concluded that Graham was not
time-barred from recovering for acts of infringement occurring
more than three years prior to Graham’s filing of the instant case.
However, the District Court relied in part on Haughey’s improper
solicitation of Graham’s clients as evidence that Graham was on
notice of USI’s copyright infringement as early as the fall of 1991.
2
USI contends that Haughey’s testimony supports an
inference that his infringement began immediately after his arrival
6
material from his own copy of the Standard Works or whether he
used a copy of the 1992 version of the Standard Works (which
Haughey had not obtained before the termination of his
employment with Graham) brought to FOG by another former
Graham employee, Don Boresen, in the spring of 1992. In any
event, at some time in 1994 or 1995, FOG copied the entire 1992
version of the Standard Works into its word processing system;
paper copies were also distributed to FOG’s employees.
In 1995, FOG was acquired by USI Holdings and
subsequently merged with two other entities to form USI
MidAtlantic. The Standard Works were made available to USI
employees.
According to Graham’s expert, Haughey and USI copied
Graham’s copyrighted language from the Standard Works into at
least 857 proposals over thirteen years (1992 through 2005).
USI personnel testified that its written proposals to clients
(including, presumably, those with infringing language) were an
important part of the sales process–in fact, Haughey even
testified that some clients were convinced to purchase insurance
through USI on the basis of the proposals–and that it was USI’s
practice to review the proposal’s contents “page by page” with
the client. App. at 571. Moreover, FOG had nothing
comparable to the Standard Works when Haughey first arrived
at FOG in November 1991, but the portions of his testimony relied
upon by USI do not establish a date of infringement. USI also
notes that, during opening arguments to the jury, Graham made
statements that USI’s improper use of the Standard Works began
in 1991, and contends that Graham should be held to these
statements. However, this court has held that a “judicial
admission[ ] must be unequivocal” to be effective, Glick v. White
Motor Co., 458 F.2d 1287, 1291 (3d Cir. 1972), and Graham’s
statements do not unequivocally state that an act of infringement
(as opposed to possession of the Works) occurred in 1991.
Moreover, Graham had the burden to prove that acts of
infringement occurred, and its evidence established a date of first
infringement in July 1992.
7
and, as noted above, FOG and USI made electronic and paper
copies of the Standard Works available to their employees and
encouraged them to use the Standard Works when developing
client-specific materials. On the other hand, most of USI’s
proposals during this period did not include infringing language,
and even those that did include infringing language did so only
on a few pages.
It was USI’s practice to keep proposals to clients
confidential, and Graham did not discover USI’s infringement
until November 2004, when a client showed one of Graham’s
producers a copy of a USI proposal to the client.
B. Procedural History
Graham filed this action on February 8, 2005, asserting
claims for copyright infringement against USI and Haughey as
well as a breach of contract claim against Haughey. USI moved
for partial summary judgment, contending that any infringement
that occurred more than three years prior to filing of the
complaint was time-barred under the Copyright Act’s three-year
statute of limitations for civil actions. The District Court denied
the motion, holding that the discovery rule applied to
infringement claims under the Copyright Act and that therefore
Graham was entitled to present evidence to demonstrate that it
could not have reasonably discovered USI’s infringement before
it actually did so.3
The case proceeded to a jury trial.4 After Graham
voluntarily dismissed the breach of contract claim that it had
asserted against Haughey, the jury reached a verdict in favor of
3
The District Judge who initially heard this matter and who
ruled on the statute of limitations motion died in 2005. The
successor District Judge reaffirmed that ruling.
4
We note that the District Court provided the jury with a
spoliation instruction because USI destroyed certain client
proposals after the Court had ordered production of such
documents.
8
Graham on the copyright claim in the amount of $16,561,230
against USI and $2,297,397 against Haughey.5 The District
Court presented the jury with several interrogatories, including,
as relevant here, whether Graham should have discovered that
USI was infringing its copyrights prior to February 9, 2002.
Because the jury answered in the negative, Graham’s claims
were not time-barred under the discovery rule.
Following the jury verdict, USI moved for a new trial on
the statute of limitations issue, and the District Court granted the
motion. According to the Court, the jury’s answer to the statute
of limitations interrogatory “was against the great weight of the
evidence” because the District Court concluded that Graham
knew or should have known of certain storm warnings that
Haughey would infringe as early as the fall of 1991.6 William A.
5
This amount represented the profits that USI and Haughey
earned as a result of the infringement. Under the Copyright Act, 17
U.S.C. § 504(b), Graham bore the burden of establishing the
defendants’ gross revenue from infringement; Graham presented
evidence that USI’s gross commissions from clients who received
an infringing proposal were approximately $32 million and that
Haughey’s gross commissions were approximately $12 million.
The defendants then bore the burden of proving that certain
expenses should be subtracted from the gross revenue figure and
to apportion the revenues between their infringing and non-
infringing conduct. Id. Here, the evidence showed that twenty-five
percent of the gross revenue was paid to producers as a salary
expense, leaving a total net commission for the defendants of
approximately $27 million. The jury’s ultimate award was
approximately seventy percent of that net commission, implying
that the jury concluded that thirty percent of the net commission
was attributable to factors other than the infringement.
6
In reaching this conclusion, the District Court considered
evidence regarding Haughey’s obligations to Graham under his
employment and termination contracts even though the Court
excluded those contracts from the jury because it had held that
those contracts were superseded by the November 1991 agreement
between Graham, FOG and Haughey.
9
Graham Co. v. Haughey, No. 05-612, 2006 WL 3386672, at *15
(E.D. Pa. Nov. 21, 2006). Specifically, the Court concluded that
Graham should have known: that Haughey retained a copy of the
Standard Works in violation of his employment and termination
agreements with Graham as well as the November 1991
agreement that sold FOG certain of Haughey’s client accounts;
that he was working as a producer for another insurance
brokerage firm; and that, given these facts, “it was quite
possible, if not likely, that Haughey and FOG would copy [the
Standard Works] into client proposals, for that was the only
reason for Haughey and FOG to retain [them].” Id. at *14.
Thus, the District Court concluded that “Graham had
information upon Haughey’s departure [in the fall of 1991] that
would cause a person, in the exercise of reasonable diligence, to
inquire of Haughey and FOG about the possession, use and
copying of the [Standard Works].” Id. Therefore, the District
Court ordered a new trial as to the application of the Copyright
Act’s statute of limitations and the calculation of Graham’s
damages.
Because the District Court granted USI’s motion for a
new trial on the statute of limitations issue, it did not reach USI’s
motion for a new trial on the grounds that the jury’s
apportionment of USI’s profits (i.e., whether the profits were
attributable to infringement or some other non-infringing cause)
was against the weight of the evidence and/or that the verdict
was excessive.
USI also moved for judgment as a matter of law on the
ground that Graham failed to prove a legally sufficient causal
connection between any copyright infringement and USI’s
profits. The District Court denied that motion, holding that
Graham met its burden on this issue because Graham sought to
recover USI’s profits only as to USI’s clients who received
infringing proposals, demonstrated that the written proposals
were an important part of USI’s sales process, and demonstrated
that USI pervasively used language from the Standard Works.
Following subsequent cross-motions for summary
judgment on the statute of limitations issue, the District Court
10
held that as a matter of law Graham could not recover on any
acts of infringement that occurred prior to February 9, 2002.
William A. Graham Co. v. Haughey, 484 F. Supp. 2d 324, 336-
37 (E.D. Pa. 2007). The Court concluded that sufficient storm
warnings existed to put Graham on notice of Haughey’s (and
thus USI’s) infringement in the fall of 1991, i.e., shortly after
Haughey left Graham. The Court noted that Graham was or
should have been aware: that Haughey retained possession of a
copy of the Standard Works when he left Graham; that the only
value of the Standard Works to Haughey was to copy them into
client proposals; that Haughey went to work for a competing
insurance broker; and that Haughey was “not a person of his
word” because he engaged in improper competitive behavior by
violating the non-compete clause of his employment and
termination contracts. Id. at 336.
The District Court rejected Graham’s argument that “the
circumstances this court has identified” as storm warnings could
not have put Graham on notice of the defendants’ infringement
because those storm warnings were related to Haughey’s
“departure from Graham in the fall of 1991, before the first
evidence of an infringing proposal prepared by Haughey in July,
1992.” Id. at 334. The Court conceded that “it would be
nonsensical for a statute of limitations to begin running before
the actual injury had occurred,” but concluded that “we see no
reason why the clock on Graham’s claims should not have
started to run at the time when Haughey first began to infringe,
since there is no sign that any of the storm warnings had abated
by that point.” Id.
The case proceeded to a second jury trial on the issue of
damages for acts of infringement occurring on or after February
8, 2002. The jury again returned a verdict for Graham, this time
in the amount of $1.4 million against USI and $268,000 against
Haughey. Graham timely appealed on April 2, 2008 and USI
timely cross-appealed on April 15, 2008.7
7
The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1338(a). This court has jurisdiction under 28 U.S.C.
11
II.
DISCUSSION
A. Statute of Limitations
The Copyright Act provides that “[n]o civil action shall
be maintained under the provisions of this title unless it is
commenced within three years after the claim accrued.” 17
U.S.C. § 507(b). Because Graham filed this action on February
8, 2005, the accrual of Graham’s claims must be evaluated as of
February 9, 2002. However, in continuing infringement cases
such as this, “[e]ach act of infringement is a distinct harm giving
rise to an independent claim for relief.” Stone v. Williams, 970
F.2d 1043, 1049 (2d Cir. 1992) (citing Mount v. Book-of-the-
Month Club, Inc., 555 F.2d 1108 (2d Cir. 1977)). Thus, as the
District Court correctly held, Graham was not time-barred from
recovering for any acts of infringement that occurred on or after
February 9, 2002, regardless of whether the injury or discovery
rule applies to determine the accrual of claims under the
Copyright Act. That is not in dispute. Instead, the parties differ
on whether Graham may also recover for any acts of
infringement that occurred prior to February 9, 2002.
1. Claim Accrual Rule
The question of whether the discovery rule or the injury
rule applies to determine when a civil cause of action accrues
under the Copyright Act is a legal one. Under the discovery rule,
a “cause of action accrues ‘when the plaintiff discovers, or with
due diligence should have discovered, the injury that forms the
basis for the claim.’” Disabled in Action of Pennsylvania v. Se.
Pennsylvania Transp. Auth., 539 F.3d 199, 209 (3d Cir. 2008)
(quoting Romero v. Allstate Corp., 404 F.3d 212, 222 (3d Cir.
2005)). Under the injury rule, a cause of action accrues at the
time of the injury. In this case, if the injury rule were to apply,
Graham would be time barred from recovery on any acts of
§ 1291.
12
infringement that occurred prior to February 9, 2002.
Although we have not previously addressed this issue,
eight of our sister courts of appeals have applied the discovery
rule to civil actions under the Copyright Act. See Warren
Freedenfeld Assocs., Inc. v. McTigue, 531 F.3d 38, 44-46 (1st
Cir. 2008); Comcast v. Multi-Vision Elecs., Inc., 491 F.3d 938,
944 (8th Cir. 2007); Roger Miller Music, Inc. v. Sony/ATV
Publ’g, LLC, 477 F.3d 383, 390 (6th Cir. 2007); Polar Bear
Prods., Inc. v. Timex Corp., 384 F.3d 700, 705-07 (9th Cir.
2004); Gaiman v. McFarlane, 360 F.3d 644, 653 (7th Cir. 2004);
Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 796
(4th Cir. 2001); Daboub v. Gibbons, 42 F.3d 285, 291 (5th Cir.
1995); Stone v. Williams, 970 F.2d 1043, 1048 (2d Cir. 1992).
USI contends that these precedents are not persuasive
because the question of whether the injury or discovery rule
applied was not squarely raised in most of them and, more
importantly, they fail to address the Supreme Court’s decision in
TRW Inc. v. Andrews, 534 U.S. 19 (2001).
The TRW case did not arise under the Copyright Act but
under the Fair Credit Reporting Act (“FCRA”). In reaching the
statute of limitations issue, the Ninth Circuit held that, because
Congress had not “‘expressly legislated otherwise,’” the
discovery rule applied to claims under the FCRA. Id. at 26
(quoting Andrews v. TRW Inc., 225 F.3d 1063, 1067 (9th Cir.
2000)). The Supreme Court rejected that approach and held that
the discovery rule did not apply to actions under the FCRA
because “the text and structure of [the FCRA] evince Congress’
intent to preclude judicial implication of a discovery rule.” Id. at
28. Specifically, the Court reasoned that because the FCRA
provided that the “statute of limitations runs from ‘the date on
which the liability arises,’ subject to a single [statutory]
exception for cases involving a defendant’s willful
misrepresentation of material information,” the “most natural
reading of [the FCRA] is that Congress implicitly excluded a
general discovery rule by explicitly including a more limited
one.” Id. (quoting 15 U.S.C. § 1681p).
13
This court had the occasion to interpret and apply TRW
when it was faced with the issue of the statute of limitations
applicable to the Americans with Disabilities Act and the
Rehabilitation Act. Disabled in Action, 539 F.3d at 208-09.
Because neither act included an express statute of limitations, we
applied the two-year state statute of limitations. Id. at 208. In
reaching the “more difficult question” of when the two year
statute begins to run, id., we interpreted TRW to require the
following inquiry to determine the applicable accrual rule for
federal causes of action. First, “[w]here Congress has specified
an accrual date by ‘explicit command’ or ‘by implication from
the structure and text of the statute,’ we defer to its directive.”
Id. at 209 (quoting TRW, 534 U.S. at 27-28). Second, “‘[i]n the
absence of a contrary directive from Congress,’ we apply the
‘federal discovery rule.’” Id. (quoting Romero, 404 F.3d at 222).
USI would have us set aside that analysis, applied by this
court less than a year ago, in favor of a single district court
decision in another circuit which used the injury rule to
determine when claims accrue under the Copyright Act. See
Auscape Int’l v. Nat’l Geographic Soc’y, 409 F. Supp. 2d 235,
247 (S.D.N.Y. 2004). We decline to do so. Even the court in
Auscape conceded that “the text and structure of the [Copyright
Act] lend no guidance” as to “Congress’ intent with regard to
when an infringement claim accrues.” Id. at 244. This
concession answers in the negative the first question raised in
Disabled in Action: whether “Congress has specified an accrual
date by ‘explicit command’ or ‘by implication from the structure
and text of the statute.’” 539 F.3d at 209 (quoting TRW, 534
U.S. at 27-28).
Further, the text and structure of the Copyright Act
actually favor use of the discovery rule. As noted by Graham,
criminal actions under the Copyright Act must be “commenced
within 5 years after the cause of action arose.” 17 U.S.C. §
507(a) (emphasis added). Just six years prior to the amendment
to the Copyright Act that added the civil limitations period now
codified at 17 U.S.C. § 507(b), the Supreme Court interpreted
language similar to § 507(a)’s criminal limitations period in the
Admiralty Act (“cause of action arises”) to embody the injury
14
rule. McMahon v. United States, 342 U.S. 25-26, 27 (1951); see
also TRW, 534 U.S. at 32 (noting that petitioner “offer[ed] a
strong argument” that use of the word “arise” in a statute of
limitations provision signals congressional intent to adopt the
injury rule (citing McMahon, 342 U.S. 25)). Significantly,
Congress used different language in the civil limitations
provision (“after the claim accrued”), which the Supreme Court
had previously interpreted as embodying the discovery rule. See
Urie v. Thompson, 337 U.S. 163, 169-170 (1949) (construing
“cause of action accrued” in Federal Employers’ Liability Act
and holding that statute of limitations was not triggered until
injured employee should have known of injury). Given the
maxim of statutory construction that “when the legislature uses
certain language in one part of the statute and different language
in another, the court assumes different meanings were intended,”
Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004)
(quotation omitted), Graham persuasively argues that the
criminal and civil limitations periods embody different claim
accrual rules and that § 507(b) should be interpreted to embody
the discovery rule.
USI, once again pointing to Auscape, interprets the
legislative history of the Copyright Act’s statute of limitations
provision as evidence of congressional intent to adopt the injury
rule for civil claims brought pursuant to the Copyright Act.
However, Congress provided no “directive” mandating use of
the injury rule in that legislative history. Disabled in Action, 539
F.3d at 209.
For example, until the statute of limitations provision now
codified at 17 U.S.C. § 507(b) was enacted in 1957, the
Copyright Act lacked a statute of limitations period for civil
actions and courts borrowed state statutes of limitation for
analogous claims. See S. Rep. No. 85-1014 (1957), as reprinted
in 1957 U.S.C.C.A.N. 1961, 1961-62. USI notes several
instances in the legislative history of § 507(b) in which
congresspersons and witnesses argued that § 507(b) was
necessary to provide a “uniform” or “fixed” limitations period.
However, these statements reflected dissatisfaction with the use
of state statutes of limitations, which ranged from one to eight
15
years and therefore encouraged forum-shopping. See id. at
1962; see also Copyrights–Statute of Limitations: Hearing on
H.R. 781 Before H. Comm. on the Judiciary, 84th Cong. 9, 35,
40 (1955) (hereafter “Hearing”). None of these statements
addressed the separate issue of when a claim would accrue under
the new federal three-year statute of limitations.
USI also relies on a statement in the Senate Report that
“due to the nature of publication of works of art . . . generally the
person injured receives reasonably prompt notice or can easily
ascertain any infringement of his rights. The committee agrees
that 3 years is an appropriate period for a uniform statute of
limitations for civil copyright actions and that it would provide
an adequate opportunity for the injured party to commence his
action.” S. Rep. No. 85-1014 (1957), as reprinted in 1957
U.S.C.C.A.N. 1961, 1962. Again, this statement does not speak
directly to the accrual of actions, but rather seeks to support the
three-year limitations period adopted by Congress. Moreover,
the fact that Congress believed that infringement was
“generally” a public act does not necessarily imply that, in cases
in which infringement was not public, Congress intended to
reject application of the discovery rule. Indeed, the quoted
passage speaks of whether the injured party has “reasonably
prompt notice” of infringement–an inquiry consistent with the
discovery rule.
USI next points to what we view as an unenlightening
exchange between Representative Shepard J. Crumpacker and a
lobbyist for the motion picture industry during a House
committee hearing. Representative Crumpacker was concerned
that a movie company could make a movie that infringed on a
writer’s script, secretly show that movie in a small town, sit on
the movie until the statute of limitations passed, and then release
the movie generally while claiming that the writer was barred
from enforcing his or her rights. Hearing at 47. The lobbyist
responded that each performance of the film would constitute a
separate act of infringement. Id. at 48. This exchange is not
illustrative of Congressional intent regarding when copyright
claims accrue, but is cited by USI because the lobbyist also
stated that “if [an act of infringement] occurred three years ago .
16
. . [, then it] would be barred in three years.” Id. That single
statement by a witness at a congressional hearing, which no
congressperson commented on or agreed with, signifies nothing
and is hardly a basis to conclude that Congress intended to apply
the injury rule.
USI also notes that Congress considered including certain
express provisions to permit tolling of the statute of limitations,
including where the infringer was guilty of fraudulent
concealment, and it argues that the consideration of these
exceptions would have been unnecessary had Congress intended
to apply the discovery rule to claims under the Copyright Act.
Of course, had Congress included those limited exceptions
within § 507(b), the holding in TRW might well have inclined us
to reject the discovery rule here. But the important fact is that
Congress rejected inclusion of any statutory exceptions to the
statute of limitations period, and did so because “the Federal
district courts, generally, would recognize these equitable
defenses anyway.” H. Rep. No. 84-2419, at 2 (1956).
Moreover, the legislative history makes clear that
Congress intended the Copyright Act’s statute of limitations to
apply “to the remedy of the person affected thereby, and not to
his substantive rights,” id., by which Congress meant that
“[e]quitable considerations are available to prolong the time for
bringing suit,” id. at 3. Further, Congress feared that inclusion
of specific statutory exceptions to the three-year limitations
period “might result in unfairness to some persons.” S. Rep. No.
85-1014 (1957), as reprinted in 1957 U.S.C.C.A.N. 1961, 1963.
Thus, this case actually presents the opposite situation as TRW:
Congress considered, but rejected, inclusion of specific statutory
exceptions to the Copyright Act’s statute of limitations in order
to ensure that the courts could consider any equitable
circumstances sufficient to excuse a plaintiff’s failure to sue
within the three-year limitations period.8
8
USI correctly notes that the legislative history regarding
the rejected statutory exceptions to the Copyright Act’s three-year
limitations period was directed toward equitable tolling rather than
17
Finally, USI argues that use of the discovery rule would
be inappropriate as a matter of policy. USI notes that in TRW
the Supreme Court stated that it has “recognized a prevailing
discovery rule . . . in two contexts, latent disease and medical
malpractice, ‘where the cry for such a rule is loudest.’” TRW,
534 U.S. at 27 (quoting Rotella v. Wood, 528 U.S. 549, 555
(2000)). USI would distinguish copyright infringement, arguing
that “there is nothing intrinsically ‘hidden’ or ‘latent’ about
copyright infringement because it is by its nature a public act
that is only very rarely hidden from the copyright owner.” USI’s
Reply Br. at 16. That may be true in some instances but not in
all. Technological advances such as personal computing and the
internet have “ma[de] it more difficult for rights holders to
stridently police and protect their copyrights.” John Ramirez,
Note, Discovering Injury? The Confused State of the Statute of
Limitations for Federal Copyright Infringement, 17 Fordham
Intell. Prop. Media & Ent. L.J. 1125, 1158 (2007) (concluding
that discovery rule is appropriate for copyright actions).
In sum, Congress provided no directive mandating use of
the injury rule to govern the accrual of claims under the
Copyright Act. We conclude that use of the discovery rule
comports with the text, structure, legislative history and
the discovery rule, and that these doctrines are distinct. However,
as discussed above, the legislative history demonstrates that
Congress rejected the inclusion of specific exceptions to the
Copyright Act’s statute of limitations in order to allow the courts
to consider any equitable considerations necessary to ensure that
copyright holders’ rights were fairly protected. As we have
explained, the “discovery rule originated as an equitable doctrine
to extend the period during which victims of latent injuries could
seek recovery.” Disabled in Action, 539 F.3d at 216 n.16
(emphasis omitted). As this case demonstrates, there are certain
infringements which, like latent injuries, a plaintiff cannot
reasonably be expected to discover at the time it occurred. Thus,
we believe that Congress’ expressed intent to allow the courts to
consider equitable circumstances to extend the time for filing an
infringement action is consistent with use of the discovery rule.
18
underlying policies of the Copyright Act. Thus, consistent with
Disabled in Action and in agreement with our sister courts of
appeals, we hold that the federal discovery rule governs the
accrual of civil claims brought under the Copyright Act.
2. Application of the Discovery Rule
The first jury proceeded to calculate damages having been
instructed to use the discovery rule in light of the District
Court’s rejection of USI’s arguments in favor of the injury rule.
Nonetheless, despite the jury’s finding to the contrary, the
District Court overturned the jury’s determination and ruled that,
under the discovery rule, Graham’s cause of action for copyright
infringement accrued in the fall of 1991 after Haughey left
Graham to work at USI’s predecessor company. Accordingly,
the District Court granted USI’s motion for a new trial. After
cross-motions for summary judgment, the Court granted USI
judgment as a matter of law as to Graham’s infringement claims
for acts of infringement that occurred before February 9, 2002.
According to the District Court, “storm warnings or suspicious
circumstances about possible infringement were compelling long
before February 9, 2002, but Graham ignored them.” Graham,
484 F. Supp. 2d. at 336. Therefore, Graham could recover only
for acts of infringement that occurred within the three year
period prior to its filing of the instant action (i.e., acts occurring
on or after February 9, 2002).
In reviewing the District Court’s decision to grant a new
trial, we apply an abuse of discretion standard. Fineman v.
Armstrong World Indus., Inc., 980 F.2d 171, 206 (3d Cir. 1992).
Where, as here, a district court grants a motion for a new trial
because it determines that the jury verdict was against the weight
of the evidence, it is “‘the duty of the appellate tribunal to
exercise a closer degree of scrutiny and supervision than is the
case where a new trial is granted because of some undesirable or
pernicious influence obtruding into the trial’” in order to protect
the jury’s fact-finding role. Id. at 211 (quoting Lind v. Schenley
Indus. Inc., 278 F.2d 79, 90 (3d Cir. 1960) (en banc)). As to the
District Court’s grant of summary judgment, our review is
plenary. Northview Motors, Inc. v. Chrysler Motors Corp., 227
19
F.3d 78, 88 (3d Cir. 2000).
Graham challenges both the District Court’s ruling that
USI was entitled to a new trial on the statute of limitations and
its subsequent grant of summary judgment to USI on that issue.
That is, Graham argues that the evidence was sufficient to
support the first jury’s finding that Graham was not chargeable
with knowledge of USI’s infringement prior to February 9, 2002.
Accordingly, Graham contends that we should reinstate the first
jury’s verdict in favor of Graham in the amount of $16,561,230
against USI and $2,297,397 against Haughey.
3. Storm Warnings
We reiterate that, under the discovery rule, a cause of
action accrues “‘when the plaintiff discovers, or with due
diligence should have discovered, the injury that forms the basis
for the claim.’” Disabled in Action, 539 F.3d at 209 (quoting
Romero, 404 F.3d at 222). Applying that precept here, we ask
whether Graham “should have known of the basis for [its]
claims [, which] depends on whether [it] had sufficient
information of possible wrongdoing to place [it] on inquiry
notice or to excite storm warnings of culpable activity.” Benak
ex rel. Alliance Premier Growth Fund v. Alliance Capital Mgmt.
L.P., 435 F.3d 396, 400 (3d Cir. 2006) (quoting In re NAHC,
Inc. Sec. Litig., 306 F.3d 1314, 1325 (3d Cir. 2002)) (internal
quotation marks omitted). USI and Haughey bear the burden of
demonstrating such storm warnings and, if they do so, “the
burden shifts to [Graham] to show that [it] exercised reasonable
due diligence and yet [was] unable to discover [its] injuries.” Id.
(quoting Mathews v. Kidder, Peabody & Co., Inc., 260 F.3d 239,
252 (3d Cir. 2001)).
Graham first contends that the District Court erred
because the storm warnings relied upon by the District Court
predated the first act of infringement. As we have previously
explained, “[b]ecause a potential plaintiff cannot discover his
injury before it has occurred, the discovery rule only postpones
the accrual date of a claim where the plaintiff is unaware of the
injury. It does not accelerate the accrual date when the plaintiff
20
becomes aware that he will suffer injury in the future.” Disabled
in Action, 539 F.3d at 214 (quotations, alterations, and internal
citation omitted). Thus, “the first step in applying the discovery
rule . . . is to establish when the injurious . . . act defined by the
statute actually occurred.” Id. Next, we must “determine
whether that injury was immediately discoverable, or whether
the accrual date will be postponed until it is reasonable to expect
the plaintiff to discover the injury.” Id.
Although the District Court recognized that the statute of
limitations could not have begun to run until the first act of
infringement occurred in July 1992, the Court concluded that it
saw “no reason why the clock on Graham’s claims should not
have started to run at the time when Haughey first began to
infringe, since there is no sign that any of the storm warnings
had abated by that point. Graham is incorrect in its contention
that storm warnings must warn of an actual injury that has
already taken place. . . . A copyright owner has the duty to
investigate indications that infringement is in the offing, even if,
in the course of the investigation, it learns that infringement has
not yet occurred.” Graham, 484 F. Supp. 2d at 334 (citing
Benak, 435 F.3d at 400-01; Mathews, 260 F.3d at 251-52).
We do not agree that the discovery rule operates in the
manner suggested by the District Court. Significantly, neither of
our precedents relied upon by the District Court for the
proposition that a copyright owner has a duty to investigate
infringement “in the offing” supports such a rule. In both cases,
which dealt with a securities action and RICO action, not
copyright infringement, we held that the plaintiffs’ claims were
untimely under the discovery rule because storm warnings of the
alleged wrongs put the plaintiffs on inquiry notice before the
relevant date. In fact, the storm warnings arose after the alleged
wrongs. Benak, 435 F.3d at 398-99, 403; Mathews, 260 F.3d at
244, 253-54. Thus, Benak and Mathews do not stand for the
proposition that prospective plaintiffs have a duty to inquire into
future wrongdoing. Rather, they dealt with the time at which
inquiry notice arose for past wrongs.
Indeed, we have rejected the proposition that the
21
discovery rule places a duty on prospective plaintiffs to inquire
into possible future wrongful conduct. For example, in CGB
Occupational Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d
375, 384 (3d Cir. 2004), we held that several claims for tortious
interference of contract did not accrue “until, at least, the
plaintiff suffer[ed] injury . . . as a result of the defendant’s
conduct.” We rejected the defendant’s argument that “mere
notice of termination [of the plaintiff’s contracts] triggered the
claim” because the plaintiff did not suffer a legally cognizable
injury until the contracts were actually terminated. Id. We
stated: “Sunrise [the defendant] attempts to take that
unremarkable proposition–that the statute of limitations should
be postponed where the victim is unaware of the injury–and
reverse it, so as to mandate that the statute of limitations
accelerates when the victim becomes aware that he will suffer
injury in the future. That is logically fallacious.” Id. Further,
we analogized CGB to a case in which one person tells another
“that, in three months, he intends to trespass. The tort of
trespass has not occurred until the victim’s property is entered by
the tortfeasor. That the victim was informed in advance of the
inevitable does not alter the accrual of his damages action for
trespass.” Id. at 384 n.9. USI’s argument is no different than the
one we rejected in CGB.
The District Court also saw storm warnings in Haughey’s
departure from Graham, even though that departure was ten
months before Haughey began to infringe. That departure in
itself cannot be considered a storm warning because a copyright
owner does not have a duty to ferret out potential acts of
infringement before they occur. Cf. MacLean Assocs., Inc. v.
Wm. M. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 780 (3d
Cir. 1991) (rejecting argument that a copyright infringement
claim was barred by laches because “the district court’s laches
rationale would have put [plaintiff] under a never ending
obligation to discover whether anyone to whom he ever supplied
his software would copy it,” an obligation that the “Copyright
Act does not recognize”). The District Court feared that, if a
copyright owner did not have a duty to investigate infringement
in the offing, then “Haughey could have told Graham on day one
that he was anticipating infringing on day two, and because he
22
was not infringing on day one, the statute of limitations would
have been tolled for years without the need for any further action
on the part of Graham.” Graham, 484 F. Supp. 2d at 334. That
hypothetical is simply not our case.
We have previously recognized that the aggregate “‘mix
of information’ may constitute a storm warning.” Mathews, 260
F.3d at 252. Before determining whether this is such a case, we
must first address each of the District Court’s purported storm
warnings separately. High on the District Court’s list of reasons
for its conclusion that there were ample storm warnings was its
focus on Haughey’s retention of a copy of the Standard Works
when he left Graham in September 1991. However, as the
District Court recognized, possession of a copy of a work alone
does not constitute copyright infringement or a storm warning
thereof. Graham, 484 F. Supp. 2d at 331; see also 17 U.S.C. §
106 (enumerating exclusive rights of copyright owner).
Nonetheless, the District Court concluded that a storm warning
existed here because Graham was on notice that the “only real
use Haughey would have for the Works was to copy them in
violation of Graham’s copyright.” 484 F. Supp. 2d at 336. That
was a jury argument and the record before the first jury did not
compel that inference.
Although the jury heard evidence that the Works were
valuable because they could be easily copied to provide
consistent and accurate explanations of coverage, the jury also
heard evidence that producers at both Graham and USI used the
Works as reference materials (without directly copying any text)
because they included instructions and checklists for producers
to use when creating proposals for clients.
The mere fact that a copyright owner has notice that
another person also possessed its copyrighted material and may
find it useful to copy should not and does not by itself constitute
a storm warning of possible infringement. Cf. Warren
Freedenfeld Assocs., 531 F.3d at 45 (“There is no presumption
that failed business relationships inevitably will give rise either
to tortious conduct or disregard of proprietary rights. That a
relationship between an architect and a client has become frayed
23
and the client has decided to forge ahead with the project by
engaging some other architect does not, in and of itself, serve as
a harbinger of an intention to violate the original architect’s
copyright protection.”).
The District Court (in its summary judgment decision)
also concluded that Graham had a storm warning of Haughey’s
(yet-to-occur) infringement based upon Haughey’s improper
solicitation of Graham’s clients, in violation of his employment
and termination agreements. However, improper solicitation of
business, if it in fact occurred, is a far cry from copyright
infringement. In In re Merck & Co., Inc. Secs., Derivative &
“ERISA” Litig., 543 F.3d 150 (3d Cir. 2008), we dealt with
application of the discovery rule to allegations of securities
fraud. We held that “simply stating that a smattering of evidence
hinted at the possibility of some type of fraud does not answer
the question whether there was ‘sufficient information of
possible wrongdoing . . . to excite storm warnings of culpable
activity’ under the securities laws.” Id. at 164 (quoting Benak,
435 F.3d at 400) (emphasis omitted) (alteration in original).
Thus, we concluded that the FDA’s public allegations of
misrepresentations by Merck in its consumer advertisements
were not a storm warning of the securities fraud alleged. Id. at
169-72.
Similarly, even if Graham knew that Haughey had
improperly solicited certain of Graham’s clients, that
wrongdoing did not put Graham on notice of Haughey’s
copyright infringement. The District Court stated that this
conduct was a storm warning of infringement because a “person
who had breached an agreement with Graham in this regard is
likely to infringe the copyright on its Works.” Graham, 484 F.
Supp. 2d at 336. However, inquiry notice demands more than
evidence that a person is a bad actor in some general sense
before a court can conclude that a storm warning exists as to a
specific cause of action.
Moreover, after Graham discovered Haughey’s alleged
improper solicitation of clients in October 1991, it got Haughey
to agree to stop and, significantly, in November 1991, just a
24
month later, sold Haughey and FOG six of Haughey’s old client
accounts. Thus, by the time of the first act of infringement in
July 1992, Haughey’s alleged solicitation of clients was an old
problem that the parties had resolved, not a storm warning of
Haughey’s infringement.
Indeed, Graham’s course of conduct at the time of
Haughey’s separation from Graham demonstrates that Graham
diligently sought to protect its rights in the Standard Works. In
his employment and termination agreements, as well as in the
November 1991 agreement selling certain client accounts to
FOG, Haughey repeatedly agreed to respect Graham’s rights to
its intellectual property, including specifically the Standard
Works. The District Court downplayed the significance of
Graham’s copyright notices, stating: “Graham obviously did not
deem the copyrights on the Works in and of themselves to be a
sufficient deterrent to infringement. Otherwise, it would not
have needed to negotiate a reaffirmation of Haughey’s obligation
to turn over the binders [containing the Works] upon his
departure . . . .” Graham, 484 F. Supp. 2d at 333. That is, the
District Court seemed to suggest that the fact that Graham
sought to buttress its statutory rights under the Copyright Act
with contractual obligations implied that Graham was on notice
of Haughey’s (yet-to-occur) infringement. The jury was entitled
to make the opposite inference, i.e., that Graham was diligently
protecting its rights.
The evidence before the jury was sufficient to support its
conclusion that Graham was not on notice of Haughey’s (and
USI’s) infringement prior to February 9, 2002. There is no
evidence to suggest that Graham had actual knowledge of any
infringement until 2004. Even if Graham was or should have
been aware that Haughey possessed a copy of the Standard
Works when he left Graham, the jury heard testimony that
Haughey was aware that the Standard Works were confidential
information and that Graham had copyrighted them. The jury
also heard evidence that Haughey promised (in the November
1991 agreement) to hold Graham’s proprietary information,
including specifically the Standard Works, “in trust . . . [and]
confidence,” app. at 2084, and agreed not to “use, divulge, or
25
otherwise disclose” such information, id. Finally, the jury knew
that after Haughey and USI infringed the copyrighted material in
the Standard Works in a number of client proposals, these
proposals were kept confidential by USI.
To summarize, USI was not entitled to judgment as a
matter of law on the statute of limitations issue (and therefore
the District Court erred in granting USI summary judgment)
because the evidence before the first jury was clearly sufficient
to support its finding that Graham was not on inquiry notice of
Haughey’s and USI’s infringement before February 9, 2002 (and
therefore the District Court abused its discretion in granting
USI’s motion for a new trial). Our conclusion should lead us to
reinstate the first jury’s verdict, but, relying on its ruling with
respect to the statute of limitations issue, the District Court
declined to reach USI’s alternative arguments for a new trial.
First, USI preserved its argument that the jury’s apportionment
of the defendants’ profits between those that were attributable to
infringement (and thus recoverable by Graham) and those that
were attributable to other factors (and thus not properly part of
the damages calculation) was against the weight of the evidence.
Second, USI argued that the verdict was excessive. We will
therefore remand the case to the District Court to allow it to
consider these issues in the first instance.
B. Causation
We turn to USI’s cross-appeal. USI contends that
Graham cannot recover on any of its infringement claims
because it failed to prove a legally sufficient causal connection
between the copyright infringement at issue and the profits of
USI and Haughey that the jury awarded to Graham as
compensation for that infringement. The District Court rejected
that argument in USI’s post-trial motion for judgment as a matter
of law.9
9
We exercise plenary review of that denial. Lightning Lube,
Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).
26
As relevant here, the Copyright Act provides that the
“copyright owner is entitled to recover . . . any profits of the
infringer that are attributable to the infringement . . . . In
establishing the infringer’s profits, the copyright owner is
required to present proof only of the infringer’s gross revenue,
and the infringer is required to prove his or her deductible
expenses and the elements of profit attributable to factors other
than the copyrighted work.” 17 U.S.C. § 504(b). Graham’s
theory of recovery was that it was entitled to USI’s and
Haughey’s commissions as “indirect profits” of infringement
(i.e., profits earned not by selling an infringing product, but
rather earned from the infringer’s operations that were enhanced
by the infringement). As explained by the Ninth Circuit, Ҥ
504(b) creates a two-step framework for recovery of indirect
profits: 1) the copyright claimant must first show a causal nexus
between the infringement and the [infringer’s] gross revenue;
and 2) once the casual nexus is shown, the infringer bears the
burden of apportioning the profits that were not the result of
infringement.” Polar Bear Prods., 384 F.3d at 711.
USI contends that Graham failed to satisfy its burden
because Graham lacked any evidence connecting “the
infringement–that is to say, the use of Graham’s copyrighted
language–and the decision of the client to purchase insurance
through USI.” USI’s Br. at 66. However, Graham’s expert
identified client proposals issued by USI that included infringing
language and then calculated the revenues obtained by USI from
those clients after the client had received an infringing proposal.
The jury also heard testimony from USI personnel that the
written proposals (including, presumably, those with infringing
language) were an important part of the sales process–in fact,
Haughey even testified that some clients were convinced to
purchase insurance through USI on the basis of the
proposals–and that it was USI’s practice to review the proposal’s
contents “page by page” with the client. Moreover, Graham
introduced evidence that the Standard Works were valuable in
part because they could be easily copied to provide consistent
and accurate explanations of coverage comprehensible to lay
people. Graham also introduced evidence that FOG had nothing
like the Standard Works when Haughey first arrived; that FOG
27
and USI made electronic and paper copies of the Standard
Works available to their employees; and that FOG and USI
encouraged their producers to use the Standard Works. Finally,
the District Court instructed the jury that it could draw an
inference against USI based on USI’s destruction of evidence
relevant to infringement (certain client proposals).
We agree with the District Court that a reasonable jury
could conclude from this evidence that Graham met its initial
burden to demonstrate that the infringement contributed to USI’s
profits. The opinion of the Court of Appeals for the Eighth
Circuit in Andreas v. Volkswagen of America, Inc., 336 F.3d 789
(8th Cir. 2003), is instructive. There, Volkswagen (d/b/a Audi)
infringed Andreas’ copyrighted poem by including text from the
poem in one commercial that was part of a three-commercial ad
campaign for the Audi TT automobile. Id. at 791-92. After the
jury awarded Andreas a portion of Audi’s profits for the Audi
TT during the period of infringement, the district court granted
Audi judgment as a matter of law. Id. The Court of Appeals
reversed, holding that Andreas only bore the burden of proving
“whether Audi profited from the infringing commercial at all.”
Id. at 796. It concluded that Audi did so in light of evidence that
the “infringement was the centerpiece of [the] commercial;” that
“Audi enthusiastically presented the commercial to its dealers;”
that sales of the Audi TT exceeded projections; that the ad
campaign received high ratings; and that Audi paid its
advertising consultant a bonus based on the success of the
campaign. Id. at 796-97.
Similarly, Graham appropriately sought to recover only
USI’s and Haughey’s commissions from their clients that were
provided with infringing proposals. Graham also showed that
the written proposals were important to USI’s clients, that the
infringed language from the Standard Works contributed to the
success of those proposals, and that USI urged its employees to
use the Standard Works.
In Andreas, the Eighth Circuit also rejected Audi’s
argument that Andreas was required to provide testimony that
purchasing decisions were influenced by the commercial,
28
reasoning that “[o]nce a nexus was shown . . . [and] Andreas
establish[ed] Audi’s gross revenue . . . [,]Audi then bore the
burden of establishing that its profit was attributable to factors
other than the infringing words: the other two commercials[,] . . .
customer loyalty, brand recognition, etc.” 336 F.3d at 797.
Similarly, as noted by Graham, USI’s contention that Graham
was required to show that the infringement was “an essential and
integral key” to its clients’ decisions to purchase insurance
through USI misconstrues the parties’ burdens of proof under 17
U.S.C. § 504(b). USI’s Br. at 68. This argument relates to the
apportionment of USI’s profits between USI’s infringing and
non-infringing conduct, a matter over which USI bore the burden
of proof.10 In order to satisfy its initial burden of proof, Graham
was required to prove only that the profits it sought to recover
were “reasonably related to the infringement,” On Davis v. Gap,
Inc., 246 F.3d 152, 160 (2d Cir. 2001), and Graham did so here.
In sum, the District Court correctly rejected USI’s motion
for judgment as a matter of law on the issue of causation after
finding that Graham had satisfied its burden of proof under 17
U.S.C. § 504(b). On remand, USI may renew its related
contentions that the jury’s apportionment of its profits was
against the weight of the evidence and that the verdict was
excessive.
III.
CONCLUSION
We will affirm the District Court’s rejection of USI’s
motion for judgment as a matter of law with respect to the
causation issue. Although we agree with the District Court’s
ruling that the discovery rule applies to copyright infringement
10
Indeed, at trial, USI presented evidence on the issue of
apportionment and devoted a significant portion of its closing
argument to the issue, and the jury ultimately reduced Graham’s
requested profits by thirty percent to account for the contribution
of USI’s non-infringing conduct to its revenues.
29
claims, we will reverse the District Court’s orders granting USI’s
motions for a new trial and summary judgment with respect to
accrual of the statute of limitations issue. We remand only so
that the District Court may decide defendants’ arguments
concerning apportionment and excessiveness of the verdict. If
the District Court rejects these arguments, it shall reinstate the
verdict of the first jury and undertake any necessary further
proceedings consistent with this opinion.
30 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3044932/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-5-2009
Glen Perry v. Secretary Army
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3339
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 08-3339
____________
GLEN J. PERRY,
Appellant,
v.
FRANCIS J. HARVEY, SECRETARY
OF THE UNITED STATES ARMY,
Appellee.
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 06-cv-05386)
District Judge: Honorable Noel L. Hillman
____________
Submitted Under Third Circuit LAR 34.1(a)
June 2, 2009
Before: McKEE, HARDIMAN, and GREENBERG, Circuit Judges.
(Filed: June 05, 2009 )
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Glen Perry appeals the District Court’s summary judgment on his hostile work
environment and retaliation claims against his former employer, the United States Army.
We will affirm.
I.
An African-American, Perry worked as a civilian police officer at Fort Dix from
2000 to 2006. Throughout his employ, Perry had a contentious relationship with his
immediate supervisor, Lieutenant Bonnie Graham-Morris, who is Asian-American. In
2003, Perry completed an anonymous survey on the work climate at Fort Dix, in which he
criticized Graham-Morris’s performance and insinuated that minorities were treated
unfairly. Later that year, Perry filed an EEOC complaint alleging racial discrimination
and tensions continued to flare between Perry and Graham-Morris. In 2005, incensed that
Graham-Morris had received a promotion, Perry sent an inflammatory e-mail to 11
minority officers questioning Graham-Morris’s qualifications and calling for widespread
protest of “injustice” at the police department.
Three months later, in November 2005, the EEOC held a hearing on Perry’s 2003
complaint, where fellow African-American police officer Rick Sanders offered testimony
contradicting Perry’s discrimination claims. Two weeks later, Perry was caught placing
offensive materials in Sanders’s mailbox, accusing Sanders of sleeping with Graham-
Morris and calling him a “rat,” “traitor,” “lacky,” and “fink Uncle Tom.” This was the
2
final straw for the Director of Public Safety at Fort Dix, who notified Perry in writing of
his termination. Perry’s termination became final in October 2006 when the Merit
System Protection Board (MSPB) upheld the Director’s decision. In the meantime, the
EEOC issued a ruling on Perry’s initial complaint, rejecting his discrimination charges.
In November 2006, Perry brought hostile work environment and retaliation claims in
federal court under 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a). Perry’s federal complaint
also challenged the MSPB’s decision to uphold his termination. The District Court
granted summary judgment for the Army on all claims and Perry appeals. 1
II.
In reviewing a motion for summary judgment, we view the record and draw
inferences in the light most favorable to the nonmoving party. We will reverse the
District Court’s grant of summary judgment if a reasonable jury could find for the
nonmoving party. See Moore v. City of Phila., 461 F.3d 331, 340 (3d Cir. 2006).
A.
To prove his hostile work environment claim, Perry must show, inter alia, that his
workplace was “permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of [his] employment and create an
abusive working environment.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
1
The District Court had jurisdiction over Perry’s Title VII claims under 28 U.S.C. § 1331,
and jurisdiction to review the MSPB’s decision under 42 U.S.C. § 2000e-16(c) and 5
U.S.C. §§ 7702-7703. We have appellate jurisdiction under 28 U.S.C. § 1291.
3
116 (2002) (quotations omitted). Moreover, the discrimination must be both subjectively
and objectively detrimental to the victim. See Weston v. Pennsylvania, 251 F.3d 420, 426
(3d Cir. 2001). In assessing the severity of alleged discriminatory treatment, “we
consider the totality of the circumstances;” our analysis “must concentrate not on
individual incidents, but on the overall scenario.” Caver v. City of Trenton, 420 F.3d 243,
262-63 (3d Cir. 2005) (quotations and citations omitted). “[O]ffhanded comments and
isolated incidents (unless extremely serious) are not sufficient to sustain a hostile work
environment claim. Rather, the conduct must be extreme to amount to a change in the
terms and conditions of employment.” Id. at 262 (quotations and citations omitted). Title
VII is not a “general civility code . . . [T]he ordinary tribulations of the workplace, such
as the sporadic use of abusive language, gender-related jokes, and occasional teasing” do
not support a hostile work environment claim. Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998) (quotation omitted).
In this case, most of the evidence upon which Perry relies is not probative of
discriminatory animus, much less severe or pervasive enough to support a hostile work
environment claim. Over an eight-month period in 2003, Perry’s police vehicle was
reassigned; he was prohibited from attending a picnic as the department’s Drug Abuse
Resistance Education (DARE) representative; he was prohibited from working overtime;
and he was temporarily marked AWOL by Graham-Morris. However, Perry does not
rebut the Army’s legitimate explanations for each of these actions: Perry was assigned to
4
desk duty and his vehicle was needed for patrols; Perry was no longer the department’s
D.A.R.E. representative at the time of the picnic; the department implemented a policy
against overtime; and Graham-Morris justifiably, albeit wrongly, believed Perry was
AWOL because he cleared his absence with a different supervisor. Perry cites racist
remarks made by Graham-Morris’s husband on two occasions, but these statements are
not germane to Perry’s hostile work environment claim because the husband was not
employed by the police department and Perry offers no evidence to justify imputing his
remarks to Graham-Morris. Even accepting Perry’s version of these events — as we must
at summary judgment — they do not support a hostile work environment claim.
Some of Perry’s allegations, however, may be probative of a hostile work
environment. In 2000, Perry once overheard Graham-Morris “refer to men of color as
being dumb and useless.” Appellant’s Br. at 3. In 2003, Graham-Morris denied Perry
leave to take his mother to a doctor’s appointment, and wrongly advised him to report to a
“phantom” meeting with the police chief. Most significantly, in late 2003, Graham-
Morris approached Perry while sitting in a parked vehicle after his shift and asked, “What
are you doing here, boy?” Finally, in 2004, Graham-Morris asked Perry for verification
that he had taken a drug test, although such verification was not normally requested from
other officers.
The foregoing evidence is insufficient as a matter of law for a reasonable jury to
conclude that Perry was subjected to a hostile work environment because it is not severe
5
or pervasive enough to “to alter the conditions of [Perry’s] employment and create an
abusive working environment,” Nat’l R.R. Passenger Corp., 536 U.S. at 116, or to
“detrimentally affect a reasonable person . . . in that position,” Weston, 251 F.3d at 426.
Perry’s hostile work environment claim boils down to allegations that over the course of
10 months, Graham-Morris denied a leave request, lied to him about a meeting, requested
verification of a drug test, and called him “boy.”
Indeed, Perry concedes that the majority of this conduct was “petty in nature,”
Appellant’s Br. at 24, but argues that the “boy” comment was severe enough to violate
Title VII by itself. See id. at 22 (suggesting the District Court erred in finding Graham-
Morris’s actions neither severe not pervasive, because “a jury could find that under the
circumstances the ‘boy’ comment was in fact ‘severe’”). Accepting Perry’s requested
inference that “boy” was a racially motivated epithet, it does not rise above an “offhanded
comment,” Caver, 420 F.3d at 262, or “sporadic . . . abusive language,” Faragher, 524
U.S. at 788. The Supreme Court has held that the “mere utterance of an [ethnic or racial]
epithet which engenders offensive feelings in a [sic] employee does not sufficiently affect
the conditions of employment to implicate Title VII.” Harris v. Forklift Sys. Inc., 510
U.S. 17, 21 (1993) (quotation omitted).
Viewing the “overall scenario” in the light most favorable to Perry, Caver, 420
F.3d at 263, we hold that no reasonable jury could conclude that the Army’s conduct was
severe or pervasive enough to create a hostile work environment.
6
B.
We turn now to Perry’s retaliation claim, which is based on the filing of his EEOC
complaints, the anonymous survey, and his e-mail opposing Graham-Morris’s promotion.
To establish a prima facie case of retaliation, an employee “must show that: (1) he or she
engaged in a protected employee activity; (2) the employer took an adverse employment
action after or contemporaneous with the protected activity; and (3) a causal link exists
between the protected activity and the adverse action.” Weston, 251 F.3d at 430. If the
employee establishes his prima facie case, “the familiar McDonnell Douglas approach
applies in which the burden shifts to the employer to advance a legitimate, non-retaliatory
reason for its conduct and, if it does so, the plaintiff must be able to convince the
factfinder both that the employer’s proffered explanation was false, and that retaliation
was the real reason for the adverse employment action.” Moore, 461 F.3d at 342
(quotations omitted).
To the extent that Perry claims retaliation by Graham-Morris based on the
anonymous survey, he cannot establish a prima facie case because the survey does not
qualify as protected activity.2 Title VII’s retaliation provision prohibits discriminating
2
Moreover, it is questionable whether Graham-Morris’s conduct rises to the level
of adverse employment action, even under the more lenient standard articulated in
Burlington N. & Santa Fe Ry.Co. V. White, 548 U.S. 53, 68 (2006). “An employee’s
decision to report discriminatory behavior cannot immunize that employee from those
petty slights or minor annoyances that often take place at work and that all employees
experience. . . . [N]ormally petty slights, minor annoyances, and simple lack of good
manners will not [support a retaliation claim].” 548 U.S. at 68.
7
against an employee “because he has opposed any practice made an unlawful employment
practice by [the statute].” 42 U.S.C. § 2000e-3(a). An informal complaint may qualify as
protected activity if it “protest[s] what an employee believes in good faith to be a
discriminatory practice.” Aman v. Cort, 85 F.3d 1074, 1085 (3d Cir. 1996). In other
words, a retaliation plaintiff must show that “he was acting under a good faith, reasonable
belief that a violation existed” when he voiced a grievance. Id. “To determine if
retaliation plaintiffs sufficiently ‘opposed’ discrimination, we look to the message being
conveyed rather than the means of conveyance.” Moore, 461 F.3d at 343 (quotation
omitted). Although informal complaints may suffice, “the employee’s ‘opposition’ to
unlawful discrimination must not be equivocal [or vague].” Id. at 341-43.
Perry’s response to the anonymous survey was too vague to qualify as opposition
to unlawful practices under Title VII because his complaints were primarily directed at
Graham-Morris’s capabilities. Perry wrote that his supervisor “does not communicate
any ideas;” “does not keep me informed at all;” provides “no backing at all;” “shows no
interest at all in their (sic) employees;” “has NEVER discuss[ed] my training needs at
all;” and “is not COMPETENT in their (sic) job.” App. at 616. Perry also accused
Graham-Morris of driving while intoxicated, harassing male officers, inappropriately
discharging her weapon, and assaulting other officers. App. at 617.
The fact that Perry complained about other issues does not necessarily preclude the
survey from qualifying as protected activity under Title VII. See Moore, 461 F.3d at 343
8
n.4. But the survey makes only oblique reference to racial discrimination, in such vague
fashion that it is impossible to judge whether Perry reasonably believed he was protesting
a violation of Title VII. The mere mention of race does not transform a general list of
grievances into opposition to unlawful activity under Title VII. The conduct that serves
as the basis for Perry’s Title VII claims occurred entirely after he completed the survey,
and Perry cites no earlier conduct on appeal. The survey itself neither suggests the acts
Perry was protesting nor their alleged discriminatory basis. We therefore hold that Perry
cannot rely on the survey to establish a prima case of retaliation because it does not rise
to the level of protected activity.
To the extent that Perry claims he was fired in retaliation for his inflammatory e-
mail or for filing EEOC complaints, however, he may be able to establish a prima facie
case. Like the survey, Perry’s e-mail is devoid of reference to any specific act that might
be unlawful under Title VII. However, its message may reasonably be interpreted as an
objection to perceived racial discrimination in the promotion process, making it a
somewhat closer call than the survey. Assuming, arguendo, that the e-mail constitutes
protected activity, Perry has established a prima facie case because the Army concedes
that Perry was fired in part because of the e-mail, supporting a causal inference between
Perry’s opposition to racial discrimination and his termination. Nevertheless, the Army
rebuts Perry’s prima facie case with legitimate, nonretaliatory reasons for his termination.
9
First, Perry was caught on videotape placing inappropriate and highly offensive
materials in Rick Sanders’s mailbox in retribution for Sanders’s EEOC testimony.
Second, the inflammatory manner in which Perry chose to communicate his objection to
Graham-Morris’s promotion was also inappropriate, designed to undermine the authority
of the Director of Public Safety, and create disharmony throughout the department.
Rather than voicing his concerns to his superiors, Perry essentially called for insurrection
among minority officers. See App. at 180 (“As a closing item and remembrance ‘Bloody
Sunday March 1965.’ They stood up, spoke up, walked up and made a difference in
today’s history. They took a stance why we don’t and why we can’t (sic). Ask yourself
that.”).3 On appeal, Perry presents no argument whatsoever that these reasons are
pretextual. See Appellant’s Br. at 23-24 (confining retaliation argument to elements of
the prima facie case). Although Perry’s brief implies a factual dispute concerning the
material found in Sanders’s mailbox, he has effectively admitted responsibility by
alleging in his complaint that the MSPB violated his First Amendment rights by firing
him for the material.4 See App. at 54. Because Perry fails to cast doubt upon the
legitimate reasons for his termination proffered by the Army, we will affirm summary
judgment on this claim as well.
3
Perry’s written termination also cited false statements he made in an EEOC
affidavit and misuse of his Government computer in downloading the offensive material
found in Sanders’s mailbox.
4
The District Court did not address this argument and Perry does not raise it on
appeal.
10
C.
Finally, we turn to Perry’s argument that the MSPB erred in affirming his
termination. We agree with the District Court that this argument is unavailing given that
Perry has failed to show or even attempt to show that the reasons for his termination
stated by the Army were pretextual. To the extent that Perry argues the MSPB was
required to apply mixed-motive analysis, his argument fails because the Army’s reliance
on Perry’s e-mail is not direct evidence of discrimination. The Army stated that Perry
was fired for the unprofessional and inflammatory method in which he voiced his
objections to coworkers, not for the objections themselves. At best, the e-mail establishes
a prima facie case by supporting a plausible inference that Perry’s objections to perceived
discriminatory promotion practices might have been a causal factor in his termination.
However, the Army successfully rebutted Perry’s prima facie case by providing
legitimate, nonretaliatory reasons for his termination that Perry fails to challenge. We
will affirm summary judgment on this claim as well.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
11 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2440258/ | 18 N.Y.3d 857 (2011)
962 N.E.2d 290
938 N.Y.S.2d 865
PEOPLE
v.
BROWN.
Not in source.
Court of Appeals of New York.
December 27, 2011.
Application in Criminal Case for Leave to Appeal denied. (Ciparick, J.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918311/ | 764 A.2d 672 (2000)
BLACK ASH SERVICES, INC., a Pennsylvania Corporation, Appellant,
v.
DuBOIS AREA SCHOOL DISTRICT.
Commonwealth Court of Pennsylvania.
Argued October 31, 2000.
Decided December 18, 2000.
Publication Ordered December 26, 2000.
*673 Donald J. Balsley, Jr., Pittsburgh, for appellant.
Carl P. Beard, Altoona, for appellee.
Before FRIEDMAN, Judge, LEADBETTER, Judge, and LEDERER, Senior Judge.
FRIEDMAN, Judge.
Black Ash Services, Inc. (Black Ash), a disappointed bidder for a contract for asbestos removal at the DuBois Area Senior High School (High School), appeals from the April 10, 2000 order[1] of the Court of Common Pleas of Clearfield County (trial court), which granted DuBois Area School District's (School District) preliminary objections and dismissed Black Ash's complaint with prejudice. We affirm.
*674 In January 1999, the School District advertised for sealed bids for an asbestos abatement project at the High School that would involve the removal and disposal of floor tile and adhesive, transite tabletops, sinks, vent hoods, window panels and window caulking and glazing. The School District received nine sealed bids in response to the advertisement, and, at a public meeting on February 18, 1999, the School District opened and read the bid amounts aloud. Black Ash was the lowest bidder; however, following an investigation into the potential contractors, the School District voted unanimously to reject Black Ash's bid for the project at a public meeting on March 10, 1999. The School District awarded the contract in the amount of $75,850 to Advanced Ecological Service (AES), the contractor that the School District determined to be the lowest responsible bidder, as required by section 751 of the Public School Code.[2]
Black Ash filed a complaint with the trial court, alleging that the School District failed to conduct a full and careful investigation of Black Ash as a responsible bidder and that the School District did not have a substantial reason for rejecting Black Ash's bid in favor of AES's next lowest bid. Black Ash sought damages of $52,400, the amount it bid for the project, plus costs and attorneys' fees. The School District filed preliminary objections alleging that Black Ash lacked standing because it was not a taxpayer in the School District, and, thus, had no cause of action. In response, Black Ash filed a motion to dismiss the School District's objections and to direct the School District to answer interrogatories. The trial court agreed with the School District and granted the School District's preliminary objections, dismissing Black Ash's complaint and motions.
On appeal,[3] Black Ash contends that it has standing to file the present action because it is a Pennsylvania taxpayer with a substantial, direct, and immediate interest in the School District's determination to hire another asbestos abatement contractor.[4] We disagree.
A mere disappointed bidder to a public contract does not have standing to challenge its award because he has no property interest and has suffered no injury that would entitle him to redress. See Michael Facchiano Contracting, Inc. v. Pennsylvania Turnpike Commission, 153 Pa.Cmwlth. 138, 621 A.2d 1058 (1993). To have standing, the bidder must be an aggrieved taxpayer of the municipality awarding the contract. As a taxpayer, the bidder has a cause of action to ensure that contracts are awarded to the lowest responsible bidder. See Facchiano. Therefore, the courts have found standing when the taxpayer is a taxpayer of the municipality awarding the contract, and not merely a general taxpayer of the Commonwealth. *675 See Nunemacher v. Borough of Middletown, 759 A.2d 57 (Pa.Cmwlth.2000). Accordingly, Black Ash lacks standing here.
In support of its argument to the contrary, Black Ash cites American Totalisator Company, Inc. v. Seligman, 489 Pa. 568, 414 A.2d 1037 (1980) (regarding a contract for the supply of equipment and technology to be used for the Daily Numbers Game operated by the Bureau of State Lotteries); Lutz Appellate Printers, Inc. v. Commonwealth, Department of Property and Supplies, 485 Pa. 559, 403 A.2d 530 (1979) (concerning a contract for the printing of legal briefs and records awarded by the Commonwealth's Department of Property and Supplies) and Facchiano (involving a contract for the reconstruction of two turnpike bridges awarded by the Pennsylvania Turnpike Commission), cases in which the plaintiffs had standing as Commonwealth taxpayers. However, each of those cases involved contracts for Commonwealth projects controlled by state departments. "[A] taxpayer has standing to sue if the [p]roject is being carried out by an entity created by a governmental body of which the plaintiff is a taxpayer." Facchiano, 621 A.2d at 1060. In contrast, the project here is being carried out by the School District, and Black Ash does not argue that it is a resident or a taxpayer in the School District. As a result, Black Ash has no property interest, right to redress or standing under the general rule.[5]
Black Ash further argues that even if it is not a School District taxpayer, this injury has given rise to a "substantial, direct, and immediate interest," to satisfy the requirements of standing in William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975). However, Black Ash's argument recently was rejected in Nunemacher. In that case, an employee of a disappointed bidder, who was a resident and taxpayer of the Commonwealth but not of the borough awarding the contract at issue, argued he had standing to challenge the contract award because his income depended on the work, and, thus, he had a substantial, direct and immediate interest in the disappointed bidder's failure to obtain the contract. We disagreed, noting that this claim of financial injury was identical to that of any disappointed bidder.[6] The rationale in Nunemacher applies equally to Black Ash and defeats its argument.[7]
Accordingly, we affirm.
*676 ORDER
AND NOW, this 18th day of December, 2000, the order of the Court of Common Pleas of Clearfield County, dated April 10, 2000, is hereby affirmed.
NOTES
[1] Judgment was entered on April 24, 2000.
[2] Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 7-751. That section provides:
(a) All construction, reconstruction, repairs, maintenance or work of any nature... upon any school building or upon any school property ... where the entire cost, value, or amount of such construction, reconstruction, repairs, maintenance or work, including labor and material, shall exceed ten thousand dollars ($10,000), shall be done under separate contracts to be entered into by such school district with the lowest responsible bidder, upon proper terms, after due public notice has been given asking for competitive bids....
24 P.S. § 7-751 (emphasis added).
[3] Our scope of review of a trial court order sustaining preliminary objections and dismissing a complaint is limited to determining whether the trial court abused its discretion or committed an error of law. Matta v. Burton, 721 A.2d 1164 (Pa.Cmwlth.1998), appeal discontinued, 558 Pa. 612, 736 A.2d 606 (1999).
[4] Black Ash also argues that the School District failed in its statutory duty to conduct a proper investigation into Black Ash's qualifications as a contractor and abused its discretion when it permitted the Solicitor, rather than a "professional adviser," to conduct an investigation. However, since the standing issue is dispositive in this case, we will not address the propriety of the investigation.
[5] Black Ash relies on Independent Enterprises, Inc. v. Pittsburgh Water and Sewer Authority, 103 F.3d 1165 (3d Cir.1997), claiming that it has standing (1) because it was injured; (2) there was a causal connection between the injury and the challenged conduct, the award of the contract; and (3) the injury could be remedied through an award of damages. However, Black Ash's reliance on Independent Enterprises is misplaced. We note that because Independent Enterprises is a federal case, it is merely instructional and not controlling. As previously discussed, controlling Pennsylvania cases have refused to recognize a property interest or injury in a disappointed bidder who is not a taxpayer in the municipality funding the project. See J.P. Mascaro & Sons, Inc. v. Township of Bristol, 95 Pa.Cmwlth. 376, 505 A.2d 1071 (1986).
[6] In Nunemacher, 759 A.2d at 62 (citations omitted), this court stated:
Such an interest, however, standing alone, is the same interest held by every employee of every disappointed bidder to a municipal contract. An interest in pursuing one's livelihood, when defined as dependent upon the award of a municipal contract, rests on the implication that the lowest bidder has some legitimate claim of entitlement to a municipal contract. Such a claim of entitlement has been expressly rejected by this Court, even when the municipal authority has a statutory duty to award the contract to the lowest responsible bidder. Nunemacher's argument on this point is substantively identical to that of any disappointed bidder, and must fail in light of our well-established case law denying standing to disappointed bidders petitioning the court on that basis alone.
[7] Similarly, we apply Nunemacher to defeat Black Ash's right to standing under an exception to the general rule. A taxpayer who otherwise lacks standing is allowed to bring an action if the following factors are present:
1. the government action would otherwise go unchallenged;
2. those directly and immediately affected by the complained of expenditures are beneficially affected and not inclined to challenge the action;
3. judicial relief is appropriate;
4. redress through other channels is unavailable, and;
5. no other persons are better situated to assert the claim.
Nunemacher, 759 A.2d at 62-63 (citing In re Application of Biester, 487 Pa. 438, 443-44, 409 A.2d 848, 851-52 (1979)). All five factors must be satisfied to grant standing. See id.
In Nunemacher, we held that the exception did not apply to grant standing to the employee of the disappointed lowest bidder because the award of the contract to the higher bidder adversely affected the Borough taxpayers. Thus, we observe that the second factor was not satisfied because the Borough taxpayers, not Nunemacher, were in the best position to assert the claim. As in Nunemacher, the School District's award of the asbestos removal contract to AES, the higher bidder, adversely, not beneficially, affects the taxpayers that reside in the School District, placing those taxpayers in the best position to assert the claim made by Black Ash. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575415/ | 743 N.W.2d 530 (2007)
Marly ZIECKLER, Appellant,
v.
AMPRIDE, Dickinson County Memorial Hospital, Mutual Service Casualty Insurance Co., c/o Berkley Risk, and Iowa Insurance Guaranty Association, Appellees.
No. 05-1958.
Supreme Court of Iowa.
December 14, 2007.
Rehearing Denied January 17, 2008.
*531 E.W. Wilcke, Spirit Lake, for appellant.
Andrew D. Hall and Lisa R. Perdue of Grefe & Sidney, P.L.C., Des Moines, for appellees Ampride and Mutual Service Casualty Insurance Co.
Iris J. Post of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees Dickinson County Memorial Hospital and Iowa Insurance Guaranty Association.
HECHT, Justice.
Marly Zieckler was awarded some, but not all, of the workers' compensation benefits she sought from her employers, Ampride and Dickinson County Memorial Hospital and their insurers (collectively, the defendants). She appealed the arbitration award to the commissioner who dismissed her appeal pursuant to Iowa Administrative Code rule 876-4.30 (2004). Zieckler sought judicial review of the agency's decision, and the district court affirmed the dismissal of the appeal. Zieckler now appeals the district court judgment affirming the workers' compensation commissioner's dismissal of her intra-agency appeal.
At the time of Zieckler's appeal, rule 876-4.30 provided:
The appealing party shall bear the initial cost of transcription on appeal and shall pay the certified shorthand reporter or service for the transcript. . . . In the event the cost of the transcript has been initially borne by a nonappealing party prior to appeal, the appealing party or parties within 30 days after notice of appeal or cross-appeal shall reimburse the cost of the transcript to the nonappealing party and if not so reimbursed the appeal shall be dismissed.
I. The Agency Proceedings.
The hearing officer, following the arbitration hearing, requested that the defendants furnish a transcript of the hearing to aid her in drafting the arbitration award. One of the defendants ordered the transcript and paid for it. Zieckler did not reimburse the defendant within thirty days of the appeal, as required by rule 876-4.30, and the defendants moved to dismiss the appeal. Zieckler, who claimed she did not know the amount of the bill or even who had paid it prior to the filing of the motion to dismiss, offered to reimburse the defendants, but they refused to accept payment.
The commissioner dismissed Zieckler's appeal, observing that
[n]othing in the rule requires that the party who initially paid the cost of the transcript make a demand for payment upon the appealing party or that the appealing party be given an opportunity to cure any defalcation. The rule does not contain any exceptions to the directive to dismiss the appeal or give the commissioner discretion to do anything other than dismiss the appeal. I conclude that this rule places an affirmative burden on the appealing party to inquir[e] regarding the cost and identity of the party who initially paid the cost of the transcript and to reimburse that nonappealing party within 30 days. Claimant did not do so in this case. An appealing party has had a "day in court" and the case has been decided on the merits. If an appealing party desires to have the case reviewed again by the agency, that party must comply with the rules governing intra-agency appeals.
On judicial review, the district court affirmed the commissioner's dismissal. On Zieckler's appeal to this court, she challenges both the commissioner's interpretation of administrative code rule 876-4.30 and the validity of the rule itself.
*532 II. Interpretation of the Rule.
We review a commissioner's interpretation of agency rules to determine whether the interpretation is irrational, illogical, or wholly unjustifiable. Iowa Code § 17A.19(10)(l) (2003). Rule 876-4.30 clearly states that, if the appealing party does not pay for the transcript within thirty days, the appeal shall be dismissed. There is no "play in the joints" in this rule, as there was in Marovec v. PMX Industries, 693 N.W.2d 779 (Iowa 2005), which involved the commissioner's interpretation of a rule allowing the commissioner some discretion to dismiss an appeal for failure to file a brief. In contrast to the rule involved in Marovec, rule 876-4.30 allows the commissioner no discretion to impose a sanction less severe than dismissal under the circumstances of this case. We therefore reject Zieckler's erroneous-interpretation argument.
III. Validity of the Rule.
As we have noted, Zieckler also assails the validity of rule 876-4.30. Generally, we review administrative action to determine if it is "[b]eyond the authority delegated to the agency by any provision of law or in violation of any provision of law," Iowa Code § 17A.19(10)(b), or is unreasonable, arbitrary, capricious, or an abuse of discretion. Iowa Code § 17A.19(10)(h)-(n). "In making the determination whether the agency's action is unreasonable, arbitrary, capricious, or an abuse of discretion, the court `[s]hall give appropriate deference to the view of the agency with respect to particular matters that have been vested by a provision of law in the discretion of the agency.'" Marovec, 693 N.W.2d at 782 (quoting Iowa Code § 17A.19(11)(c)).
The legislature has vested the commissioner with the authority to promulgate rules and procedures to implement Iowa Code chapter 85. Iowa Code § 86.8(1). Pertinent to this case, the legislature has authorized intra-agency appeals and directs that they be taken "as provided by rule." Iowa Code § 86.24(1).
While courts are required to give deference to the commissioner's promulgation of rules, that deference is not without limitation. We are required to give only "appropriate" deference under section 17A.19 (11) (c). The question presented here is whether "appropriate deference" will save the agency's rule that requires the dismissal of an intra-agency appeal as a sanction for failure within thirty days to reimburse a party who paid for a transcript of a workers' compensation hearing. Zieckler contends the commissioner's rule 876-4.30 imposes an unreasonable, arbitrary, and capricious penalty because such a failure does not impede the agency's processing of an appeal. We agree.
Under Iowa Code chapter 17A, an agency's authority is limited in several respects. A court on judicial review may reverse agency action if substantial rights of the person seeking relief have been prejudiced because the action is "unreasonable, arbitrary, capricious, or an abuse of discretion." Iowa Code § 17A.19(10)(n). Section 17A.19(10) identifies several subsets of unreasonable, arbitrary, and capricious agency action. One of these subsets is agency action that is "so grossly disproportionate to the benefits accruing to the public interest from that action that it must necessarily be deemed to lack any foundation in rational agency policy." See id. § 17A.19(10)(k); see also Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 69 (1998) (noting paragraphs 17A.19(10) (h)-(m) "provide specific examples of agency action that any reviewing court should *533 overturn as unreasonable, arbitrary, capricious, or an abuse of discretion").
Zieckler has consistently argued before the agency and on judicial review that the commissioner's adoption of rule 876-4.30 constitutes unreasonable, arbitrary, and capricious agency action. The unmistakable essence of her argument is that the agency's rule mandating the imposition of the sanction of dismissal for a failure to make reimbursement within thirty days for a hearing transcript is outrageously unreasonable because, as is evidenced by the facts of this case, such a failure does not impede or delay the processing of an appeal or cause any other public detriment. Although Zieckler has not specifically cited section 17A.19(10)(k) in support of her argument, and she does not specifically employ the words "grossly disproportionate" in her brief on appeal, we believe the substance of her argument adequately implicates that paragraph's subset of unreasonable, arbitrary, and capricious agency action. We therefore conclude Zieckler's contention that the commissioner's rule 876-4.30 is an unreasonable, arbitrary, and capricious exercise of agency power gave sufficient notice to the agency, the district court, and this court of the substance of her argument: viz., that the negative impact of the rule is so grossly disproportionate to any resulting benefits accruing to the public, that it must necessarily be deemed to lack any foundation in rational agency policy. See Iowa Code § 17A.19(10)(k).
An agency's action may be reversed under section 17A.19(10)(k) only if the action is not required by law. Although the commissioner is required by statute to adopt rules to implement the workers' compensation system, see id. § 86.8(1), the commissioner is not required by law to adopt a rule mandating dismissal of an intra-agency appeal as a sanction for failing within thirty days to reimburse a nonappealing party for the cost of a hearing transcript. We therefore conclude the commissioner's adoption of a rule such as rule 876-4.30, providing for mandatory dismissal of an appeal under the circumstances of this case, is not "required by law," and may therefore be reversed under section 17A.19(10)(k).
The facts of this case illustrate the obvious disproportionality between the mandatory dismissal rule's negative impact on appealing parties and its benefit to the public. Unlike the rule at issue in Marovec, rule 876-4.30 is simply a cost-shifting provision that has no effect on the agency's ability to process the appeal. Thus, the public benefit of rule 876-4.30 rests solely on the fairness of shifting appeal costs to an appealing party during the pendency of an intra-agency appeal. Zieckler was unaware which defendant paid for the transcript or how much was paid for it. When she learned this information she immediately sought to reimburse the defendant who initially paid for the transcript. All the appeal briefs were on file with the commissioner before the payment issue arose. Nevertheless, the mandatory nature of rule 876-4.30 prevented any consideration of Zieckler's particular circumstances. She lost her right of appeal for a reason having nothing to do with the merits of her appeal or her willingness to bear the initial costs of the transcript. The public benefit of a mandatory dismissal under these circumstances is negligible, while the negative impact on Zieckler is extremely severe. We do not intend to suggest an agency may never mandate dismissal for violation of a procedural rule; however, section 17A.19 (10) (k) requires that there be a reasonable proportion between imposition of the ultimate sanction of dismissal and the party's transgression. *534 Rule 876-4.30 lacks any such proportion.[1]
We conclude the agency's action in adopting rule 876-4.30 was (1) not required by law; and (2) unreasonable, arbitrary, and capricious because its negative impact is so grossly disproportionate to the benefits accruing to the public interest from the rule. Therefore, rule 876-4.30 lacks adequate foundation in rational agency policy and must be invalidated. Accordingly, we reverse the judgment of the district court and remand to the agency for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
All justices concur except LARSON, J., who dissents.
LARSON, Justice (dissenting).
I dissent. The majority has reached out to decide this case on a theory that the appellant has not raised at any point in the history of the case from her resistance to the motion to dismiss, through her petition for judicial review, and up to this court.
On appeal to this court, Zieckler complains that
[t]he Commissioner's actions in dismissing Zieckler's appeal were unreasonable, arbitrary and capricious, and deprived Zieckler of the opportunity to have her appeal decided on the merits. Moreover, rule I.A.C. 876-4.30, if interpreted to require dismissal in this case is an unreasonable exercise of the agency's rule-making authority. The Commissioner's actions violated Iowa Code § 17A.19, and the dismissal should be reversed and the appeal reinstated.
Zieckler's complaint that the commissioner's action "violated Iowa Code § 17A.19" is so general that it gives virtually no guidance to a court. Perhaps Zieckler intends to argue that the commissioner violated some provision of Iowa Code section 17A.19(10), which lists fourteen grounds for reversing agency action. Her brief does not specify on which of these grounds she relies. The majority, however, fills in the gap by expressly basing its holding on section 17A.19(10)(k), a statute that was not even cited by Zieckler. Despite the fact Zieckler does not even mention this section, the majority holds that its application mandates reversal. Under that section, if the action of the agency is "[n]ot required by law and the negative impact . . . is . . . grossly disproportionate to the benefits accruing to the public," the action lacks a rational basis. This section helps give meaning to one of the legislature's stated purposes for the administrative procedure act, which "is to increase the fairness of agencies in their conduct of contested case proceedings." Iowa Code § 17A.23.
However, this court's concern for reaching what it perceives to be a fair result in a particular case cannot trump well-established principles of appellate procedure. On of these principles is that we will not "assume a partisan role and undertake the appellant's research and advocacy." See Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974); accord In re Det. of Garren, 620 N.W.2d 275, 285 (Iowa *535 2000); State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999). The rationale for such a self-imposed rule is obvious. If a court fills in the gaps in an appellant's argument, it skews the judicial review process because it deprives opposing parties, and the district court, of an opportunity to meet the argument. Here, Zieckler does not argue that her right to appeal is grossly disproportionate to the public's benefit. She does not hint at such a theory. In fact, as already noted, she does not even cite Iowa Code section 17A.19(10)(k), the section on which the majority relies.
If we allow dissatisfied parties such as Zieckler to take a shotgun approach by claiming simply, as Zieckler does, that the agency's action was "unreasonable, arbitrary, and capricious" and leave it to a court to fill in the gaps, we will open the floodgates to judicial review proceedings.
I would hold Zieckler to the arguments she actually made in her appeal to this court, not her arguments as supplemented and embellished by the majority. I would, therefore, defer to the commissioner's rule-making authority and affirm the judgment of the district court.
NOTES
[1] It should be noted that the commissioner recently eliminated the most unreasonable feature of rule 876-4.30 by amending it to read as follows:
In the event the cost of the transcript has been initially borne by a nonappealing party prior to appeal, the nonappealing party is entitled to reimbursement within 30 days after serving on the appealing party proof of the cost of the transcript. If not so reimbursed, the appeal may be dismissed.
Iowa Admin. Code r. 876-4.30 (2007) (emphasis added). Accordingly, the infirmity of the rule that requires us to reverse this case has been eliminated from the rule. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575397/ | 17 So. 3d 661 (2009)
Debbie WHORTON
v.
D.L. BRUCE, individually and d/b/a Bruce Carpets.
2070501.
Court of Civil Appeals of Alabama.
February 20, 2009.
*662 David E. Hudgens and Alvin L. Moon of Hudgens & Associates, LLC, Daphne, for appellant.
*663 Braxton Blake Lowe of Alabama Attorneys, L.L.C., Gulf Shores, for appellee.
THOMPSON, Presiding Judge.
Debbie Whorton appeals from the Baldwin Circuit Court's judgment in favor of D.L. Bruce, individually and d/b/a Bruce Carpets ("Bruce"). For the reasons stated herein, we affirm the judgment in part and reverse it in part.
In late 2004, Whorton hired Bruce to install carpet and tile in her condominium ("the job"). Bruce estimated the cost of the job at $9,997.87, and, on November 24, 2004, he faxed a handwritten estimate reflecting this amount to Whorton. Whorton and Bruce then spoke by telephone. In that telephone conversation, Whorton made a $5,000 deposit by giving her credit-card information to Bruce and authorizing him to begin work on the job.
After Bruce completed the job, he sent an invoice to Whorton. In addition to noting the price of the job to which the parties had agreed and the balance due, the invoice contained the following provisions:
"2. A late charge will be charged on each invoice not paid when due. The late charge is 1½% of the outstanding balance due each month.
"3. Failure to pay the invoice in full when due may result in the invoice being referred to a collection co[mpany] or an attorney. Once the invoice is referred to a collection co[mpany] or an attorney YOU must pay all collection fees, court costs, and a reasonable attorney's fee."
(Capitalization in original.) Whorton disputed the amount she owed Bruce because, according to her, he or his workers damaged some of her furniture when doing the job. Bruce thereafter sent Whorton additional invoices that included a late fee. Whorton did not pay the amount listed in the invoice.
On May 4, 2005, Bruce sued Whorton in the Baldwin District Court for the balance owed on the job, plus a late fee of $224.88, and an attorney's fee. Whorton filed an answer denying the allegations of the complaint and asserting, among others, the affirmative defense that she was owed a set-off against Bruce's claims because of his "negligent, intentional, wanton, and willful acts and breaches of the agreement" between Bruce and her. She also filed counterclaims against Bruce, alleging that Bruce and/or his employees damaged her furniture when working on the job, that the tile was installed incorrectly, and that the tile installed was the wrong size.
Whorton filed a motion to transfer the case to the Baldwin Circuit Court on the basis that her counterclaims exceeded the district court's jurisdictional limit of $10,000. The district court granted Whorton's motion and transferred the case to the circuit court.
On October 24, 2007, the circuit court held a bench trial of the case. On the following day, the circuit court entered a judgment in favor of Bruce on his claims and on the counterclaims. The circuit court's order read:
"Trial held 10-24-07. Judgment entered in favor of [Bruce] and against the defendant Debbie Whorton in the amount of $4,997.87 plus late fees of $2,473.68 plus reasonable attorney fees of $1,867.89 plus cost of court. Judgment entered in favor of the counterclaim defendant D.L. Bruce d/b/a Bruce Carpets."
Whorton filed a motion to alter, amend, or vacate the judgment on November 26, 2007,[1] which the circuit court denied on January 8, 2008. Whorton appeals.
*664 As an initial matter, we note that, to be timely, Whorton was required to have filed her notice of appeal on or before February 19, 2008, the 42nd day following the circuit court's denial of her postjudgment motion. See Rule 4(a)(3), Ala. R.App. P. The record indicates two different dates on which Whorton filed a notice of appeal. The record contains a copy of a document styled "notice of appeal" filed by Whorton in the Baldwin District Court on February 19, 2008, in which she gave notice that she was appealing the circuit court's judgment to this court. Also in the record is a copy of a notice of appeal filed by Whorton on February 26, 2008, in the Baldwin Circuit Court that resembles Form 1 in appendix I to the Alabama Rules of Appellate Procedure; in that notice of appeal, Whorton indicates that she is appealing the judgment of the circuit court to this court.
Rule 3(c), Ala. R.App. P., provides that a party's notice of appeal "shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken." Whorton's February 19, 2008, notice of appeal includes all of those required elements, even though it is not in the form suggested by appendix I to the Alabama Rules of Appellate Procedure. That Whorton filed her February 19, 2008, notice of appeal in the district court rather than the circuit court does not affect its validity because the clerk of the circuit court with whom the notice of appeal should have been filed is also the clerk of the district court. See Roberts v. Carraway Methodist Med. Ctr., 591 So. 2d 870, 871 (Ala.Civ.App.1991). Thus, we conclude that Whorton timely filed her notice of appeal.
We turn now to the merits of Whorton's appeal. As indicated above, the circuit court conducted the trial without a jury and heard ore tenus evidence. As to our standard of review in such a case, this court has written:
"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 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). *665 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.')."
City of Prattville v. Post, 831 So. 2d 622, 627-28 (Ala.Civ.App.2002).
Whorton contends that there was no evidence presented at trial proving the existence of a contract between Bruce and her that required her to pay an attorney's fee or late fees. We agree. "Under the American rule, the parties to a lawsuit bear the responsibility of paying their own attorney fees. However, the law recognizes certain exceptions to this rule, and attorney fees are recoverable when authorized by statute, when provided by contract, or when justified by special equity." Ex parte Horn, 718 So. 2d 694, 702 (Ala.1998). In the present case, Bruce has not contended that he was entitled to an attorney's fee on the basis of a statute or on the basis that such a fee was "justified by special equity." Thus, his entitlement to an attorney's fee can be based only on the existence of a contract by which Whorton agreed to pay Bruce's attorney's fee.
Bruce testified at trial that he did not prepare the invoice that included the language providing for an attorney's fee and late charges until after Whorton hired him to perform the job, gave him her credit-card information over the telephone, and authorized him to charge her credit card for the initial $5,000 payment. He testified that he did not provide that invoice to her until he mailed it to her after he had completed the job. Whorton likewise testified that she did not receive the invoice containing the attorney-fee language until after Bruce had completed the work. She testified that she never agreed to pay late charges or attorney's fees.
Our review of the trial transcript and of the documentary evidence submitted at trial discloses no basis on which to conclude that Whorton agreed to pay Bruce's attorney's fee should Bruce bring an action to collect the balance owed him for the job. "It has long been the law in Alabama (and indeed it is elementary) that the mutual assent of the parties to the same thing, and in the same sense, is an essential element to every contract." Board of Comm'rs of Alabama State Bar v. Jones, 291 Ala. 371, 378, 281 So. 2d 267, 273 (1973). In the present case, although the evidence clearly demonstrates that Whorton and Bruce mutually assented to the performance of the work and regarding the payment for that work, there is no evidence indicating that Whorton assented to the attorney-fee and late-charge provisions contained in the invoice and not communicated to her until after the work had been completed and for which she had already partially paid. Nor did Bruce's transmission of the invoice to Whorton after the completion of the work serve to alter the terms to which the parties had already agreed, which, again, did not include the attorney-fee and late-charge provisions, because there is no evidence indicating that Whorton assented to the addition of those terms to the parties' agreement. As this court has stated, "it is an elementary principle of contract law that in order for a contract to be validly modified, there must be mutual assent to the new terms by both parties. ... It is incumbent on the party claiming the modification to show that the new agreement was mutually agreed to." Wiregrass Constr. Co. v. Tallapoosa River Elec. *666 Coop., Inc., 365 So. 2d 95, 98 (Ala.Civ.App. 1978). As a result, the circuit court erred when it awarded Bruce an attorney's fee, and the judgment is reversed to that extent.
Similarly, we find no basis in the trial transcript and the documentary evidence on which the circuit court could have concluded that Whorton's agreement with Bruce with regard to the job included her consent to pay a monthly "late charge" of 1½%. Therefore, the circuit court erred when it awarded late fees in the amount of $2,473.68.
Whorton also contends that she was entitled to a setoff of the amount awarded to Bruce because Bruce admitted at trial that he did not perform the job in a workmanlike manner. She points to several instances during trial when, she argues, Bruce admitted that there were problems with the work he had done with regard to the laying of the tile in Whorton's condominium. However, our review of the evidence discloses that Bruce testified in no uncertain terms that the tile was "most definitely" laid in a workmanlike manner and, further, that Bruce did not admit at any point that the job was performed in an unworkmanlike manner. We also note that he provided explanations as to why various issues Whorton had with his work on the job did not constitute unworkmanlike work, including the fact that the pictures of the tile work he had done that she offered into evidence had been taken three years after he had completed the job. According to Bruce, "[a] lot of things can happen over three years."
Based on our review of the trial transcript and the documentary evidence, we conclude that both parties' contentions regarding the question whether the work Bruce performed was done in a workmanlike manner were supported by substantial evidence. Thus, it was the circuit court's function, as a fact-finder presented with ore tenus evidence, to resolve that dispute. We presume that the circuit court's resolution of that question, that the tile was laid in a workmanlike manner, is correct. See City of Prattville, supra. As a result, we find no basis on which to reverse the circuit court's judgment refusing to set off its award in favor of Bruce on the basis of his workmanship in performing the job.
Based on the foregoing, we conclude that the circuit court erred to reversal when it awarded Bruce an attorney's fee and when it awarded Bruce a "late fee" in the amount of $2,473.68 but that its refusal to set off the award in favor of Bruce was not erroneous. For these reasons, the circuit court's judgment is affirmed in part, reversed in part, and remanded for the entry of a judgment consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.
NOTES
[1] November 24, 2007, the 30th day following the entry of the judgment, was a Saturday. The first business day following November 24, 2007, was Monday, November 26, 2007, the day on which Whorton filed her postjugdment motion. Thus, pursuant to Rule 6(a), Ala. R. Civ. P., Whorton's postjudgment motion was timely. See also Rule 59(b), Ala. R. Civ. P. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918217/ | 376 Mich. 84 (1965)
135 N.W.2d 360
DOW
v.
SCULLY.
Calendar No. 66, Docket No. 50,721.
Supreme Court of Michigan.
Decided June 7, 1965.
Rehearing denied July 13, 1965.
Lucking, Van Auken & Miller (Howell Van Auken and Donald J. Miller, of counsel), for plaintiff.
Francis J. McDonald and Gladys Catherwood, for defendants.
SOURIS, J.
Mary Baier died testate on May 16, 1938. Her will provided, in pertinent part, that substantially *85 all her property vest in a trust for the benefit of her children. Upon her daughter Amelia's death, the trust was to terminate with one-third of the residue going to plaintiff Estella Baier Dow, one-third to Charles Baier, both children of testatrix, and one-third to certain named grandchildren of testatrix. The will also provided:
"2. * * *
"J. Should my son CHARLES A. BAIER die without issue, his share of said estate shall lapse whether the same be way of residue or income therefrom. Should my daughter ESTELLA DOW (nee Baier) die, her share shall go to her children by right of survivorship. * * *
"4-b. In the event of the death of my son, CHARLES A. BAIER without issue, it is my intention that his share shall go to the survivors, whether under the trust herein created or under the will. I have no desire to devise or bequeath any property or residue of my estate to his widow. Should my son, CHARLES A. BAIER, leave any heirs at law other than his widow, his share shall then go to his heirs at law."
Amelia Baier died on May 22, 1945. Plaintiff, Estella Baier Dow, who had been appointed administratrix de bonis non of the Mary Baier estate, thereupon petitioned the probate court to
"order a distribution to the sole heirs and beneficiaries as above stated of the remaining assets on hand and the residue of said estate * * * all in accordance with the provisions of the last will and testament of Mary Baier, deceased."
On January 9, 1947, the probate court entered an order which provided that:
"the residue of said estate, remaining in the hands of the said fiduciary and including the Federal income tax refund, be and the same is hereby assigned to Estella Baier Dow (nee Baier) and Charles A. *86 Baier, children of said deceased, each a two-sixth (2/6) part thereof, and to Mary Shirley Dow, Lawrence Frederick Dow and Frederick Baier Dow, grandchildren of said deceased, each an equal one-third (1/3) share in the remaining two-sixth (2/6) part, said persons being the only residuary devisees and legatees of said deceased, in accordance with the provisions of said will."
No appeal was taken from this order.
Charles Baier received as his share certain cash, stock and bonds, the title to which he placed in his name and the name of his wife, Irene. Charles died without issue on October 24, 1959, and his wife succeeded to his estate without probate proceedings. She died July 5, 1961, and defendant Scully was appointed administrator of her estate.
By complaint filed herein on May 21, 1962 plaintiff sought to obtain from the Irene Baier estate those assets which Charles Baier had received from the Mary Baier estate. Plaintiff argues that the assets Charles Baier received from the Mary Baier estate pursuant to the probate court order of January 9, 1947, were subject to an executory limitation over in her favor and in favor of other heirs of Mary Baier in the event that Charles died, as he did, leaving no issue. Plaintiff further argues that she has successfully traced the assets received by Charles into the estate of his wife Irene; that by the executory limitation, those assets should have been distributed upon Charles' death to the other beneficiaries under the will of Mary Baier; and that, consequently, the chancellor erred in construing that will as having given Charles an absolute estate in those assets upon termination of the trust.
It is not necessary for us to consider whether the chancellor correctly construed the will, since in the view which we take of this proceeding the chancellor was foreclosed from a consideration of this matter *87 by the January 9, 1947 unappealed decree of the probate court. The case of Loesch v. First National Bank of Ann Arbor (1930), 249 Mich 326, controls our decision in this case of Dow. As quoted by this Court in its opinion, testator's will, in the Loesch Case, provided (p 327):
"`Should my wife, Julia Watkins Brown, survive me, it is my will that she shall have the use and control of all property, personal and real, that shall be holden by me at the time of my decease for her sole benefit and use during her natural life, with the stipulation that she may remember the following persons who are dear to me because of ties of friendship.'"
The probate court entered the following order (p 327):
"`That the residue of said estate be and the same is hereby assigned to Julia W. Brown, widow of said deceased, she being only residuary devisee and legatee, in accordance with the provisions of the said last will and testament of said deceased.'"
Mrs. Brown died without surviving children nearly 14 years later, still possessing some of the shares of stock she had received under her husband's will. Plaintiffs, Mr. Brown's heirs, thereupon filed a bill in chancery alleging that the probate order was ambiguous and seeking its construction. The chancellor found that under the will Mrs. Brown had only a life estate and held that plaintiffs, as Mr. Brown's heirs, were entitled to that portion of his estate which remained at Mrs. Brown's death.
This Court wrote in Loesch, at pp 329, 330:
"The first consideration is whether the above quoted order of assignment is ambiguous. The time has long passed when the question can be raised as to whether this order assigning the stock to Mrs. *88 Brown was or was not in accordance with the terms of her husband's will. After due notice the order of assignment was entered May 19, 1914. No appeal was taken. The order was never questioned during the years prior to Mrs. Brown's death in March, 1928. We have carefully considered the briefs filed by plaintiffs' counsel, but we are unable to agree with them that there is a doubt or uncertainty as to the meaning and intent of this order which assigned the residue of Elbridge Gerry Brown's estate `to Julia W. Brown, widow of said deceased, she being only residuary devisee and legatee, in accordance with the provisions of the said last will and testament of said deceased.' In the order of assignment no reference is made to Mrs. Brown as having only the income or use during her lifetime of the property which passed under the order of assignment. This was a final order. It closed the estate of Elbridge Gerry Brown. The casual reference in this order that Mrs. Brown was the only residuary devisee and legatee `in accordance with the provisions of the said last will and testament of said deceased' should not be construed to embody the terms of the will itself in the order, which is plain and specific in its provisions that the residue of the estate `is hereby assigned to Julia W. Brown, widow of said deceased.' Nor is the order rendered ambiguous or inoperative because of this reference to Mrs. Brown as the only `residuary devisee and legatee,' when in fact the will contained no provision whatever as to a residuary devisee or legatee. It seems clear that the foregoing recital in the order is indicative of the construction the probate judge placed upon Mr. Brown's will; and, whether right or wrong, such construction is not now open to review. We hold that the order of assignment entered on May 19, 1914, is not ambiguous. The final decree of a court of competent jurisdiction made and entered in a proceeding of which all parties in interest have due and legal notice and from which no appeal is taken cannot be set aside and held for naught by the decree *89 of another court in a collateral proceeding commenced years subsequent to the date of such final decree. The foregoing proposition of law is so axiomatic and has been applied so many times in this court to final orders of probate courts that citation of authorities is unnecessary; but the following may be noted: Clark v. Fredenburg, 43 Mich 263; Byrne v. Hume, 84 Mich 185; Riebow v. Ensch, 220 Mich 450; Chapin v. Chapin, 229 Mich 515; Calhoun v. Cracknell, 202 Mich 430, and Thompson v. Thompson, 229 Mich 526."
This passage is applicable to the facts of the case at bar. The decree of the probate court here is as unambiguous as was that in Loesch, and since the probate court was one of competent jurisdiction, its decree "right or wrong" is not, some 15 years after its entry, open to belated and collateral review. See CL 1948, § 704.39 (Stat Ann 1962 Rev § 27.3178 [290]), which has been applicable in pertinent part since prior to entry of the probate court order.
The chancellor's order dismissing plaintiff's complaint is affirmed. Costs to defendants.
T.M. KAVANAGH, C.J., and DETHMERS, KELLY, BLACK, SMITH, O'HARA, and ADAMS, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918231/ | 135 N.W.2d 453 (1965)
178 Neb. 757
Paul RHODES, Appellant,
v.
Charlotte EDWARDS and Jack Edwards, Appellees.
No. 35907.
Supreme Court of Nebraska.
May 21, 1965.
*454 Paul Rhodes, pro se.
James L. Macken, Bridgeport, for appellees.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.
CARTER, Justice.
This is an appeal by the plaintiff from an order of the district court for Morrill County dismissing plaintiff's petition without prejudice for failure to comply with an order to produce copies of his 1958 and 1959 federal income tax returns.
Plaintiff commenced an action on April 8, 1963, against the defendants on a note dated April 9, 1958, for $6,515.36 and interest upon which a credit for $1,568 was endorsed on October 26, 1958. The defendants' answer and cross-petition alleges that the note was given for a one-half interest in a drugstore in Bridgeport, Nebraska, and *455 the execution of a written partnership agreement which was never consummated by the plaintiff. Defendant Jack Edwards alleged that he assumed the management of the drugstore on February 24, 1958, and continued as manager until October 26, 1958. He contends that the assets in the drugstore on October 26, 1958, were of sufficient value to equal plaintiff's capital investment and the amount of the note in suit. Defendants seek to recoup the amount of the note and counter-claim for damages sustained by plaintiff's breach of contract.
Plaintiff in his reply asserts laches and the statute of limitations as defenses. In addition thereto plaintiff alleges that defendant Jack Edwards purchased the drugstore from a trustee in bankruptcy and borrowed $3,400 from plaintiff to complete payment for the same. Plaintiff further alleges that Edwards conveyed a one-half interest to him on February 25, 1958, and the business was thereafter operated as a partnership until it was dissolved on October 26, 1958, by mutual agreement.
Plaintiff alleges further that he advanced further sums for the operation of the partnership business in the amount of $11,800, one-half of which is a capital investment of Edwards. Plaintiff alleges that an accounting was had and as a result a chattel mortgage on Edwards' half interest was given to plaintiff in addition to his securing a cosigner on the note, Charlotte Edwards being such cosigner, as payment for the amount due. Plaintiff alleges that defendant Jack Edwards is estopped to deny the partnership and asserts his right to judgment as prayed.
On March 24, 1964, defendants moved for an order, pursuant to section 25-1267.39, R.R.S.1943, requiring plaintiff to produce and permit inspection of certain specified documents including his federal income tax returns for 1958 and 1959. The order was granted by the trial court. Plaintiff sought a rehearing on the grounds that the federal income tax returns were privileged, that plaintiff did not have copies of said returns, and that defendants' attorney learned of the contents of the returns by unlawful means which amounted to an unlawful search and seizure, contrary to the state and federal Constitutions. The trial court overruled the motion for a rehearing.
On May 11, 1964, plaintiff moved for a vacation of the discovery order on substantially the same grounds as asserted in his previous motion for a rehearing. On June 5, 1964, the trial court modified its previous order by requiring plaintiff to produce only those parts of the 1958 and 1959 federal income tax returns relating to the operation of the drugstore business. The amending order also recites the plaintiff's assertion that he made only joint returns with another person and that he was prohibited by federal law from making the disclosure. The court's order fixed July 6, 1964, as the time in which the income tax returns should be produced. On July 7, 1964, the trial court dismissed plaintiff's petition without prejudice for failure to comply with the discovery order. A motion for a new trial was filed, which was overruled. Plaintiff then perfected this appeal.
It is provided in part by section 25-1267.39, R.R.S.1943: "Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions in section 25-1267.22, the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by section 25-1267.02 and which are in his possession, custody, or control; * * *."
Plaintiff contends the trial court erred in requiring him to produce copies of his 1958 and 1959 federal income tax returns *456 for the reason that they are privileged and specifically excluded by the provisions of section 25-1267.39, R.R.S.1943. A court in which a civil action is pending may require one party to produce a copy of a federal income tax return for inspection by an adverse party under the rules or statutes which deal with discovery procedures. Cases supporting this holding are collected in section 3 of the Annotation on DiscoveryIncome Tax Returns, 70 A.L.R.2d 244.
The effect of the privilege provided by federal statute is stated in Kingsley v. Delaware, Lackawanna & Western R.R. Co., D.C., 20 F.R.D. 156, as follows: "The purpose of the statute is to prevent the disclosure of confidential information to those who do not have a legitimate interest in it. But once a person has made the amount of his income an issue in litigation it becomes a legitimate subject of inquiry and he can no longer claim that the information contained in his returns is confidential." See, also, Connecticut Importing Co. v. Continental Distilling Corp., D.C., 1 F.R.D. 190; Currier v. Allied New Hampshire Gas Co., 101 N.H. 205, 137 A.2d 405, 70 A.L.R.2d 237; Bush v. Chicago, B. & Q. R.R. Co., D.C., 22 F.R.D. 188.
Plaintiff asserts that he had no copies of his federal income tax returns for 1958 and 1959 and they were not therefore within his possession, custody, or control within the meaning of section 25-1267.39, R.R.S.1943. Copies of a taxpayer's income tax returns are in his possession and control within the meaning of the statutes, where he does not have copies but can obtain them from the federal government on application. Conner v. Gilmore, 45 Del. 184, 70 A.2d 262; Gould v. Sullivan, Sup., 54 N.Y.S.2d 430; Mandell v. Yellow Cab Co. of Cleveland, Ohio Com.Pl., 170 N.E.2d 296; Kingsley v. Delaware, Lackawanna & Western R.R. Co., supra; Reeves v. Pennsylvania R.R. Co., D.C., 80 F.Supp. 107; Paramount Film Distributing Corp. v. Ram, D.C., 91 F.Supp. 778.
Some contention is made that plaintiff is excused from compliance with the court's discovery order because no provision was made for the cost of the copies of the income tax returns by the defendants. No demand was made for such expenses in the trial court. While the trial court may provide for the payment of such expenses in advance, it is not required to do so. Unless demand for the expenses is made, the plaintiff cannot be excused from compliance on that ground. In any event, the question of expenses was not an issue in the district court nor is it assigned as error on this appeal.
Plaintiff contends that he made no individual income tax returns in 1958 and 1959. He argues that his returns were joint ones with his wife, and that he is prohibited by law from disclosing the contents of the joint returns. The trial court limited its order to information relating to the drugstore. It stands to reason that a taxpayer may not avoid a discovery order merely because he is a party to a joint return. The trial court has authority to protect against an unreasonable use of the returns, which it did in the instant case. Even though his return is a joint one, it is still his return and must be produced. His remedy, if improper use is anticipated, is to invoke the powers of the court to insure proper use. Plaintiff cites no case authority on the question. In Brei v. Sharon Steel Corp., 8 Pa. Dist. & Co.R.2d 483, the court stated with reference to a joint tax return made by a husband and wife: "Plaintiff further contends that the returns are irrelevant for the reason that they are the joint returns of himself and his wife. However, the mere fact that the returns contain certain irrelevant matter would not bar their use as evidence when they also contain facts that are clearly relevant." Where the trial court has limited the discovery order, as here, to matters relevant to the issues before the court, it is not an excuse for noncompliance with the discovery order that plaintiff's income tax return was joint and not his individually.
*457 The plaintiff refused to comply with the trial court's order to produce copies of his income tax returns for 1958 and 1959, and the trial court dismissed his action without prejudice. Plaintiff contends that the action of the trial court is violative of Article I, section 3, Constitution of Nebraska, the Fifth and Fourteenth Amendments to the Constitution of the United States, and to 26 U.S.C.A. § 7213, p. 228.
It is provided in part by section 25-1267.44, R.R.S.1943, as follows: "(2) If any party * * * refuses to obey * * an order made under section 25-1267.39 to produce any document * * * the court may make such orders in regard to the refusal as are just, and among others the following: * * * dismissing the action or proceeding or any part thereof, * *." We point out that a discovery statute without means of enforcement by the trial court would be of little value. The statute specifically authorizes a dismissal of the action for failure to comply with a discovery order. Plaintiff had every opportunity to comply and refused to do so. The dismissal of the action without prejudice is a common and recognized method of enforcing its orders. Plaintiff knew, or should have known, that he could not persist in refusing to comply with the court's order, after hearing, without suffering the penalties with which the court is empowered in enforcing its discovery orders.
The holding that federal income tax returns are not privileged when material to the issues in an action or proceeding, that the fact that such returns jointly made with another is not a defense, and that such returns in the custody of the federal government are in his possession and control within the meaning of section 25-1267.39, R.R.S. 1943, eliminates any question as to due process under the state and federal Constitutions. To otherwise hold would permit the plaintiff to engage in litigation and to suppress evidence material to a proper decision of the case.
We find no error in the record. The judgment of the district court is correct and it is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918234/ | 101 B.R. 713 (1989)
In re Katrina C. MILLER, SSN XXX-XX-XXXX, Debtor.
Bankruptcy No. 89-70171.
United States Bankruptcy Court, E.D. Oklahoma.
June 23, 1989.
*714 Max Watkins, Muskogee, Okl., for Blazer Financial Services, Inc.
David Comfort, Okmulgee, Okl., for debtor.
ORDER
JAMES E. RYAN, Bankruptcy Judge.
On April 25, 1989, a Motion to Terminate Stay (Docket Entry No. 7) filed by Blazer Financial Services, Inc., with an associated Objection to said Motion (Docket Entry No. 12) filed by the Debtor, came before this Court for hearing.
Appearances were entered by Max Watkins for Blazer Financial Services, Inc. (Blazer) and David Comfort on behalf of the Debtor.
At the hearing, counsel for the Debtor revealed that a Motion to Avoid the Lien of Blazer Financial Services, Inc. (Docket Entry No. 15) concerning the same property at issue in the Motion to Lift Stay had been filed on April 14, 1989. As such, this Court does hereby consolidate the two Motions for purposes of resolution in this Order.
Also, the parties were afforded the opportunity to file legal Briefs in support of their positions with regard to the exemption status of the subject property. Both Briefs were timely received by this Court.
After review of said legal Briefs provided by the parties, the applicable law in the area, and the file, this Court does hereby enter into the following Findings of Fact and Conclusions of Law in this core proceeding:
STATEMENT OF ISSUE
At issue in this case is whether certain personal property owned by the Debtor is exempt under the applicable Oklahoma Statute.
FINDINGS OF FACT
1. The Debtor in this case filed a Petition seeking relief under Chapter 13 of the United States Bankruptcy Code on February 14, 1989. Subsequently, on March 2, 1989, this Court entered an Order pursuant to the Motion filed by the Debtor converting the case to one under Chapter 7.
2. The Debtor asserts an exemption under the Oklahoma Statutes for the following items of personal property:
(a) Quasar VHS Video Recorder
(b) Atari Video Game System
(c) Atari Game Cartridges (10)
(d) Wilson Tennis Rackets (4)
(e) Ten-Speed Bicycle
(f) 35 mm Camera and Accessories
(g) Sleeping Bags (2)
(h) Water Skis (2)
(i) One-Speed Bicycles (2)
(j) Lawn mower
(k) Ladies Diamond Ring
(l) Ladies Diamond Necklace
(m) Ladies Diamond Earrings (2 pairs)
(n) Sharp Stereo, with speakers, phonograph and tape recorder
3. Blazer contends that these items, along with an exercise cycle, are not exemptible, relying upon the same applicable *715 Oklahoma statute. The Debtor does not contest the fact that the exercise cycle is not exemptible.
CONCLUSIONS OF LAW
A. The United States Bankruptcy Code provides for the ability of the individual State Legislatures to determine items of exemption claimed pursuant to 11 U.S.C. § 522(b). This ability, normally termed "opting out" of the Federal exemptions, is codified under § 522(b), to-wit:
"Notwithstanding Section 541 of this title, an individual debtor may exempt from property of the estate the property listed in either paragraph (1) or, in the alternative, paragraph (2) of this subsection. . . . Such property is
(1) property that is specified under subsection (d) of this section unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative,
(2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor's domicile has been located for the 180 days immediately preceding the date of the filing of the Petition, or for a longer portion of such 180-day period than in any other place;
(B) any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable nonbankruptcy law." (emphasis added by this Court).
Thus, once a State has exercised its option to utilize its own exemption statutes rather than the Federal exemptions set forth in 11 U.S.C. § 522(d), a particular debtor may utilize the state provided exemptions only and may not pick and choose between the State and Federal exemptions. John T. Mather Memorial Hospital of Port Jefferson, Inc. v. Pearl, 723 F.2d 193, 194 (2nd Cir.1983).
B. The Oklahoma exemption statute at Okla.Stat.Ann. tit. 31, § 1(B) provides that "no natural person residing in this state may exempt from the property of the estate in any bankruptcy proceeding the property specified in subsection (d) of § 522 of the Bankruptcy Reform Act of 1978, Public Law 95-598, 11 U.S.C.A. § 101, et seq., except as may otherwise be expressly permitted under this title or other statutes of the state."
Clearly, the State of Oklahoma and the Oklahoma Legislature has intended that the exemptions contained within Okla.Stat. Ann. tit. 31, § 1 should supercede the Federal exemptions under § 522(d) in their entirety, an ability which was fully contemplated and intended by the United States Congress in drafting the Bankruptcy Code. In re Lee, 22 B.R. 977 (Bankr.C.D.Ca.1982).
C. This Court takes this opportunity to examine the Oklahoma exemptions and their inadequacies as applicable in this case. This Court finds it increasingly difficult in our struggle to apply the archaic Oklahoma exemptions listed under Okla. Stat.Ann. tit. 31, § 1 to circumstances arising in an average case to a modern debtor. Amendments which have been made to this particular statute have been few and far between and have served as merely a bandage over an open and bleeding wound, clearly warranting major surgery and revision.
However, by the same token, this Court maintains its well-established position in literally construing all statutes, whether they be State or Federal, in interpreting their application to particular circumstances. This Court shall not serve in a "super-Legislative" capacity reading into the particular statute more than meets the eye. In conformity with this position, the particular Sections at issue in this case shall be literally interpreted by the actual, clear and plain meaning of the statute as written. The language is not ambiguous, and no rules of construction need be applied. Nevada Power Company v. Watt, 711 F.2d 913, 920 (10th Cir.1983). Any alterations in *716 the Oklahoma exemption statute beyond this clear meaning rests solely with the Oklahoma Legislature and not this Federal Trial Court.
D. The Debtor is attempting to claim certain items as exempt under Okla. Stat.Ann. tit. 31, § 1(A)(3) which includes "all household and kitchen furniture held primarily for the personal, family or household use of such person or a dependent of such person." The items so claimed are the video recorder, video game system, game cartridges, tennis rackets, ten-speed bicycle, 35 mm camera and accessories, Sharp stereo, sleeping bags, water skis, one-speed bicycles and lawn mower.
This Court deems that the applicable subsection of this statute requires that the item sought to be exempted be first, "furniture." This term is defined as "the moveable things in a room, apartment, etc. which equip it for living, as chairs, sofas, tables, beds, etc." Webster's New Twentieth Century Dictionary, Unabridged 2nd Edition, 1962, and more recently, "the moveable articles in a room or establishment that make it fit for use." Webster's II New Riverside University Dictionary, 1984. This later definition would appear to be somewhat less definite and specific, but clearly is intended to include the necessities for occupancy.
Second, the furniture at issue must be employed in a "household" or "kitchen" surrounding. This would obviously mean that it must occupy the home or the kitchen.
Finally, the said household and kitchen furniture must be utilized solely "for the personal, family or household use of such person or a dependent of such person." We disagree with the Debtor's interpretation of this recent amendment to the statute as creating a more expansive applicability of this exemption. We interpret that this overt addition was indeed for the purpose of making this exemption more restrictive.
In a literal interpretation which this Court feels compelled to apply to these circumstances given the language supplied by the Oklahoma Legislature, we find no alternative but to deem all of the items listed hereinabove as allegedly falling within this particular section of the Oklahoma exemption statute as nonexempt. None of these items are in the character or nature of "furniture" as that term is normally defined, but rather are personal property of a character not found within the Oklahoma statute for exemptions. Despite the fact that the Oklahoma Supreme Court has determined that the "exemption laws . . . should be liberally construed to comport with the beneficial spirit of protecting the family home, a liberal construction cannot be the means of defeating a positive law or a rule established by judicial precedent." In re Estate of Wallace, 648 P.2d 828, 833-34 (Okla.1982). We find that no such liberal construction is warranted by circumstances wherein the language of the statute is clear such as in this case. To construe the statute any more liberally would render the language of the Oklahoma Legislature inert and far afield from the perceived intent.
The only item in the litany provided by the Debtor proposing to be included within this exemption which has been specifically ruled upon by a prior decision is the stereo. We specifically reject the finding of the Bankruptcy Court in the case of In re Fisher, 11 B.R. 666 (Bankr.W.D.Okla.1981) wherein a stereo was equated with a piano, an item of personalty, which was specifically found to be exempt from an early Oklahoma Supreme Court decision. We find no identity between these two items and their relationship to "household furniture." We specifically note a distinction between the term household furniture used by the Oklahoma Legislature and the term household goods utilized in many other states' exemptions statutes; see e.g., In the Matter of Jones, 5 B.R. 655 (Bankr.M.D.N.C.1980). The latter is clearly broader while the former, more specific and restrictive.
E. The last items to be considered for exemption are the ladies diamond necklace, ladies diamond ring and two pairs of diamond earrings. These items are potentially exemptible under Okla.Stat.Ann. tit. 31, § 1(A)(8) which sets forth that "the *717 person's interest, not to exceed four thousand dollars ($4,000) in aggregate value, in wearing apparel that is held primarily for the personal, family or household use of such person or a dependent of such person" is exemptible. Under a like analysis as applied hereinabove, a literal interpretation of the statute shall be employed. As such, the criteria for a finding of exemption in this section requires first, that the item be wearing apparel, which is defined literally as "(1) clothing (2) something that covers or adorns." Webster's II New Riverside University Dictionary, 1984. Second, that the value of this wearing apparel does not exceed $4,000 and finally, that the particular item at issue is strictly for "personal, family or household use."
The question which immediately arises is whether jewelry, such as those items which are at issue in this case, is in the character of wearing apparel. As specifically defined, we find that the jewelry at issue herein is in fact wearing apparel and thus, exemptible. This is founded on the reasoning that such is used for the adornment of the Debtor for strictly personal use. Any reservation or danger of abuse [i.e., an attempt to exempt luxury items such as expensive diamonds, see Wikle v. Westhem, 642 F.2d 1139 (9th Cir.1981)] has been specifically addressed under the Oklahoma exemption by limiting the value of said items to $4,000. It is apparent from the Debtor's schedules that these items are alleged to have an aggregate value of $800, which has not been challenged by Blazer and thus, are deemed to fall within the bounds of the statute as written.
F. Some question has arisen as to the applicability of 11 U.S.C. § 522(f) in avoiding the lien on exempt property of a certain character to the Oklahoma items deemed as exempt under Okla.Stat.Ann. tit. 31, § 1. That section states specifically:
"Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is
(1) a judicial lien; or
(2) a nonpossessory, nonpurchase-money security interest in any
(A) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor;
(B) implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor; or
(C) professionally prescribed health aids for the debtor or a dependent of the debtor."
We disagree with the interpretation of the debtor that there is an inherent conflict between § 522(f) and the state exemptions in that they do not specifically coincide with each other as to the items exempted. The lien avoidance statute under the United States Bankruptcy Code at 11 U.S.C. § 522(f) sets forth the allowed property for which outstanding liens may be avoided. This section contains no exemptions as implied by the debtor, but rather entirely governs lien avoidance. The Federal statute specifically allows the Okla.Stat.Ann. tit. 31, § 1 exemptions to be applied against the § 522(f) lien avoidance items to the extent possible. It has been determined that it is not incompatible for State law to govern exemptions and Federal law to govern lien avoidance, and in fact, is mandated to do so when a state has "opted out." In re Leonard, 866 F.2d 335, 336 (10th Cir.1989). We find that the Oklahoma state exemptions are to be dovetailed with the items listed in the Federal lien avoidance statute.
IT IS THEREFORE ORDERED that the Quasar VHS Video Recorder, Atari Video Game System, ten Atari Game Cartridges, four Wilson Tennis Rackets, one ten-speed bicycle, 35 mm camera and accessories, Sharp stereo, with speakers, phonograph and tape recorder, two sleeping bags, two water skis, two one-speed bicycles, one lawn mower and one exercise cycle are deemed non-exemptible and thus, as to these items, Blazer's Motion to Terminate *718 Stay is hereby granted. Concurrently, the Debtor's Motion to Avoid Lien on these items is hereby denied.
IT IS FURTHER ORDERED that the ladies diamond necklace, ladies diamond ring and two pairs of diamond earrings are hereby deemed as wearing apparel and thereby exempt and as to the these items, Blazer's Motion to Terminate Stay is hereby denied and the Debtor's Motion to Avoid Lien is hereby granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918259/ | 135 N.W.2d 195 (1965)
CITY OF CHASKA, et al., Respondents,
v.
CHASKA TOWNSHIP, et al., Appellants.
No. 39487.
Supreme Court of Minnesota.
May 7, 1965.
*196 W. R. Glaeser, Waconia, for Chaska Tp., Town Board of Chaska Tp. and Chaska Tp. Board, individually.
Bowen, Bowen, Preus Farrell & Adams, Minneapolis, for Chanhassen Tp., Alton Geske, Town Board of Chanhassen Tp. and Chanhassen Tp. Board, individually.
Julius C. Smith, City Atty., Chaska, for City of Chaska.
Kent C. van den Berg, Minneapolis, for Hazeltine Inv. Corp., Lake Hazeltine Corp. and Executive Golf Club of Minnesota.
FRANK T. GALLAGHER, C.
This is an appeal from an order of the district court denying a motion for amended findings or a new trial. The case arose out of a petition by the city of Chaska and others to the Minnesota Municipal Commission for annexation to the city of certain lands in Chanhassen and Chaska townships, Carver County, Minnesota. After a hearing on the petition, the commission issued its order approving and ordering annexation.
Pursuant to Minn.St. 414.07 the townships, their town boards, and the members of the town boards as individuals appealed to the District Court of Carver County from the order of the commission. Section 414.07 provides that an appeal from such an order of the commission to the district court shall be taken in the county in which the majority of the area is located and that, to render such an appeal effectual, the aggrieved person shall file with the clerk of court of that county within 30 days of the order an application for review stating the grounds upon which review is sought. It does not provide that the matter shall be tried as other civil actions.
After a hearing at which no additional evidence was received, the district court entered its order affirming the order of the commission on February 28, 1964. On the same day service of written notice of the filing of the district court's order was made on all parties by the city of Chaska. No appeal was taken from that order.
In its order the court found, among other things, that on October 31, 1961, the city of Chaska duly filed a petition in compliance with Minn.St.1961, § 414.03, to annex 4,859 acres of unincorporated land in Chanhassen and Chaska townships; that after hearings thereon the Minnesota Municipal Commission entered its order, wherein approximately 3,508 acres of the land described in the petition were ordered annexed to the city effective February 6, 1963; and that the lands ordered annexed had been within the corporate limits of the city since that date. The district court also found that all findings of fact, conclusions of law, and the order made by the commission were supported by substantial evidence; that the record as a whole compelled a finding that the annexation would be to the best interest of the city and the territory affected and that the commission's finding to that effect was strongly supported by the evidence; that the commission had jurisdiction to act; that it did not exceed its jurisdiction; that it did not proceed on an erroneous theory of law; and that its order was not arbitrary, fraudulent, capricious, oppressive, or in unreasonable disregard of the best interests of the territory affected.
The court concluded that the commission's order was lawful, reasonable, and warranted by the evidence in the case and ordered that it be "in all things affirmed and sustained." The court also denied appellants' motion for an order remanding the matter to the commission with instructions to submit the question of annexation to the voters in the area under consideration.
*197 In a memorandum made a part of its order the court, after extensively reviewing the issues, stated that in its opinion "annexations of this nature are desirable so that a community can expand to encompass the population or development which is or will be occurring immediately beyond its borders" and that it was satisfied that the record supported the findings, conclusions, and order of the commission.
On March 20, 1964, appellants moved for amended findings or a new trial on the grounds, among others, that the findings and conclusions were not justified by the evidence and were contrary to law; that the evidence failed to prove that the area ordered annexed is or is about to become urban or suburban in character; that the commission had no jurisdiction to act and exceeded its jurisdiction; and that its order was based on an erroneous theory of law. On April 6, 1964, the court issued an order denying the motion. It is from that order that this appeal is taken.
Minn.St. 414.07 provides for appeals in annexation cases from the district court to the supreme court "in accordance with the provisions of Minnesota Statutes, Chapter 605." Section 605.09(g) states that except as otherwise provided by statute an appeal may be taken to this court from a final order or judgment affecting a substantial right made in a special proceeding but that it "must be taken within the time limited for appeal from an order." Section 605.08, subd. 1, provides that an appeal may be taken from an order within 30 days after the service on the adverse party of written notice of the filing of the order.
Respondent moved to dismiss the appeal, contending that the order of April 6 is nonappealable and that the order of February 28 affirming the order of the commission annexing the lands to the city was a final order inasmuch as it was a final declaration of the district court announcing the legal consequences of all the facts brought before it on review, was a determination of the entire proceedings before the court, and determined all of the rights of the parties and all of the legal and fact questions involved. The time in which an appeal from the order of February 28 could have been taken expired March 30, 1964.
It is our opinion that the district court's review of the commission's order in this case was a "special proceeding." Town of Eagan v. Minnesota Municipal Comm., 269 Minn. 239, 130 N.W.2d 525. Also, that the court's order of February 28, 1964, was appealable under § 605.09(g) as a final order, affecting a substantial right, made in a special proceeding.
The word "final" when used to designate the effect of a trial court's judgment or order means that the matter is conclusively terminated so far as the court issuing the order is concerned. Morey v. School Bd. of Independent School Dist. No. 492, 268 Minn. 110, 128 N.W.2d 302. It appears to us that the district court's order of February 28 conclusively terminated the matter so far as that court was concerned. However, no appeal was ever taken from that order. Instead, this appeal was taken from the order of April 6, 1964, denying appellants' motion for amended findings of fact or a new trial.
Respondent argues that the district court's order of April 6 is not a final order as it does not dispose of the matter in controversy. It contends that the motion made on March 20 was really a motion to obtain review of the matter and not a motion for a "new trial" inasmuch as there was not a trial in the first place. It is respondent's position that the motion was in essence a request to the court to amend or vacate its original decision of February 28 and substitute another and that as such the denial of the motion is not appealable. In re American Finnish Workers Society, 246 Minn. 563, 76 N.W.2d 708.
It is our opinion that there is merit to respondent's position, as it appears *198 to us from the record here that the court's order of February 28, 1964, was a final one, and that it was not appealed from within the time limited by statute. Burkholder v. Burkholder, 231 Minn. 285, 43 N.W.2d 801, and cases cited. It is our further opinion that the time for taking the appeal from that order could not be extended by any order designed directly or indirectly to accomplish that purpose. Weckerling v. McNiven Land Co., 231 Minn. 167, 42 N.W. 2d 701. We conclude that the denial of appellants' motion of March 20 was in substance a refusal by the trial court to vacate its appealable order of February 28, 1964, and as such it is not appealable. Trickel v. Calvin, 230 Minn. 322, 41 N.W.2d 426; In re American Finnish Workers Society, supra. Although appellants' motion of March 20 was for amended findings or a new trial, the court could not have granted a new trial under the facts and circumstances here because there was never a "trial" but only a review of the commission's determination which was limited in the district court to the record before the commission. As we see it, after the district court had made its final order of February 28, it could only have vacated it and substituted a different final order. This was not done in this case. Respondent's motion to dismiss is granted.
In view of our decision to dismiss, we will not consider the merits of the case except to make the following comments. According to the record, the petition for annexation of certain unincorporated territory involved herein first came on for hearing before the Minnesota Municipal Commission on December 6, 1961. After receiving various motions the commission continued the hearing to December 18, 1961, at which time evidence was taken, testimony heard, and certain exhibits received. All members of the commission were present at both of these hearings. A reconvened hearing on December 27, 1961, was continued to January 19, 1962, when evidence was also taken, testimony heard, and certain exhibits received, and again on February 15, 1962. A quorum of the commission was present at those hearings. All parties of record were represented by counsel at the hearings. By April 26, 1962, briefs were submitted to the commission in behalf of all parties of record and all parties who had noted an appearance. Thereafter, the commission made extensive findings of fact and concluded, among other things, that the area described in paragraph V of its findings is or is about to become urban or suburban in character; that it is so conditioned and so located as to be properly subject to the municipal government of the city of Chaska and that the annexation of the territory described in paragraph V would be to the best interest of both the city and the territory; that the township form of government is not adequate to cope with problems of urban or suburban growth in the territory described in paragraph V and that the city of Chaska can feasibly and practically provide for, and best serve, the need of governmental services presently and as they become necessary in said territory.
On December 16, 1963, the District Court of Carver County held its hearing on the appeal from the order of the commission. The district court determined that the commission's findings, conclusions, and order were supported by substantial evidence and that the record as a whole compelled a finding that the annexation would be to the best interest of the city and territory affected; that the commission had jurisdiction to act and did not exceed its jurisdiction; that it did not proceed on an erroneous theory of law; and that its order was not arbitrary, fraudulent, capricious, oppressive, or in unreasonable disregard of the best interest of the territory affected. It concluded that the commission's order was lawful, reasonable, and warranted by the evidence in the case and ordered that it be affirmed and sustained.
It seems to us that the matter has been thoroughly heard and determined by the commission, and reviewed and considered by the district court on appeal. *199 It also appears that the attorneys for all of the parties interested in these proceedings have carefully presented the matter at the various hearings before the commission and before the district court and that the commission and the trial court furnished all parties the opportunity to present their respective sides of the case before making their decisions.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918262/ | 135 N.W.2d 463 (1965)
178 Neb. 763
STATE of Nebraska, Appellee,
v.
Rudolph McNAIR, Appellant.
STATE of Nebraska, Appellee,
v.
Kelsey JONES, Appellant.
Nos. 35801, 35802.
Supreme Court of Nebraska.
May 28, 1965.
*464 Thomas D. Carey, Wilbur L. Phillips, Omaha, for appellants.
Herbert M. Fitle, City Atty., Edward M. Stein, Deputy City Atty., Walter J. Matejka, Asst. City Atty., Charles A. Fryzek, Jr., City Prosecutor, Allen L. Morrow, Asst. City Prosecutor, Omaha, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ.
SPENCER, Justice.
The appellants were found guilty after a jury trial of the violation of a city ordinance of the city of Omaha, classified as disturbing an assemblage. The ordinance, No. 25.33.010, is as follows: "Loud and Indecent behavior unlawful. It shall be unlawful for any person to disturb any lawful assemblage of people or to disturb any congregation or assembly where religious worship is being held by making any noise or by loud or indecent behavior." Appellants have perfected an appeal to this court.
The city council of the city of Omaha, hereinafter referred to as council, started a regularly scheduled meeting at approximately 2 o'clock p. m. on Tuesday, October 22, 1963. The business of the council proceeded in regular order as it appeared on a prepared agenda from that time until approximately 2:37 p. m., when its proceedings were interrupted by the singing of the National Anthem. At that time the council was listening to the presentation of a lawyer on a zoning question for a client. The appellants, together with some 47 others who were sitting together in the city council chamber, at 2:37 p. m. stood up and began singing "The Star Spangled Banner." After they had completed singing the National Anthem, they began marching around the council chamber, singing "We Shall Overcome," which one of the appellants identified as the unofficial hymn of the Civil Rights Movement. The president of the council called for order and rapped his gavel several times to no avail. The appellants were then informed by a lieutenant of the Omaha police department, who was in charge of a police detail at the council chamber, that they were disturbing the council proceedings and would have to stop. When they continued singing and marching, he placed them under arrest.
The appellants are both ordained clergymen. On October 8, 1963, they had both appeared and spoken before the city council on the urgency and the need for a fair housing ordinance. On that occasion the council *465 had before it a proposed ordinance which appellants were attempting to induce the council to introduce. Appellant Jones admitted that on October 8, 1963, he told the council that appellants would, if necessary, go to extremes within their constitutional rights to make their needs and urgencies known, and if need be would climb on the tables, under the tables, and would sit in the laps of the council members.
Appellant Jones admitted that he and appellant McNair, when they reached the council chamber on October 22, 1963, synchronized their watches with the clock in the chamber so that they could start the singing at the same time. Both of the appellants in effect testified that they had consulted their consciences and their training in moral behavior, and it was not possible for them to have done otherwise than they did on this occasion. Both of them admitted they knew that the matter in which they were interested was not on the council agenda on October 22, 1963. They were both familiar with the council procedure and knew that the council followed a prepared agenda, although it was possible for the council, upon request and with unanimous consent, to consider a matter not on the agenda. On this occasion, they made no attempt to obtain the consent of the counsel to place their matter on the agenda. They infer that they were prevented from doing so, but there is nothing in the record which gives the slightest indication that they made any attempt to have their matter considered on this occasion.
Did the acts of the defendants disturb the council proceedings? There is no question but that they did and that their actions were planned to do just that. The council was unable to continue with any business until the appellants and their group were removed from the council chamber. This removal was effected by the police, who had been alerted for such contingency. Appellants claim the verdict is not supported by the evidence. There is no merit to this contention. The evidence is substantial and fully adequate. It would have been a miscarriage of justice to have returned any other verdict on the evidence adduced.
The offense of disturbing a public meeting was recognized by the common law as a misdemeanor. Certain like provisions have been enacted into our statutes. The ordinance in question is a general regulation for all types of meetings. What constitutes a disturbance of a lawful assembly is not susceptible to specific definition, but must depend to some extent upon the nature and the character of the particular assemblage. However, while it may be difficult to specifically define beforehand, there is no problem in determining what constitutes a disturbance in a given case. In the instance of a city council, we hold that any conduct contrary to the normal presentation of business which disturbs or interrupts the orderly progress of the proceeding is a disturbance.
Webster's New International Dictionary (2d ed.), p. 757, defines the word "disturb" as follows: "To throw into disorder or confusion; to interrupt the settled state of."
In People v. Malone, 156 App.Div. 10, 141 N.Y.S. 149, "to disturb" is defined: "[T]o throw into disorder; to move from a state of rest or regular order; to interrupt; to throw out of course or order." See, also, Commonwealth v. Porter, 67 Mass. (1 Gray) 476.
In State v. Mancini, 91 Vt. 507, 101 A. 581, the Supreme Court of Vermont, on the question of the disturbance of a public assembly (in that case a public dance) quoting from 2 Bishop, Criminal Law, s. 309, said: "Speaking generally, the rule applicable to disturbances of public assemblies is that any conduct which, being contrary to the usages of the particular sort of meeting and class of persons assembled, interferes with its due progress, or is annoying to the assembly in whole or in part, is a disturbance." See, also, State v. Stuth, 11 Wash. 423, 39 P. 665.
*466 Appellants seem to contend that because the rules of the city council make the city clerk the sergeant-at-arms, they were not subject to arrest until she or the presiding officer asked them to stop. The evidence is undisputed that the presiding officer attempted to stop the disturbance with his gavel. The police were there for a purpose. That purpose could only have been to see that the council proceedings were not interrupted. They were requested by the officer in charge to stop, and they ignored his request. This argument is so absurd under the facts in this case that it needs no further discussion herein.
Appellants cite Nelson v. State, 33 Neb. 528, 50 N.W. 679, and infer that the officer had no right to make an arrest without a warrant. We suggest the case is no authority for appellants' inference. What the case does say is: "The rule of criminal law is settled that an officer without warrant acts as an individual without police authority, unless he witnesses the criminal act; * * *." (Emphasis supplied.)
Appellants cite but do not argue the applicability of Gaddis v. State, 105 Neb. 303, 180 N.W. 590, 12 A.L.R. 648. This case involved a prosecution under what is now section 28-801, R.R.S.1943, involving the disturbance of a religious meeting. There is no analogy between the facts of that case and those herein. That case holds a member of the church, if permitted by its precepts and usage, may in a becoming manner with good motives interrupt a minister in the midst of a sermon to correct an utterance at variance with the established tenets or rites of the church. Here the appellants interrupted a presentation in which they had no interest, and deprived another of his right to petition for a redress of his grievance. They insist on their right to petition, but by their conduct prevented someone else from doing so.
On the theory that custom and usage prevail to determine what constitutes a disturbance, appellants complain that the State did not prove that the rules of the city council forbade them to sing or to march in the council chamber. It is not necessary to prove the self-evident. It should be obvious that the business of a city council could not be conducted in an orderly manner if everyone who felt so moved had a right to interrupt the business at hand by singing and marching around the council chamber. We note, however, that the evidence is undisputed that there had never been any singing or marching in the council chamber on any previous occasion. This certainly would negative any claim of usage and custom in the absence of proof otherwise.
Appellants contend the demonstrating is petitioning within the First Amendment to the United States Constitution, and that as citizens they had the right at any time to petition the council for a redress of their grievance. They do have a right to petition, but that right is not absolute. There is a time and a place for everything. Appellants' rights must be considered in conjunction with the rights of their neighbors. If we are to have a government of law and not of men, no one has a right to disrupt orderly proceedings because he cannot have his way. The laws apply to the appellants as well as to their neighbors. If their consciences and training in moral behavior do not make them realize the merits of their goal does not give them the right to take the law into their own hands, then they need retraining because their actions will in the long run imperil the very freedom they seek. If everyone who wanted to coerce the city council could disrupt the council proceedings whenever, to accomplish their purpose, they felt moved to do so, the business of the city would stagnate. The council would become a mere rubber stamp for the mob. Our constitutional safeguards are intended to protect against the very thing appellants attempt to do.
*467 There is no question here of the denial of appellants' right to be heard. The appellants as citizens of Omaha had a right to be heard on their grievance. Appellants knew how to obtain that right and had exercised it on October 8, 1963, but because the council had not seen fit to honor their request, they attempted to coerce it to do something it apparently did not wish to do. The appellants not only disturbed the meeting, but they did so intentionally. The precise manner in which their maneuver was executed indicates that the appellants agreed on a planned course of action before they came to the meeting, and they carried out that plan. That plan obviously was to disrupt the council proceedings until they secured a commitment from the council, or forced the council to adjourn.
The only logical inference which can be drawn from appellants' conduct is that they were carrying out the threat made by appellant Jones on October 8, 1963. What the appellants did cannot be condoned. They cannot hide behind a patriotic song or a hymn, religious or otherwise, to take the law into their own hands to achieve their ultimate objective, regardless of the merits of that objective. If the law should wink at their conduct or hold that any right they might have must be preferred over the rights of their neighbors, we have no law. We have abdicated to the whim and caprice of the irresponsible enthusiasts. They virtually are elevated above the law. To do so is to take a step backward in the march of freedom, to return to anarchy or tyranny. This cannot be if we expect to preserve our individual freedoms. To depart from the rule of law is to return to the law of the jungle.
We find no merit in any of the appellants' assignments of error. The judgment of the trial court should be and hereby is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918272/ | 101 B.R. 72 (1989)
In re MINNESOTA UTILITY CONTRACTING, INC., and MUC Fleet Leasing & Sales, a Partnership, Debtors.
FIRST NATIONAL BANK IN ANOKA, a National Banking Association, Plaintiff,
v.
MINNESOTA UTILITY CONTRACTING, INC., Defendant.
FIRST NATIONAL BANK IN ANOKA, a National Banking Association, Plaintiff,
v.
MUC FLEET LEASING & SALES, a Partnership, Defendant.
Bankruptcy Nos. 4-88-1808, 4-88-1809, Adv. Nos. 4-88-177, 4-88-178.
United States Bankruptcy Court, D. Minnesota.
June 2, 1989.
*73 *74 Lawrence R. Johnson, Steffen & Munstenteiger, Anoka, Minn., for plaintiff/petitioner.
Michael B. LeBaron, Larkin, Hoffman, Daly & Lindgren, Ltd., Minneapolis, Minn., for defendant/respondent.
MEMORANDUM ORDER
ROBERT J. KRESSEL, Chief Judge.
This proceeding came on for trial on the plaintiff's complaint under 11 U.S.C. § 363, and the defendants' counterclaims to avoid certain security interests under 11 U.S.C. §§ 544, 547, and 548. Lawrence R. Johnson appeared for the plaintiff and Michael B. LeBaron appeared for the defendants. This court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334, and Local Rule 103(b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (F), (H), (K), (M) and (O). Based on the stipulated facts, the evidence presented at trial, the memoranda and arguments of counsel, and the file in these proceedings, I make the following memorandum order.
FACTUAL BACKGROUND
Minnesota Utility Contracting, Inc. and MUC Fleet Leasing and Sales filed chapter 11 petitions on May 5, 1988.[1] At the time of filing, Charles R. Lundgren and Stanley D. Lebakken were the sole shareholders of Contracting and the sole partners of Leasing. Contracting installs underground cable for utility companies, particularly telephone and cable TV companies. Leasing leases construction equipment and vehicles. Contracting is Leasing's principal customer.
On January 6, 1984, the First National Bank of Anoka and Contracting entered into a revolving credit, term loan, and security agreement in which the Bank agreed to loan Contracting $1,586,000.00. The loan was secured by a mortgage on real estate in Anoka County, Minnesota, and a security interest in Contracting's accounts receivable, inventory, equipment, furniture, and fixtures. Financing statements covering Contracting's accounts receivable, inventory, equipment, furniture, and fixtures were filed in Minnesota and Wisconsin on January 11, 1984, and January 19, 1984, respectively.
On August 4, 1986, the Bank and Contracting entered into Supplement No. 1 to the Loan Agreement providing for an additional loan of $250,000.00. In this agreement, Contracting reaffirmed the security interests previously granted to the Bank. Contracting also granted the Bank a security interest in all inventory, accounts, equipment, and contract rights. On August 6, *75 1986, the Bank filed a financing statement in Minnesota covering Contracting's accounts receivable, inventory, equipment, and general intangibles.
On December 18, 1986, the Bank and Contracting entered into Supplement No. 2 to the Loan Agreement. This supplement modified the floor interest rate on the notes. Contracting again reaffirmed its security interests to the Bank.
On January 30, 1987, the Bank and Contracting entered into Supplement No. 3 to the Loan Agreement providing for the extension of maturity dates on certain notes. Contracting again reaffirmed its previously granted security interests. As of February 23, 1988, Contracting was indebted to the Bank in the approximate amount of $1,616,265.00.
On February 23, 1988, the Bank and Contracting entered into Supplement No. 4 to the Loan Agreement providing for an additional loan of $250,000.00. Contracting again reaffirmed its security interests to the Bank. Until this transaction, all transactions had been strictly between the Bank and Contracting. However, this time, the Bank required that Leasing grant to the Bank a security interest in all Leasing's accounts, contract rights, inventory, equipment, furniture, and fixtures to secure both new and existing indebtedness of Contracting to the Bank.[2]
At the time of the filing of their chapter 11 petitions, Contracting and Leasing owned vehicles and equipment located, utilized and garaged in various states. Since that date, both Contracting and Leasing have been in possession of and using equipment, furniture, and fixtures subject to the Bank's security interest. At the time of filing, the debtors were also the owners of a large number of vehicles subject to certificates of title. The Bank's name appeared on applications for title or certificates of title to some, but not all these vehicles.
On June 13, 1988, the Bank initiated these two adversary proceedings. The complaint against Contracting alleged that Contracting, prior to the execution of a May 5, 1988, cash collateral agreement with the Bank, and without the consent of the Bank, sold certain assets which were subject to the Bank's security interest. The complaint further alleged that Contracting deposited the sale proceeds of $6,835.00 in its account without the knowledge, consent or endorsement of the Bank. The Bank asserted that Contracting converted the proceeds to its own use and benefit in violation of the cash collateral agreement. The Bank requested that the cash collateral agreement be declared null and void by reason of Contracting's violation of its terms, and sought payment of the $6,835.00 sale proceeds allegedly converted by Contracting.
Contracting filed a counterclaim asserting that the Bank failed to properly perfect its alleged security interest in motor vehicles and certain machinery and equipment owned by Contracting, and that, pursuant to § 544 of the Bankruptcy Code, the Bank's unperfected security interests were avoidable by Contracting as debtor in possession. Contracting also asserted that the Bank's filing of financing statements in connection with Contracting's machinery and equipment in Illinois, Florida and Arizona, on March 17, 22, and 23, 1988, respectively, constituted a preferential transfer avoidable by Contracting under § 547(b) of the Bankruptcy Code.
In its complaint against Leasing, the Bank asserted that Leasing, prior to the execution of the May 5, 1988 cash collateral agreement, sold certain assets which were subject to the Bank's security interest. The complaint alleged that except for three items, for which the Bank agreed to release its security interest in exchange for the payment of $21,000.00, all assets were sold *76 without the Bank's consent. The Bank further asserted that the debtor converted $27,900.00 of the sale proceeds to its own use and benefit, in violation of the terms of the cash collateral agreement. Only one check in the amount of $12,322.50 was delivered to the Bank, which has held the check pending endorsement by Leasing. As in its complaint against Contracting, the Bank requested that its cash collateral agreement with Leasing be declared null and void, and sought payment of the $27,900 allegedly converted by Leasing.
Leasing filed four counterclaims, two of which are the same as those filed by Contracting. In addition, Leasing asserted that its grant to the Bank of a security interest in its accounts, contract rights, inventory, equipment, furniture and fixtures to secure the indebtedness of Contracting was an avoidable fraudulent transfer under § 548 of the Bankruptcy Code. Finally, Leasing asserted that the facts alleged in the complaint relating to the Bank's possession and retention of the $12,322.50 in sale proceeds constituted conversion of Leasing's funds.
At trial, I found that the cash collateral agreements were, by their own terms, effective for only forty-five days. Therefore, the Bank's request for rescission was clearly moot. I also found that the debtors breached the cash collateral agreements by failing to pay the Bank the proceeds of the asset sales. Accordingly, I ordered Contracting to pay $6,835.00 to the Bank and ordered Leasing to pay $27,900.00 to the Bank. I also ordered Leasing to endorse the $12,322.50 check held by the Bank. In all other respects, I ordered judgment for the defendants on the plaintiff's complaints. This order addresses only those issues raised by the debtors' counterclaims, except Leasing's fourth counterclaim concerning the Bank's alleged conversion of the $12,322.50 check. My order requiring Leasing to endorse the $12,322.50 check disposed of this counterclaim.
Thus, left to be decided are the following:
1. Counterclaims by both defendants that the Bank's security interest in certain motor vehicles, machinery, and equipment is avoidable under 11 U.S.C. § 544;
2. Counterclaims by both defendants that the Bank's security interest in machinery and equipment perfected on March 17, 22, and 23, 1988, is avoidable under 11 U.S.C. § 547(b); and
3. The counterclaim by Leasing that the Bank's security interest in its assets is avoidable under 11 U.S.C. § 548.
DISCUSSION
I. Section 544
A. Motor Vehicles
Contracting and Leasing assert that they may avoid the Bank's unperfected security interests in certain motor vehicles under Bankruptcy Code § 544. Section 544(a) provides:
The trustee[3] shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by
(1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien, whether or not such a creditor exists ...
11 U.S.C. § 544(a).
"The extent of the rights, remedies and powers of the trustee [or debtor in possession] as lien creditor are defined by the jurisdiction governing the property in question." In re Martin, 6 B.R. 827, 831 (Bktcy.C.D.Cal.1980), citing Commercial Credit Co., Inc. v. Davidson, 112 F.2d 54 (5th Cir.1940). Contracting owns motor vehicles *77 titled in Arizona and Minnesota. Leasing owns motor vehicles titled in Arizona, Florida, and Minnesota. Therefore, the debtors' power to avoid the Bank's security interests in the debtors' motor vehicles depends on the law of those three states.
Each of the three states has a statute which provides that an unperfected security interest is subordinate to the rights of a lien creditor. Ariz.Rev.Stat.Ann. § 47-9301 A.2; Fla.Stat. § 679.301(1)(b); Minn.Stat. § 336.9-301(1)(b). Since § 544(a)(1) grants the debtors in possession the powers of a lien creditor, they may avoid any unperfected security interests in the motor vehicles at issue.
"The determination of perfection of the security interest must be made by reference to state law." In re Walters, 61 B.R. 426, 429 (Bktcy.D.Mont.1986), citing Palmer v. Radio Corp of America, 453 F.2d 1133, 1138 (5th Cir.1971). Each of the states also has a statute which provides that the filing of a financing statement does not perfect a security interest in property subject to a certificate of title statute. Ariz.Rev.Stat.Ann. § 47-9302 C.2; Fla. Stat. § 679.302(3)(b); Minn.Stat. § 336.9-302(3)(b). Motor vehicles are subject to certificate of title statutes in all three states. Ariz.Rev.Stat.Ann. § 28-325; Fla.Stat. § 319.001 et seq.; Minn.Stat. § 168A.01 et seq. Accordingly, the Bank's filing of financing statements in Arizona, Florida, and Minnesota did not perfect its security interests in the motor vehicles owned by the debtors in possession.
In Arizona, the certificate of title to a motor vehicle must contain a statement of any liens or encumbrances existing against that vehicle. Ariz.Rev.Stat.Ann. § 28-325 C. If such a statement is not given, any security interest in the vehicle is invalid against lien creditors. Ariz.Rev.Stat.Ann. § 28-325 A. No reference to the Bank's security interest appears on certificates of title for the debtors' motor vehicles titled in Arizona. Hence, the Bank's security interests in those vehicles are avoidable by the defendants as debtors in possession in their status as judicial lien creditors.
Similarly, each lien or encumbrance on a motor vehicle titled in Florida must be noted on the face of the Florida certificate of title. Fla.Stat. § 319.27. No lien on a motor vehicle is valid unless evidenced in this way. Fla.Stat. § 319.20. The Bank's security interests were not noted on the face of either of the certificates of title to the motor vehicles titled in Florida. Hence, the Bank's security interests in those vehicles are avoidable by Leasing as debtor in possession in its status as a judicial lien creditor.
In Minnesota, no security interest in a motor vehicle is perfected until delivery to the registrar of motor vehicles of an application for a certificate of title containing the name and address of the secured party, if any, and the date of the secured party's security agreement. Minn.Stat. § 168A.17(2). This information was not furnished with the applications for certificates of title for some of the debtors' motor vehicles titled in Minnesota. Accordingly, the Bank's security interests in those vehicles are avoidable by the defendants as debtors in possession in their status as judicial lien creditors.
The Bank argues that it would be inequitable to allow the defendants to avoid the Bank's security interests in motor vehicles titled in Minnesota because it was the debtors' duty to disclose the security interests on the applications for certificates of title. Minn.Stat. §§ 168A.04(1)(3), 168A.10(2). This argument does not defeat the plain meaning of either Bankruptcy Code § 544(a)(1), which gives the debtors in possession the powers and rights of lien creditors, or the Minnesota statutes, which indicate that the Bank's security interests are unperfected and thus inferior to the rights of lien creditors. These laws serve the policy of protecting other creditors, who cannot be charged with notice of unrecorded security interests. Moreover, the Bank could have protected itself by insisting that it receive a copy of the certificates of title with its security interests noted before making any disbursements to the debtors, or by handling perfection of its security interests itself.
*78 Accordingly, the Bank's security interest in the following motor vehicles owned by Contracting is void:
Vehicles titled in Arizona:
Title No. Make Year
H4L6880710342 GMC 1982
HAEB880530355 Ford 1983
Vehicles titled in Minnesota:
Title No. Make Year
L10106220 Chev 1977
L10606095 Intl 1976
L13004198 Chev 1981
L13406104 Ford 1973
L16604097 Chev 1977
L16604298 Chev 1982
L16905529 Intl 1977
L17203074 JFWEQP 1976
L18004017 Frue 1969
L18605184 Ford 1977
L22406048 Max 1980
L22406049 Ford 1980
L25106227 Chev 1981
L28005045 Chev 1978
L30006087 Ford 1978
M22507696 Grdn 1969
M22507698 GMC 1981
M30107565 Hmde 1962
M30107612 Fiat 1977
T01303067 Chev 1982
T01304322 Ford 1979
T06103201 Ford 1979
T06501247 Totem 1965
T10500095 Ford 1968
T12701389 WTC 1981
T14601309 GMC 1978
T17700400 Garco 1968
T24000073 Ford 1976
T24501318 Chev 1978
T26502223 Ford 1977
T26701167 Chev 1979
U25504181 Chev 1979
Z36247001 Chev 1981
In addition, the Bank's security interest in the following motor vehicles owned by Leasing is void:
Vehicles titled in Arizona:
Title No. Make Year
M86120 Ford 1980
N177174 Chev 1986
N214203 Ford 1979
N219200 Chev 1974
HAEB880750329 Dakot 1977
HAEB880760358 GMC 1983
Vehicles titled in Florida:
Title No. Make Year
40669947 Chev 1984
43999582 Chev 1984
Vehicles titled in Minnesota:
Title No. Make Year
J18107280 BEI 1982
J18107377 High 1957
L04407193 DITC 1973
L05807203 Chev 1985
L15306541 Chev 1984
L16406154 Ford 1984
L22103414 Ford 1978
L22103446 Ford 1975
L22303161 Fort 1970
L23803312 Hauler 1978
L24904224 GMC 1984
L33606222 Chev 1981
M30107564 Owen 1977
M30207256 Ford 1981
V26906692 Ditw 1978
X20705282 Chev 1981
X20705296 Ford 1978
X20705549 Ford 1978
X21005327 Ford 1978
X21005330 Ford 1976
X21005332 Ford 1974
X21005335 Theu 1968
X21005336 Util 1973
X21005338 Chev 1982
Z23107011 Ford 1979
B. Other Allegedly "Mobile Goods"
Contracting and Leasing further assert that the Bank's security interest in certain property located in California and Missouri was unperfected and, hence, avoidable under § 544(a)(1).
As of May 5, 1988, the date the debtors' petitions were filed, the debtors owned property located in Arizona, California, Florida, Illinois, Minnesota, Missouri, and Wisconsin. The Bank filed financing statements in Minnesota, Wisconsin, Illinois, Arizona, and Florida with respect to this property. The Bank never filed financing statements in California or Missouri.
The Bank asserts that its security interests in property in California and Missouri are perfected even though no financing statements were filed in those states. The Bank argues that the property in California and Missouri constitutes mobile goods, that a security interest in mobile goods is perfected in the state where the debtor is *79 located rather than the state where the goods are located, and that, since the debtors are located in Minnesota, the Bank's security interest in goods in California and Missouri was perfected by the Bank's filing of financing statements in Minnesota.
As noted, perfection is determined by state law. In re Walters, 61 B.R. 426, 429 (Bktcy.D.Mont.1986), citing Palmer v. Radio Corp of America, 453 F.2d 1133, 1138 (5th Cir.1971). California, Minnesota, and Missouri have all adopted U.C.C. 9-103(3). Cal.Com.Code § 9103(3) (West); Minn.Stat. § 336.9-103(3); Mo.Rev.Stat. § 400.9-103(3). Under 9-103(3), goods are perfected according to law of the state in which the debtor is located if they are mobile and
of a type normally used in more than one jurisdiction, such as motor vehicles, trailers, rolling stock, airplanes, shipping containers, road building and construction machinery and commercial harvesting machinery and the like, if the goods are equipment or are inventory leased or held for lease by the debtor to others, and are not covered by a certificate of title . . .
Id.
The words "of a type normally used in more than one jurisdiction" could mean property normally used in more than one jurisdiction by the particular debtor, or property of a type normally used in more than one jurisdiction by all persons, based on the type of goods, not the debtor's use. The latter meaning is more consistent with the language and purpose of 9-103. Since the language of the statute does not limit the persons whose use is to be considered, I think the use of the same type of goods by persons in general is at issue.
Moreover, secured parties and third parties need to know whether perfection is governed by the law where the debtor is located, or by the law where the collateral is located. These parties cannot be expected to know whether a particular debtor normally moves goods of a certain type from one jurisdiction to another. They can, however, be expected to know the nature of their collateral and ordinary business practice regarding the movement of that property, so general business practice should determine whether the goods are of a type normally used in more than one jurisdiction.
The party arguing for the applicability of a law bears the ultimate burden of proving the existence of the facts which must exist before such law is applied. In re American Provision Co., 44 B.R. 907, 909 (Bktcy.D.Minn.1984). The Bank is arguing that 9-103(3) applies in this case. In order for 9-103(3) to apply, the collateral must be of a type normally used in more than one jurisdiction. The Bank therefore has the burden of proving that the collateral is of a type normally used in more than one jurisdiction.[4]
The evidence introduced at trial was insufficient to enable me to determine whether the goods owned by the debtors in California and Missouri were "of a type normally used in more than one jurisdiction" by persons using the same type of goods. Therefore, the Bank failed to meet its burden of proving that the debtors' goods were mobile goods, and may not rely on 9-103(3). Accordingly, the Bank's filing of financing statements in Minnesota did not perfect its security interests in the defendants' property in California and Missouri.
Under the law of both California and Missouri, lien creditors may avoid unperfected security interests. Cal.Com.Code § 9301(1)(b) (West); Mo.Rev.Stat. § 400.9-301(1)(b). The Bank never filed financing statements in California or Missouri. Hence, the Bank's security interests in the defendants' property in California and Missouri are unperfected, and the defendants as debtors in possession may avoid those unperfected security interests. Accordingly, the Bank's security interest in *80 the following property owned by Contracting is void:
Property located in California
Item Description
57153 HYD POWER UNIT FIBER 0
57156 FIBER PULLING FIG 8 SH
57157 FIBER PULLA
57158 FIBER SPLICE
57159 ARNCO FIBER TESTER
97295 PELSYE ELECT, BLOWER-1
97297 MOPACO BLOWER 12 VOLT
Property located in Missouri
Item Description
15202 82 475 CASE PLOW 07051
23744 1987 JD 210/37608
23748 1987 JD 210/38195
39245 1981 4" HOLE HOG 1000
39252 83 Hog 3000 3inch
39270 5 INCH HOLE HOG
53111 83 IR COMPRESSOR 12129
63747 82 GMC DUMP 560868/PRU
63750 82 GMC DUMP 561107/PRU
75338 82 CH Crewcab 100278/N
75712 84 FD F250 A86456/RAZ1
83141 76 HOMEMADE 3AXL 76401
In addition, the Bank's security interest in the following property owned by Leasing is void:
Property located in California
Item Description
94001 MOTOROLA HT90 SN# 1217
94002 MOTOROLA HT90 SN# 1218
94003 MOTOROLA HT90 SN# 1219
94004 MOTOROLA HT90 SN# 1220
Property located in Missouri
Item Description
31249 CASE TRACK TRENCHER 155821
75340 85 FORD 3/4 TON 4 × 4
II. Section 547
Contracting and Leasing argue that the Bank's security interests in the debtors' machinery and equipment was preferential and may be avoided under § 547 of the Bankruptcy Code. Section 547 provides in relevant part:
. . . . .
(b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property
(1) to or for the benefit of a creditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made
(A) on or within 90 days before the date of the filing of the petition;
(B) within ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if
(A) the case were a case under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such creditor received payment of such debt to the extent provided by the provisions of this title.
All five elements must be satisfied before a transfer of an interest of the debtor in property may be avoided as preferential.
A. Leasing's Grant of a Security Interest to the Bank
In order to be avoided as a preference, a transfer must be made "for or on account of an antecedent debt owed by the debtor." 11 U.S.C. § 547(b)(2) (emphasis added). Leasing's transfer to the Bank of a security interest in its property was not made for or on account of an antecedent debt owed by Leasing. Instead, the transfer was made for or on account of an antecedent debt of Contracting. Therefore, Leasing's transfer of a security interest in its property to the Bank was not a preference.
B. Contracting's Property in Minnesota and Wisconsin
Section 547(b) requires that a transfer must be made on or within 90 days before the date of the filing of the petition, or within one year of filing if the creditor was an insider. 11 U.S.C. § 547(b)(4). For purposes of § 547, a transfer is made at the time it is perfected, if perfected after ten days from the time the transfer takes effect *81 between the transferor and the transferee. 11 U.S.C. § 547(e)(2).
The Bank's security interest in Contracting's property in Minnesota and Wisconsin (other than motor vehicles) was perfected in Minnesota on January 11, 1984, and in Wisconsin[5] on January 19, 1984. Therefore, the security interest in Contracting's property in those states was transferred in 1984. Contracting filed its petition on May 5, 1988. Since Contracting transferred the security interests in its property in Minnesota and Wisconsin to the Bank more than four years before the filing of Contracting's petition, these transfers were not preferences.
C. Contracting's Property in Illinois, Florida, and Arizona
Contracting's transfers to the Bank of security interests in Contracting's property in Illinois, Florida, and Arizona were preferential under § 547(b). Those security interests were granted to the Bank, a creditor of Contracting. The transfers were made as security for antecedent debts owed by Contracting.[6] The transfers were made while Contracting was insolvent.[7] The Bank's security interest in Contracting's property in Illinois, Florida, and Arizona was perfected when the Bank filed financing statements in Illinois on March 17, 1988, in Florida on March 22, 1988, and in Arizona on March 23, 1988.[8] Therefore, the security interests in property in those states were granted on those three dates, all within 90 days before Contracting's petition was filed on May 5, 1988. Finally, the transfers allowed the Bank to receive more than it would have received in a chapter 7 liquidation, absent the transfer. The grants to the Bank of security interests in Contracting's property in Illinois, Florida, and Arizona would have allowed the Bank to dispose of this property and use the proceeds to satisfy Contracting's indebtedness to the Bank exclusively. In the absence of those transfers, in a case under chapter 7, the proceeds of the disposition of this property would be shared among all Contracting's general unsecured creditors. The transfers therefore allowed the Bank to receive more than the Bank would have received in a chapter 7 liquidation in the absence of the transfer.
All of the elements of a preferential transfer, as listed in § 547(b), are present. However, a transfer is not avoidable if any one of the affirmative defenses listed in § 547(c) applies. The Bank asserts that § 547(c)(1) is applicable. Under that subsection, a transfer may not be avoided if the parties intended it to be a contemporaneous exchange for new value given to the debtor, and it was in fact a substantially contemporaneous exchange. 11 U.S.C. § 547(c)(1).
Because the Bank made loans to Contracting over a four year period, the facts relevant to whether the loans were intended to be, or actually were substantially contemporaneous to the transfer of the security *82 interest are not common to all the loans. Accordingly, I will address the facts of each loan separately.
1. February 23, 1988, Loan
Section 547(c)(1) does not apply to the loan made on February 23, 1988. This loan was not intended to be exchanged contemporaneously with the security interest. Rather, the security interest was intended to be granted at the time the security agreement was executed on January 6, 1984. Nor was the February 23, 1988 loan in fact part of substantially contemporaneous exchange. Ordinarily, a security interest must be perfected within ten days of a cash advance for the transfer of the security interest to be substantially contemporaneous under § 547(c)(1)(B).[9] The security interests were perfected in Illinois, Florida, and Arizona on March 17, 22, and 23 of 1988, respectively. The security interests were not perfected in these states within ten days of the February 23, 1988 advance. Therefore, the transfers were not substantially contemporaneous exchanges for the loan.
2. August 4, 1986, Loan
Section 547(c)(1) is not applicable to the loan made on or around August 4, 1986. This loan was not intended to be exchanged contemporaneously with the security interest, which also was intended to be granted when the security agreement was executed on January 6, 1984. This loan was not in fact part of substantially contemporaneous exchange, since the security interest was not perfected in Illinois, Florida, and Arizona until long after the loan was made.
3. January 6, 1984, Loan
Finally, § 547(c)(1) is not applicable to the loans made on or around January 6, 1984. These loans were intended to be exchanged contemporaneously with the security interest, since the security interest was intended to be granted on January 6, 1984, when the security agreement was executed. However, because the security interest was not perfected in Illinois, Florida, and Arizona until 1988, the exchange was not, in fact, substantially contemporaneous.
No other exceptions to § 547(b) apply, so as to prevent Contracting from avoiding the preferential transfers to the Bank. Section 547(c)(4) makes an exception for transfers in which the creditor has given new value to the debtor, but the new value must have been given after the allegedly preferential transfer. 11 U.S.C. § 547(c)(4). Because of its delayed perfection, all of the Bank's loans to Contracting occurred before Contracting's transfer to the Bank of the security interest in its property in Illinois, Florida, and Arizona.
Contracting, as a debtor in possession, may avoid the transfers to the Bank of security interests in Contracting's Illinois, Florida, and Arizona property. All the elements of § 547(b) have been established. None of the exceptions listed in § 547(c) apply. Therefore, the Bank's security interest in Contracting's property in Illinois, Florida, and Arizona is void.
III. Section 548(a)(2)
Leasing asserts that its transfer to the Bank of a security interest in all Leasing's assets to secure the indebtedness of Contracting constitutes a fraudulent conveyance avoidable under § 548(a)(2) of the Bankruptcy Code. That section provides in relevant part:
(a) the trustee[10] may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or *83 within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily
(2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation. . . .
11 U.S.C. § 548(a)(2). Accordingly, a transfer is avoidable under § 548(a)(2) if:
(1) there was a transfer of an interest of the debtor in property;
(2) the transfer was made within one year before the date of the filing of the petition;
(3) the debtor received less than a reasonably equivalent value in exchange for the transfer; and
(4) the debtor was insolvent on the date the transfer was made.
The burden of proving each of these four elements is on the trustee or debtor in possession. Baddin v. Olson (In re Olson), 66 B.R. 687, 694 (Bktcy.D.Minn.1986). The trustee or debtor in possession must prove each element by a preponderance of the evidence. Zimmerman v. Saviello (In re Metro Shippers, Inc.), 78 B.R. 747, 751 (Bktcy.E.D.Pa.1987).
Leasing's grant of a security interest in all its assets to the Bank to secure MUC's $1.8 million debt to the Bank was a "transfer of an interest of the debtor in property." "Transfer" is broadly defined by the Code as:
every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the debtor's equity of redemption.
11 U.S.C. § 101(50). Leasing's grant to the Bank of a security interest in all partnership accounts receivable, vehicles, contract rights, equipment, machinery, furniture and fixtures falls squarely within this definition. The transfer occurred on February 23, 1988, within one year before the filing of Leasing's chapter 11 petition on May 5, 1988. Therefore, the only issues remaining under § 548(a)(2) are whether Leasing was insolvent on the date the transfer was made, and whether Leasing received less than reasonably equivalent value in exchange for its pledge of assets to the Bank.
A. Insolvency
Section 101(31) defines the insolvency of a partnership as:
(B) . . . financial condition such that the sum of such partnership's debt is greater than the aggregate of, at a fair valuation
(i) all of such partnership's property, exclusive of property of the kind specified in subparagraph (A)(i) of this paragraph; and
(ii) the sum of the excess of the value of each general partner's nonpartnership property, exclusive of property of the kind specified in subparagraph (A) of this paragraph, over such partner's nonpartnership debts . . .
Subparagraph (A) of section 101(31) refers to:
(i) property transferred, concealed, or removed with intent to hinder, delay or defraud such entity's creditors; and
(ii) property that may be exempted from property of the estate under section 522 of this title . . .
Leasing provided the following liquidation analysis as of February 23, 1988:
Leasing Assets $222,616
Leasing Liabilities (387,719)
_________
Leasing Net Worth (165,103)
Adjustment for Partners'
Net Worth 76,909[11]
_________
Net Worth ($88,194)
*84 This analysis was based on Leasing's balance sheet as of February 29, 1988,[12] without adjustment for its pledge of assets to the Bank to secure the obligations of Contracting. Thus, Leasing was insolvent at the time it granted its security interest to the Bank.
Even if Leasing was not already insolvent, Leasing would have been rendered insolvent as a result of its February 23, 1988, grant of a security interest to the Bank. Leasing's grant of a security interest in all its assets to the Bank created a partnership debt.[13] Under § 548(a)(2)(B)(i), a transfer is avoidable if the debtor "was insolvent on the date the transfer was made . . . or became insolvent as a result of such transfer." 11 U.S.C. § 548(a)(2) (emphasis added). Therefore, the partnership debt created by the transfer must be included with all other partnership liabilities in determining whether Leasing was insolvent as a result of the transfer. Assuming that Leasing's pledge of assets created a partnership debt at least equal to the amount of Contracting's debt to the Bank on February 23, an additional $1,866,265.00 must be added to Leasing's other liabilities of $387,719.00. Accordingly, Leasing's liabilities after the transfer were at least $2,253,984.00.
Section 101(31) includes in the calculation of a partnership's insolvency all general partners' nonpartnership property except property transferred with intent to hinder, delay or defraud and exempt property. Lundgren's and Lebakken's stock in Contracting is nonpartnership property. It was neither transferred with intent to hinder, delay or defraud creditors nor exempted. Hence, the value of the partners' respective interests in Contracting stock, listed on each of their individual financial statements as $100,000, must be included in the calculation of their nonpartnership assets.
Given these adjustments, Leasing's financial condition following its pledge of assets to the Bank on February 23, 1988, is calculated as follows:
Partnership Assets $ 222,616
PLUS:
Excess of
Partners' Nonpartnership
Assets Over Nonpartnership
Liabilities 276,909
_________
Total Assets $ 499,525
LESS:
Partnership Liabilities (2,253,984)
___________
Partnership Net Worth ($1,754,459)
Therefore, Leasing was insolvent at the time of or was rendered insolvent by the grant of the security interest to the Bank. The only remaining issue is whether Leasing received reasonably equivalent value.
B. Reasonably Equivalent Value
Whether a transfer is made for reasonably equivalent value is a question *85 of fact to be determined in light of the facts presented in each particular case. Jacoway v. Anderson (In re Ozark Restaurant Equipment Co., Inc.), 850 F.2d 342 (8th Cir.1988); Kjeldahl v. United States (In re Kjeldahl), 52 B.R. 926, 934 (Bktcy.D.Minn.1985). However, "[t]he determination of `reasonably equivalent value' is not a science, but an art. It does not require an exact balancing of both sides of an exchange. It requires only some exchange which is `fair'". Causeway Corp. v. Gull Advisors, Inc., No. 5-86-26, slip op. at 35 (Bktcy.D.Minn., July 31, 1987). In making this determination, "[t]he court may employ for its guidance any comparative formula or combination of formulas it deems appropriate while carefully considering whether the analysis employed fully recognizes the relevant factors and protects the interests of the parties." Joing v. O & P Partnership, 82 B.R. 495, 499 (D.Minn.1987).
In general, transfers made or obligations incurred solely for the benefit of third parties do not furnish reasonably equivalent value. Ear, Nose and Throat Surgeons of Worcester, Inc. v. Guaranty Bank and Trust Co. (In re Ear, Nose and Throat Surgeons of Worcester, Inc.), 49 B.R. 316 (Bktcy.D.Mass.1985). This rule is based on the rationale that:
if the debt secured . . . is not the debtor's own, then his giving of security will deplete his estate without bringing in a corresponding value from which his creditors can benefit, and his creditors will suffer just as they would if the debtor had simply made a gift of his property or obligation.
Rubin v. Manufacturers Hanover Trust Co., 661 F.2d 979, 991 (2d Cir.1981). This is essentially a balance sheet test. If a transfer adversely affects one side of the debtor's balance sheet, then the debtor's balance sheet must reflect a consideration already received of reasonably equivalent value or the transaction must result in a change to the other side of the balance sheet of reasonably equivalent value.
Leasing met its burden of showing it received no direct benefit from its grant of a security interest to the Bank. It is undisputed that the $250,000.00 advance by the Bank on February 23, 1988, was paid to Contracting. However, the Bank asserts that its $250,000.00 loan to Contracting indirectly benefitted Leasing. The Bank further asserts that this indirect benefit constituted value reasonably equivalent to the security interest transferred by Leasing.
A number of cases recognize that indirect benefit to the transferor may be sufficient to establish reasonably equivalent value. See, e.g., Rubin, 661 F.2d at 991; Ear, Nose and Throat Surgeons, 49 B.R. at 320. In a case decided under § 67(d)(2) of the repealed Bankruptcy Act, providing for avoidance of conveyances made without "fair consideration," the Rubin court acknowledged that consideration given to a third person which confers an "economic benefit" on the debtor may establish fair consideration. Rubin, 661 F.2d at 991. Reasonably equivalent value may also be found where the debtor and the third party "are so related or situated that they share an `identity of interests,' because what benefits one will, in such case, benefit the other to some degree." Garrett v. Falkner (In re Royal Crown Bottlers of North Alabama, Inc.), 23 B.R. 28, 30 (Bktcy.N.D. Ala.1982).
I will accept the Bank's legal argument that indirect benefit may, under the right circumstances, constitute reasonably equivalent value under § 548(a)(2). However, I find that the Bank's argument, as a departure from traditional concepts of reasonably equivalent value, is in the nature of an affirmative defense. Hence, the burden of proof is on the Bank to establish that Leasing received "reasonably equivalent value." As the court stated in dicta in Garrett v. Falkner (In re Royal Crown Bottlers of North Alabama, Inc.), 23 B.R. 28, 31 (Bktcy.N.D.Ala.1982) (emphasis added):
Perhaps this particular burden [of establishing the value or lack of value of an indirect benefit] should not be upon the trustee, once it has been established that the direct consideration for the debtor's transfer did not go to it, but to a third party. It is not unreasonable to find *86 that the insolvent debtor's transferee should have the burden of demonstrating that the debtor's estate was not harmed by the transfer of the insolvent debtor's property to the transferee even though all or substantially all of the primary consideration for the transfer went not to the debtor but to another party.
Otherwise it would be far too easy for a defendant in a fraudulent transfer action to raise the specter of "indirect consideration," and place a difficult burden on a trustee to disprove the existence of such indirect consideration or prove that it was not reasonably equivalent. I adopt, therefore, the following rule on reasonably equivalent value: The trustee bears the burden of producing evidence and proving by a preponderance of the evidence that the debtor did not receive direct consideration (in the balance sheet sense) that would constitute reasonably equivalent value. If a transferee then contends that the debtor received indirect consideration for the transfer, then the transferee bears the burden of producing evidence and showing by a preponderance of the evidence that the debtor actually received such indirect consideration and that it constitutes reasonably equivalent value.
Therefore, the Bank, as the transferee of Leasing's security interest, bears the burden of proving that Leasing received some indirect benefit from the Bank's $250,000.00 advance to Contracting, and that the value of that benefit was reasonably equivalent to the value of the interest Leasing transferred. The Bank has failed to carry its burden of proof in both respects.
I find that Leasing did not receive reasonably equivalent value in exchange for its grant to the Bank of a security interest in all its assets. The Bank suggests that Leasing expected to obtain indirect economic benefits from its pledge of assets to secure both new and existing loans to Contracting. At the time of the February 23 transfer, Contracting's lease of equipment accounted for most of Leasing's business, and hence, generated the major portion of Leasing's income. Accordingly, the Bank argues Leasing expected the infusion of additional cash into Contracting's business to generate additional business for Leasing. However, there is no evidence that the advance did in fact result in additional business to Leasing, or, if so, how much additional business. Even though maintaining the flow of business between Contracting and Leasing was of benefit to Leasing, the mere continuation of a pre-existing business relationship at the same or similar levels in no way provided reasonably equivalent value to Leasing in exchange for its grant to the Bank of a security interest in all its assets to secure Contracting's $1,866,265.00 debt to the Bank.[14]
THEREFORE, IT IS ORDERED:
1. Contracting shall pay $6,835.00 to the Bank;
2. Leasing shall pay $27,900.00 to the Bank;
3. Leasing shall endorse the $12,322.50 check held by the Bank;
4. The plaintiff's complaints are otherwise denied;
5. The Bank's security interests in motor vehicles in Arizona, Florida, and Minnesota specified in the order are void under 11 U.S.C. § 544(a)(1);
6. The Bank's security interests in other goods in California and Missouri specified in the order are void under 11 U.S.C. § 544(a)(1);
7. Leasing's transfer to the Bank of a security interest in its property was not a preference, and hence, is not avoidable by Leasing under § 547(b);
8. Contracting's transfer to the Bank of a security interest in its property in Minnesota and Wisconsin was not a preference and hence, is not avoidable by Contracting under § 547(b);
*87 9. Contracting's transfers to the Bank of security interests in its property in Illinois, Florida, and Arizona were preferences, and hence, are avoidable by Contracting under § 547(b); and
10. Leasing's transfer to the Bank of a security interest in Leasing's assets is void under § 548(a)(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
NOTES
[1] Contracting voluntarily converted its chapter 11 case to a case under chapter 7 on May 17, 1989. Timothy D. Moratzka was appointed trustee in Contracting's case, thereby becoming the real party in interest in ADV 4-88-177.
[2] On March 3, 1988, a financing statement from Leasing was filed with the Secretary of State of Minnesota. On March 17, 1988, financing statements for Contracting and Leasing were filed in Illinois. On March 22, 1988, financing statements for Contracting and Leasing were filed in Florida. On March 23, 1988, financing statements for Contracting and Leasing were filed in Arizona. On April 27, 1988, financing statements for Contracting and Leasing were filed in Wisconsin. No financing statements for Contracting or Leasing were filed in California or Missouri.
[3] Subject to certain limitations, a debtor in possession has all the rights and powers of a trustee. 11 U.S.C. § 1107(a).
[4] Because the issue is whether the debtors' goods are of a type normally used by the community in general in more than one jurisdiction and not whether they are of a type normally used by the debtors in more than one jurisdiction, the debtors do not have unique knowledge of the facts at issue.
[5] Contracting does not own any motor vehicles titled in Wisconsin.
[6] Debts are antecedent under 547(b)(2) if incurred before the transfer in question. In re AOV Industries, 85 B.R. 183, 185 (Bktcy.D.D.C. 1988). Debts are incurred upon the performance giving rise to the debt, not when payment is due. In re Western World Funding, Inc., 54 B.R. 470, 477 (Bktcy.D.Nev.1985). In this case the performance consisted of the loans the Bank made to Contracting, the most recent of which was made on February 23, 1988. The security interests were granted when perfected, on March 17, 22, and 23 of 1988. Since Contracting's debts were incurred before it transferred the security interests, the debts are antecedent.
[7] For purposes of § 547, the debtor is presumed to have been insolvent during the 90 days immediately preceding the filing of the bankruptcy petition. 11 U.S.C. § 547(f). Since Contracting's petition was filed on May 5, 1988, Contracting is presumed to have been insolvent when the security interests were granted on March 17, 22, and 23 of 1988. The Bank offered no evidence to rebut this presumption.
[8] The Bank argued that Contracting's property constituted mobile goods, and hence, its security interest was perfected by its filing in Contracting's location, Minnesota. As was the case with Contracting's property in California and Missouri, however, the Bank did not meet its burden of proving that the goods were of a type normally used in more than one jurisdiction, and therefore, may not rely on the mobile goods rule of perfection.
[9] The basis for this rule is § 547(c)(3). That section prevents the avoidance of purchase money security interests which are perfected within ten days of the debtor receiving possession of the property which the secured loan enabled the debtor to acquire. If a secured party could use § 547(c)(1) to prevent the avoidance of its security interest without perfecting within ten days of the loan, § 547(c)(3) would be superfluous. Curing this defect by making the prevention of avoidance without perfection within ten days inapplicable to purchase money security interests would create an anomaly, since purchase money security interests are generally favored over other security interests. Ray v. Security Mutual Finance Corp. (In re Arnett), 731 F.2d 358 (6th Cir.1984); Bergquist v. Cessna Finance Corp. (In re A.E.F.S.), 39 B.R. 66 (Bktcy.D.Minn.1984).
[10] See note 3.
[11] The partners' net worth of $76,909 was calculated by deducting from their "gross net worth" the following:
1. the value of Contracting stock and Leasing interests;
2. the value of all applicable state law exemptions; and
3. the partners' spouses' ½ interest in the remaining unsecured assets.
[12] No material change in Leasing's financial condition occurred between February 23, 1988, and February 29, 1988.
[13] "Debt" is defined in Bankruptcy Code § 101(11) as "liability on a claim." 11 U.S.C. § 101(11). "Claim" is defined in § 101(4) as a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." 11 U.S.C. § 101(4). Leasing pledged its assets "to secure payment to the Bank . . . of all notes of [Contracting] . . . delivered or purchased or otherwise acquired by the Bank and all other liabilities and indebtedness of [Contracting] to the Bank, due or to become due . . . now existing or hereafter at any time created . . ." See also 11 U.S.C. § 1111(b)(1)(A), which provides:
A claim secured by a lien on property of the estate shall be allowed or disallowed under section 502 of this title the same as if the holder of such claim had recourse against the debtor on account of such claim, whether or not such holder has such recourse . . .
and 11 U.S.C. § 502(b)(1), which provides:
(b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent that
(1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured . . .
[14] The reality, of course, is that Leasing had no expectations at all. Lundgren and Lebakken, were so desperate for financing for Contracting that they were willing to do whatever the Bank asked. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918277/ | 101 B.R. 728 (1989)
In re L. Craig CALDWELL, Debtor.
Bankruptcy No. 88B-07175.
United States Bankruptcy Court, D. Utah, C.D.
June 9, 1989.
Michael N. Zundel, Jardine, Linebaugh, Brown & Dunn, Salt Lake City, Utah, for Utah Production Credit Ass'n, creditor.
Daniel R. Boone, Salt Lake City, Utah and Anthony J. Famulary, Roosevelt, Utah, for L. Craig Caldwell, debtor.
MEMORANDUM DECISION
JUDITH A. BOULDEN, Bankruptcy Judge.
This contested matter comes before the court on the motion of Utah Production Credit Association (UPCA) to convert this preconfirmed chapter 12 case to a case under chapter 7 pursuant to 11 U.S.C. § 1208(d)[1] and for relief from stay as to real property for cause pursuant to 11 U.S.C. § 362(d)(1).[2] The issues raised in the motion to convert to chapter 7 are of first impression for this court and warrant thorough consideration. The existing circumstances of the case and short time frame mandated by sections 1221 and 1224 however, prompt the court to issue this Memorandum Decision as expeditiously as possible.
*729 JURISDICTION
The court has jurisdiction over the subject matter of and parties to this contested matter pursuant to 28 U.S.C. §§ 1334 and 157. Venue in this division is proper. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(A) and (G).
FACTS
L. Craig Caldwell (Caldwell)[3] has been engaged in a farming operation known as the Cat Creek Ranch in the Vernal area of Utah for a number of years. He also has an ownership interest in Hiko Bell Mining and Oil Company (Hiko Bell). Caldwell is a gentleman of some years who testified that he has an eighth grade education. He has, however, acquired considerable assets and appears well versed in the oil industry, business and farming. His farming operation consists of raising alfalfa and grain, and the production of cattle and sheep for market and fiber.
Caldwell has had a long-term relationship with UPCA, using the proceeds of various loans from that entity for farming purposes. On April 24, 1986, Caldwell executed a security agreement in favor of UPCA which pledged real property, livestock, crops and certain equipment and machinery. The equipment specifically denominated in the security agreement was a tractor, baler, bale wagon and windrower. The document also purports to grant a security interest in all machinery, equipment and fixtures owned at the time of signing or thereafter acquired by the borrower. It is undisputed that UPCA had perfected its security interest by appropriate filings with the County Recorder and the State of Utah.
The security agreement collateralized obligations owed by Caldwell to UPCA evidenced by promissory notes dated November 24, 1986, in the amount of $88,972 and January 29, 1987, in the amount of $5,000. The amount of the total obligation owed by Caldwell to UPCA is now $85,483.93. The stipulated value of the real property securing the obligation is $40,000. No evidence was presented regarding the value or extent of other collateral securing the loan.
The obligation to UPCA became due and payable. Upon Caldwell's failure to satisfy the obligation, UPCA initiated proceedings in state court in May of 1988 to foreclose its liens against Caldwell's real property. To forestall that litigation Caldwell, through his attorney Anthony J. Famulary (Famulary), filed a petition for relief under chapter 13 on December 6, 1988. Instead of filing a Chapter 13 Statement within 15 days as provided by Bankruptcy Rule 1007(c),[4] Caldwell filed a motion to convert from chapter 13 to chapter 12. After paying the additional filing fee required under chapter 12, the case was duly converted on February 3, 1989, and Caldwell was directed to file the relevant chapter 12 lists of assets and liabilities.[5]
On January 26, 1989, UPCA filed a motion to dismiss or in the alternative for *730 relief from the stay in the chapter 13 case asserting as the basis of the motion Caldwell's failure to file schedules of assets and liabilities within 15 days from the date of filing the petition. UPCA further alleged that if the case had been converted to a chapter 12, the debtor had failed to file the required chapter 12 documents and such failure constituted cause to grant relief from the automatic stay under section 362(d)(1).
Caldwell eventually filed a Statement of Individual Debtor (Chapter 12 statement) on Friday, February 24, 1989, although the document was executed by Caldwell on February 9, 1989. A hearing was held on UPCA's motion to dismiss or in the alternative for relief from the stay on Monday, February 27, 1989. After due consideration, the court denied the relief sought.
The court set a meeting of creditors in Caldwell's chapter 12 case for March 21, 1989, a continued section 341 meeting for June 13, 1989,[6] and a confirmation hearing for July 17, 1989. Caldwell and counsel appeared at the initial meeting of creditors and attended immediately thereafter an examination conducted by UPCA under Bankruptcy Rule 2004.
On April 4, 1989, UPCA filed the within Motion to Convert to Chapter 7 and Motion for Relief from Stay as to Real Property (Motion). The Motion alleged that Caldwell had committed fraud in connection with this case by filing with the court a Chapter 12 statement which was materially false. UPCA claimed the document omitted assets which should have been listed as property of the estate and that such omission was knowingly, intentionally and fraudulently made. The hearing on UPCA's Motion was scheduled for Monday, April 24, 1989. On April 21, 1989, the preceding Friday, Caldwell filed an amendment to the Chapter 12 statement which substantially expanded the list of assets in the estate. It is uncontroverted that the Chapter 12 statement omitted numerous assets owned by Caldwell as of the date of filing. After extensive testimony, the April 24, 1989, hearing was continued for further evidence until May 15, 1989. No further amendments have been made to Caldwell's Chapter 12 statement as of the issuance of this opinion on June 9, 1989.
In support of UPCA's Motion the following documents listing assets and liabilities were received into evidence by the court: (1) the Statement of Individual Debtor (Chapter 12 statement) sworn to under penalty of perjury filed on February 24, 1989, listing assets valued at approximately $370,323 and containing pages 19-A and 19-B, the relevant portions of which are reproduced here as Exhibit "A";[7] (2) an amendment to the Chapter 12 statement (Chapter 12 amendment) filed April 21, 1989, listing assets valued at approximately $716,295 signed by Caldwell but not under penalty of perjury,[8] the relevant portions of which are reproduced here as Exhibit "B"; and, (3) an unfiled, unsigned Chapter 13 *731 Statement (Chapter 13 Statement) prepared by Caldwell prior to conversion from chapter 13 to chapter 12 which listed assets valued at approximately $423,033, the relevant portions of which are reproduced here as Exhibit "C".[9] The Chapter 12 statement contained the least assets. It is apparently a modification of the Chapter 13 Statement but omitted certain assets. The Chapter 12 amendment significantly expanded the asset listing to conform to Caldwell's testimony at the section 341 meeting and Rule 2004 examination. It is uncontested that all the assets listed or testified to were Caldwell's property as of the date of filing.
Caldwell's testimony revealed a number of inconsistencies in the documents filed with the court as well as various omissions which still existed as of the hearing. For example, Caldwell testified that the Case backhoe which was listed on the Chapter 12 amendment and valued at $7,500 was probably worth closer to $20,000. Caldwell also testified regarding transactions between himself and his son, Lawrence C. Caldwell, II. One of those transactions was evidenced by a promissory note payable to Caldwell from Jay Kirk and Lawrence C. Caldwell, II and was listed on the Chapter 13 Statement in the amount of $45,000. The asset is not listed on the Chapter 12 schedules. The evidence indicates that the obligation may have been reduced to judgment.
In relation to the indebtedness between Caldwell and his son, a lawsuit was brought in state court by Western United Mines, Inc. and Del Rio Drilling Programs, Inc., companies in which Lawrence C. Caldwell, II had an interest, against Hiko Bell, Caldwell and others. At some point, either coincidental to the chapter 13 filing in early December of 1988 or in February of 1989, an undated settlement agreement was executed between Caldwell and the other parties resolving the pending state court litigation. The settlement agreement, among other things, released a promissory note dated September 4, 1981, in which Kirk and L. Caldwell were the makers and C. Caldwell was the payee in the principal amount of $29,000.[10] The agreement further indicated that, upon delivery of personal property set forth in the agreement, certain parties would pay to Caldwell the sum of $2,500. The transaction set forth in the settlement agreement is not listed on any document filed with the court by Caldwell. Neither is a note from Lawrence C. Caldwell, II to Caldwell in the amount of $45,000, nor one in the amount of $29,000. The facts however, indicate that either a promissory note or the settlement of $2,500 was owed to Caldwell as of the date of filing.
The transaction between Caldwell, his son and others, and their various corporate entities, appears complex and worthy of full disclosure. The testimony from Caldwell was vague and confusing and the exhibits received into evidence only seem to scratch the surface of the dealings between father, son and their various entities. Caldwell further testified that the $2,500 settlement was actually paid postpetition but was delivered to an attorney for Caldwell who had not been approved by this court to represent Caldwell or to receive assets of the estate.
At the continued hearing in this matter, Caldwell testified regarding additional items of personal property, including a pipe threader and small tools and equipment, which he believed were omitted from the schedules. Caldwell may have meant to include these items under the miscellaneous heading on the Chapter 12 statement, however, the value testified to and the value on the Chapter 12 statement is inconsistent.
*732 Caldwell also testified that he didn't think he had listed all of his debts and referenced a complaint filed on September 1, 1988, in federal court in Utah by J. William Powell, Sr. (Powell), et al., against Hiko Bell, Caldwell and others. The complaint listed various causes of action arising from an oil venture between the parties. The relief sought was reimbursement from Caldwell and others to the plaintiffs for lost profits and contributions to Hiko Bell, as well as punitive damages in the amount of $1 Million. Powell was not listed as a creditor on the Chapter 12 statement or the Chapter 12 amendment. No description of the litigation or of the contingent or disputed nature of the amount claimed by Powell appears on any list of liabilities filed with the court.
From Caldwell's demeanor, the court remains unconvinced that there is, even yet, full disclosure of all the assets and liabilities of this debtor.[11] His continued equivocal conduct and indecisive responses regarding his assets and liabilities leads the court to doubt the overall accuracy of his testimony and the documents filed with the court.
ARGUMENT
A. STAY LIFT
UPCA asserts that Caldwell's fraudulent conduct, delay and inaccuracies constitute cause to lift the automatic stay under section 362(d)(1). It further alleges that Caldwell has not insured the home located on the real property which partially secures its loan. The evidence controverts the lack of insurance and the court finds that no cause based upon lack of insurance exists to lift the automatic stay.
For the court to make a determination that Caldwell's conduct is sufficient to warrant lifting the automatic stay for cause, the court must find that UPCA has or will suffer harm as a result of such conduct. "Cause to lift the stay exists when the stay harms the creditor and lifting the stay will not unjustly harm the debtor or other creditors." In re Opelika Mfg. Corp., 66 B.R. 444, 448 (Bankr.N.D.Ill.1986). Whether or not the delay created by Caldwell in converting from one chapter to another or whether the lack of information provided in the Chapter 12 statement has harmed UPCA, other than in incurring attorneys fees in the prosecution of this matter, is unclear from the evidence.
In addition, UPCA has failed to show that the debtor and other creditors will escape injury if the stay is lifted.
In determining whether or not cause exists, the bankruptcy court must balance the inherent hardships on all parties and base its decision on the degree of hardship and the overall goals of the Bankruptcy Code . . . the Court must look at the totality of the circumstances. . . .
In re Opelika Mfg. Corp., 66 B.R. at 449. The security documents on file indicate that UPCA has a substantial interest in both real and personal property of the estate. Based on the evidence submitted, the court is unable to make any finding as to whether or not the obligation owed to UPCA is over or undersecured. If UPCA is oversecured, as may well be the case, it would be detrimental to the estate to allow UPCA to foreclose upon portions of its collateral if equity exists which would benefit other creditors.
Based upon the lack of evidence as to the specific harm to UPCA coupled with UPCA's failure to show that no harm will befall other creditors as a result of lifting the stay, the court finds that no cause exists to lift the automatic stay. The relief sought under section 362(d)(1) is denied.
B. CONVERSION TO CHAPTER 7
1. Standard Of Proof
This case is of first impression in interpreting section 1208(d). Initially, the court must determine the standard of proof the movant must sustain. The parties approach *733 this issue from two viewpoints. Caldwell's argument, both on the standard of proof and on other elements, is that a section 1208(d) action is analogous to a section 523[12] action where a showing of fraud is required. Therefore, the standard of proof should be by clear and convincing evidence. E.g., Joseph v. Stone (In re Stone), 91 B.R. 589, 591 (D.Utah 1988) (section 523(a)(2)) and S.J. Groves & Sons Co. v. Peters (In re Peters), 90 B.R. 588, 605 (Bankr.N.D.N.Y.1988) (section 523(a)(4)).
UPCA argues in opposition that this action is analogous to a section 727(a)(4) action. The controlling case law in this jurisdiction requires a standard of proof of preponderance of the evidence. Farmers Coop. Ass'n v. Strunk, 671 F.2d 391, 395 (10th Cir.1982).
The only reported cases this court has found which deal with the substance of section 1208(d), In re Zurface, 95 B.R. 527 (Bankr.S.D.Ohio 1989) and In re Graven, 101 B.R. 109 (Bankr.W.D.Mo.1989), do not address the applicable standard of proof necessary to convert a chapter 12 case to chapter 7. Nor does the statute delineate the elements of the cause of action with the specificity found in either section 523 or section 727. No legislative record is helpful to determine what specific acts Congress intended to prohibit, thus giving guidance to what standard of proof should be applied, and the statutory wording is broad indeed.
The court has reviewed the statute and finds that language similar to section 1208(d) is found elsewhere in the Code under section 727(a)(4).[13] Under the doctrine of in pari materia, this court should consider the current case law interpretation of section 727(a)(4) in determining what conduct is proscribed by section 1208(d). 2A Sutherland Statutory Construction § 51.03 (4th Ed.1985).
Unless the context indicates otherwise, words or phrases in a provision that were used in a prior act pertaining to the same subject matter will be construed in the same sense. It has been said that `the need for uniformity becomes more imperative where the same word or term is used in different statutory sections that are similar in purpose and content . . . or where . . . a word is used more than once in the same section.'
2A Sutherland Statutory Construction at § 51.02. If conduct described in section 727(a)(4) is the type of conduct proscribed by section 1208(d), it is arguable that the standard of proof should be the same under section 1208(d) as under section 727(a)(4). However, fraud is usually required to be proven by the clearest evidentiary standard possible. Bank of Utah v. Auto Outlet, Inc. (In re Auto Outlet, Inc.), 71 B.R. 674, 677 (Bankr.D.Utah 1987).
Given two conflicting standards, the court should look to the consequences of choosing one or the other standard in this case as well as those cases which may come before the court in the future.[14] If *734 this court applies the standard of proof of preponderance of the evidence, actions in future cases could be brought under section 1208(d) upon facts more closely related to actions under section 523 which would require application of a clear and convincing standard. Inconsistent lines of case law may develop. The resulting confusion would be needless and prejudicial.
The court should also consider the modification of prior policy found in the option to convert a case to chapter 7 provided in section 1208(d). Traditionally, involuntary filings or involuntary conversions of a farmer to chapter 7 were not permitted.[15] The protection against involuntary conversion of farmers has been specifically withdrawn under chapter 12. It appears that those seeking relief under chapter 12 waive the protection which would ordinarily be afforded if the filing were under one of the other chapters of the statute but in the capacity of a farmer.[16]
However, in a chapter 12 case:
The rights of others to seek conversion are narrowly circumscribed. A party in interest may obtain conversion to Chapter 7 only upon a showing that the debtor has committed fraud in connection with the case.
. . . .
[The] conversion . . . [statute] evidence[s] a general policy of debtor control in Chapter 12 a slightly stronger policy in this regard than the parallel policy of debtor control in Chapter 13. The debtor is given virtually unlimited ability to back out of the proceeding at any time. Other parties must show cause to dismiss and can only force conversion to Chapter 7 in extraordinary circumstances. The debtor is thus given very broad leeway to attempt reorganization, even when its creditors are pressing for liquidation.
Herbert, Once More Unto the Breach, Dear Friends: The 1986 Reforms of the *735 Reformed Bankruptcy Reform Act, 16 Cap.U.L.Rev. 325, 352-53 (1987). This change in policy should not be considered lightly by the court. Such a substantial revision in the historical treatment of those engaged in agriculture argues that the standard of proof necessary under section 1208(d) should be based upon the clearest analysis of the facts and with the conviction that the actions of the debtor are so egregious that involuntary conversion to a chapter 7 is warranted.
The court is also aware that Bankruptcy Rule 7001 does not include an action based upon section 1208(d) as an adversary proceeding with the associated extensive discovery and provisions for full trial. An adversary proceeding is required for actions under section 523 or section 727. The findings made in this contested matter could, in fact, be used in a subsequent adversary proceeding in this case were it converted to a chapter 7. Since the consequences of conversion are so grave and the input and preparation arguably less in this contested matter than that provided for under Rule 7001, the court should proceed conservatively and make a determination based upon the strongest showing possible by the movant in order to protect the rights of the chapter 12 debtor.
It is reasonable to apply a standard of proof consistently to this section of the statute and not to waiver, depending on the facts of the case, between a standard of preponderance of the evidence and clear and convincing evidence. The court concludes that based upon: (1) the broad language of section 1208(d) which does not delineate the specific circumstances of fraud found in section 727 or section 523; (2) the unnecessary confusion which may result in applying different standard of proof to the same section of the Code; (3) the substantial modification of historical protection for farmers; (4) the expedited nature of a contested hearing; and, (5) because fraud traditionally has required a high burden of proof, a standard of clear and convincing evidence must be applied in order to convert or dismiss a case under section 1208(d).
2. Fraud In Connection With The Case
UPCA argued that the asset listing in this chapter 12 was so deficient and that Caldwell's course of conduct was so egregious that the court must find that Caldwell had the requisite intent and did, in fact, commit fraud in connection with this case. The proof UPCA relied upon was the variation between the Chapter 13 Statement and the Chapter 12 statement, the inconsistencies in Caldwell's testimony and the continuing failure to file accurate asset and liability lists.
In opposition, Caldwell denied that it was his intent to fail to disclose his assets and liabilities. He asserted the omissions were merely caused by mistake or inadvertence and that he should be allowed to freely amend his asset and liability lists. Because UPCA has proven that the documents filed with the court were indeed inaccurate, it is now Caldwell's burden to convince the court that his excuses negate the omissions. "Once a sworn statement is shown to be false, the burden to prove that the statement or omission was an honest mistake shifts to the Debtor." Poolquip-McNeme, Inc., v. Hubbard (In re Hubbard), 96 B.R. 739, 747 (Bankr. W.D.Tex.1989).
The court may base its evaluation of Caldwell's claim of mistake or inadvertence on his course of conduct both before and after the filing of the case. "Fraudulent intent of course may be established by circumstantial evidence, or by inferences drawn from a course of conduct." Strunk, 671 F.2d at 395; see also, Norwest Bank Nebraska, N.A. v. Tveten, 848 F.2d 871, 875 (8th Cir.1988); First Beverly Bank v. Adeeb (In re Adeeb), 787 F.2d 1339, 1343 (9th Cir.1986); and, Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 753-54 (9th Cir.1985).
Caldwell testified that the petition was intended to halt UPCA's collection actions in state court. Famulary gave Caldwell a blank Chapter 13 Statement to fill out and instructed Caldwell and Robert Covington *736 (Covington)[17] to list all assets on the documents. He did not instruct them to omit any assets from the lists prepared.
Although Famulary's testimony is vague, apparently several drafts of the Chapter 13 Statement were prepared. He could not recall whether the exhibit received into evidence, a portion of which is set forth in Exhibit "C", was the final Chapter 13 Statement which was to be filed with the court. It does not contain a signature to a perjury statement. Caldwell testified however, that he had been informed that the Chapter 13 Statement was filed with the court in substantially the same form as the exhibit and that he intended it to be filed as an accurate representation of his assets and liabilities. It never was.
The information included in the Chapter 13 Statement was used to create the Chapter 12 statement. Several reasons are advanced as to why the two documents differ. Famulary testified that though the petition was filed some two months earlier, the Chapter 12 statement was "filed in a rush" without time to proofread the document. He thought the Chapter 12 statement had to be filed on February 10, 1989. Caldwell appeared at Famulary's office late in the day on February 9, 1989, and, without reading the Chapter 12 statement, signed it under penalty of perjury. Famulary alleged that he or his staff then mailed the Chapter 12 statement to the court. It was not received. The Chapter 12 statement was not filed with the court until February 24, 1989, the Friday prior to the hearing on this matter.
The court disregards the argument advanced by Caldwell that the distance of 35 miles between Caldwell and Famulary inhibited his ability to produce accurate schedules. The distance is insignificant, especially in this state. Caldwell further argues that the circumstances of Famulary's practice, including his inability to obtain the appropriate Chapter 12 forms, further contributed to the inaccurate listing of assets on the Chapter 12 statement.[18] The court finds this argument without merit. There is nothing in the items which Caldwell failed to disclose that are intrinsically chapter 12 items. They are not encompassed in the Chapter 12 Statement of Current Income and Expense or the jurisdictional statement contained in the Chapter 12 Supplement which are unique to chapter 12. The items omitted are assets and liabilities. This information is required in any bankruptcy filing, be it chapters 7, 11, 13 or 12. Indeed, the asset listings are on separately prepared exhibits attached to the forms. The argument that somehow the difficulty in obtaining the appropriate Chapter 12 forms prevented the accurate listing of assets and liabilities required in every bankruptcy filing is disingenuous.
Caldwell also indicated that Covington's input into the preparation of the documents was inaccurate. The court will not permit Caldwell to place a portion of the blame on Covington. Covington was merely assisting at Caldwell's request. It was Caldwell, not Covington, who signed the perjury statement and it was Caldwell, not Covington, who was responsible for the accuracy of the documents.
Caldwell further defends by arguing that not only were the omissions a mistake and inadvertent, they were not material, no one relied upon the omissions and no one was damaged by the omission. In Friedman v. Alfonso (In re Alfonso), 94 B.R. 777, 778 *737 (Bankr.S.D.Fla.1988) the court indicated that:
Materiality of the false oath does not require that the creditors be prejudiced by the omission or false statement; instead, materiality depends on whether the false oath was pertinent to the discovery of assets, business dealings or past transactions. [Citations omitted]. In failing to disclose the debtor's past business dealings and assets in his schedules, the creditors were hindered from discovering a past transaction to which they might have objected.
In the instant case, the transactions between Caldwell and his son, whether constituting a contract receivable or a transfer of an asset by settlement, are material transactions to which parties in interest are entitled to have full and complete disclosure.
While the omission of one or two relatively small or immaterial matters would not affect the ability to obtain a discharge, it is this court's determination that the extent and volume of the omissions as well as the importance of the information omitted is sufficient to substantiate the denial of discharge under 11 U.S.C. § 727(a)(4)(A).
In re Alfonso, 94 B.R. at 778.
The asset listing on the Chapter 13 Statement differs substantially from that set forth in the Chapter 12 statement. From an examination of the document submitted into evidence it appears that the difference between the equipment listing on the Chapter 13 Statement and the Chapter 12 statement was accomplished merely by placing a blank piece of paper over certain listed items and photocopying the total document. The photocopy then became a portion of the Chapter 12 statement filed with the court. The value of the items listed on the copy was, accordingly, reduced from $96,700 on the Chapter 13 Statement to $77,200[19] on the Chapter 12 statement. The court finds the alteration of this document not merely a clerical mistake resulting from the omission of a page as explained by Caldwell and Famulary. The omission of those items required a conscious effort to conceal them.
Further, the Chapter 12 statement omitted substantial additional assets owned by Caldwell. The circumstances of the discovery of the omission are telling. UPCA appeared at the section 341 meeting and subsequent Rule 2004 examination and inquired regarding assets missing from the Chapter 12 statement. During the examination Caldwell wrote down from his recollection a list of the assets that were omitted from the Chapter 12 statement and eventually filed an amendment to reflect that information. The amendment however, was not filed until almost a month later one business day prior to this hearing. UPCA argues that, but for its original motion, the Chapter 12 statement would not have been filed. Further, UPCA asserts that, but for its investigation and insistence, the amendments would not have been filed at all, and that the assets omitted were those Caldwell considered to be free and clear.
The Chapter 12 amendment sets forth with much more specificity Caldwell's assets and it is clear to the court that more care has been taken with this document. The total assets on the Chapter 12 amendment has risen to $716,295[20] from the $370,323 originally listed on the Chapter 12 statement. It is impossible to find this difference immaterial. Even with the amendment however, the listing remains incomplete.
The Chapter 13 Statement lists a $45,000 promissory note receivable from Jay R. Kirk and Lawrence C. Caldwell, II. This asset is not included in the Chapter 12 statement. Neither does the Chapter 12 amendment list the promissory note owed to Caldwell from Jay R. Kirk and Lawrence C. Caldwell, II in the amount of $45,000, or in the amount of $29,000 as set forth in the settlement agreement or, in the alternative, *738 the $2,500 provided in the settlement agreement.
Caldwell has also failed to amend the statement to include Powell as a creditor and the circumstances of that litigation. The amount claimed by Powell, though unliquidated and contingent, is significant and materially impacts the return to other unsecured creditors.
The court finds from the evidence presented and the demeanor of the witnesses that the omission of assets and liabilities from the Chapter 12 statement was intentional. The court further finds that there is no excuse which Caldwell or counsel has advanced which justifies the omission of such substantial assets as those originally omitted from the Chapter 12 statement; especially since a portion of the information was already included in the draft of the Chapter 13 Statement. Further, the failure to amend to accurately list all assets and liabilities evidences a continued pattern of intentional concealment.
3. Reliance and Damages in the Context of a Chapter 12
Caldwell argues that reliance and damages must be proven by UPCA before the court can find fraud under section 1208(d). UPCA has failed to prove that it relied in any manner on the misrepresentations in the schedules. To the contrary, past dealings have given UPCA a substantial skepticism of Caldwell's representations. UPCA has failed to show any specific damage other than incurring attorneys fees for these actions and the delay in receiving payment or collateral resulting from the filing.
The court determines however, that specific reliance and damage to the moving party is not a prerequisite to section 1208(d). The damage section 1208(d) attempts to proscribe is not limited to damage to a specific creditor, but also encompasses damage to the bankruptcy process. The damage in this case is the inability of the court, the Standing Trustee and the creditors to rely upon the accuracy of Caldwell's schedules. Job v. Calder (In re Calder), 93 B.R. 734, 737 (Bankr.D.Utah 1988). Creditors must have reliable information to use in assessing their course of conduct to protect their rights in this reorganization. A showing of specific reliance and damage is not necessary under these circumstances any more than it would be required under section 727(a)(4). Strunk, 671 F.2d at 396. Indeed, the unique circumstances of a chapter 12 case argue for even greater disclosure than in a chapter 7 case.
In the usual context of a section 727(a)(4) action, the requirement of full disclosure assists the trustee in bringing actions under sections 547 and 548 to return assets to the estate for distribution to creditors. Full disclosure provides information upon which creditors and the trustee may build a case. In re Calder 93 B.R. at 738.[21] The rights of the parties are fixed at the time of filing and any subsequent amendment may have little future adverse effect on parties in interest.
In a chapter 12 case, full disclosure plays a significantly expanded role. The purpose of a chapter 12 filing is to propose and confirm a plan of reorganization in which up to $1,500,000[22] in debt may be restructured. This debt ceiling is significantly higher than that allowed in chapter 13. Commensurate with the increased debt ceiling is an increased level of responsibility on the part of the debtor to accurately inform its creditors of its financial condition.
In addition, a chapter 12 plan often restructures a markedly more complicated financial situtation than a consumer chapter 13. In a chapter 12, large tracts of real property may be involved, assets may be cross-collateralized and the financing arrangements often reflect the cyclical nature of farming by pledging security interests in crops and property not yet in existence. *739 A chapter 13 however, usually restructures relatively simple consumer debt without the complexities of a large cash-intensive agricultural endeavor.
The chapter 12 debtor is given wide berth to produce and effectuate a feasible plan with no court approved disclosure statement. All of this occurs and is premised upon the totality of information solely in the control of the debtor and communicated to creditors only through the asset and liability listings placed of record by the debtor. No court approved disclosure statement is distributed to creditors, nor is there a creditors' committee appointed as in a chapter 11. It is mandatory that the debtor fully and timely disclose all financial information so that creditors can make informed judgments regarding the plan.
Caldwell's plan has been circulated to creditors and will be voted upon with only the information available in the Chapter 12 statement and Chapter 12 amendment to guide parties in interest. Caldwell's plan provided the following treatment for unsecured creditors:
Class F. The holders of the allowed unsecured claims shall be paid through the plan after the administrative claims, priority claims and secured claims have been paid. It is anticipated that the claims will be satisfied within five years after confirmation of the plan, if the Powell claim is disallowed. Any claims in Class F remaining after five years after the effective date shall be discharged pursuant to the provisions of Bankruptcy Code Section 1228.
The "Powell" claim is not even listed in the Chapter 12 statement. How, then, can unsecured creditors who are not allowed to vote on a plan, or the court, begin to determine if this treatment is appropriate if no information regarding the claim is available to them? The Standing Trustee is expected to investigate and to appear and be heard in reliance upon the documentation produced by Caldwell. Creditors and the Standing Trustee must determine whether grounds exist for an objection to confirmation[23] based in large part on the documentation on file with the court. The court is expected to rule upon good faith, feasibility, liquidation value, and other aspects of confirmation from evidence presented by parties in interest relying upon this information.
Excuses simply will not be given credence when Caldwell's course of dealing in connection with the case shows an intentional and consistent attempt to mislead creditors to their detriment. Indeed, the failure to provide accurate information in a chapter 12 case could be construed as an attempt to fraudulently obtain confirmation of a plan.[24]
CONCLUSION
Even if the draft Chapter 13 Statement was not in evidence and the court believed the omission of the assets was unintentional, the failure to amend promptly[25] once the omission was discovered is an indicia of fraudulent intent. Reviewing section 727(a)(4)(A), the court in In re Alfonso stated, "Moreover even though schedules are filed in haste, a debtor's failure to promptly amend the schedules is considered a reckless indifference to the truth which is the equivalent of fraud." In re Alfonso, 94 B.R. at 778.
The statute mandates full, complete and prompt disclosure so that parties in interest may effectively protect their rights, and so that the Standing Trustee can accurately administer the assets of the estate. In re Hubbard, 96 B.R. at 751. The court must make a judgment based upon fact, not upon a mere hope that the information contained in the debtor's schedules is sufficiently *740 accurate to adjudicate the rights of parties in interest.
If the court adopted Caldwell's argument that amendments can be made up until confirmation,[26] even though the information is known to be inaccurate long before, the obligations of the Code would run only one way. Creditors would be required to file accurate, timely and complete proofs of claim and to precisely plead stay lifts and motions. This level of accuracy would not be required of the debtor. According to Caldwell, the debtor could play his cards close to the vest. He could execute perjury statements without having read the documents. He could file erroneous and misleading information in haste and excuse the conduct because of the inability of counsel to monitor the data. The debtor could then amend at his leisure at any point in time, even though the debtor knows of the inaccuracies and has reasonable cause to know creditors are relying on the misinformation. This cavalier attitude towards the court and the requirements of the Code cannot be tolerated.
Caldwell's course of conduct in executing a perjury statement which materially mis-stated the assets and liabilities of the estate, coupled with his failure once the omissions were discovered to promptly and accurately amend are all, in light of the magnitude of the assets and liabilities omitted, indicia of Caldwell's intent to defraud this court and creditors. Such actions affect the proper administration of the estate and the ability of creditors to protect their rights and vote on the plan of reorganization. The fraud evidenced by this filing is, in this court's view, precisely the course of conduct Congress intended to eliminate when it enacted the very unusual provision of section 1208(d).
The Motion before the court is for conversion to chapter 7. That is a harsh result for Caldwell who may be solvent. The court is aware that its ruling may provide a basis for future proceedings in this chapter 7 case. However, all those consequences were foreseeable to Caldwell and his attorneys. Absent Caldwell's election under section 1208(b) to dismiss the case, he must now suffer the consequences of his actions.
Counsel for UPCA is directed to prepare an order referencing this Memorandum Decision converting the case to a case under chapter 7. *741
EXHIBIT "A" CHAPTER 12 STATEMENT
==========================================================================================
CRAIG CALDWELL
LIST OF EQUIPMENT
NOVEMBER 30, 1988
-------------------
VEHICLES & EQUIPMENT, CAT CREEK RANCH:
UINTAH COUNTY, UTAH:
Van, Chevrolet, 1984 Mtg., Zions, $5,600 $ 7,500
Gin Truck, 1980, 4×4, 1 ton, with
gin poles No Mtg. Value 4,000
Farm truck, dump type, with rack,
1 ton, 1979 Value 4,000
_______
TOTAL VALUE VEHICLES, THIS LIST: $15,000
SERVICE TRAILERS:
1982 Special Fifth Wheel Trailer No Mtg. Value $ 3,500
1981 Flatbed Trailer with tilt bed No Mtg. Value 4,500
1977 American Trailer, stock trailer No Mtg. Value 15,000
1977 Horse trailer, 4 horse carrier Value 2,000
_______
$25,000
TOTAL VEHICLES: $15,500
TOTAL TRAILERS: 25,000
_______
TOTAL VALUE: $40,500
NOTE: ALL EQUIPMENT LOCATED ON RANCH. NO CO-OWNER. NO MORTGAGES.
PAGE 19-A
*742
LIST OF FARM ASSETS OF CRAIG CALDWELL
---------------------------------
DBA CAT CREEK RANCH
P.O. BOX 501
VERNAL, UTAH 84708
--------------------------------------
PROPERTY DESCRIPTION NAME OF SECURED AMT. OF PRESENT
CREDITOR, IF ANY MORTGAGE MARKET VAL
House, frame, & 1.2 ac. Utah Prod. Credit
2 bedroom, 1 bath Association $65,204 $12,000
Land, 31 acres, pasture Utah PCA 21,000
valued at $700/ac.
Barn, Metal, 36 × 48' Utah PCA 10,000
Misc. Bldgs. Utah PCA 2,000
Farm Equipment:
1 Holland Baler Utah PCA 3,500
1 Hesston Swather Utah PCA 15,000
1 Hesston Hay Loader Utah PCA 5,000
1 Manure Spreader Utah PCA 1,000
Farm Animals:
Bulls, 2, Simental Utah PCA 2,400
Bulls, 1 Hereford Utah PCA 1,500
Horses, 5 working
saddle horses Utah PCA 2,500
Horses, 3 Brood Mares Utah PCA 600
Horses, 1 Pack Horse Utah PCA 200
Horses, 3 colts & ponies Utah PCA 1,000
32 Purebred Ewes, Suffolk, Utah PCA 5,000
20 Purebred Buck Lambs Utah PCA 3,000
15 Purebred Suffolk Ewe Lambs Utah PCA 1,500
__________
TOTAL VALUE, FARM EQUIPMENT & LIVESTOCK:
(INCLUDING HOUSE, BARN & LAND) $77,200
PAGE 19-B
*743
EXHIBIT "B" CHAPTER 12 AMENDMENT
===================================================================================
AMENDED
LIST OF FARM ASSETS OF CRAIG CALDWELL
DBA CAT CREEK RANCH
MORTGAGED TO:
PRODUCTION CREDIT ASSOCIATION
------------------------------------
3-30-89
PROPERTY DESCRIPTION NAME OF AMT. OF ESTIMATED
SECURED CREDITOR, MORTGAGE, VALUE, DOLLARS
IF ANY IF ANY
New Holland Baler, #315, Utah PCA on all $65,204 $ 3,500
1978 equipment this Total,
list This List
Hesston Swather, 1978 #6600 12,000
New Holland Bale Wagon, 1978,
#1032 5,500
House, Frame, White, 3 bedroom,
1 bath on .76 acres 12,000[**]
Land, 25.00 ac, pasture,
value: $620/acre 15,500[**]
Barn, metal, 38 × 48 with
concrete floor 10,000[**]
LIVESTOCK:
Bulls, 2 Simental @ $1,500 ea. 3,000[****]
Cows, 4, 3 with calves, 3,200
Bulls, 1, Hereford 1,200
Horses, 5 working saddle horses 2,500
Horses, 3 brood mares @ $200 ea. 600
Pigs, 3 sows @ $50 ea. & 21 weiners @ $25 ea. 675
Ewes, Purebred Suffolks, 32 @ $150 ea. 4,800
Lambs, 18 Purebred Suffolk buck lambs, yearlings 3,000
Lambs, 15 Purebred Suffolk ewe lambs 1,500
________
TOTAL THIS LIST: $78,975
- PAGE ONE OF TWO PAGES -
*744
AMENDED LIST OF FARM ASSETS OF CRAIG CALDWELL
MORTGAGED TO PRODUCTION CREDIT ASSOCIATION
MARCH 30, 1989
PAGE TWO
LIVESTOCK, CONTD.: EST. VALUE
Geese, 21. Have never been able to sell or give anyone a goose. None
Ducks, 10. Have never found anyone wanting to buy a duck. None
Chickens, 10., @ $2.00 ea. $ 20
_______
TOTAL VALUE LIVESTOCK THIS PAGE: $ 20
HAY
Hay on hand this date: None. Used for feeding 1st Quarter. -0-
TOTAL VALUE OF MORTGAGED REAL PROPERTY, THIS PAGE: $ 20
RECAPITULATION OF REAL PROPERTY MORTGAGED TO PCA
Equipment, house, land, incl.old wood granery: $58,500
Livestock: Page One $20,475
Page Two 20
_______
$20,495 $20,495
_______
TOTAL, PAGES ONE & TWO: $78,995
*745
A M E N D E D
ADDITIONAL LIST OF OTHER PROPERTY NOT MORTGAGED TO PCA
CRAIG CALDWELL
DBA CAT CREEK RANCH
3-30-1989
(ALL EQUIPMENT FREE & CLEAR OF LIENS UNLESS NOTED)[**]
FARM EQUIPMENT: ESTIMATED VALUE
Manure spreader, 3 fork $ 1,000
Tractor, Ford, #4000, 50HP, Diesel, #34014 3,000
Tractor, Ford, 40 HP, Diesel, #3400 3,000
Miscellaneous Farm Equipment, plows, rakes, etc. 500
including miscellaneous tools
Harrow, springtooth, 10' 100
Calf Chute, Powder River make 300
Harrow, spiketooth, 3 sections 200
Panels, assorted, 17 500
Gates, 2, steel 250
Gates, 2, runway gate type 100
Manhandler, 1, with sheep chute & scales 400
Feeders, lamb type, creep feeders, 2 400
Plow, 3 bottom Ford 150
Leveler, 1 Three point 200
Chute, portable loading type 300
_______
TOTAL EQUIPMENT, THIS PAGE: $10,400
PAGE ONE
*746
AMENDED LIST OF OTHER PROPERTY NOT MORTGAGED TO PCA
CRAIG CALDWELL
MARCH 30, 1989
PAGE TWO
VEHICLES:
Van, Chev., Custom, 1982, #1GBEG25H67127704 6,000 ($6,500 Mtg., Zions)
Truck, Chev., Gin Truck, 1980, 4 × 4 w/gin poles,
w/winch, oil field construction equipped 4,500
Truck, Pickup, GMC, 1968, w/camper, 4 × 4, #KE20D-PB64694 4,000
Truck, Pickup, Ford, 1979, #f26SRDH1018 500
Truck, Pickup, GMC, Red, w/oil field equipment
fuel tanks, #TCE242J508358 500
Truck, Dump type, Farm, 1979 Chev. 1-ton, 4 × 4 w/rack 3,500
Truck, Pickup, 1982, Chev., Diesel, Brown, 4 × 4, 3,500
No. 1GCEK14C5CJ114875
Truck, Pickup, Brown, Diesel, 4 × 4, #IGCEK14C9EJ26868 6,500
Bellydump, Beale, 1972, #DHS3082721 5,000
TRAILERS, OIL FIELD FLATBED & LIVESTOCK TYPES:
Fifth wheel flat bed, Special, 1982, #253468 3,500
Flatbed, tilt bed, 1982, #05371 4,500
Horse trailer, 4 horse type, #050103 800
Livestock trailer, AMEM, #AV189239 16,000
_______
TOTAL THIS LIST: $58,800
(6,500) OWED ZIONS
________
$52,300 TOTAL EST. VALUE,, THIS
PAGE
*747
AMENDED LIST OF OTHER PROPERTY NOT MORTGAGED TO PCA
MARCH 30, 1989
PAGE THREE
MISCELLANEOUS OIL FIELD & CONSTRUCTION EQUIPMENT:
EST. VALUE
Backhoe, Case, Model 580-C $ 7,500
Trailer, House type, Nomad, 28', self contained, #XXXXXXXXX 5,000
STOCKS:
Hiko Bell Mining & Oil Company, an OTC Company. 44,138
4,413,848 shares; value: 3-30-89: 1¢ Bid
Ashley Central Irrigation Co. "S" Stock, 45 sh. @ $31/sh. 2,395
Ashley Upper Primary Stock, 1.23 sh. @ $3,00/sh. 4,065
Ashley Valley Reservoir Stock, 40 sh. @ $50/sh. 2,000
Ashley Central Irrigation Co., 4 sh. @ $6,000/sh. 24,000
ADDITIONAL PROPERTY:
3 Wheeler, ATV, Model 200, Honda, #TB 05E-2123624 100
Snowmobile, Yamaha, 1982, Model SR54OF, #8R6-031884 100
Snowmobile, Yamaha, 1982, Model SR54OF, #8R6-031840 100
Motorcycle, Yamaha, 1983, Model RSm #Jya27y000DA002720 750
Boat, Fibrform, 18', 150 HP, #UTZ1537SA966 w/trailer 2,500
Gun, Shotgun, 12 gauge 100
Personal effects, miscellaneous 300
Furniture & household goods 1,500
________
$94,548
REAL ESTATE:
House, 250 No. 1100 West, Vernal, Utah
Brick, 3 level, 2/2 car garage, 7 lots,
50% interest 130,000[**]
Land, 6.46 ac., water storage reservoir site,
Location: SE¼SE¼ Sec. 7, T5S-R22E @ $300/ac. 1,938[**]
House, brick & wood, white, 1305 West Main, Vernal. Value:
$31,000 est Owe approx. $24,000 to American Savings,
Salt Lake City, Equity is approximately $7,000. 7,000[**]
________
TOTAL: $233,486 THIS PAGE
*748
AMENDED ASSET LIST
CRAIG CALDWELL
ASSETS NOT MORTGAGED TO PCA
MARCH 30, 1989
PAGE FOUR
ACCOUNTS RECEIVABLE:
Hiko Bell Mining & Oil Company, a Utah Corporation.
A 10-K S.E.C. reporting company. Founded 1943.
Listed Over the Counter in Pink Sheets. Has over
12,000 stockholders. Cleared to trade in every state
except California.
Salary due as of 12-31-87 $264,315
1988 Salary 32,500
Notes due from Hiko Bell: 68,799
Due Hiko Bell, Notes (24,480)
__________
TOTAL DUE CRAIG CALDWELL: $341,134
RECAPITULATION OF ASSETS
I. AMENDED LIST OF PROPERTY MORTGAGED TO PCA" (PAGES 1 & 2) $78,995
II. AMENDED LIST OF FARM EQUIPMENT NOT MORTGAGED: (PAGE ONE) 10,400
III. AMENDED LIST OF VEHICLES & TRAILERS: (PAGE TWO) 52,300
IV. MISCELLANEOUS OIL FIELD CONSTRUCTION EQUIPMENT,
STOCKS, MISC. PROPERTY & REAL ESTATE (PAGE THREE) 233,486
V. ACCOUNTS RECEIVABLE, (PAGE FOUR) 341,134
________
TOTAL ASSETS: $716,295
*749
EXHIBIT "C" CHAPTER 13 STATEMENT
============================================================================
LIST OF FARM ASSETS OF CRAIG CALDWELL
-------------------------------------
DBA CAT CREEK RANCH
P.O. BOX 501
VERNAL, UTAH 84078
-------------------------------------
PROPERTY DESCRIPTION NAME OF SECURED AMT. OF PRESENT
CREDITOR, IF ANY MORTGAGE MARKET VAL.
House, frame, & 1.2 ac. Utah Prod. Credit
2 bedroom, 1 bath Association $65,204 $12,000
Land, 31 acres, pasture Utah PCA
valued at $700 /ac. 21,000
Barn, Metal, 36 × 48' Utah PCA 10,000
Misc. Bldgs. Utah PCA 2,000
Farm Equipment:
1 Holland Baler Utah PCA 3,500
1 Hesston Swather Utah PCA 15,000
1 Hesston Hay Loader Utah PCA 5,000
1 Manure Spreader Utah PCA 1,000
Mobile gates & fences Utah PCA 5,000
Miscellaneous Equipment Utah PCA 5,000
Sheep Squeeze Chute Utah PCA 3,000
Cow Squeeze Chute Utah PCA 4,000
Feeding Tanks & Troughs Utah PCA 2,000
Tractor, Ford, 1965 Diesel Utah PCA 500
Farm Animals:
Bulls, 2, Simental Utah PCA 2,400
Bulls, 1 Hereford Utah PCA 1,500
Horses, 5 working
saddle horses Utah PCA 2,500
Horses, 3 Brood Mares Utah PCA 600
Horses, 1 Pack Horse Utah PCA 200
Horses, 3 colts & ponies Utah PCA 1,000
32 Purebred Ewes, Suffolk Utah PCA 5,000
20 Purebred Buck Lambs Utah PCA 3,000
15 Pueebred Suffolk Ewe Lambs Utah PCA 1,500
________
TOTAL VALUE, FARM EQUIPMENT & LIVESTOCK:
(INCLUDING HOUSE, BARN & LAND) $96,700
*750
CRAIG CALDWELL
LIST OF EQUIPMENT
NOVEMBER 30, 1988
------------------------
VEHICLES & EQUIPMENT, CAT CREEK RANCH:
UINTAH COUNTY, UTAH:
Van, Chevrolet, 1984 Mtg., Zions, $5,600 $ 7,500
Gin Truck, 1980, 4×4, 1 ton, with
gin poles No Mtg. Value 4,000
Farm truck, dump type, with rack,
1 ton, 1979 Value 4,000
_______
TOTAL VALUE VEHICLES, THIS LIST: $15,500
SERVICE TRAILERS:
1982 Special Fifth Wheel Trailer No Mtg. Value $ 3,500
1982 Flatbed Trailer with tilt bed No Mtg. Value 4,500
1977 American Trailer, stock trailer No Mtg. Value 15,000
1977 Horse trailer, 4 horse carrier Value 2,000
_______
$25,000
TOTAL VEHICLES: $15,500
TOTAL TRAILERS: 25,000
_______
TOTAL VALUE: $40,500
*751
L. CRAIG CALDWELL
STATEMENT OF FINANCIAL CONDITION
(DBA CAT CREEK RANCH)
-------------------------------------
December 1, 1988
ASSETS
Cash $ 345
Marketable Securities
4,413,848 AT .01/share, Hiko Bell Mining & Oil 44,138
Water shares, irrigation water 10,000
Notes Receivable:
Promissory Note, Jay R. Kirk & Lawrence C. Caldwell, II 45,000
Vehicles & Equipment (see accompanying list) 136,040
Livestock (see attached list) 16,200
Real Estate:
Home, 1305 West Main, Vernal, Utah 40,000
Ranch, 1027 S.1500 E., Vernal, Utah, 30 ac @ $700/AC. &
Steel Barn 31,000
Ranch House & 1.0 ac,, 1027 S.1500 E. 12,000
House, 250 N.1100 West, 50% interest 110,000
________
TOTAL ASSETS: $423,033
LIABILITIES
Mortgage, House, 1305 W.Main, Vernal, Utah 28,000
Crofts Oil & Ashton Bros. Bill 4,606
Loan, Production Credit Assn., Livestock,Ranch & Eqpt. 65,204
Vernal City, Special Improvement Taxes 12,000
Income Tax payable 93,503
________
TOTAL LIABILITIES: $203,313
EQUITY
Net Worth-L. Craig Caldwell (DBA Cat Creek Ranch) $219,720
________
Total Liabilities and Equity $423,033
NOTES
[1] 11 U.S.C. § 1208(d) provides:
On request of a party in interest, and after notice and a hearing, the court may dismiss a case under this chapter or convert a case under this chapter to a case under chapter 7 of this title upon a showing that the debtor has committed fraud in connection with the case.
[2] Subsequent references are to Title 11 of the United States Code unless otherwise noted.
[3] In re L. Craig Caldwell, bankruptcy number 88B-07175, the within chapter 12 case, is to be distinguished from In re Lawrence C. Caldwell, II, bankruptcy number 88B-02725, a chapter 7 case also pending before this court. L. Craig Caldwell is the father of Lawrence C. Caldwell, II.
[4] This jurisdiction has not adopted the Interim Rules Pertaining to Chapter 12 as promulgated by the Advisory Committee on Bankruptcy Rules. The court notes, however, that no change in the court's decision would be mandated if such adoption had occurred because the interim rules as proposed would have no effect on any portion of this ruling.
[5] Standing Order # 39 as amended November 25, 1986, requires the following relevant documents:
d. a schedule of Assets and Liabilities conforming substantially to Official Form # 6,
e. a Statement of Affairs for a Debtor Engaged in Business conforming substantially to Official Form # 8, plus Chapter 12 Supplement,
f. if applicable, a List of Equity Security Holders pursuant to Bankruptcy Rule 1007(3),
g. if the debtor's Schedules include consumer debts which are secured by property of the estate, a Statement of Intent pursuant to Sec. 521(2) of the Code,
h. a Chapter 12 Statement of Current Income and Expense in the form designated by the court's Estate Administrator (or the U.S. Trustee, if applicable). . . .
[6] In this jurisdiction, a continued meeting of creditors is held at a point in time after the date required for a Chapter 12 Plan to be filed, but prior to the scheduled confirmation hearing. The purpose of the continued meeting of creditors is to allow the debtor, creditors and the Standing Trustee to review the plan prior to the confirmation hearing.
[7] The assets not at issue listed on the Chapter 12 statement are: (1) the debtor's 50% interest in a house at 250 North 1100 West, Vernal, Utah, valued at $130,000; (2) a house at West Main, Vernal, Utah, valued at $40,000 with encumbrances of $26,000; (3) a ranch and ranch house at 1027 South 1500 East, Vernal, Utah, valued at $33,000 and secured to UPCA; and, (4) wool incentives of $1,200 also secured to UPCA.
Unencumbered assets listed on the Chapter 12 statement included: (1) unitemized furniture valued at $1,500; (2) unitemized appliances valued at $1,500; (3) a shotgun valued at $200; (4) unitemized miscellaneous items valued at $600; (5) a checking account at Zions First National Bank containing $445; and, (6) mining and oil stock in Hiko Bell consisting of 4,417.84 shares with a value of $44,178. The actual number of shares is apparently 4,417,840.
Similar assets are listed on the Chapter 12 amendment, although their descriptions and the value of the assets are inconsistent.
[8] Caldwell's signature appears below the statement, "I, L. Craig Caldwell, hereby certify that the Chapter 12 amendments are true and correct to the best of my knowledge and belief." Bankruptcy Rule 1008 requires that all amendments be verified or contain an unsworn declaration under penalty of perjury as provided in 28 U.S.C. § 1746.
[9] The exhibits have been reproduced verbatim and in the form and page styling of the originals received into evidence by the court. Line by line comparison is impossible because of the altered style and designation of the assets. Several inconsistencies exist in the addition of the value of the assets; therefore, any figures in this opinion are approximations. For example, the actual total of the assets listed on the Chapter 13 Statement "List of Farm Assets of Craig Caldwell" is $106,700, not $96,700 and the Summary of Assets is $444,723 not $423,033.
[10] The evidence is unclear as to whether this is a reference to the same promissory note in the amount of $45,000 mentioned in the Chapter 13 Statement.
[11] Caldwell filed a March, 1989 financial report on April 24, 1989, which references an Exhibit "A" containing an amended plan of reorganization, tax returns, SEC forms for Hiko Bell, a decree of divorce and pictures of his farm. Those items referenced in the exhibit are not in the court's file.
[12] Chapter 12 allows creditors to bring actions under section 523 for determination of the dischargeability of a debt.
[13] Section 1208(d) provides:
On request of a party in interest, and after notice and a hearing, the court may dismiss a case under this chapter or convert a case under this chapter to a case under chapter 7 of this title upon a showing that the debtor has committed fraud in connection with the case. (emphasis added).
In comparison, section 727(a)(4) provides:
(a) The court shall grant the debtor a discharge, unless
. . . .
(4) the debtor knowingly and fraudulently, in or in connection with the case
(A) made a false oath or account;
(B) presented or used a false claim;
(C) gave, offered, received, or attempted to obtain money, property, or advantage, or a promise of money, property, or advantage, for acting or forbearing to act; or
(D) withheld from an officer of the estate entitled to possession under this title, any recorded information, including books, documents, records, and papers, relating to the debtor's property or financial affairs . . . (emphasis added).
[14] It is certainly foreseeable that fraud in connection with a case could encompass fraud not set forth in section 727 but delineated in section 523. For example, circumstances could exist in which the debtor, with the intent to defraud a creditor, transferred property of the debtor in excess of one year before the date of filing. Though not actionable under section 727(a)(2)(A), the conduct may fall within section 523(a)(2)(A). The court could also find that the fraud was in connection with the case, thus satisfying section 1208(d) and warranting conversion or dismissal. Because of the nature of the facts of this case, this court need not decide if section 523 actions sounding in fraud could be considered to be "in connection with the case" and thus fall under section 1208(d).
[15] Section 303(a), section 1112(c) and section 1307(e).
[16] The Code retains the prohibition against an involuntary filing against a family farmer in section 303(a). A comparison of the differences between a family farmer and a farmer is helpful.
Section 101(17) defines "family farmer" as an:
(A) individual or individual and spouse engaged in a farming operation whose aggregate debts do not exceed $1,500,000 and not less than 80 percent of whose aggregate noncontingent, liquidated debts (excluding a debt for the principal residence of such individual or such individual and spouse unless such debt arises out of a farming operation), on the date the case is filed, arise out of a farming operation owned or operated by such individual or such individual and spouse, and such individual or such individual and spouse receive from such farming operation more than 50 percent of such individual's or such individual and spouse's gross income for the taxable year preceding the taxable year in which the case concerning such individual or such individual and spouse was filed; or
(B) corporation or partnership in which more than 50 percent of the outstanding stock or equity is held by one family, or by one family and the relatives of the members of such family, and such family or such relatives conduct the farming operation, and
(i) more than 80 percent of the value of its assets consists of assets related to the farming operation;
(ii) its aggregate debts do not exceed $1,500,000 and not less than 80 percent of its aggregate noncontingent, liquidated debts (excluding a debt for one dwelling which is owned by such corporation or partnership and which a shareholder or partner maintains as a principal residence, unless such debt arises out of a farming operation), on the date the case is filed, arise out of the farming operation owned or operated by such corporation or such partnership; and
(iii) if such corporation issues stock, such stock is not publicly traded. . . .
Section 101(19) defines "farmer" as:
"farmer" means (except when such terms appears in the term "family farmer") person that received more than 80 percent of such person's gross income during the taxable year of such person immediately preceding the taxable year of such person during which the case under this title concerning such person was commenced from a farming operation owned or operated by such person. . . .
[17] Mr. Covington is a geologist, an officer of Hiko Bell and friend of Caldwell. He assisted Caldwell in preparing the lists from which the Chapter 13 and Chapter 12 statement were prepared.
[18] Caldwell cannot rely upon the mistakes, inadvertence or advice of counsel to excuse inaccuracies in the schedules. In re Adeeb, 787 F.2d at 1343. As recited in In re Hubbard, 96 B.R. at 750:
When practitioners become too busy to give each case the attention it deserves, when participants in the process become too adversarial, the Court is forced, as in this case, to attempt to restore balance. All of these competing interests are generally satisfied by full and complete disclosure.
. . . .
It is not allowable for a Debtor to pick and choose the information to be given on answers to these forms. All claims, as defined in Bankruptcy Code § 101(4), must be disclosed.
[19] Addition of the amounts on page 19-B of Exhibit "A" indicates a $10,000 discrepancy in the total.
[20] Addition of the amounts on page four of Exhibit "B" indicates a $20 discrepancy in the total.
[21] In re Calder contains a thorough discussion of the necessity of a chapter 7 debtor to file accurate and truthful statements and schedules evidencing full disclosure of the debtor's financial affairs as a prerequisite to obtaining a discharge.
[22] Section 101(17).
[23] Section 1225(b)(1).
[24] If fraudulent activity results in confirmation of a plan and eventual discharge of debt, an action may be available under section 1228(d).
[25] Bankruptcy Rule 1007(h) sets a 10 day limit on the filing of a supplemental schedule to include interests in property acquired by the debtor or arising after the petition. The triggering date for the ten day limit is when the information comes to the debtor's knowledge. It is consistent that other undisclosed assets be revealed to creditors in as prompt a manner once brought to the debtor's attention.
[26] Caldwell argues that even if the asset and liability lists were inaccurate initially, or are still incomplete, Bankruptcy Rule 1009 allows amendments to the schedules at any time as a matter of course. Caldwell asserts that the opportunity to amend should be extended up to a point at which, if the court made a ruling from inaccurate information contained in the Chapter 12 statement, parties in interest would be jeopardized. That point is argued by Caldwell to be up until the time the court rules upon confirmation of Caldwell's plan.
Caldwell's argument in the context of this chapter 12 case is incorrect. The court acknowledges that it is sometimes difficult to accurately list all the assets and liabilities of a debtor in the detail required by the statute and that generally, amendments to those documents are freely allowed as an aid to full disclosure. Caldwell however, is clearly imposing upon that general principle. Amendments should be allowed only if there is no showing of bad faith or prejudice to creditors. Stinson v. Williamson (In the Matter of Williamson) 804 F.2d 1355, 1358 (5th Cir.1986).
[**] Estimated. Certified appraisal to correct will follow shortly.
[****] These two bulls were sold for $1,500 and the money was put into the Trust account of Anthony J. Famulary.
[**] Except for Internal Revenue Service
[**] Estimated. Certified Appraisal to follow shortly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1006034/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MELVIN JACKSON,
Plaintiff-Appellant,
v.
WAL-MART STORES, INCORPORATED,
Defendant-Appellee, No. 01-1232
and
MUTUAL OF OMAHA INSURANCE
COMPANY,
Defendant.
Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Cameron McGowan Currie, District Judge.
(CA-99-4069)
Submitted: September 13, 2001
Decided: December 4, 2001
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William T. Toal, JOHNSON, TOAL & BATTISTE, P.A., Columbia,
South Carolina, for Appellant. Michael S. Cessna, WAL-MART IN-
HOUSE LITIGATION TEAM, Bentonville, Arkansas, for Appellee.
2 JACKSON v. WAL-MART STORES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Melvin Jackson appeals the district court’s orders granting sum-
mary judgment in favor of Wal-Mart Stores, Inc., and denying his
motion to alter or amend judgment. Jackson sued Wal-Mart under the
South Carolina Payment of Wages Act, S.C. Code Ann. §§ 41-10-10
to 41-10-110 (Law. Co-Op. Supp. 2000), alleging that Wal-Mart
made excessive deductions from his wages for insurance premiums.*
Wal-Mart removed the action based on federal question jurisdiction
under the Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C.A. §§ 1001-1461 (West 1999 & Supp. 2001). The
district court denied Jackson’s motion to remand, granted Wal-Mart’s
motion for summary judgment, and denied Jackson’s motion to alter
or amend the judgment. Jackson timely appealed. Finding no error,
we affirm.
ERISA supersedes any and all state laws insofar as they relate to
any employee benefit plan covered by ERISA. 29 U.S.C.A. § 1144(a).
A state law relates to an ERISA plan "if it has a connection with or
reference to such a plan." See Griggs v. E.I. Dupont De Nemours &
Co., 237 F.3d 371, 377 (4th Cir. 2001) (finding a state law of general
application, with only an indirect effect on a pension plan, may relate
to that plan for preemption purposes). ERISA’s preemption provi-
sions are broadly construed. See FMC Corp. v. Holliday, 498 U.S. 52,
58 (1990).
The district court observed that Jackson’s action was tantamount to
an action seeking return of contributions made under the terms of the
plan and for restitution of any overpayments under 29 U.S.C.A.
§ 1132(a)(3)(B). Because Jackson’s claim entails an inquiry into the
*Jackson also sued Mutual of Omaha, which was subsequently dis-
missed via consent order.
JACKSON v. WAL-MART STORES 3
terms and administration of the employee benefits plan to determine
whether Wal-Mart deducted unauthorized amounts from Jackson’s
wages, Jackson’s claim relates to the employee benefit plan. There-
fore, we find that the district court correctly found that ERISA pre-
empted the application of the South Carolina Payment of Wages Act.
We review the district court’s award of summary judgment de
novo. Higgins v. E.I. Dupont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988). Summary judgment is appropriate when there is no
genuine issue of material fact, given the parties’ burdens of proof at
trial. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-49 (1986). In determining whether the moving party has
shown that there is no genuine issue of material fact, a court must
assess the factual evidence and all inferences to be drawn therefrom
in the light most favorable to the non-moving party. Id. at 255; Smith
v. Virginia Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996).
Jackson claims that the plan administrator directed excessive
deductions from his wages for insurance premiums. Wal-Mart sup-
ported its motion for summary judgment with documentation evidenc-
ing that an erroneous social security number provided by Jackson
when he transferred to a new store caused Wal-Mart to miscalculate
Jackson’s payroll deducted insurance premiums. After Jackson termi-
nated his coverage, the plan administrator conducted an audit that rec-
onciled the amount of premiums owed and appropriate deductions.
Jackson failed to produce countervailing evidence to support his con-
clusory assertions that the reconciliation was incorrect, thus failing to
stave off Wal-Mart’s properly supported motion for summary judg-
ment. Consequently, we find that the district court did not err in grant-
ing summary judgment in favor of Wal-mart and in denying Jackson’s
motion to alter or amend the judgment.
We affirm the district court’s order granting Wal-Mart’s motion for
summary judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1006036/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4240
JAMES BYRD,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-00-94)
Submitted: November 20, 2001
Decided: December 3, 2001
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
G. Ernest Skaggs, SKAGGS & SKAGGS, Fayetteville, West Vir-
ginia, for Appellant. Charles T. Miller, United States Attorney, Lisa
A. Green, Assistant United States Attorney, Huntington, West Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BYRD
OPINION
PER CURIAM:
Pursuant to a plea agreement, James Byrd pled guilty to aiding and
abetting the distribution of hydromorphone, in violation of 18 U.S.C.
§ 2 (1994) and 21 U.S.C. § 846 (1994). Byrd timely appealed. Byrd’s
counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), addressing whether the district court abused its discretion
in failing to sentence Byrd in conformity with a similarly situated co-
defendant who received a shorter sentence. Counsel concedes, how-
ever, that there are no meritorious issues for appeal. Advised of his
right to file a pro se supplemental brief, Byrd has elected not to do
so.
An otherwise proper sentence cannot be challenged on the basis of
an alleged disparity with sentences of co-defendants. United States v.
Davis, 98 F.3d 141, 145 (4th Cir. 1996). To the extent that Byrd
asserts that the district court should have sua sponte made a down-
ward departure in his sentence based on his co-defendant’s sentence,
disparity of sentences among co-defendants is not a ground for down-
ward departure absent prosecutorial misconduct, which is not evident
here. United States v. Fonville, 5 F.3d 781, 783-84 (4th Cir. 1993).
Pursuant to Anders, this court has reviewed the record for potential
error and has found none. We therefore affirm Byrd’s conviction and
sentence. We deny counsel’s motion to withdraw from representation.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
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 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918232/ | 764 A.2d 489 (2001)
STATE of New Jersey, Plaintiff-Respondent,
v.
John K. OLIVERI, Defendant-Appellant.
Superior Court of New Jersey, Appellate Division.
Submitted December 5, 2000.
Decided January 16, 2001.
*490 Peter M. O'Mara, Red Bank, attorney for appellant.
John Kaye, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).
Before Judges KESTIN, CIANCIA and ALLEY.
The opinion of the court was delivered by CIANCIA, J.A.D.
Defendant John K. Oliveri was found guilty of driving while under the influence of alcohol, N.J.S.A. 39:4-50, after a trial de novo on the record in the Law Division. He contends now, as he did in the Law Division, that there was insufficient legal basis for the initial stop of his vehicle and that a laboratory report on a blood test was erroneously allowed into evidence at *491 trial because the State failed to lay a proper foundation. We find insufficient merit in the issues raised to warrant a reversal. In addition, we are satisfied that there is sufficient credible evidence in the record to support defendant's conviction even without consideration of the laboratory report.
On the evening in question, defendant was driving a replica model of a 1966 Cobra AC, a car as defendant said, that was "built for racing." The vehicle was stopped at a light when first observed by a local police officer on motor patrol. When the light turned green the officer observed "heavy acceleration" and smoke emanating from the tires. The Cobra's engine was loud. The tires were spinning and the vehicle appeared out of control. The back end "kicked out a little bit." The officer pulled defendant over and, among other things, issued a careless driving summons. N.J.S.A.39:4-7.[1]
On those facts we are satisfied, as was the trial court, that the police officer had a reasonable and articulable suspicion that defendant had committed a motor vehicle violation. The initial investigatory stop was reasonable. State v. Murphy, 238 N.J.Super. 546, 570 A.2d 451 (App.Div. 1990); State v. Carter, 235 N.J.Super. 232, 561 A.2d 1196 (App.Div.1989).
Defendant's second contention is more complex. It concerns the admission into evidence of a certified laboratory report from a State Police laboratory indicating a blood-alcohol concentration of .145%. No foundational testimony was presented by the State prior to the report's admission other than information concerning how the blood was initially drawn and the chain of custody that brought it to the State Police laboratory. Defendant contends the absence of such a foundation precluded admission of the report as a business record. N.J.R.E. 803(c)(6).
Initially, we note that there was some discussion of the procedures set forth in N.J.S.A. 2C:35-19 and some confusion as to the applicability of that statute. The confusion was compounded by the form used by the State Police laboratory (SP-630T), which is designed for both alcohol and drugs and which carries a certification referencing N.J.S.A. 2C:35-19. It is clear from the wording of the statute that its provisions concerning admissibility into evidence of laboratory certificates are intended to apply only to a "proceeding for a violation of the provisions of chapters 35 and 36 of this title or any other statute concerning controlled dangerous substances or controlled dangerous substance analogs...." The statute does not speak to blood-alcohol analysis reports prepared for Title 39 violations.[2]
Defendant contends that the laboratory report cannot qualify as a business record and cites us to State v. Flynn, 202 N.J.Super. 215, 494 A.2d 350 (App.Div.1985). Defendant fails to note that the Supreme Court remanded Flynn to the Law Division "for reconsideration in light of State v. Matulewicz, 101 N.J. 27, 499 A.2d 1363 (1985)." State v. Flynn, 103 N.J. 446, 511 A.2d 634 (1985). On that remand, Flynn was considered along with another case. The two are reported as State v. Weller, 225 N.J.Super. 274, 542 A.2d 55 (Law Div. 1988). In Weller, the court held that State Police blood-alcohol laboratory reports qualify as both business records under then Evid. R. 63(13), now N.J.R.E. 803(c)(6), and public documents under then Evid. R. 63(15), now N.J.R.E. 803(c)(8). The court said that the report could be *492 admitted "without accompanying testimony from the qualified forensic chemist who performed the tests." 225 N.J.Super. at 282, 542 A.2d 55. The State interprets Weller as the precedent that now permits all trial courts to admit laboratory reports without any accompanying foundational evidence. We find no appellate court opinion that has, as yet, endorsed Weller in that broad a fashion.
In our view, the road map for these kinds of evidential issues was set forth in State v. Matulewicz, supra. There the Court noted the following factors to be explored when considering admissibility of a forensic report:
[P]roofs should be adduced to reflect the relative degrees of objectivity and subjectivity involved in the procedure; the regularity with which these analyses are done; the routine quality of each analysis; the presence of any motive to single out a specific analysis for the purpose of rendering an untrustworthy report, and the responsibility of each State Police chemist to make accurate and reliable analyses.
[101 N.J. at 30, 499 A.2d 1363.]
Admissibility must be informed by an evidential record that addresses all relevant factors. Id. at 31, 499 A.2d 1363. Whether the report is sought to be admitted as a business record or a public record "the concern for reliability remains paramount." Ibid. Any concerns about violations of the confrontation clause, such as those expressed by defendant in the present case, are met by a showing that the hearsay is reliable. State In Interest of J.H., 244 N.J.Super. 207, 213, 581 A.2d 1347 (App.Div.1990).
The Matulewicz principles were subsequently codified in N.J.R.E. 808, which provides:
Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.
In the present case there is no viable challenge to the methodology used to draw defendant's blood or to the chain of custody that brought the blood to the State Police laboratory. The test performed in the laboratory, according to the certificate, was a "Headspace Gas Chromatography" which is apparently the same test described in detail in State v. Weller, supra, 225 N.J.Super. at 277-279, 542 A.2d 55. In the present matter, defendant's attorney was supplied the gas chromatograph charts as part of pretrial discovery. The Weller court indicated that these charts would readily reveal any deviation outside the specified standard of error. Weller, supra, 225 N.J.Super. at 278-279, 542 A.2d 55. Here defense counsel did not attempt to show any such deviations on the charts.
We note that the laboratory certificate contains a notarized certification from the forensic scientist who performed the test, which states, in part, that he has been employed in the state forensic laboratory for twenty-two years and has been qualified as an expert witness on 135 occasions in New Jersey courts. He goes on to certify that the laboratory report fairly and accurately documents the type and results of the analysis performed and it was he who performed the analysis, reviewed the results and made the conclusions set forth in the report. In addition to vouching for the accuracy and reliability of the tests, he also states that the test was performed on a routine basis within the laboratory.
N.J.R.E. 808 permits the admission of a business record or public record, such as the laboratory report here in issue, without accompanying testimony when the report concerns an uncomplicated subject *493 matter and the likelihood of accuracy is high. Traditionally, blood-alcohol analysis has been viewed as a simple and accurate procedure warranting admission of a report without additional testimony from the person who performed the test. State v. Martorelli, 136 N.J.Super. 449, 346 A.2d 618 (App.Div.1975), certif. denied, 69 N.J. 445, 354 A.2d 642 (1976); Weller, supra; State v. Rypkema, 191 N.J.Super. 388, 391, 466 A.2d 1324 (Law Div.1983); compare State v. Hudes, 128 N.J.Super. 589, 601-602, 321 A.2d 275 (Cty.Ct.1974) (breathalyzer certificates of operability admissible under Evid. R. 63(13) without testimony of the trooper-coordinator). As stated in State v. Dohme, 229 N.J.Super. 49, 54, 550 A.2d 1232 (App.Div.1988), in a somewhat analogous context, "this is precisely the type of `easy call' scientific test that may be included in a certificate, in that the analysis is based more on observations of test results than opinion. See State v. Matulewicz, 101 N.J. 27, 30-32, 499 A.2d 1363 (1985)."[3] The same may be said in the present instance. Weller, supra, 225 N.J.Super. at 279-281, 542 A.2d 55. We are satisfied that the laboratory report showing the result of a blood-alcohol analysis was properly admitted.
We also note that an alternative basis for the conviction was found by the Law Division judge, which in our view, was sufficiently supported by the credible evidence. Although the municipal court judge was not so persuaded, the Law Division judge found that even absent the laboratory report the testimony of the arresting officer demonstrated defendant's guilt beyond a reasonable doubt. In so doing, the Law Division judge made no credibility findings at odds with those of the municipal court judge. Implicit in both adjudications was a finding that the arresting officer's testimony was credible. Indeed, that testimony was not seriously challenged as to credibility. In this appeal from a de novo trial on the record, we, of course, consider only the action of the Law Division and not that of the municipal court. State v. Joas, 34 N.J. 179, 184, 168 A.2d 27 (1961).
The officer testified that when defendant was first stopped, the officer observed that defendant's eyes were watery and his speech slow and slurred. The officer had to make "a few" requests for defendant to exit the vehicle before defendant did so. Defendant admitted drinking two beers earlier in the day and asked the officer to give him a break. Defendant staggered a little as he walked. The officer asked defendant to walk heel-to-toe for nine steps up and nine steps back. Defendant took fifteen steps up and nineteen steps back without touching heel-to-toe. When attempting a one-legged stand, defendant had difficulty with his balance. He miscounted when attempting to count by thousands from one thousand to thirty thousand. Similarly, when attempting to recite the alphabet from D to S, defendant went to V and "missed several letters in between." A video tape of defendant made at police headquarters was found to be "inconclusive" by the municipal court judge and apparently was not relied upon by the Law Division judge.
Although the Law Division judge believed the laboratory report had been properly admitted into evidence, as an alternative basis for conviction she found that the facts we have set forth constituted sufficient evidence to establish guilt beyond a reasonable doubt under N.J.S.A. 39:4-50.
Appellate review of a Law Division adjudication of guilt in this context is very narrow. We do not re-weigh the evidence, but rather, determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record. State v. Locurto, 157 N.J. 463, 470, 724 A.2d 234 (1999); State v. Johnson, *494 42 N.J. 146, 161-162, 199 A.2d 809 (1964). We are satisfied the evidence we have set forth meets that test. State v. Corrado, 184 N.J.Super. 561, 567, 446 A.2d 1229 (App.Div.1982); State v. Hudes, supra, 128 N.J.Super. at 607-608, 321 A.2d 275.
For all the reasons stated, defendant's conviction for violating N.J.S.A. 39:4-50 is affirmed.
NOTES
[1] Defendant was found not guilty of that charge in municipal court because there was "no significant erratic operation other than the spin out."
[2] Whether N.J.S.A. 2C:35-19 is applicable to motor vehicle violations involving drivers under the influence of a controlled dangerous substance is a question not before us. The language of N.J.S.A. 2C:35-19 may be understood to be broad enough to encompass that circumstance. It may be said also that N.J.S.A. 39:4-50 is, in part, a statute concerning controlled dangerous substances by virtue of its references to "narcotic, hallucinogenic or habit-producing drug[.]"
[3] The Dohme statement was made in reference to test results demonstrating that breathalyzer ampoules were randomly tested, and the reliance upon that document by the State Police when certifying the accuracy of the breathalyzer machine. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575421/ | 743 N.W.2d 492 (2007)
2007 WI App 260
Judith ANDERSON and Matthew B. Anderson, Plaintiffs-Appellants,
v.
Jacqueline QUINN, John Doe Quinn, James Proeschel, Brenda Proeschel, Audrey Worm, John Doe Worm, Roger Ramseier, Catherine Ramseier, Arnold Schmitt, Jane Doe Schmitt, Ross Fisher, Karen Fisher, Bernard Tehany, Jane Doe Tehany, Michael Persson, Deanna D. Persson, Edwin Persson, Dorothy Persson, John Helling, Joan Helling, Robert Hughes and Susan Hughes, Defendants-Respondents.
No. 2006AP2462.
Court of Appeals of Wisconsin.
Oral Argument October 29, 2007.
Opinion Filed November 20, 2007.
*493 On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of J. Bushnell Nielsen and Bridget M. Hubing of Reinhart Boerner Van Deuren S.C., Waukesha. There was oral argument by J. Bushnell Nielsen.
On behalf of the defendants-respondents, the cause was submitted on the brief of Joe Thrasher of Thrasher, Doyle, Pelish & Franti, Ltd., Rice Lake. There was oral argument by Joe Thrasher.
Before HOOVER, P.J., PETERSON and BRUNNER, JJ.
*494 ¶ 1 PETERSON, J.
Judith and Matthew Anderson appeal a judgment enforcing three easements against their property. They argue the easements are unenforceable under the doctrine of merger of title. In the alternative, they argue they are good faith purchasers without notice of the easements, and two of the easements are too indefinite to be enforceable under the statute of frauds.
¶ 2 We conclude merger of title is not applicable here, and the Andersons had notice of the easements. However, one of the easementsthe "beach easement"is too indefinite to satisfy the statute of frauds. We therefore affirm the portion of the judgment enforcing the other two easements, but reverse the portion of the judgment enforcing the beach easement and remand with directions to grant the Andersons judgment with regard to that easement.
BACKGROUND
¶ 3 In September 2002, the Andersons purchased property on Lake Sissabagama in Sawyer County. The property consists of a strip eighty-eighty feet wide on the lake and running back from the lake for a distance of roughly 170 feet where it meets a larger parcel. A condominium development is located on both sides of the stripsix units on one side and four units on the other side.
¶ 4 Prior to 1984, the land on which the Andersons' property and the condominium units are located was owned as a single parcel and operated as a resort. In 1984, the ownersCharles and Florence Super and George and Patricia Pfeifferrecorded a "DECLARATION OF CONDOMINIUM OWNERSHIP OF BLACK MALLARD CONDOMINIUM." The declaration created ten condominium units and incorporated a plat map indicating the location of the units and common areas. The declaration also included a number of easements in favor of the unit owners and the condominium association. The three easements relevant here granted:
(1) A "non-exclusive right of ingress and egress over and through that certain road easement as set forth" in a legal description. The legal description of the road easement corresponds to the current driveway.
(2) The "non-exclusive right for the use of . . . the entire beach area in front of the lodge building, not part of this condominium development, for the benefit of the unit Owners to pass and repass, sit upon, walk on and use as though it were part of the Condominium."
(3) A "non-exclusive easement for all water lines, electrical lines, and similar utilities, including septic, whether now in place or needed in the future for the efficient functioning of the condominium, accross [sic] Declarant's property between the two parcels of the condominium."
Pursuant to the easements, the unit owners have run water, sewer and electrical lines across the central parcel. The following diagram shows the land in question and some of its features:[1]
*495
¶ 5 The condominium declaration was recorded and indexed under "Black Mallard Condominium." The plat map of the condominiums was recorded the same day. The declaration was not, however, indexed in the grantor index under "Super" or "Pfeiffer."[2] This meant that a person searching the register of deeds office for conveyances by the Supers or Pfeiffers would not find the Black Mallard declaration.
¶ 6 In 2002, the Andersons purchased their land from the Supers' and Pfeiffers' successor in title. The legal description of the land they purchased gave the outside dimensions of a larger parcel[3] and carved out an exception for "all that portion known as Black Mallard Condominium Plat. . . ." It did not contain any reference to easements in favor of Black Mallard beyond that statement.
¶ 7 When the Andersons purchased the property in September 2002, they were advised by their broker and title insurer that there were no easements of record and they would be able to shut down the driveway across their parcel and build a cabin there. In May or June 2003, however, on one of the Andersons' first visits to the property, the secretary of the condominium association stopped by the Anderson land. The secretary told Judith Anderson about the easements and gave her a copy of the declaration.
¶ 8 The Andersons filed this suit in March 2005. They named the Black Mallard unit owners as defendants, and requested *496 an order voiding the easements in the declaration and a permanent injunction against the unit owners prohibiting exercise of any of their rights under the declaration.[4]
¶ 9 Both parties moved for summary judgment. The court denied both motions and set the matter for trial. A bench trial took place in April 2006. The court, in a written decision, made a number of fact findings and concluded the easements were valid and enforceable against the Andersons. The court entered judgment to that effect in August 2006.
DISCUSSION
¶ 10 The Andersons do not dispute any of the circuit court's fact findings. Instead, they argue the court misapplied the common law doctrine of merger of title and WIS. STAT. §§ 706.02 and 706.09.[5] The application of a legal standard to undisputed facts is a question of law reviewed without deference to the circuit court. Kenyon v. Kenyon, 2004 WI 147, ¶ 11, 277 Wis. 2d 47, 690 N.W.2d 251.
I. Merger of title
¶ 11 The Andersons first argue the easements are void under the doctrine of merger of title. The doctrine of merger of title is based on the property law concept that "no man can, technically, be said to have an easement in his own land. And the consequence is, that if the same person becomes owner in fee simple of both estates, the easement is extinguished." Mabie v. Matteson, 17 Wis. 1, 9-10 (1863) (citation omitted). The concept is described more concretely as follows:
[I]f X owns parcel 1, the dominant tenement, but not parcel 2, the servient tenement, and later purchases parcel 2, the easement will be extinguished. . . . If X later sells parcel 1, the purchaser takes the property without the right to traverse parcel 2, unless X also grants to the purchaser an easement.
Kallas v. B & G Realty, 169 Wis. 2d 412, 420, 485 N.W.2d 278 (Ct.App.1992).
¶ 12 When the Supers and Pfeiffers recorded the Black Mallard declaration, which included the easements, they owned the servient parcel-the parcel now owned by the Andersons. They also owned the dominant parcel-the land made subject to the condominium. The Andersons argue the easement therefore merged back into the Supers' and Pfeiffers' fee simple title immediately after it was created.
¶ 13 The unit owners contend the declaration simply defined relationships between parcels that would be sold in the future. Therefore, no easement came into being until the units were sold. When the units were sold, the servient and dominant parcels were not owned by the same person.
¶ 14 We agree with the unit owners. The unit owners' argument is consistent with WIS. STAT. ch. 703, which governs condominium ownership. Under WIS. STAT. § 703.07(1), a condominium is created by recording a declaration and a plat. Among other things, the declaration must describe the land, indicate the "owner's intent to subject the property to the condominium declaration," and describe the individual units and common areas. WIS. STAT. § 703.09(1)(b)-(d). The declaration must be signed by the owner of the property *497 and the first mortgagee, if any, on it. WIS. STAT. § 703.09(1c). When units are sold, the documents recording the sale need only include "the letter or number . . . on the condominium plat together with a reference to the condominium instruments. . . ." WIS. STAT. § 703.12.
¶ 15 These sections anticipate a two-step process. First, the declaration and plat are filed. The declaration and plat define the rights and obligations of future purchasers of units in the condominium. That action is taken unilaterally by the owner of the property. Next, the units themselves are actually sold. Because the master planthe declaration and platis already in place, the units are described simply by reference to the master plan.
¶ 16 Against this backdrop, the Andersons' argument makes little sense. First, creation of a condominium is, by statute, a unilateral act by the owner in anticipation of a future sale. See WIS. STAT. § 703.09(1c). It does not involve any transfer of rights to a third party. As a practical matter, then, the declaration does not create any new rights that can immediately merge back into the fee; rather, it is a document defining rights to be sold in the future. See Kallas, 169 Wis.2d at 420, 485 N.W.2d 278.[6]
¶ 17 More fundamentally, however, the Andersons' argument is not consistent with the statutory structure governing condominium ownership. If the Andersons are correct, all rights set out in condominium declarations are extinguished the moment the declaration is filed. This would be true even though the declarations were created following the process found in WIS. STAT. §§ 703.07-703.09, and would extinguish all property rights created in the declaration, not just easements. The Andersons do not suggest any way to reconcile their position with §§ 703.07-703.09, and we see none.
II. Notice
¶ 18 The Andersons next argue they are good faith purchasers without notice of the easements, and their interest is superior to those belonging to the unit owners. They rely on WIS. STAT. § 706.09(1):
A purchaser for a valuable consideration, without notice as defined in sub. (2) . . . shall take and hold the estate or interest purported to be conveyed to such purchaser free of any claim adverse to or inconsistent with such estate or interest, if such adverse claim is dependent for its validity or priority upon:
. . . .
(b) . . . Any conveyance, transaction or event not appearing of record in the chain of title to the real estate affected, unless such conveyance, transaction or event is identified by definite reference in an instrument of record in such chain.
Under this statute, then, the Andersons' interest is superior to that of the unit owners if: (1) the Andersons were without notice of the easements, and (2) the declaration is not identified by definite reference in the Andersons' chain of title.
¶ 19 We conclude the Andersons had notice of the declaration through the unit owners' use of the property, and their *498 interest is therefore not superior to that of the unit owners.[7]
¶ 20 Notice here is governed by WIS. STAT. § 706.09(2):
A purchaser has notice of a prior outstanding claim or interest, within the meaning of this section wherever, at the time such purchaser's interest arises in law or equity:
. . . .
(a) . . . Such purchaser has affirmative notice apart from the record of the existence of such prior outstanding claim, including notice, actual or constructive, arising from use or occupancy of the real estate by any person at the time such purchaser's interest therein arises, whether or not such use or occupancy is exclusive; but no constructive notice shall be deemed to arise from use or occupancy unless due and diligent inquiry of persons using or occupying such real estate would, under the circumstances, reasonably have disclosed such prior outstanding interest; nor unless such use or occupancy is actual, visible, open and notorious. . . .
¶ 21 Under this statute, actual or constructive notice of a claim can arise from use (1) "by any person" (2) "at the time . . . the purchaser's . . . interest arises," (3) "whether or not [the] use . . . is exclusive. . . ." WIS. STAT. § 706.09(2). In addition, constructive notice of a claim can exist only if: (1) diligent inquiry of persons using the land would have revealed the claimed interest, and (2) the use is "actual, visible, open and notorious. . . ." Id.
¶ 22 The circuit court held the Andersons had notice under this section. The court found, based in part on a judicial view of the property, that the driveway was "open, notorious, and overtly visible" to the Andersons, and the Andersons "should have realized that the unit owners were also using" the driveway. The court further found that if the Andersons had asked the unit owners about the use, the Andersons "would have certainly received information of a prior outstanding interest." This final finding was apparently based on testimony by Judith Anderson that soon after she purchased the property, the secretary of the condominium association gave her a copy of the easements, unsolicited.
¶ 23 We agree with the circuit court's analysis. The Andersons do not dispute the court's finding that the driveway was actual, visible, open and notorious. They similarly do not attack the court's finding that they would have learned of the easements had they inquired of the unit owners. Finally, they do not argue the unit owners were not using the driveway at the time they purchased the property.[8] Those facts establish constructive notice under WIS. STAT. § 706.09(2)(a).
¶ 24 The Andersons argue this result is contrary to case law, specifically Taggart v. Warner, 83 Wis. 1, 53 N.W. 33 (1892). In that case, Taggart had crossed another person's land to get to Taggart's property. Id. at 2-3, 53 N.W. 33. Warner purchased *499 the other person's land and excluded Taggart. The court concluded Taggart's wagon track, without more, did not give rise to a prescriptive easement, and furthermore:
[T]he mere existence of a track from [Taggart's parcel] across [Warner's parcel] to the public highway gave [Taggart] no legal or equitable right to such continued free passage, much less can it be regarded as notice to Warner, as such purchaser, of any such outstanding right.
Id. at 4-5, 53 N.W. 33. The Andersons argue that if the wagon track in Taggart was not sufficient notice to establish a claim, neither is the driveway here.
¶ 25 The problem with the Andersons argument is that the holding in Taggart is based on ANN. STATS. OF WIS. 2241 (SANBORN AND BARRYMAN 1889):
Every conveyance of real estate . . . not . . . recorded as provided by law, shall be void, as against any subsequent purchaser in good faith and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.[9]
This statute mirrors current WIS. STAT. § 706.08(1)(a), which provides in relevant part:
[E]very conveyance that is not recorded as provided by law shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate or any portion of the same real estate whose conveyance is recorded first.
The difference between the two, however, is that "good faith" for purposes of § 706.08(1)(a) exists only where there is no notice under WIS. STAT. § 706.09. Associates Fin. Servs. Co. v. Brown, 2002 WI App 300, ¶¶ 11-14, 258 Wis. 2d 915, 656 N.W.2d 56; see also Kordecki v. Rizzo, 106 Wis. 2d 713, 719 n. 5, 317 N.W.2d 479 (1982).
¶ 26 No statute similar to WIS. STAT. § 706.09 existed in 1892 when Taggart was decided.[10] The court in Taggart therefore did not have the benefit of the specific rules in § 706.09(2) governing notice and the purchaser's duty to ask any user of the property what rights the user might have. Instead, the Taggart court reached its own conclusions about what good faith meant, and concluded Warner acted in good faith because he asked the seller about the wagon track and was assured that Taggart did not have a right to use it. Taggart, 83 Wis. at 4-5, 53 N.W. 33. While the Andersons might be considered good faith purchasers under the Taggart court's interpretation of former WIS. STAT. § 2241, they are not without notice under WIS. STAT. § 706.09(2).
¶ 27 Finally, at oral argument the Andersons contended that WIS. STAT. § 706.09(2)(a) applies only to prescriptive rights, and not to rights found in an improperly recorded or indexed document. However, nothing in § 706.09 makes this distinction. The statute simply provides *500 that a purchaser "without notice as defined in sub. (2)" takes free of certain listed claims. WIS. STAT. § 706.09(1). One of those listed claims is any "conveyance, transaction or event not appearing of record in the chain of title. . . ." WIS. STAT. § 706.09(1)(b). This language lumps prescriptive easements and improperly recorded easements together, giving them exactly the same treatment. Similarly, the notice requirements in § 706.09(2) explain when use or occupancy gives a buyer a duty to inquire about rights held by others. Nothing in that section distinguishes between prescriptive rights and improperly recorded rights.
¶ 28 The Andersons argue their proffered distinction is supported by case law and legislative history. However, we are not at liberty to disregard the plain language of a statute when interpreting it. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted). The Andersons do not argue WIS. STAT. § 706.09 is ambiguous or attempt to reconcile their position with its text. In addition, we note that we have previously applied § 706.09(2)(a) in a case involving an unrecorded lease. Hoey Outdoor Advert., Inc. v. Ricci, 2002 WI App 231, ¶¶ 3, 14, 256 Wis. 2d 347, 653 N.W.2d 763. In Ricci, we held that the presence of a billboard was an open and obvious notice of a claim under § 706.09(2)(a). Ricci belies the Andersons' claim that § 706.09(2)(a) applies only in the prescriptive easement context.[11]
III. The statute of frauds
¶ 29 The Andersons finally argue the utility and beach easements are too indefinite to satisfy the statute of frauds. The statute of frauds provides that a transaction governed by WIS. STAT. ch. 706 "shall not be valid unless evidenced by a conveyance that . . . [i]dentifies the land. . . ." WIS. STAT. § 706.02(1)(b); see also WIS. STAT. § 706.001(1). Courts have interpreted this requirement to mean the conveyance must identify the property with "reasonable certainty." Wiegand v. Gissal, 28 Wis. 2d 488, 492, 137 N.W.2d 412 (1965).[12]
¶ 30 "Reasonable certainty" means that "by the aid of the facts and circumstances surrounding the parties at the time the court can with reasonable certainty determine the land which is to be conveyed. . . ." Kuester v. Rowlands, 250 Wis. 277, 279, 26 N.W.2d 639 (1947) (citations omitted). It does not, however, necessarily require a legal description. In Kuester, the conveyance described the property as "my property . . . particularly described as part of sec. 13, Town of Genesee, county of *501 Waukesha." Id. at 278, 280, 26 N.W.2d 639. The court held that the description was sufficiently definite because it included all of the owner's property in that particular township.
¶ 31 In this case, the land burdened by the utility easement can be determined with "reasonable certainty" with reference to the "facts and circumstances surrounding the parties" when the easement was created. See id. at 279, 26 N.W.2d 639. The utility easement grants the unit owners the right to run utilities "accross [sic] Declarant's property between the two parcels of the condominium." From looking at the plat, the only reasonable meaning of the phrase "property between the two parcels of the condominium" is the central parcelthe land in front of the lodge from the driveway to the beach. The plat shows an overhead power line running through that parcel. In addition, the utility easement was created in order to allow common utilities for all of the condominiums. Because of the location of the condominium units, utility lines connecting the units would necessarily run through the central parcel.[13]
¶ 32 The Andersons argue a description of land that is not a legal description is always indefinite when it describes part of a larger parcel. They rely on two cases where conveyances were held to be indefinite because they described buildings or land features but did not describe the surrounding land. See, e.g., Wiegand, 28 Wis.2d at 492, 137 N.W.2d 412; Stuesser v. Ebel, 19 Wis. 2d 591, 595, 120 N.W.2d 679 (1963). However, while these cases illustrate the difficulty of definitely describing part of a larger parcel without a legal description, they do not hold that a legal description is required. Instead, they simply hold that a description of buildings, without more, is not adequate to determine a parcel's boundaries with reasonable certainty. Wiegand, 28 Wis.2d at 492, 137 N.W.2d 412; Stuesser, 19 Wis.2d at 595, 120 N.W.2d 679. Here, as explained above, the phrase "between the two parcels of the condominium" describes the burdened parcel with reasonable certainty. The fact that it describes part of a larger parcel is not controlling.
¶ 33 However, the beach easement does suffer from the same flaw as the property description in Wiegand. The beach easement describes the burdened land as "the entire beach area in front of the lodge building." At oral argument, the unit owners conceded this language could refer to the area immediately adjacent to the water or to all of the land between the lake and the lodge. In other words, this description gives a beginning point for the burdened parcelthe waterbut no clear ending point. As such, it is akin to the description in Wiegand of only buildings and land features with "no way of knowing the extent of the land areas surrounding them." See Wiegand, 28 Wis.2d at 493, 137 N.W.2d 412. The beach easement therefore is not definite enough to satisfy the statute of frauds.[14] On remand, the *502 court shall grant judgment to the Andersons with regard to the beach easement.
Judgment affirmed in part; reversed in part and cause remanded with directions. No costs.
NOTES
[1] No single survey map including all of the relevant land boundaries and features appears in the record. This diagram is compiled from various survey maps and other record sources, and is roughly to scale.
[2] The grantor index is arranged alphabetically by the name of the grantor. So, a person searching for conveyances by Super and Pfeiffer would look under "S" for Super and "P" for Pfeiffer but not under "B." See BLACK'S LAW DICTIONARY 786 (8th ed.2004).
[3] The legal description in the Anderson deed has three parts. The first gives the outside boundaries of a larger parcel that includes the Black Mallard Condominium. The second part excepts the Black Mallard plat. It is unclear what the third part refers to, but the parties agreed at oral argument that it is not relevant here.
[4] The Andersons later limited their driveway easement challenge to the part of the driveway connecting the two parcels, and stipulated they did not intend to landlock the unit owners in the south parcel.
[5] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[6] The parties disagree whether the declaration is a "conveyance" for purposes of WIS. STAT. § 706.01(4). We do not express any opinion on this question. Regardless whether the declaration is a conveyance, the key point for purposes of merger of title is that filing a declaration is by definition a unilateral act, not a transfer of rights from one party to another.
[7] Our conclusion that the Andersons had notice of the easements makes it unnecessary to decide whether the declaration is identified by definite reference in the Andersons' chain of title. See Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190, ¶ 8 n. 1, 286 Wis. 2d 774, 703 N.W.2d 707 (court of appeals decides cases on the narrowest possible grounds).
[8] The Andersons argue the driveway never gave them notice of any claim because they used it as well. However, notice from use exists "whether or not such use . . . is exclusive. . . ." WIS. STAT. § 706.09(2)(a).
[9] Both the 1898 official compilation and the 1889 unofficial compilation contain this language. See WIS. STAT. § 2241 (1898); ANN. STATS. OF WIS. § 2241 (SANBORN AND BARRYMAN 1889). The version of Taggart found in the Northwest Reporter contains a footnote, apparently by the editor, that also has this language. Taggart v. Warner, 83 Wis. 1, 53 N.W. 33, 34 n. 1 (1892).
[10] WISCONSIN STAT. § 706.09 was created in 1967 as WIS. STAT. § 235.491.1967 Wis. Laws, ch. 274. It was renumbered § 706.09 shortly thereafter. 1969 Wis. Laws, ch. 235, § 11. None of the statutes surrounding WIS. STAT. § 2241 in effect in 1892 govern notice or good faith. See generally WIS. STAT. §§ 2203-2259 (1898); ANN. STATS. OF WIS. §§ 2203-2259 (SANBORN AND BARRYMAN 1889).
[11] A number of cases, including Ricci, repeat boilerplate language stating that the purchaser must, among other things, consult "the land itself, to discover by observation the rights that arise outside the recording system by virtue of possession or use." See, e.g., Hoey Outdoor Advert., Inc. v. Ricci, 2002 WI App 231, ¶ 19, 256 Wis. 2d 347, 653 N.W.2d 763; Kordecki v. Rizzo, 106 Wis. 2d 713, 719 n. 5, 317 N.W.2d 479 (1982) (emphasis added). There is nothing inaccurate about this languagea purchaser must indeed consult the land to discover potential prescriptive rights. However, as noted above, WIS. STAT. § 706.09 requires the purchaser to consult the land to discover potential unrecorded rights as well.
[12] The unit owners argue the declaration is not a conveyance, but concede that "common sense" indicates the descriptions in the declaration must be definite. We suggest the reason is that even if the declaration itself is not a conveyance, the deeds conveying each unit are. Because those deeds incorporate the description in the declaration, see WIS. STAT. § 703.12, the deeds will run afoul of the statute of frauds unless the description in the declaration is sufficiently definite. In any event, the unit owners concede the definiteness requirements of the statute of frauds apply to the easements.
[13] While one could conceivably create a larger parcel "between the two parcels of the condominium" by drawing a line between the farthest corners of the parcels, this interpretation is unreasonable. It would give the unit owners the right to run utilities through part of the lodge building. The extra land is also not where utilities connecting the units would be located.
[14] At oral argument, the unit owners argued the beach easement was based on a mutual mistake of fact, and therefore is enforceable in equity under WIS. STAT. § 706.04. However, this argument was raised for the first time during oral argument. The unit owners did not argue they were entitled to equitable relief at the circuit court, nor did they brief the issue on appeal. The issue is therefore waived, and we decline to address it. See Jackson v. Benson, 218 Wis. 2d 835, 901, 578 N.W.2d 602 (1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575460/ | 458 S.W.2d 474 (1970)
Carey Patrick PACE, Appellant,
v.
A. A. WELLS, Appellee.
No. 7154.
Court of Civil Appeals of Texas, Beaumont.
September 24, 1970.
Rehearing Denied October 15, 1970.
*475 R. A. Richardson, Kountze, for appellant.
R. S. Coe, Kountze, for appellee.
PARKER, Chief Justice.
Summary judgment was rendered on January 16, 1970, in favor of A. A. Wells as plaintiff against Carey Patrick Pace as defendant upon a promissory note executed by the latter and payable to Wells. The judgment provided:
"It is accordingly ORDERED, ADJUDGED and DECREED that Plaintiff, A. A. WELLS, do have and recover of the Defendant, Carey Patrick Pace, the sum of $36,385.88, plus interest thereon at the rate of 5% per annum from February 15, 1965, until the date of this Judgment on January 16, 1970.
"It is also ORDERED, ADJUDGED and DECREED that Plaintiff, A. A. WELLS, have and recover from the Defendant Carey Patrick Pace a sum equal to 10% of the amount of the unpaid principal and interest owing on the date of this judgment, as Attorney fees, plus court costs accrued herein.
"The amount of this Judgment, including interest accrued until January 16, 1970, and including attorney fees, is to bear 6% interest per annum from January 16, 1970 until paid."
Pace has appealed. The parties will be called by their names or will be designated as they were in the trial court.
The plaintiff sued on the unpaid balance owing on the note and attached to his original petition a copy of said note. An affidavit by plaintiff, Wells, was attached to and made a part of his motion for summary judgment stating that he is the owner and holder of the note:
"* * * which is due, unpaid, and all offsets payments and credits set out in my petition have been allowed, and there are no other agreements concerning said note, or the payment thereof, other than the terms set out in said note."
In considering this summary judgment we respect and follow the holding of the Supreme Court of Texas in Great American *476 Reserve Ins. Co. v. San Antonio Plumbing Sup. Co., 391 S.W.2d 41, 47 (Tex.Sup. 1965), as follows:
"Rule 166-A, Texas Rules of Civil Procedure, provides that summary judgment shall be rendered if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat'l Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex. Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954)."
As said by our Supreme Court in In Re Price's Estate, 375 S.W.2d 900, 904 (Tex. Sup., 1964):
"It was never intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact."
Discarding and not considering any controverted question of fact, it is undisputed that:
(a) On June 21, 1964, Carey Patrick Pace, as maker, executed a promissory note to Alvin A. Wells, as payee, in the principal sum of $40,000.00 bearing interest at the rate of five per cent per annum, payable in annual installments of $12,500.00 each, the first installment being due on or before February 15, 1965, providing that should the note be placed in the hands of an attorney for collection, or if collected by suit or through the court, Pace agreed to pay ten per cent additional on the principal and interest then due thereon as attorneys fees.
(b) That Alvin A. Wells is the owner and holder of said note.
(c) On February 15, 1965, Pace paid the $12,500.00 annual installment on principal plus interest accrued on $40,000.00 to that date. No other payments of principal or interest were made.
(d) Thereafter, the note was placed in the hands of an attorney for collection.
Defendant below now contends, as he did in his affidavit filed in opposition to the motion for summary judgment that:
"This affiant [defendant and appellant] says that after he executed the note sued upon and declared upon in plaintiff's said petition and marked Exhibit `A' in said petition, the plaintiff, A. A. Wells agreed with this defendant that said note was a mere formality and that said defendant Carey Patrick Pace could pay said note in another manner. Briefly, your affiant says that said A. A. Wells agreed with said affiant that he, affiant, would not be held to payment strictly in accordance with said note but that he, affiant, could `pay off said note when he was financially able to pay same' and was not to be bound by the times of payment of the installments of said note as set out therein." (Emphasis supplied)
Defendant contends that when the movant for summary judgment (plaintiff) is unable to demonstrate conclusively "that there is no material issue of fact raised by the pleadings, the motion should be denied." Defendant contends the above agreement raised an issue of fact. As held in Shepherd v. Erickson, 416 S.W.2d 450, 452 (Tex.Civ.App.Houston, 1st Dist., 1967, error ref., n. r. e.):
"The law is well settled that the extension of a note must be for a definite period in order to be enforceable as an extension agreement. Tsesmelis v. Sinton State Bank, Tex.Com.App.1932, 53 S.W.2d 461, 85 A.L.R. 319; Dickson v. Kilgore State Bank, Tex.Com.App.1924, 257 S.W. 867; Crispi v. Emmott, 337 S.W.2d 314, Tex.Civ.App.1960, and authorities cited therein. The mere payment *477 of a part of an obligation that is due and payable is not a consideration for an agreement to extend the time of payment of the balance due on such obligation. Corbett v. Sweeney, 151 S.W. 858, Tex.Civ.App., error ref.; Neyland v. Lanier, 273 S.W. 1022, Tex.Civ.App. 1925."
Further, we adopt the holdings made in Sonfield v. Eversole, 416 S.W.2d 458, 460 (Tex.Civ.App.Texarkana, 1967, error ref., n. r. e.):
"Among the necessary provisions of a contract for an extension is agreement that payment be extended to a fixed time. Benson v. Phipps, 87 Tex. 578, 29 S.W. 1061 (1895); Tsesmelis v. Sinton State Bank, 53 S.W.2d 461, 85 A.L.R. 319 (Tex. Comm.App.1932); Kirby v. American State Bank of Amarillo, 18 S.W.2d 599, 63 A.L.R. 1528 (Tex.Comm.App.1929)."
This contention of the defendant and his points of error relating thereto are overruled.
Pace also contends in his points of error that the judgment entered was excessive. This contention is sustained.
Summary judgment was rendered on January 16, 1970. The total amount of principal and interest due on such note plus ten per cent attorney's fees thereon on that date was $37,686.42. Such amount is calculated as follows:
I. $27,500.00 was the unpaid balance on February 15, 1965.
II. $6,760.38 is five per cent per annum interest on $27,500.00 for four years and eleven months.
III. The total of the above two amounts is $34,260.38.
IV. Ten per cent of $34,360.38 is $3,426.04.
The judgment should have been entered for $37,686.42 plus six per cent per annum interest thereon from January 16, 1970, plus costs. Southwestern Fire & Casualty Co. v. Larue, 367 S.W.2d 162 (Tex.Sup., 1963). There was an error in calculating the unpaid balance on the note and the plaintiff below in his brief in this court as appellee requested:
"* * * that this Honorable Court calculate such unpaid balance, and interest, and modify the judgment so that the amount of recovery will be correct, and as so modified, Appellee urges that the judgment be affirmed."
Judgment of the trial court is corrected, reformed and modified to conform with our statement as to the judgment that should have been rendered below and as so corrected, modified and reformed, the judgment of the trial court is affirmed with all costs adjudged against the plaintiff below, the appellee herein. Rules 434 and 435. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575475/ | 458 S.W.2d 203 (1970)
TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant-Appellee,
v.
Espiridion SAPIEN and wife, Magdalena Sapien, Appellees-Appellants.
No. 6113.
Court of Civil Appeals of Texas, El Paso.
September 23, 1970.
Rehearing Denied October 7, 1970.
*204 Edwards, Belk, Hunter & Kerr, Eugene T. Edwards, El Paso, for appellees-appellants.
Mark F. Howell, Malcolm McGregor, El Paso, for appellant-appellee.
OPINION
WARD, Justice.
This is a workman's compensation case where the claimant, Magdalena Sapien, was found to be totally and permanently disabled. Jury findings were to the effect that the claimant suffered the complained-of accident on March 10, 1965 and that total and permanent incapacity from the accident began on October 5, 1967. Her claim for compensation was filed on October 25, 1967, some two years and seven months after the date of the accident. Appellant presents only no-evidence points on lack of continuous good cause for failure to file the claim within the required six months. The judgment of the trial court is affirmed.
The no-evidence points being presented, we are limited to a consideration of only the evidence and the inferences most favorable to the findings of the jury on the issues of good cause. The record reflects that the claimant is unable to speak the English language and had been working regularly as a seamstress for the past twelve years for various clothing factories in El Paso. At the time of trial, she had worked for the Mann Manufacturing Company for five years, and had advanced to the rating of utility seamstress. While not being able to recall dates with any degree of accuracy, the claimant was able to describe her accident which, together with the Supervisor's Investigation of Accident report, the Employer's First Report of Injury, the Surgeon's report, and the treating physician's medical record, reflect that on March 10, 1965, after stooping to pick up a dropped bobbin, she fell against her chair and injured her lower back. She immediately reported the incident *205 to the company nurse and to the personnel clerk and was referred to the company doctor, who advised her to take hot baths and medication. No substantial working time was lost and the doctor reported no permanent disability. Two days later, the employer's first report of injury was made to the Industrial Accident Board and to the appellant. According to the employer's records, the claimant lost only five hours of work on March 11th and four hours on March 12th, and with a total of six days absent from work during the balance of 1965, with no sick leave having been taken. On July 7, 1965, claimant first visited a doctor of her own choosing, complaining of a recurring back pain. On three separate occasions during the balance of 1965, she visited this doctor and was given flexion exercises and some medication. The next visit to this doctor was on June 26, 1966, at which time she complained of pain in the lower back with limitation in bending forward. Flexion exercises were directed. The doctor saw her again on July 20, 1966 at which time she was feeling well and she reported no further trouble. Finally, she was seen on October 30, 1966 at which time the doctor discharged her and reported she was well, with no disability. During the period of time when she was seeing her own doctor, she was assured by him that he would leave her in good condition and that she would completely recover. These statements she believed and relied on. The employer's records reflect that in 1966 the claimant was off work nine and one-half days and claimed no sick leave. On June 29, 1966, while lifting a bundle of material, she felt a sharp pain in her back, and this was reported to her employer. According to all the testimony, there was no disability from this episode. On September 4, 1967 she suffered acutely from a pain in the lower back and was taken to her own doctor. At this time she was hospitalized. At an examination on October 5, 1967 the doctor, for the first time, assigned some limited permanent disability of the back as a result of her injuries, but advised her to return to work on October 16th. At this time she did return to work, but found she could not perform her duties and was off from work again on October 23rd. Two days later, on October 25, 1967, her claim for compensation was filed, it having been prepared in the appellant's office. She returned to work again on November 10, 1967. For this period of time that the claimant was off work, the appellant paid her the maximum weekly compensation, paid her hospital bills and the bill of her chosen doctor, having previously paid his bills for the services rendered during the years 1965 and 1966. After she was released from the hospital, the claimant first learned that she was going to be permanently disabled, and she then filed her claim. It was claimant's contention and proof that she thought that her injury of March, 1965 was trivial, until she was advised by her physician to the contrary, though, during the entire period of time, she did suffer considerable pain. The company records for the year 1967 reveal that she was absent from work three and one-half days, and for the first time since her injury she claimed and was afforded sick leave, from September 8th to October 16th, 1967.
The company records reflect that from the date of her injury to the date of her disability, her pay increased and that she maintained her efficiency. Sub-standard work was first noted only after her disability began on October 5, 1967. The above is a summary of the evidence most favorable to the claimant's position on the issue of good cause.
Good-faith belief on the part of the claimant that her injuries were not serious may constitute "good cause" for failure to present the claim within the statutory period provided the belief meets the primary test of ordinary prudence. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948). And while such belief continues, the fact that almost constant pain exists does not affect the issue, since pain and suffering are not *206 compensable. Further, advice from a physician that the injuries were not serious constitutes good cause for a claimant's failure to file a claim within the prescribed time, provided the claimant, in the exercise of ordinary care, believes and relies upon that advice. Harkey v. Texas Employers' Ins. Ass'n., 146 Tex. 504; 208 S.W.2d 919 (1948).
In the case before us, where we do have pain, we have a goodfaith belief of no serious injury with no disability until immediately before filing the claim. The present facts resemble those in Texas Employers' Insurance Association v. Brown, 408 S.W.2d 931 (Tex.Civ.App., Amarillo 1966, ref. n. r. e.), where good cause was held to exist, and differ from those facts in a typical case which correctly holds to the contrary. Texas Employers' Insurance Association v. Dill, 369 S.W.2d 464 (Tex.Civ.App., Ft. Worth 1963, ref. n. r. e.). The appellant's points are overruled.
By cross-point, the appellees complain of the submission to the jury of the issue concerning the date of the accident of the dropped bobbin. As heretofore stated, the jury answered that the accident occurred on March 10, 1965. After request for admission, the appellant answered that on June 29, 1966 the claimant received an accidental injury. It is the claimant's position that by this judicial admission the appellant is bound to the date of June 29, 1966 as the date involved in the accident before us. This would result in compensation benefits to the claimant of an additional sixty-six weeks, as the date of the accident and injury would be advanced that much nearer to the date of the total and permanent incapacity. 63 Tex.Jur.2d p. 68, § 163. On June 29, 1966 the claimant, while lifting some bundles, did suffer a sharp pain in her back, but no disability resulted from this incident. The claimant's whole case was built around the dropped bobbin incident, including her pleadings, her testimony and the court's charge. We doubt that the appellant's answers to the claimant's request for admissions did, in fact, unequivocally admit that the accident in question did occur on June 29, 1966. Further, both parties developed the undisputed evidence, without objection, to the effect that the true date of the occurrence and injury from the dropped bobbin was on March 10, 1965. It was only from what the Mann Manufacturing Company incorrectly told the appellant that the answers to the admissions were made, and it was only at the time of trial that the true facts were developed, and only on rebuttal did the claimant first call the court's attention to the purported admissions concerning the date of June 29, 1966. We do not believe that the court was bound by the admission of the purported date, when the record before it showed that the admission was not truthful, but was made from an innocent mistake. Gore v. Cunningham, 297 S.W.2d 287 (Tex.Civ.App., Beaumont 1956, writ ref'd. n. r. e.). The appellees' cross-point is overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575514/ | 458 S.W.2d 613 (1970)
George C. RIETZE, Appellant,
v.
Lisa WILLIAMS, Infant, by Leonard Williams, Next friend, Appellee.
Court of Appeals of Kentucky.
May 1, 1970.
As Modified on Denial of Rehearing September 25, 1970.
*615 Frank P. Doheny, Jr., Woodward, Hobson & Fulton, Louisville, for appellant.
Richard L. Drye, Raymond C. Stephenson, Louisville, for appellee.
PALMORE, Judge.
George C. Rietze appeals from a judgment entered on a jury verdict awarding Lisa Williams, an infant, $21,339.92 for personal injuries sustained by her while she was a visitor in rental property managed by Rietze under a contract with its owner, the Federal Housing Authority (hereinafter FHA).
FHA owned 310 houses in a project called Lincoln Park Subdivision. A couple named Stroudmire and their children were the tenants of one of these houses. During the week Mrs. Stroudmire kept Lisa Williams for Lisa's parents through the daytime while they were at work. On January 19, 1967, the date of the accident, Lisa was about 1½ years old. Around noontime Mrs. Stroudmire put Lisa and her own small child of about the same age to bed in a room situated across a narrow hallway from a closet in which a 30-gallon automatic hot water heater was located. Mrs. Stroudmire then went into the kitchen and was ironing a work uniform for her sister, Mayme Gillespie, when suddenly she noticed a "thomping and sizzling sound" and heard Lisa screaming. She found Lisa standing in the hallway at or near the door to the room in which the children had been put to bed. There was scalding water all over the floor, which appeared to be coming from the door of the closet containing the hot water heater. Mrs. Stroudmire immediately lifted the little girl up and summoned help. At about this time Mayme Gillespie arrived to pick up her uniform. She observed that the floor was wet and that the child's feet had been badly blistered. A police ambulance took Lisa to the hospital, where she remained until February 15, 1967.
The plaintiff's case is pitched on the theory that the water in the automatic heater became overheated and escaped through the relief or "pop-off" valve at the top.
Both of Lisa's feet were burned, the right foot being affected the more seriously. The top instep of the right foot sustained a third degree burn and required a grafting operation in which an area of skin approximately 1½ by 2½ inches was *616 transferred from her thigh. This portion of her right foot remains badly scarred and has what is described as a large keloid formation, a thick piling up of scar tissue. The plastic surgeon who treated her and performed the surgery testified that in his opinion the injuries will not limit her future employment opportunities and that he hopes she will not require any further medical treatment, but "would advise that she not wear a shoe that would be tight over the graft or the scar, and one that would not rub or irritate it." Dr. Allan Zoeller, an orthopedic surgeon who examined Lisa just before the trial, said that an ordinary shoe on the right foot will rub and irritate it and that as she grows the heavy scar tissue will cause her toes to be drawn into a deformed position, which probably will require release by further skin graft.
It is of importance to the appellant's contentions in the case to note that most of the damage was done to the tops of Lisa's feet, though it is obvious, as brought out in the medical testimony, that the soles of one's feet ordinarily are thicker, tougher, and less susceptible to injury by scalding than the topside portions. The significance sought to be ascribed to this circumstance is that although Mrs. Stroudmire testified that the water in which Lisa was standing was "ankle deep," it would not have been physically possible for it to flow out to such a level from the ¼-inch clearance space between the floor and the bottom of the closet door without inundating the entire floor area of the house (which was proved to have been level). And if there was no way for water seeping or flowing from underneath the closet door to reach the tops of Lisa's foot or feet, it is possible to infer that the accident may have occurred in some other way for instance, if Lisa opened the closet door and turned on the spigot at the bottom of the heater.
At this point it is convenient to discuss the first ground on which appellant claims he was entitled to a directed verdict, which is that the physical evidence conclusively refutes Lisa's theory of the case and destroys the probative value of Mrs. Stroudmire's testimony.
Lisa herself was too young to testify. The evidence of how the accident happened is circumstantial. We grant that it does not justify an inference that boiling water was standing or flowing on the hallway floor at a level deep enough to cover Lisa's insteps. That Mrs. Stroudmire's impression of its being "ankle deep" must have been mistaken does not, however, undermine the plaintiff's case. The probability of what took place under given circumstances often may be deduced on the basis of common knowledge. We know that water will splash. We know that a sudden contact of bare feet on a scalding surface will produce instant gymnastics of a most violent order. It is impossible to think that a little barefooted child, with the tender feet of a child, would stand in or on boiling water with the equanimity of a Hindu fakir. Some amount of bodily reaction, attended by a sloshing of whatever water was around and under her feet, is bound to have occurred. If water had flowed out of the closet in sufficient quantity to cover the floor area on which Lisa was attempting to walk when she was injured (and we think the evidence certainly justifies the conclusion that it had), we cannot say it was physically impossible, or even improbable, for her to be injured as she was.
The house in which the Stroudmires lived was built on a concrete slab foundation with no basement. The hot water heater was furnished by the housing project and was installed on November 4, 1965, by a plumber named Carby at the direction of Rietze. Carby was not a licensed master plumber and, under the state plumbing code, was not legally authorized to do the work. He did not secure a permit and did not report the job for state inspection after it had been completed. The relief valve at the top of the heater was 5½ to 6 feet above floor level and was turned toward *617 the inside wall. It is admitted that there was no pipe or conduit to carry its discharge to a floor drain or to the outside of the house. Shortly after the accident it was observed by Rietze's maintenance foreman that the wall of the closet opposite the relief valve was wet. Rietze testified that "we called Carby * * * to correct the fault," and Carby's bill for the work, dated January 23, 1967, shows that he replaced the relief valve.
From what has been recited thus far it would seem beyond cavil that in the absence of evidence to the contrary (and there was none) it is permissible to infer that the hot water on the floor at the time Lisa was injured emanated from the relief valve.
As already mentioned, Rietze was not the landlord, but managed the rental project under a contract with FHA. Citing Whitehouse v. Lorch, Ky., 347 S.W.2d 512 (1961), a tree-falling case which stands for the common law principle that ordinarily, unless he has contracted otherwise, a landlord has no duty to furnish safe premises to his tenant, he reasons that the landlord would not be liable and that the property manager cannot be held to a higher duty than the landlord. That principle, however, is subject to exceptions, one of which is that any person whose noncompliance with applicable safety laws and regulations results in injuries of the kind the laws or regulations are designed to prevent is negligent and is liable for the injurious consequences suffered by persons embraced within the scope of the statutory or regulatory protection. See Blue Grass Restaurant Co. v. Franklin, Ky., 424 S.W.2d 594, 597 (1968), and other authorities therein mentioned.
"It is a firmly fixed rule that one injured by a violation of a statute may recover from a defendant such damages as he has sustained by reason of a violation of it." Pirtle's Adm'x v. Hargis Bank & Trust Co., 241 Ky. 455, 44 S.W.2d 541, 546 (1932). No question is raised with respect to the official status of the state plumbing code promulgated pursuant to KRS 318.130. Administrative regulations properly adopted and filed have the force and effect of law, KRS 13.081, and as observed by Chief Judge Swinford in Home Insurance Co. v. Hamilton, 253 F. Supp. 752 (E.D. Ky. 1966), there is no reason why they should be considered differently, in the aspect here presented, from statutes or municipal ordinances. This means, of course, and we so hold, that they have the same effect as statutes or ordinances enacted directly by the legislative body from which the administrative agency derives its authority.
As of the time or times pertinent to this case Section PC-9, subsection 10, of the state plumbing code provided as follows:
"Temperature and Pressure Relief Valves. Temperature and pressure relief valves shall be installed on all water heaters on the hot water side not more than 3" from the top of the heater. Temperature and pressure relief valves shall be of a type approved by the Department. When a water heater is installed in a location that has floor drain the discharge from the relief valve shall be piped to within 2" of the floor; when a water heater is installed in a location that does not have a floor drain, the discharge from the relief valve shall be piped to the outside of the building with an ell turned down and piped to within 4" of the surface of the ground. Relief valves shall be installed on a pneumatic water system."
Insofar as Rietze's argument rests on the premise that a landlord would not himself be liable under circumstances similar to those in this case, we must disagree. Even if Carby had been a master plumber, and if it be conceded that he was an independent contractor, we cannot hold that a landlord may shift to an independent contractor the responsibility of compliance with laws designed for the physical safety *618 and protection of his tenants. Whatever may be the rights and liabilities as between the landlord and a negligent contractor, we think the purpose and policy of the law is that the innocent tenant (and, through him, his invitee) is entitled to rely on the landlord. This is but another way of holding that the risk of effecting a proper job should be upon the landlord, who selects the contractor.
As a general rule, when the landlord has a duty to perform work in connection with the leased premises he is liable to the tenant for personal injuries resulting from its negligent performance even though he has employed the services of an independent contractor. Livingston v. Essex Inv. Co., 219 N.C. 416, 14 S.E.2d 489 (1941); Bloecher v. Duerbeck, 333 Mo. 359, 62 S.W.2d 553, 90 A.L.R. 40 (1933); Bailey v. Zlotnick, 80 U.S.App.D.C. 117, 149 F.2d 505, 162 A.L.R. 1108 (1945). (See also cases cited in those annotations.) Clearly where a duty is imposed by law the risk of nonperformance falls on the landlord. Mullins v. Nordlow, 170 Ky. 169, 185 S.W. 825 (1916). The rule is thus stated in 2 Restatement of Torts 2d, § 424 (page 411):
"One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions."
In effect the plumbing code here involved placed in the inherently dangerous category an installation which did not conform to the specified safey requirements, and the person who undertakes to make such an installation is responsible for compliance regardless of whom he employs to perform the work. See City of Hazard, Municipal Housing Com'n v. Hinch, Ky., 411 S.W.2d 686 (1967).
It does not necessarily follow that a person who contracts to manage rental property assumes all the duties of the landlord, and we are somewhat mystified that no issue was made of the point that the effective date of Rietze's contract with FHA was November 6, 1965, two days after the date on which this particular water heater had been installed. Whether the contract placed upon Rietze the landlord's continuing duty to correct a condition it knew or should have known was not in conformity with the law is not altogether clear to us from the portions of the document that were read into the evidence. Nevertheless, on cross-examination Rietze testified that he or one of his employes authorized "the installation of this particular water heater in the apartment [sic] which Mrs. Stroudmire was later to occupy." (Stroudmire rented the property on November 26, 1965.) Without further explanation in this respect, since he undertook to have the heater installed, either in anticipation of assuming or in the course of his managerial function, we are of the opinion that he was responsible for its failure to conform to the requirements of the plumbing code.
Our conclusion is that Rietze was not entitled to a directed verdict.
The complaint asked for damages of $20,000. After completion of the evidence, in which Lisa's special damages were proved to be $1,339.92, the trial court permitted an amendment demanding $51,339.92 "to conform to the proof." CR 15.02. As might be expected, the defendant strenuously objected and still objects. It strikes us that this maneuver was quite unorthodox (in fact, neither party is able to cite precedents one way or the other), but we are not persuaded that it was prejudicial. The amount in demand was not stated to the jurors on voir dire or during the opening statements of counsel. It was first brought to their attention in the instructions. From that standpoint, therefore, it was the same as if the demand had been *619 $51,339.92 in the original complaint. It is true, of course, that counsel might work more carefully on a $50,000 case than a $20,000 case, or make greater effort to settle it, but these considerations do not affect the merits. It is our view that under ordinary circumstances a trial court ought not to permit, over objection, a substantial increase in the ad damnum after a trial has begun, but in reviewing it we must consider whether, if erroneous, it really could have been prejudicial to the substantial rights of the defendant. Cr 61.01. In the final analysis, the jury fixed the amount of damages it believed had been sustained by the plaintiff. Fundamentally, that fixes the amount she was legally entitled to recover in the first place, and if she got what she was entitled to have it is to be presumed that she would get it on another trial. Compare Naujokas v. Carey High School, 57 Misc. 2d 175, 292 N.Y.S.2d 196, 199 (N.Y.Sup.Ct.1968).
Had the amount demanded in the complaint been small enough to fall into the category of a nuisance claim it is probable that defense counsel would have been prejudicially surprised, but we cannot believe that able counsel engaged in this case prepared their defense of a $20,000 claim any less diligently than they would have prepared for a $50,000 case. In any event, it must be remembered that the jury actually awarded only $21,339.92 anyway.
It appears that at the time of the accident the Stroudmires were delinquent in the payment of rent and had been served with an eviction notice, and that they were later forcibly evicted. The trial court erroneously denied defense counsel the right to introduce this evidence for the purpose of impeaching Mrs. Stroudmire's credibility as a witness. See Parsley v. Commonwealth, Ky., 306 S.W.2d 284 (1957); Wigmore, Evidence, §§ 944, 948, 951 (3d ed. 1940). Again, however, we are not persuaded that the exclusion was prejudicial. Though Mrs. Stroudmire was the only adult witness present when the accident took place, there is nothing in the evidence to suggest that it happened in any way other than that in which Mrs. Stroudmire said it did. There is no doubt that the child was burned by hot water. The water was still on the hallway floor when other witnesses arrived. Rietze's own witness, Masden, established that the closet wall next to the relief valve on the hot water heater was wet. Afterward, Rietze had the relief valve replaced by Carby. Mrs. Stroudmire's testimony is so consistent with the other evidence as to exclude any reasonable prospect that the jury would have reached a different conclusion had proof been allowed tending to show her bias (if any) against Rietze.
Another claim of error is that the trial court should have sustained a defense motion, timely presented, to reassign the case to another jury panel by reason of the fact that the amount of insurance involved was mentioned at the bench while the prospective jurors were in the court room awaiting voir dire. The stenographic transcript shows the following:
"Preceding voir dire there was a discussion at the bench, out of the hearing of the prospective jurors, with all counsel before the court, Raymond C. Stephenson and Richard L. Drye, representing the plaintiff, and Frank P. Doheny, Jr., representing the defendant, regarding trial procedure. At this time the Court questioned counsel as to the parties involved, and asked in a tone which was inaudible to the Court Reporter, but was later ascertained to involve insurance coverage on the defendant, and at this time, counsel for the plaintiff, Richard L. Drye, answered in a very loud voice, `$200,000.00' thereafter counsel for the defendant made the following motion:
"MR. DOHENY: I move for the record that this case not be tried before any jury in view of the fact that counsel for the plaintiff announced in a loud voice, that could be heard by the jury, *620 the amount of the insurance, being $200,000.00.
"MR. STEPHENSON: We object, there is no basis for that motion.
"MR. DOHENY: I move this case be reassigned for that reason, and not tried before this panel. Perhaps this should be taken up in Chambers.
"THE COURT: Yes, if you are going to talk as loud as you can.
"MR. STEPHENSON: There is no basis for the motion.
"THE COURT: I don't think there is, the figure was mentioned and nothing else.
"MR. DOHENY: I think the jury can infer that your Honor.
"THE COURT: I don't think so. I couldn't if I were sitting over there. Overruled."
After the trial, in support of a motion for new trial, defense counsel filed the affidavit of William Kenney, the 13th or alternate juror empaneled for the trial, to the effect that he had heard the reference to $200,000 and surmised it was the amount of insurance available to the defendant, and that in his opinion "several other jurors thought so also since this was mentioned during a recess."
The record of the voir dire discloses that neither counsel nor the trial judge asked the prospective jurors whether any of them had overheard anything said during the discussion at the bench. It seems to us that this was the proper and opportune time the question could and should have been settled. Had Kenney, for example, answered "yes" to such a question, he could have been taken separately into chambers and asked what he had heard. and so on with the other prospective jurors. What seemed "very loud" to the court reporter at or near the bench may not necessarily have been loud enough for the jurors to hear. On the strength of her record alone, the subject not having been pursued on voir dire, we cannot hold that the ruling of the trial court refusing to reassign the case was erroneous.
With respect to Kenney's affidavit (and a counter-affidavit by plaintiff's witnesses), neither brief is addressed to the principle we consider to be dispositive. It is the ancient rule[1] that a verdict cannot be impeached by the affidavit or testimony of a juror. Rager v. Louisville & N. R. Co., 137 Ky. 811, 139 Ky. 760, 127 S.W. 155, 157 (1910). Some jurisdictions limit the exclusion to statements concerning the juror's own conduct. Others, including ours, extend it to statements tending to show improper acts or communications by third persons. See annotations, 90 A.L.R. 249 and 146 A.L.R. 514. Insofar as the theory rests on self-stultification it would, of course, apply only to jurors who participated in the deliberative process and assented to the verdict, but we think that the purpose of the rule, which is to prevent tampering and corruption, demands that it apply equally to nonassenting jurors and, as in this instance, alternate jurors who were released when the case was finally submitted and thus did not actually participate in the verdict-making deliberations.[2] If a juror sees or hears anything improper he should communicate it to the trial court as promptly as he can. To let him to do it after the verdict has been rendered, and especially after being interviewed by a disappointed party or lawyer, would invite the very kind of mischief the rule was designed to obviate. We realize that a juror might fail to apprehend the impropriety of *621 something he hears or sees, and thus not report it to the court, but the customary admonition given to jurors should be sufficient to minimize that possibility.
It is our opinion that Kenney's post-trial affidavit cannot be of assistance to the appellant, and the same conclusion applies to the further information contained in the affidavit to the effect that during a recess he heard one of plaintiff's witnesses say that $1,000 had been offered in settlement.
It is further contended that the instructions were erroneous, principally in that they did not submit the defendant's theories of the case.
The instruction on liability as given by the trial court contained a good deal of surplusage with regard to facts about which there is no dispute, but told the jury in substance that it was Rietze's duty to provide for the discharge from the relief valve on the hot water heater to be piped to a drain in the floor or to the outside of the house and that if his failure to do so was a proximate cause of Lisa's injuries the law was in her favor, but that unless the jury so believed it should find for Rietze.
The first of two instructions offered in Rietze's behalf was to the effect that if the injuries occurred at some time or place or in some manner other than as described by the witnesses for the plaintiff the law was for the defendant. There having been no evidence that the injuries occurred in some other manner or at some other time or place, there was no basis for such an instruction. But even if there had been some proof to support another theory, the converse instruction, "But [u]nless you so believe, you shall find for the defendant," was enough. Commonwealth, Dept. of Highways, v. Widner, Ky., 388 S.W.2d 583, 587 (1965). "A direct and simple instruction to find for the plaintiff if the defendant was negligent in any of the respects defined [and that such negligence was a proximate cause of the injuries], and to find for the defendant if such facts were found not to exist, is sufficient, and it is not advisable to instruct negatively as to suppositions [sic] circumstances under which the defendant would not be liable." Stanley, Instructions to Juries, § 14.
The other instruction offered for Rietze was to the effect that if Carby held himself out to be a licensed plumber it was his duty to install the water heater properly and to have it inspected, and Rietze was not liable. What we have already said in this opinion regarding the nondelegability of duties owed a tenant by reason of safety laws and regulations disposes of the independent contractor theory. Vissman v. Koby, Ky., 309 S.W.2d 345 (1958), and other cases holding that a city may not by ordinance shift the burden of its own duties onto the shoulders of individual landowners are not applicable. Nor can we accept the proposition that only Carby violated the plumbing code. It is the statutory duty of any person who causes plumbing to be installed to see that a proper permit is obtained. KRS 318.134. An application for such a permit must be accompanied by plans and specifications. KRS 318.134(2). The work must be done by or under the supervision of a licensed master plumber. KRS 318.110. One who has plumbing installed in violation of these requirements cannot be heard to say that only the workman who did the job is responsible for the consequences of his failure to comply with the plumbing code. But, as we have said, we believe the owner of the property is the ultimate party responsible for compliance anyway.
The last argument is that the amount of damages was excessive. Even without a permanent impairment of her power to earn a livelihood this little plaintiff has sustained a grievous and severe injury which the evidence indicates will be a source of discomfiture for years to come. We do not find the award out of proportion.
The judgment is affirmed.
All concur.
NOTES
[1] Wigmore calls it a shibboleth. 8 Wigmore, Evidence, p. 690, § 2349 (McNaughton rev. 1961).
[2] See, for example, People v. Strause, 290 Ill. 259, 125 N.E. 339, 22 A.L.R. 235, 246 (1919), in which it was held applicable to a venireman who had been tentatively accepted but was excused before the jury was empaneled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576027/ | 17 So. 3d 1236 (2009)
SYMONS
v.
SYMONS.
No. 3D09-2159.
District Court of Appeal of Florida, Third District.
September 4, 2009.
Decision without published opinion. Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2341703/ | 296 A.2d 207 (1972)
Herman L. LASH
v.
LASH FURNITURE COMPANY OF BARRE, INC., et al.
No. 180-71.
Supreme Court of Vermont, Chittenden.
October 12, 1972.
*209 Samuelson, Bloomberg & Portnow, Burlington, for plaintiff.
Richard E. Davis, and Free & Bernasconi, Barre, for defendants.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
BARNEY, Justice.
This is an action in equity relating to stock transfers and management of a corporation. It is also a family dispute involving one of the furniture stores established by the late Myron Lash of Burlington. This particular store is in Barre and, at the time with which this equity action is concerned, three Lash Brothers owned all of the voting stock of that Barre store, the Lash Furniture Company of Barre, Inc., in equal shares. Ralph Lash, one of the defendants, was one of the shareholders in the Barre store and operated it. Wallace Lash, another brother, owned a third, but had severed all Vermont connections and moved to New York City. Herman Lash, who was the third shareholder, ran the Burlington operation along with still another brother who does not figure in this litigation.
The dispute arose as a consequence of the sale, by Wallace Lash, of his stock holdings in the Barre operation. Ralph Lash was the ultimate purchaser. The transfer was challenged because of a corporate by-law requiring that any stock sold be first offered to the corporation at the proposed price. This offer was, in fact, made, but under circumstances which generated an attack on the transaction by the plaintiff.
The corporation, by vote, rejected the opportunity to purchase. Each brother had four voting shares. Wallace, as seller, did not vote. Ralph voted against purchase of the stock by the corporation and Herman voted in favor of accepting the offer. Thus, the transaction was not authorized and was lost to the corporation. This was in April or May, 1967.
In June, 1967, Ralph Lash bought Wallace's stock. This gave him effective control of the Barre corporation, since he then held two-thirds of the voting stock. He transferred a voting share to his wife, Betty, and she became a director, succeeding Wallace.
This lawsuit seeks to reverse that acquisition of Wallace's stock. Also involved are various actions with respect to financial dealings of Ralph with the Barre corporation, including salary, bonuses, loans and interest payments, plus leases and leasehold improvements by the corporation of property owned by Ralph and Betty. Some claims relate to the period before the Wallace stock was purchased, and some after.
Hearings to determine the facts were held for some twenty days, and the master *210 reported his findings to the chancellor. A judgment order issued allowing some claims of the plaintiff and ordering payment to the corporation, and denying others. It also directed the assignment of the controverted stock to the corporation, in return for reimbursement to Ralph. Both sides have appealed.
The chancellor, by his judgment order, found that the facts supported a determination that Ralph Lash's fiduciary duty toward Lash Furniture Company of Barre, Inc. barred him from retaining his rights to the purchased shares of stock. Ralph disputes this ruling by pointing to a number of cases that say, in substance, that there is nothing by way of fiduciary duty, without more, that precludes officers and directors from buying and selling stock in the corporation which they direct or manage. See, e. g. Securities and Exchange Com. v. Chenery Corp., 318 U.S. 80, 88-89, 63 S. Ct. 454, 87 L. Ed. 626 (1943).
This Court does not see that as the true issue. The problem originates with the vote by the stockholders and directors, they being identical in this case, to reject the purchase of Wallace's stock. The price was concededly fair, and, with admirable sensitivity for his own position as seller, Wallace did not vote on the question of purchase then before them. As has been noted, Ralph opposed it, while Herman took the opposite side.
Such an action falls within the condemnation of Corry v. Barre Granite & Quarry Co., 91 Vt. 413, 418, 101 A. 38 (1917). There is a fiduciary duty in directors of corporations not to let outside commitments, personal or otherwise, divert them from their duty to further the interests of the company they represent. The presence of competing interests may disqualify the directors from acting in a representative capacity, as the Corry case points out. The interest of Ralph in purchasing the stock himself conflicted with his obligation to evaluate the purchase or non-purchase of such stock from the standpoint of benefit to the corporation.
The facts found by the master determined that Ralph's concern with the disposition of the stock was based, not on his fiduciary responsibilities, but on his personal interests, including his desire to acquire control of the Barre corporation. This was, of course, a rejection by Ralph of the duty to decide the question on the basis of proper corporate policy. Creed v. Copps, 103 Vt. 164, 168, 152 A. 369 (1930). This finding and the other facts in the case thus, in our view, differentiate it from the circumstances of Boss v. Boss, 98 R.I. 146, 200 A.2d 231 (1964). The order requiring the transfer of the stock to the corporation is affirmed.
The defendants take the position that it was error for the master to refuse to hear evidence relating to the operation of the Burlington corporation, Lash Furniture, Inc. It is urged that it would establish conduct of the plaintiff comparable to that of Ralph Lash being attacked in this suit, and show his knowledge of what was going on in Barre. The difficulty with that claim is that whatever may have been the imperfections in the Burlington operation, it is not a part of this lawsuit. Whatever rights and remedies may be enforceable by and on behalf of the Burlington corporation or its stockholders, is outside the ambit of this litigation, dealing, as it does, with a separate corporate entity. Moreover, the generalized objection to some undisclosed ruling, without specifying its application to particular evidence as offered, must be held to be unavailing on appeal. Daigle v. Conley, 121 Vt. 305, 306, 155 A.2d 744 (1959). See V.R.A.P. 28(a)(2).
After Ralph Lash had acquired the additional stock so as to control the Barre corporation, the business was moved from its old location to a building owned by Ralph and Betty Lash. The occupancy, which has continued, was without lease, with rent payable *211 monthly. There was no corporate authority evidenced for this change, nor for the use of corporate funds to make extensive structural and capital improvements in this property. The master also found that the rent charged for use of the building was excessive, in that it was assessed beginning in July when occupancy did not occur until October. The building was rented with heat yet, somehow, a separate charge for heat was made against the Barre corporation. These amounts aggregated to something over $45,000, and were reflected in recovery for them allowed by the chancellor against the defendants, Ralph and Betty Lash, in favor of the Lash Furniture Company of Barre, Inc.
The justification for the recovery is based upon the fact that dealings between a majority stockholder and director and the corporation he controls are not arms-length transactions. They are subject to close scrutiny at the instance of persons having an interested relationship to the operation, such as a stockholder. The relationship of a director-stockholder to his corporation binds him to use the utmost good faith and loyalty for the furtherance and advancement of the interest of that corporation. He is not permitted to make profit for himself in the transaction of the business of the corporation, against its interest. Capital Garage Co. v. Powell, 96 Vt. 145, 149, 118 A. 524 (1922).
The master, therefore, properly examined the facts in the light of the defendant Ralph and Betty Lash's fiduciary duty. Since it is clear that, under the evidence presented, impermissible advantage of the Barre corporation was taken through the terms of the lease arrangements, and with facts in support of that conclusion and of the fiscal recovery allowed, the judgment in that particular will stand.
The master found from the evidence before him that the defendant wrongfully treated corporate assets as his own for borrowing purposes, wrongfully accepted unauthorized compensation in salaries and bonuses, wrongfully used corporate funds for personal obligations and expenses and allowed irregularity in the keeping of the books and records of the Barre corporation. The measure of these various breaches of fiduciary duty were reduced to dollar figures based on the evidence in the case, and reflected in the judgment order. The evidence in the case establishes that this conduct did, in fact, occur and supports the judgment amounts. Where the facts establish such wrongful behavior, the corporation may recover such losses by way of damages. Hooker, Corser & Mitchell Co. v. Hooker, 88 Vt. 335, 357, 92 A. 443 (1914).
The defendants seek to bar recovery based on these breaches of fiduciary duty by resort to a contention that the plaintiff, Herman Lash, does not come before the court with "clean hands." Although, in derivative suits, the direct interest of the corporation is the main concern of the court, a stockholder-litigant may be estopped from pressing a claim in favor of the corporation because of his own involvement. See Annot. 16 A.L.R. 2d 467, 468-69 (1951). Waiver, acquiescence or estoppel by or against the plaintiff stockholder will bar the suit. Bowker v. Nashua Textile Co., 103 N.H. 242, 169 A.2d 630, 633 (1961).
But this doctrine is not to be rigidly applied, or in restraint of the court's just exercise of discretion. Precision Instr. Mfg. Co. v. Automotive M. Mach. Co., 324 U.S. 806, 815, 65 S. Ct. 993, 89 L. Ed. 1381, 1386 (1945); Shell Oil Co. v. Marinello, 120 N.J.Super. 357, 294 A.2d 253, 271 (1972). The master had before him all of the evidence, and found no justification for finding as a fact any conduct that disqualified this plaintiff from maintaining this action. Indeed, given the majority position of the defendant, Ralph Lash, there was little effective action available for Herman within the corporate structure. Of necessity, his basic challenge had to be directed *212 at the stock acquisition of Ralph, a transaction in which Herman neither participated nor ratified, but opposed. The determination that the stock transfer to Ralph was unauthorized and a wrong against the corporation carried with it an invalidation of the exercise of the voting rights of that stock. Sarner v. Fox Hill, Inc., 151 Conn. 437, 199 A.2d 6, 9 (1964). Since the evidence supported the master's position on the facts that Herman was not barred from maintaining this suit we must accept that conclusion here. Lane Const. Corp. v. State, 128 Vt. 421, 428, 265 A.2d 441 (1970). As has already been noted, the defendants' attempts to relate Herman's alleged conduct with respect to the Burlington store to this litigation, by way of equitable disqualification, is no more in point on this issue than it is on any other part of this suit.
In its judgment order the lower court did not make any award of counsel fees in favor of the plaintiff. This was apparently based on two considerations. The first was associated with the failure of the special master to make a finding of fact as to the reasonableness of the attorneys' fees claimed by the plaintiff. The second was the lower court's reservation of the question of whether or not this suit was a stockholder's derivative suit for appellate disposition. The plaintiff claims that this whole issue should have had disposition below, and, failing that, must be decided here or remanded for determination.
The consequences of the litigation as resolved below and affirmed here represent a recovery for the corporation. Since this recovery was accomplished at the instance and expense of a suit brought by the plaintiff stockholder, it is clearly to be denominated a "stockholder's derivative action." 19 Am.Jur.2d Corporations §§ 587-590. Where such an action results in a recovery for the corporation, the stockholder suing may be awarded the reasonable value of the legal services rendered, or some appropriate portion of them. See Annot. 39 A.L.R. 2d 580-585 (1955).
The determination of such an award must be based on findings involving not only the costs of the services rendered, but the reasonable value of the services actually performed and their relationship to the benefit to the corporation. Only then can the extent of the burden of such fees that can properly be allocated to the corporation, having in mind, also, its financial situation, be determined. This issue is for the trial court, based on appropriate factual findings. Sarner v. Sarner, 38 N.J. 463, 185 A.2d 851, 855 (1962). The case must be remanded for a decision on this issue.
The plaintiff also asserts a claim for interest on certain items of damage where the master's findings either denied it or failed to award it. As was said in Pattengill v. Kelton, 124 Vt. 472, 475, 207 A.2d 245 (1965), since the damages represent a recovery for wrongful acts of the defendants, Ralph and Betty Lash, the recovery of interest was for the trier of fact, and his determination as to that issue is affirmed.
The judgment order does contain two perpetual restraints which may become inappropriate as time passes and the situation changes. One relates to salaries payable to Ralph and Betty Lash, and the other to rent to be charged to the Barre corporation by Ralph and Betty Lash for occupancy of the premises owned by them. At all times these parties would have the burden of establishing that their remuneration and rent charges were fair and reasonable, and those payments would be subject to close scrutiny. A freezing of these charges could eventually produce a result unfair to these defendants. Justice would be as well served if the prohibition extended only so long as the disputed shares of stock remain in the names of Ralph and Betty Lash, rather than the Barre corporation. Since the matter must be remanded for a hearing as to attorneys' fees, the decree should then also be modified with respect to these prohibitions.
*213 Decree affirmed except as to paragraphs 5 and 8, and the cause is remanded for modification of said paragraphs of the decree in accordance with the views expressed in the opinion, and for disposition of the issue of attorneys' fees appropriate to be awarded the plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918237/ | 135 N.W.2d 525 (1965)
STATE of Iowa, Appellee,
v.
Donald Eugene MABBITT, Appellant.
No. 51553.
Supreme Court of Iowa.
June 8, 1965.
*527 Richard C. King, Council Bluffs, for appellant.
Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., and Frederick Kraschel, Council Bluffs, County Atty., for appellee.
MOORE, Justice.
March 13, 1964, defendant, Donald Eugene Mabbitt, was indicted by the Pottawattamie County grand jury for the crime of breaking and entering the El Patio Cafe in Council Bluffs in violation of section 708.8, Code 1962, I.C.A., to which he entered a plea of not guilty. On trial to a jury commencing March 25 he was found guilty. April 3, 1964 he was sentenced to imprisonment in the Iowa State Penitentiary at Fort Madison for a period not to exceed 10 years. From this judgment and sentence defendant appeals.
Defendant states and argues two propositions for reversal: (1) mere presence with another at the time of the commission of an offense will not render a person guilty, and (2) defendant is entitled to the advice and assistance of counsel at every stage of the proceedings.
The state, while not conceding these propositions were properly raised before the trial court, meets them on the basis the record shows defendant's participation was far more than mere presence and that defendant was represented by counsel soon after his arrest and when questioned by police waived right to counsel.
I. Neither of these propositions was properly raised and preserved in the trial court. At the close of the state's evidence defendant moved for a directed verdict, claiming the evidence showed no more than his presence at the scene of the crime. The trial court overruled this motion. It was not renewed at the close of all the evidence or raised at any other stage of the proceedings.
No error can be predicated on the failure to grant a motion for peremptory verdict at the close of plaintiff's evidence. State v. Kulow, 255 Iowa 789, 793, 123 N.W. 2d 872, 875; State v. Stodola, Iowa, 134 N.W.2d 920 (filed May 4, 1965); Ver Steegh v. Flaugh, 251 Iowa 1011, 1020, 103 N.W.2d 718, 724, and citations.
In State v. McLaughlin, 250 Iowa 435, 439, 94 N.W.2d 303, 305, we say: "The first assigned error raises no appealable question, since the trial court may, but is not required to, sustain a motion to direct at close of plaintiff's evidence."
II. Defendant's second contention is based on the holdings in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799, 93 A.L.R.2d 733, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. The state argues they have no application under the facts in this case.
We have carefully searched the record and find defendant's second proposition is raised for the first time in this court. No mention was made of it in the trial court.
We have repeatedly said an appeal may be summarily disposed of on the proposition questions raised here were not properly raised below. Under such circumstances no appealable question is presented to this court. State v. Mart, 237 Iowa 181, 186, 20 N.W.2d 63, 66; State v. Hess, 256 Iowa ___, 129 N.W.2d 81, 82, 83; State v. Meyers, 256 Iowa ___, 129 N.W.2d 88, 92; State v. Myers, Iowa, 135 N.W.2d 73 (filed May 4, 1965).
When right to counsel is exercised, it will not do to say the accused is immune from compliance with the rules by which established procedure requires trials to be conducted. The trial court and the state are entitled to know defendant's claims, his objections and in what respect he contends he *528 is not receiving a fair trial. State v. Kramer, 252 Iowa 916, 919, 109 N.W.2d 18, 19; State v. Post, 255 Iowa 573, 580, 123 N.W. 2d 11, 15; State v. Myers, supra.
III. We will not, however, let a finding of guilt stand if upon examination of the record under Code section 793.18, I.C.A. we are convinced it shows a fair trial was not had. State v. Martin, 243 Iowa 1323, 1327, 55 N.W.2d 258, 260, 34 A. L.R.2d 904; State v. Cusick, 248 Iowa 1168, 1170, 84 N.W.2d 554, 555; State v. Post, 255 Iowa 573, 579, 123 N.W.2d 11, 15.
A conviction notwithstanding an absence of proof of an essential element of the crime charged amounts to denial of a fair trial. State v. Myers, 253 Iowa 271, 274, 111 N.W.2d 660, 662; State v. Stodola, supra. We therefore consider defendant's first proposition in connection with our determination of whether he had a fair trial.
IV. It is primarily a question of fact as the state concedes mere presence at the scene of a crime is not enough to prove defendant committed the offense or that he did aid and abet its commission. See State v. Farr, 33 Iowa 553, 562; State v. Fonza, 254 Iowa 630, 635, 118 N.W.2d 548, 551.
The owner of the El Patio Cafe and her husband testified all doors and windows were secure at about 6 p. m. on Monday, January 27, 1964 but the next morning upon their return to open the business they discovered the place had been broken into, several T-bone steaks, a few tenderloins and several cans of Campbells soup had been taken. The juke box had been broken open and approximately $45 to $65 was missing.
Investigation by the owner and police officers disclosed an unsuccessful attempt to enter the east door had been made but that entry was gained by breaking out an east window.
Police investigation resulted in interrogation of a Richard Lewellyn about two days later in Omaha where he had been arrested and was being held in jail. Immediately thereafter police officers went to defendant's apartment in Council Bluffs where he voluntarily released several T-bone steaks and nine cans of Campbells soup.
One of the officers testified defendant said Lewellyn had given him the food and that some of the steaks had been consumed. The recovered food was returned to the cafe by the police.
The next day, January 31, 1964, defendant was taken to police headquarters where upon being questioned he made many oral statements which were reduced to writing, and signed by him.
This written statement was identified and received in evidence after two paragraphs to which defendant objected as immaterial were deleted by the court. Defendant's only objection to the statement (Exhibit 1) when reoffered after the deletion was that Captain Merriman had already testified to the matters contained in the exhibit.
The statement, exhibit 1, dated January 31, 1964 and signed by defendant states: "My name is Donald Eugene Mabbitt. I am 27 years old, having been born January 3, 1937, at Council Bluffs, Iowa. I went to the 8th grade in school and the last place I attended was at Edison in this city. I live with my wife Marie and seventeen-month-old daughter at 808-7th Avenue in Council Bluffs, Iowa, at this time. I did work as a janitor at the Jennie Edmundson Hospital in this city and was laid off this last week. I am at present unemployed.
"I make this statement to C. W. Merriman, who had identified himself to me as a Captain of this local police department. No threats, promises or inducement of any kind has been made to me, and I am informed that I need not make a statement if I so desire. I am also informed that anything that I say at this time can be used against me in court. With this in mind, I do freely and voluntarily agree to give this statement.
*529 "I have known a fellow by the name of Richard Lewellyn for sometime, and he has been coming to my home off and on. This man has also given me money and brought things to my home to keep for him. I also know this man well enough that I knew he has been in trouble with the police on numerous occasions.
"On the evening of Monday, January 27, 1961, I was with my wife Marie, and we were out riding in my 1953 Plymouth. Richard Lewellyn was riding with us in the rear seat. I know that we are sort of hard up at this time, so we were talking about this at the time. Richard made the remark, `If you need something to eat, I know where I can get some food for you.' I agreed to this and Richard told me to drive down to the El Patio Cafe, which is on 16th Avenue and near the Indian Creek. I drove to this area and parked my car on the north side of 16th Avenue, just west of 13th Street headed west. My wife and I sat in the car and Richard Lewellyn got out and walked over toward the El Patio Cafe.
"I don't know if the El Patio was open or not, but I am sure that the Sparetime Tavern that is right next door was closed up. In a short time Richard Lewellyn came back to the car and had some T-bone steaks, some Tenderloin and several cans of Campbell's soup. He put this into my car and I took it home to my apartment at 808 7th Avenue.
"Last night Detectives Kennedy and Morrow came to my home and I turned over to them several cans of this soup and six of these T-bone steaks that we had not as yet eaten. I state that this is part of the food that Richard Lewellyn brought to my car last Monday.
"The next day, Tuesday, January 28, 1964, I know that Richard Lewellyn came to my home again and he had some money with him. I think he had about forty dollars. I know that he and I counted this money and then he gave me about thirty dollars of this money he had. I know that I gave half of this to my wife Marie at that time.
"I am able to read English and have read this statement of one page. I do hear swear that all of this is true and have signed my name below."
Only defendant testified for the defense. He related substantially the same facts as told by him to the police.
V. The recent possession of personal property taken from a building feloniously broken and entered is an evidential fact and unless the evidence in relation to that possession and the explanation thereof creates a reasonable doubt of defendant's guilt, a jury is justified in returning a verdict of guilty. State v. Fortune, 196 Iowa 995, 195 N.W. 740, 742; State v. Jensen, 245 Iowa 1363, 1373, 66 N.W.2d 480, 485; State v. Gates, 246 Iowa 344, 352, 67 N.W.2d 579, 584; State v. Hobbs, 252 Iowa 439, 448, 107 N.W.2d 242, 247. Even though the possession be denied or explained, the truthfulness of such denial or explanation is for the jury. State v. Marshall, 105 Iowa 38, 41, 74 N.W. 763, 764; State v. King, 122 Iowa 1, 3, 96 N.W. 712, 713; State v. Jensen, supra; State v. Hobbs, supra.
The instructions submitted to the jury the law of aiding and abetting as well as that applicable to recent possession of stolen property. Defendant made no objections to any of the instructions. They fairly submitted to the jury all the issues raised by the record. Apparently the jury did not believe defendant's explanation. This of course does not mean he did not have a fair trial.
VI. Defendant's second contention is difficult to follow. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799, 93 A.L.R.2d 733, holds a defendant is entitled to counsel in the trial of his case. His present counsel represented him at the trial. We find no violation of the rule as established by Gideon v. Wainwright.
*530 Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the other case cited by defendant under his second proposition is readily distinguishable from this case on the facts.
The court in Escobedo at page 986, 12 L.Ed.2d at pages 490, 491, 378 U.S. at page 1765, 84 S.Ct. states: "We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied `the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as `made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U. S., at 342, 83 S.Ct. at 795 [9 L.Ed.2d at 804, 93 A.L.R.2d 733] and that no statement elicited by the police during the interrogation may be used against him at a criminal trial."
The record here is undisputed that the police officers before interrogating defendant fully advised him of his right to remain silent and that anything he said might be used against him. Exhibit 1 also contains a disclosure by the officer to defendant of his rights. On cross-examination Captain Merriman testified, "Q. When did you first advise him of his right to counsel? A. When I talked to him at first." This is undenied by defendant.
Upon the whole record, we feel defendant had a fair trial.
Affirmed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1543986/ | 55 B.R. 394 (1985)
In the Matter of Sammy PETTIT, Dorothy Pettit, Debtors.
Bankruptcy No. 84-93-C.
United States Bankruptcy Court, S.D. Iowa.
April 26, 1985.
*395 James L. Spellman, Des Moines, Iowa, for debtors.
John E. Casper, Winterset, Iowa, for Union State Bank.
Thomas L. Flynn, Des Moines, Iowa, Trustee.
MEMORANDUM OF DECISION AND ORDER
RICHARD STAGEMAN, Bankruptcy Judge.
The question before the court is whether a profit sharing plan is exempt property. The Debtors contend that their interest in a profit sharing plan established for the employees of the Union State Bank of Winterset ("Bank") is exempt property under Section 627.6 of the Iowa Code. The Bank and the trustee have filed objections to this claim of exemption. A hearing on these objections was held on July 31, 1984. The court, now being fully advised, makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. A profit sharing plan has been created by the Bank for the benefit of its employees. The Plan's provisions are contained in a document entitled "Amended and Substituted Union State Bank Profit Sharing Plan and Trust" ("Plan").
2. Articles I and II of the Plan state that the plan is intended to provide retirement and other benefits for the sole and exclusive benefit of the Bank's employees.
3. Debtor Dorothy Pettit was an employee of the Bank from February 7, 1979, until her employment was involuntarily terminated on April 30, 1984.
4. During her employment, the Bank made contributions to the Plan on her behalf. The value of the Debtor's interest in the fund as of December 31, 1983, was $16,042.29.
5. The Plan is a qualified plan under the Employee Retirement Income Security Act of 1974 ("ERISA") and the Debtor's interest in the Plan is fully vested.
6. A letter from the Debtors to the Bank on January 18, 1984, purports to assign *396 the Debtors' entire interest in the Plan fund to the Bank as payment on a promissory note.
7. A letter from the Bank to the Debtors, dated February 20, 1984, states that the Bank would neither accept nor give legal effect to the assignment.
8. Article IX, Section 12 of the Plan prohibits benefits payable under the Plan from being alienated, assigned, encumbered, or otherwise transferred and states that attempts to do so will be void.
9. On May 1, 1984, the Debtors filed a Second Amendment to Schedule B-4 of their bankruptcy petition. This amendment included the claimed exemption of the Plan.
10. Management of the Plan fund is vested in the Plan trustee. Disbursements under the Plan are controlled by the trustee and a Committee consisting of the president of the Bank, two members selected by the Bank's Board of Directors and two members selected by Plan participants.
11. Article IX, Sections 2-10 of the Plan call for cash payment in lump sum to participants or their beneficiaries only upon certain specified events. Payment will commence on the earliest of the participant's 60th birthday, retirement, disability, termination of employment or death. The Committee appointed to administer the Plan payments may, in its sole discretion, authorize payment of up to seventy-five percent of the participant's benefits in a hardship case due to illness or accident.
12. The Debtors' monthly expenses for utilities, insurance, medical costs, clothes, fuel for their car and groceries exceed $750 a month.
13. Debtor Dorothy Pettit received unemployment compensation of $705 a month during the period of April 1 to August 6, 1984. Mrs. Pettit now is employed and earns approximately $700 a month.
14. Debtor Sammie Pettit is presently disabled with an ailment related to his esophagus and stomach.
15. A letter from Mr. Pettit's physician dated August 23, 1984, states that Mr. Pettit's ailment called for surgery which had only 80% chance of being effective and a recovery time of 6 months to a year. The surgery was performed in May 1984. The letter also states that Mr. Pettit has a 10% chance of developing a cancer related to his condition.
16. Dorothy Pettit is 48 years of age and Sammie Pettit is 52 years of age.
17. The Debtors claim the following property as exempt:
40 acre homestead $80,000.00
Farm machinery 8,900.00
Two motor vehicles 1,850.00
Three life insurance policies 52.00
Tax refunds 1,800.00
Wages 200.00
Household goods, furnishings,
jewelry, clothing and personal
effects 5,000.00
__________
Total $97,802.00
18. The property claimed as exempt is substantially the extent of the Debtors' remaining assets. The homestead area is able to produce three acres of corn and hay.
19. The present State of Iowa's general exemption provision, Iowa Code Section 627.6, became effective July 1, 1981.
MEMORANDUM OF DECISION
The Bank claims that the profit sharing plan has been assigned to it as payment on a $54,000 mortgage note to the Bank. The Debtors' purported assignment is based on the Debtors' January 18, 1984, letter.
Acceptance by the assignee is usually a requisite element of an assignment. 6A C.J.S. Assignments § 63 (1975); Restatement (Second) of Contracts § 327 (1981). In determining whether acceptance has occurred, the intent of the parties controls. Broyles v. Iowa Department of Social Services, 305 N.W.2d 718 at 721 (Iowa 1981). Given the Bank's letter rejecting the assignment, it is difficult to find any intent to accept the Debtors' assignment offer. In addition, the express terms of the Plan (to which the Bank is a party as employer), prohibit any assignment of the *397 fund. The Plan itself deems all attempts to assign as void. Under these facts, there was no assignment or waiver of the Debtors' exemption rights.
The Bank also claims that this profit sharing plan is not exempt under Iowa law. Section 627.6(9)(e) of the Iowa Code states as follows:
A debtor who is a resident of this state may hold exempt from execution the following property:
. . . .
9. The debtor's rights in:
. . . .
e. A payment under a pension, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.
Section 627.6 Code of Iowa (1983).
The Bank argues that a "profit-sharing plan" is not specifically mentioned in the Iowa statute, and asserts that a profit sharing plan is not a "similar plan or contract" within the intendment of the Iowa exemption statute. In support of its position the Bank first compares the federal exemption provision in Section 522(d)(10)(E) of the Bankruptcy Code to the state statute. The Bank points out that, while the two provisions are very similar, the later state statute does not include the terms "stock bonus" and "profit sharing." The argument of the Bank is that this omission was necessarily intentional and restricts the Iowa exemption.
There is no legislative history to support the Bank's restrictive interpretation of Section 627.6. Furthermore, although the words "profit sharing plan" are absent in the exemption statute, the scope of the phrase "or similar plan or contract" could easily encompass a profit sharing plan. It is significant to note that two neighboring states have not hesitated to exempt profit sharing plans. Minnesota's exemption statute states:
Subd. 24. Employee benefits. The debtor's right to receive a payment, or payments received by the debtor, under a stock bonus, pension, profit sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.
Minn.Stat.Anno. § 550.37 (Supp.1985).
Missouri's exemption statute states:
(10)(e) A payment under a stock bonus, pension, profit-sharing, annuity or similar plan or contract on account of illness, disability, death, age or length of service, to the extent reasonably necessary for the support of such person and any dependent of such person unless:
Vernon's Anno. Missouri Stat. § 513.430 (Supp.1985).
While Iowa's statute does not specifically use the words "profit sharing plan," an examination of the Minnesota and Missouri exemption statutes would lead the court to conclude under the rule of ejusdem generis that Iowa's legislature intended a profit sharing plan under the phrase "similar plan or contract." Brown v. Bell, 146 Iowa 89, 123 N.W. 231 (1909).
It is likely that the legislature's reason for including "similar plan or contract" in the statute was to give the courts some latitude in treating varying factual situations under this exemption section. Exemption statutes are usually construed liberally in "carrying out the beneficient object of the legislation." Frudden Lumber Co. v. Clifton, 183 N.W.2d 201, 203 (Iowa 1971). The object of exemption statutes is to protect debtors and their families from the deprivation of those things "essential for their education, culture, and spiritual upbuilding." Dunbar v. Spratt-Snyder Co., 208 Iowa 490, 226 N.W. 22 (1929). It is reasonable to conclude that the state legislature, by using the terms "similar plan or contract," intended that plans having "pension" or "annuity" characteristics should be exempt. Such an intent would further the "fresh start" purpose of exemption statutes in that "pension-annuity" type arrangements are created *398 to fill or supplement a wage or salary void.
In determining whether the instant profit sharing plan is in fact "similar" to a pension or annuity, it becomes necessary to review the characteristics of pension and annuity plans. Generally, pensions are intended to function as wage substitutes at some future period. In re Donaghy, 11 B.R. 677 (Bkrtcy.S.D.N.Y.1981). As a wage substitute, the pension plan payments afford debtors an opportunity to get back on their feet and support the basic requirements of life. Id. See also In re Turpin, 644 F.2d 472 (5th Cir.1981). Thus, the benefits under an exempt pension plan are generally not available until a time when the beneficiary's earning capacity is limited. In re Miller, 33 B.R. 549 (Bkrtcy. D.Minn.1983).
An annuity is a right to receive a specified income payment for a fixed or contingent period. See 3A C.J.S. Annuities § 2 (1973). Typically, an annuity is "purchased" during a period of employment with an intent to draw the annuity payments during retirement or to provide one's beneficiaries with an income source in the event of one's death. An annuity, therefore, is like the common pension plan in that access to the annuity fund is restricted by limiting conditions (i.e. retirement, disability, death, etc.).
Based on this review of the general characteristics of pensions and annuities, the court finds that the qualities of a "plan or contract" similar to pension plans and annuities include:
A formal plan or fund established for the benefit of the debtor, usually as part of a relationship with an employer or employee organization.
The benefits of the plan or fund are of a nature "akin to future earnings" of the debtor and intended as retirement income or at least income deferred during the debtor's employment to provide future support for the debtor.
Access and control of the plan or fund in the hands of someone other than the debtor with strong limitations on withdrawal or distribution expressed in the formal plan or fund for the purpose of providing retirement or deferred income.
That payment under the plan or contract is to be on account of illness, disability, death, age, or length of service.
Any plan or contract exhibiting these characteristics should be exempt under Iowa Code § 627.6(9)(e).
Reviewing the Debtor's Plan and based on the findings of fact, the court finds that:
1. The Plan was established by the Debtor's employer and intended for her retirement.
2. The fund management and distribution is out of Debtor's control, except upon certain events which are consistent with the purpose of providing future support for the Debtor or her dependents.
3. The distribution events are related to age, disability, death or length of service. As such, this profit sharing plan falls within the intent of the state exemption statute.
Though the Debtor's profit sharing plan is found to be of a type intended for exemption, the statute allows an exemption of plan payments only to the extent "reasonably necessary" for the Debtor's support and for the support of the Debtor's dependants. Iowa Code § 627.6(9). The Bank says the funds are not reasonably necessary for the Debtors' support.
In deciding what is "reasonably necessary" for the Debtors' support, the court must look to the Debtors' existing income, their other exempt property and in relation to their basic needs. In re Johnson, 36 B.R. 54 (Bkrtcy.D.N.M.1984). As stated by the court in Matter of Taff, 10 B.R. 101 (Bkrtcy.D.Conn.1981).
[T]he reasonably necessary standard requires that the court take into account other income and exempt property of the debtor, present and anticipated, . . . and that the appropriate amount to be set *399 aside for the debtor ought to be sufficient to sustain basic needs, not related to his former status in society or the lifestyle to which he is accustomed but taking into account the special needs that a retired and elderly debtor may claim.
Id. at 106.
The bankruptcy cases also generally include future needs of the debtor in determining what is reasonably necessary. In In re Miller, 33 B.R. 549 (Bkrtcy.D.Minn. 1983), the court acknowledged that the debtor's pension plan was not currently necessary, but that Congress intended that the "reasonably necessary" provision look to the debtor's future needs as well, such as retirement needs. See also In re Donaghy, 11 B.R. 677 (Bkrtcy.S.D.N.Y.1981); Matter of Kochell, 31 B.R. 139 (W.D.Wis. 1983).
In Kochell, the court found that the debtor had not demonstrated any present need and only speculative future need. The court noted that the debtor was a doctor, in good health at age 44, with many years of high earnings ahead of him. It was this income and its availability to re-establish a fund upon which the debtor was directed to rely and not upon his present pension fund. See also, In re Clark, 18 B.R. 824 (Bkrtcy. E.D.Tenn.1982).
Debtor Dorothy Pettit became eligible to receive her entire portion of the Plan fund upon her termination of employment with the Bank. This portion totals at least $16,042.00. Most of the assets exempted by the Debtors are needed for a potential fresh start and a high percentage are fixed assets not readily suited for liquidation. Due to Mr. Pettit's disability, funds to meet every day expenses appear to be limited primarily to Mrs. Pettit's income. The Debtors are not shown to possess skills commanding high compensation. If used to supplement the Debtor's present income, the Plan cannot be expected to last far into the future.
It is the court's conclusion that the Plan fund is not only reasonably necessary, but vital for the present and future support of the Debtors to insure their fresh start. Therefore, under the existing state exemption statute, the Debtor's rights in these Plan payments qualify as exempt property.
The Bank argues that the "present" Section 627.6(9)(e) of the Code of Iowa, cannot be retroactively applied to debts existing prior to the July 1, 1981, changes in the state exemption law. The Bank asserts that such an application of the new law would impermissibly impair the Bank's contractual arrangement with the Debtor. In support of its position the Bank cites Sturgeon v. Steele, 563 F.2d 1154 (4th Cir.1977); England v. Sanderson, 236 F.2d 641 (9th Cir.1956); In re Pappas, 2 B.R. 138 (Bkrtcy.C.D.Cal.1980); and In re Malpeli, 7 B.R. 508, 7 Bankr.Ct.Dec. (CRR) 249 (Bkrtcy.N.D.Ill.1980).
The Malpeli case dealt with avoidance of a security interest under Section 522(f) of the Bankruptcy Code. The Debtors' case does not deal with Section 522. The Bank does not even hold a security interest in the property claimed exempt. Therefore, the court declines to address any issue regarding the avoidance of certain security interests under Section 522(f).
The Steele, Sanderson, and Pappas cases support the position that an exemption statute cannot be applied to impair a creditors' contractual rights existing prior to the date of enactment of the statute. The court takes notice that at least one of the Bank's proofs of claims evidences a debt incurred prior to July 1, 1981, the effective date of the revised Iowa exemption statute.
The question raised by the Bank and dealt with in the three cited cases is grounded in the contract clause of the United States Constitution.[*] Article I, Section 10, Clause 1 states:
No State shall . . . pass any Bill of attainder, ex post facto Law, or Law impairing the Obligation of Contracts. . . .
U.S. Const. Art. I, § 10, cl. 1.
The rule derived from a long line of Contract Clause cases is that a material *400 impairment of the means of enforcement may also impair the obligation of a contract. See Edward v. Kearzey, 96 U.S. (6 Otto) 595, 24 L. Ed. 793 (1877); Gunn v. Barry, 82 U.S. (15 Wall.) 610, 21 L. Ed. 212 (1872); McCracken v. Hayward, 43 U.S. (2 How.) 608, 11 L. Ed. 397 (1844); Bronson v. Kinzie, 42 U.S. (1 How.) 311, 11 L. Ed. 143 (1843).
The threshold question, therefore, is "whether the state law has, in fact, operated as a substantial impairment of a contractual relationship." Allied Structural Steel v. Spannaus, 438 U.S. 234, 244, 98 S. Ct. 2716, 2722, 57 L. Ed. 2d 727 (1978).
Though Section 627.6(9) was a new provision in the 1981 state enactment and a substantial change from prior law, the court finds that there has been no impairment of the Bank's contractual relationship with the Debtors. The reason is that the Bank could not have reached the fund here under a creditor-debtor relationship with the Debtors prior to the 1981 change in the Iowa exemption statute.
The Debtor's profit sharing Plan, is a qualified ERISA plan. As to such plans, federal case law has construed the anti-alienation or assignment provisions of ERISA to preclude any voluntary or involuntary encroachments on benefits provided under the plan. See, e.g., Tenneco, Inc. v. First Virginia Bank of Tidewater, 698 F.2d 688 (4th Cir.1983); General Motors v. Buha, 623 F.2d 455 (6th Cir.1980); Cody v. Riecker, 454 F. Supp. 22 (E.D.N.Y.1978).
The court in Buha points to the legislative history on ERISA that indicates Congress was thinking of judicial process such as garnishment and levy when discussing assignment and alienation, whether the funds are in trust or in pay status. Buha, 623 F.2d at 460, citing H.R.Rep. 1280, 93rd Cong., 2d Sess., reprinted in 1974, U.S.Code Cong. & Ad.News, 5038, 5061. Also, under the broad authority granted by Congress, the Treasury and Labor Departments have promulgated regulations requiring plans to prohibit all legal process from reaching benefits provided under the plan. See Treas.Reg. § 1.401(a)-13(b) (1978). The regulations further clarify that once a participant or beneficiary begins to receive benefits under the plan, a plan may allow the participant or beneficiary to assign or alienate the right to future benefit payments up to 10% of any benefit payment, but such an assignment or alienation is still limited to those of a voluntary and revocable nature. Treas.Reg. § 1.401(a)-13(d)(1) (1978). The effect given the legislation and regulations is to prohibit general commercial creditors from reaching the benefits of qualified plans. See also, In re Graham, 726 F.2d 1268, 1273 (8th Cir.1984) (twice noting that the anti-alienation provisions of ERISA are construed as barring use of garnishment or "judgment enforcement devices" by general commercial creditors of a beneficiary).
Based on this federal case law, the court is persuaded that a general creditor of this Debtor could not have reached the benefits of the Debtor's qualified ERISA plan outside bankruptcy proceedings. Any contract between the debtor and a creditor in this case did not have its means of enforcement impaired by the state exemption change because federal law would have precluded enforcement against the plan assets anyway. The state exemption statute as applied is constitutionally valid.
Having found that the property claimed as exempt falls within the coverage of the currently applicable state exemptions under Section 522(b)(2)(A) of the Bankruptcy Code, the court enters the following order.
It is, ORDERED, that the objections to the Debtors' claimed exemptions by the trustee and the Union State Bank are overruled.
NOTES
[*] The Constitution of the State of Iowa, Art. I, § 21, also has a similar clause. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1006114/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-7470
LEROY KILLIAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-93-74, CR-93-80, CA-96-517-3-MU)
Submitted: November 26, 2001
Decided: December 20, 2001
Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.
Vacated in part and remanded by unpublished per curiam opinion.
COUNSEL
Leroy Killian, Appellant Pro Se. Brian Lee Whisler, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. KILLIAN
OPINION
PER CURIAM:
Leroy Killian seeks to appeal the district court’s order denying his
motion filed under 28 U.S.C.A. § 2255 (West Supp. 2001). Killian
filed a habeas motion under § 2255 on December 6, 1996. He claimed
ineffective assistance of counsel for his attorney’s alleged failures to
perfect a direct appeal, to inform Killian that he was subject to a
career offender enhancement, and to object to the Pre-Sentencing
Report. On March 7, 2001, the district court found Killian raised a
legitimate ineffective assistance of counsel claim as to his attorney’s
failure to perfect a direct appeal pursuant to United States v. Peak,
992 F.2d 39, 42 (4th Cir. 1993). The court denied the remainder of
Killian’s ineffective assistance claims. It vacated Killian’s original
judgment and entered a new judgment to permit Killian a renewed
opportunity to seek a direct appeal.
Although the district court granted Killian’s § 2255 motion insofar
as it entered a new judgment, it denied the remainder of Killian’s
habeas claims. Because Killian has never had a direct appeal, how-
ever, taking further action on Killian’s motion beyond granting his
Peak claim was inappropriate. The district court should have dis-
missed the remaining claims without prejudice to Killian’s right to
file another habeas motion, if necessary, after a direct appeal. More-
over, as a criminal defendant has a right to counsel throughout the
direct appeal, see Douglas v. California, 372 U.S. 353, 357-58
(1963), the district court should have appointed counsel for Killian
when it made its ruling. Accordingly, we grant a certificate of
appealability and vacate the district court’s March 7 order to the
extent it denied Killian’s § 2255 claims other than his Peak claim, and
remand with instructions for the district court to dismiss the non-Peak
claims without prejudice. The district court is further instructed to
appoint counsel for Killian to assist him with the pursuit of his direct
appeal. We dispense with oral argument, because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
VACATED IN PART AND REMANDED WITH INSTRUCTIONS | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1006116/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 00-4346
DANNY KENNEDY GENERAL, a/k/a
Young,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-99-68)
Submitted: November 30, 2001
Decided: December 20, 2001
Before WIDENER, WILKINS, and LUTTIG, Circuit Judges.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
COUNSEL
Christopher F. Cowan, COWAN, NORTH & LAFRATTA, L.L.P.,
Richmond, Virginia, for Appellant. Janice McKenzie Cole, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. GENERAL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Danny Kennedy General pled guilty pursuant to a plea agreement
to Count 1, conspiracy to possess with intent to distribute cocaine
base, cocaine powder, heroin, and marijuana, and to Count 4, using
and carrying a firearm during and in relation to a drug trafficking
crime. General was sentenced to 294 months imprisonment for Count
1 and 60 months consecutively for Count 4. The court also imposed
a five-year term of supervised release. On appeal, he raises four
issues. For the reasons that follow, we affirm in part, and vacate and
remand in part.
First, General alleges that the district court committed reversible
error because it failed to inform him at his plea hearing that the man-
datory minimum sentence for Count 4 is five years. We find that the
district court’s failure to follow Fed. R. Crim. P. 11(c) was harmless
as this information was contained in General’s plea agreement. See
United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995) (stating stan-
dard); United States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991)
(holding Rule 11 error harmless if information adequately covered in
plea agreement).
Second, we do not find that the district court abused its discretion
by denying General’s motion to withdraw his plea. United States v.
Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (citing standard). Gen-
eral has failed to establish his burden to show a "fair and just reason"
for withdrawal. Fed. R. Crim. P. 32(e); see also United States v. Lam-
bey, 974 F.2d 1389, 1394 (4th Cir. 1992); United States v. Moore, 931
F.2d 245, 248 (4th Cir. 1991).
Next, General alleges that his 294-month sentence for Count 1 is
erroneous in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
More specifically, he alleges that his sentence should be no more than
UNITED STATES v. GENERAL 3
240 months for an unspecified amount of a Schedule I or II drug as
stated in 21 U.S.C.A. § 841(b)(1)(C) (West Supp. 2001). In United
States v. Dinnall, 269 F.3d 418, 420-24 (4th Cir. 2001), this court
affirmed the defendant’s conviction for conspiracy to possess with
intent to distribute an unspecified amount of cocaine base but vacated
and remanded Dinnall’s 360-month sentence for the district court to
impose a sentence no greater than 240 months under § 841(b)(1)(C).
We find Dinnall controlling here and affirm General’s conviction for
Count 1, but vacate and remand his sentence for the district court to
impose a sentence within the 240-month statutory maximum under
§ 841(b)(1)(C).
Finally, General’s argument that his sentence of five years of
supervised release is also improper has been rejected by this court.
See United States v. Pratt, 239 F.3d 640, 647-48 (4th Cir. 2001). We
affirm General’s conviction and sentence for Count 4.
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
AND REMANDED IN PART | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1006058/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4313
JEFFREY JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-01-5-F)
Submitted: October 24, 2001
Decided: December 12, 2001
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, David J. Cortes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. JOHNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jeffrey C. Johnson pled guilty to making threatening telephone
calls in interstate commerce, in violation of 18 U.S.C.A. § 875(c)
(West 2000). During sentencing, the district court determined, with-
out objection, that Johnson’s offense level was thirteen, and his crimi-
nal history category was IV, with a guideline range of twenty-four to
thirty months’ imprisonment. The district court decided that the likeli-
hood of recidivism was high in Johnson’s case, and that criminal his-
tory category IV did not produce a guideline range commensurate
with the seriousness of Johnson’s criminal record or the likelihood
that he would continue to commit crimes in the future. Pursuant to
U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (2000), the court
departed to criminal history category VI. This departure yielded a
guideline range of thirty-three to forty-one months, and the district
court sentenced Johnson to forty-one months’ imprisonment. It is
from this departure that Johnson appeals.
We review the district court’s decision to depart for abuse of dis-
cretion. Koon v. United States, 518 U.S. 81, 98-99 (1996). A district
court may depart on the basis of an encouraged factor if the applicable
guideline does not already take it into account. United States v. Brock,
108 F.3d 31, 34 (4th Cir. 1997). The sentencing guidelines expressly
encourage departure when a defendant’s criminal history category
does not adequately reflect the seriousness of his past criminal con-
duct or the likelihood that he will commit further crimes. USSG
§ 4A1.3, p.s.; United States v. Cash, 983 F.2d 558, 560 (4th Cir.
1992) (inadequacy of criminal history). In deciding whether to depart,
the court should not base its decision only on the number of prior
offenses, but should consider that their nature is often a better indica-
tion of the seriousness of the defendant’s criminal record. USSG
§ 4A1.3, p.s.; Cash, 983 F.2d at 560-61.
UNITED STATES v. JOHNSON 3
In stating its reasons for departure, the district court noted first that
Johnson’s criminal history score failed to take into account two mis-
demeanor convictions involving conduct similar to the instant
offense. Second, the district court determined that the original crimi-
nal history score underestimated Johnson’s true criminal history
because it did not include several dismissed charges involving similar
conduct. Finally, the district court held that the original criminal his-
tory category did not adequately represent Johnson’s potential for
recidivism, given that he made obscene phone calls even while under-
going court-sanctioned psychiatric therapy designed to treat his
behavior. Johnson specifically takes issue with the first of the district
court’s three reasons for departure.
Johnson contends that the district court abused its discretion in its
allocation of six one-point convictions into the USSG § 4A1.1(c) cap.
He claims that the district court arbitrarily included two non-similar
conduct convictions for inclusion in the count under USSG
§ 4A1.1(c), and then departed because there were two prior convic-
tions of similar conduct not previously accounted for. He asserts that
if the district court had chosen all four prior convictions of similar
conduct for inclusion under USSG § 4A1.1(c), leaving the two unre-
lated convictions, its professed basis for departure would have been
negated because there would have been no prior convictions of simi-
lar misconduct not accounted for.
We find the district court did not abuse its discretion. As Johnson
admits, the district court was not required to use the prior similar con-
victions among the four to be counted under USSG § 4A1.1(c), and
the sentencing guidelines offer no guidance as to which convictions
should be included. The determination of which convictions to
include, and which to exclude, is soundly within the district court’s
discretion. In this case, there were three prior similar conduct convic-
tions, two of which involved a series of threatening calls to the victim.
In addition, Johnson was involved in several instances of similar con-
duct while in a sex offender treatment program, and Johnson’s coun-
selor found him to be at high risk for recidivism. The facts that the
criminal history calculation did not include several similar conduct
charges which were dismissed, and did not reflect Johnson’s potential
recidivism, are, in and of themselves, valid to support the departure.
Because the sentencing guidelines expressly encourage departure
4 UNITED STATES v. JOHNSON
when a defendant’s criminal history category does not adequately
reflect the seriousness of his past criminal conduct or the likelihood
that he will commit further crimes, USSG § 4A1.3, p.s.; Cash, 983
F.2d at 560, departure was warranted.
Accordingly, we affirm Johnson’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1006394/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-7565
TOMMY RAY ROBINSON,
Plaintiff - Appellant,
versus
ALVIN HOUSTON, Lieutenant; B. FORD, Sergeant;
R. GANT, Sergeant; W. PINKETT, Correctional
Officer II; D. CHASE, Correctional Officer II;
M. STEVENSON, Correctional Officer II, A.
SMITH, Officer,
Defendants - Appellees.
No. 00-7566
TOMMY RAY ROBINSON,
Plaintiff - Appellant,
versus
ALVIN HOUSTON, Lieutenant; BERNARD FORD, Ser-
geant; DION PINKETT, Correctional Officer II;
DARRICK CHASE, Correctional Officer II;
MAURICE STEVENSON, Correctional Officer II;
REGINALD GANT, Sergeant; EUGENE NUTH, Warden,
Maryland Penitentiary; J. OWENS, Property Room
Officer; OFFICER SMITTY; OTHER UNKNOWN NAMED
DEFENDANTS, et al,
Defendants - Appellees.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (CA-96-
1298-AMD, CA-96-896-AMD, CA-96-1388-AMD)
Submitted: January 17, 2002 Decided: January 25, 2002
Before WILKINS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Terry Ray Robinson, Appellant Pro Se. John Joseph Curran, Jr.,
Attorney General, Stephanie Judith Lane-Weber, Assistant Attorney
General, Wendy Ann Kronmiller, Assistant Attorney General, Toni-
Jean Lisa, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Tommy Ray Robinson appeals the district court’s order granting
the Defendants’ motion for judgment as a matter of law in his
action alleging violations of 42 U.S.C.A. § 1983 (West Supp. 2001).
We have reviewed the record and the district court’s opinion, as
supported by its reasons as stated from the bench, and find no
reversible error. Accordingly, we affirm on the reasoning of the
district court. See Robinson v. Houston, Nos. CA-96-1298-AMD; CA-
96-896-AMD; CA-96-1388-AMD (D. Md. Sept. 27, 2000).
We deny Robinson’s motion for a transcript at government
expense because he has failed to establish grounds for the tran-
script. See 28 U.S.C. § 753(f) (1994). We also deny Robinson’s
motion for appointment of counsel and dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
3 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/730987/ | 102 F.3d 69
Luxley George MALSH, Petitioner-Appellant,v.Robert HANSLMAIER, Acting Superintendent, WoodbourneCorrectional Facility, Respondent-Appellee.
No. 657, Docket 96-2330.
United States Court of Appeals,Second Circuit.
Submitted Dec. 6, 1996.Decided Dec. 12, 1996.
Timothy J. Lawliss, Lawliss & Cantwell, Plattsburgh, NY, for Petitioner-Appellant.
Peter H. Schiff, Deputy Solicitor General, Office of the Attorney General of the State of New York (Dennis C. Vacco, Attorney General, Nancy A. Spiegel and Marlene O. Tuczinski, Assistant Attorneys General, of counsel), Albany, NY, for Respondent-Appellee.
Before: WINTER and WALKER, Circuit Judges, and WEXLER, District Judge.*
PER CURIAM:
1
Luxley George Malsh appeals from Chief Judge McAvoy's dismissal of his petition for a writ of habeas corpus. Malsh claims that the district court erred in failing to review the entire state court trial transcript with respect to his claim that the evidence presented at trial was legally insufficient to sustain his conviction. We disagree.
2
Malsh was convicted of possessing more than 1/8 ounce of cocaine, possessing cocaine with intent to sell it, and resisting arrest, following a jury trial held in Schenectady County Court. Malsh directly appealed the state court conviction on several grounds, including a claim that the evidence was legally insufficient to sustain his conviction. The New York State Appellate Division, Third Department, affirmed his conviction. People v. Malsh, 188 A.D.2d 686, 590 N.Y.S.2d 923 (3d Dep't 1992). Malsh then sought a writ of habeas corpus in federal court, challenging his state court trial on fourteen grounds. Magistrate Judge Di Bianco, to whom the case was referred, found all of the claims to be meritless and recommended that the petition be denied and dismissed. In his report, the Magistrate Judge wrote:
3
This Court does not have the entire trial transcript. It does, however, have large portions of the transcript in the form of appendices to respondent's brief, petitioner's brief, and petitioner's supplemental brief to the Appellate Division, Third Department. Because these appendices constitute the full record considered by the Appellate Division, any claims based on other portions of the original trial transcript was not fairly presented in state court. Accordingly, this court does not require the full original transcript to make a recommendation as to the proper disposition of this case.
4
Malsh v. Hanslmaier, 94-Civ-687 at 4-5 n. 3 (N.D.N.Y. May 2, 1995) (Magistrate Judge's Report-Recommendation). The district court adopted the Magistrate Judge's recommendation and denied and dismissed Malsh's petition. Malsh v. Hanslmaier, No. 94-Civ-687, 1996 WL 204347 (N.D.N.Y. Apr.11, 1996). The district court stated that "due process does not require that the reviewing court consider the entire record when attempting to ascertain whether a habeas petitioner's conviction was supported by sufficient evidence." Id.
5
at * 4. The district court granted Malsh a certificate of probable cause to bring this appeal.
6
The standard for reviewing a sufficiency claim based on due process is well settled: "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Malsh claims that if the district court does not review the entire state court record, it cannot properly dismiss a sufficiency claim because it may be ignorant of essential pieces of evidence. Malsh argues that our language in United States v. Casamento obligates the district court to consider the entire trial record on habeas review. 887 F.2d 1141, 1156 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). We disagree. When we stated in Casamento that "a reviewing court must view pieces of evidence not in isolation but in conjunction," id., we meant only that the reviewing court must "piece together circumstantial evidence" where a defendant challenges the sufficiency of a conspiracy conviction, id.
7
Of course, a reviewing court may consider the entire record if it finds such review appropriate. See Malsh v. Hanslmaier, 1996 WL 204347 at * 4 ("As a matter of practice, the Southern District appears to examine the record as a whole when deciding such issues" (citing Simmons v. Dalsheim, 543 F.Supp. 729, 735 n. 2 (S.D.N.Y.1982) aff'd, 702 F.2d 423 (2d Cir.1983); Neumann v. New York, 526 F.Supp. 286, 288 (S.D.N.Y.1981); Stahl v. New York, 520 F.Supp. 221, 224 (S.D.N.Y.1981))). However, there is no per se rule that a court reviewing the sufficiency of the evidence on a habeas petition must review the entire state court trial record. It is the petitioner's burden to state the grounds for the insufficiency claim, and the court need do no more than review those portions of the record pertinent to those grounds. Presumptively, a review of the portions of the record submitted earlier to a state appellate court in support of the insufficiency claim is adequate. If other portions are relevant, then it is up to the petitioner to identify those portions and to indicate why review of them is necessary. Malsh has failed to identify any such additional portions, and we affirm.
*
The Honorable Leonard B. Wexler of the United States District Court for the Eastern District of New York, sitting by designation | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1578856/ | 12 So. 3d 877 (2009)
Charlie BROWN, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-5019.
District Court of Appeal of Florida, Fourth District.
June 17, 2009.
*878 Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Appellant, Charlie Brown, appeals the trial court's order revoking his probation in two cases and imposing a sentence of 8.125 years as a habitual offender. The trial court found that Brown willfully and substantially violated six conditions of his probation-although we are compelled to find that the state proved only two of the six violations. Because we are unable to conclude that the trial court would have revoked Brown's probation as to the two violations actually proven, we reverse the order revoking probation and remand this case to the trial court for further proceedings.
In 2003, Brown was charged with failure to register as a sex offender. In 2005, while the 2003 case was pending, he was charged with possession of heroin. Initially Brown was found to be mentally incompetent to stand trial. Subsequently, when he was found to be competent to proceed, he pled guilty to both charges and was sentenced concurrently to two years in prison followed by three years of probation. In April of 2007, a violation of probation affidavit was filed in both of the original cases alleging that Brown had violated probation by committing the two new offenses of obstruction without violence and failure of a sex offender to give notification of a change of address (counts I and II); changing his residence (on February 28, 2007) without the consent of his probation *879 officer (count III); failing to report to the probation office after being instructed to report (count IV); changing his residence (on February 26, 2007) without the consent of his probation officer (count V); and failing to produce valid identification to the Department of Highway Safety and Motor Vehicles ("DHSMV") for purposes of registration after being instructed to do so (count VI).[1]
On appeal, Brown concedes that the record supports the trial court's finding that a violation occurred by twice moving without the probation officer's consent (counts III and V).
As to counts I and II, there was scant evidence that appellant had been arrested for the new offenses, let alone that he actually committed the crimes. Although the prosecutor referred to a probable cause affidavit and said it was "self-authenticating," no documents of any kind were ever admitted into evidence.[2] The only testimony offered by the state came from Brown's probation officer who testified that Brown committed two new criminal acts while on probation. The probation officer's fleeting testimony ("He committed a criminal offense without violence, failed to notify sex offender, ...") renders the record devoid of anything that could reasonably lead to a finding that Brown committed two new crimes while on probation. In the light most favorable to the state, the probation officer's twelve words of testimony, offered to support counts I and II, were pure hearsay and not supported by competent, nonhearsay proof. This court has consistently held that probation cannot be revoked solely on the basis of hearsay evidence. E.C. v. State, 675 So. 2d 192 (Fla. 4th DCA 1996).
Count IV of the third amended affidavit for violation of probation alleged that Brown failed to report as directed "as of March 7, 2007." The probation officer's testimony regarding this alleged violation did not establish that Brown failed to abide by the requirement. In fact, it may show the opposite. In any case, the probation officer's testimony was convoluted, contradictory and inconclusive. The state failed to prove this allegation under any standard.
As to the requirement that Brown register with the DHSMV (count VI), Brown testified that he went to the driver's license office and was told that he needed a birth certificate in order to get a Florida identification card or otherwise register with the DHSMV. Brown's unrefuted testimony was that he was unable to obtain a birth certificate in his home state of Georgia because the facility from which he could obtain a copy had burned down. The state offered no evidence of any nature to suggest that Brown's failure to register or otherwise obtain a valid DHSMV identification card was willful.
We reverse the violations of probation on counts I and II (commission of the two new crimes), count IV (failing to report to the probation office after being instructed to report) and count VI (failing to produce valid identification to the DHSMV for purposes of registration after being instructed to do so) because there was simply insufficient evidence to show willful and substantial violations of probation. We affirm the violations of probation on counts III and V (changing residence without first procuring consent of the probation officer). We remand for the trial court to reconsider *880 Brown's probation revocation and subsequent sentence because it is unclear whether the trial judge would have decided this matter in the same manner if faced with these two violations rather than the six as Brown was originally found to have committed. See Wilson v. State, 967 So. 2d 1107 (Fla. 4th DCA 2007).
Reversed and remanded.
GROSS, C.J., WARNER and CIKLIN, JJ., concur.
NOTES
[1] There was an additional count alleging a willful failure to pay the costs of supervision which the trial court dismissed.
[2] The record indicates that three documents were marked for identification but they never became evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304531/ | PORTRUM, J.
This is a suit to construe a restrictive covenant; and to determine the right of the defendant Price to enforce it. The bill was filed under the declaratory judgment act, by B. M. Gaston, the owner of the restricted property, against Price, a prior purchaser from a common owner, and against the common vendor, as well as two intermediate vendors to the complainant, Gaston. The bill seeks to have the restrictive covenant declared void because it is indefinite, and removed as a cloud upon complainant’s title; but it is valid in that it conferred or preserved an interest i>n the vendor which was attached to his remaining land, and -since the vendor has disposed of all of his remaining land, the easement was lost to him and he is without right to enforce it, so for this reason the covenant is now invalid, and a cloud upon the title; that the defendant Price was a prior vendee who took a conveyance which did not contain a covenant charging the remainder of the tract with an easement in his favor, and there is no privity between the complainant Gaston and Price, though as a matter of law Price has no legal interest in the covenant nor right to enforce it; but in the event the court held otherwise, then the complainant sues in the alternative against his two immediate vendors for a breach of their covenant of warranty.
The defendant Price answered the bill, asserting the legality of the restrictive covenant, and averring that it was made for the specific benefit of his property, which was conveyed to him by the common vendor, who had agreed to charge the lot purchased by Gaston with the restriction for the special benefit of the lot purchased by Price. That the agreement to charge the property was an executed agreement under which his rights were fixed at the time of the purchase by the complainant Gaston’s predecessors in title. And, further, since his purchase he had acquired an interest in the covenant by a deed from his vendor executed after the conveyance to the complainant. The de*545fendant, Knoxville Real Estate Company, a former Tennessee corporation, which had surrendered its charter and was being liquidated through a liquidating committee, answered through its committee by joining in the answer filed by the defendant Price. The defendants, M. D. Arnold, Jr., and T. H. Johnston, the intermediate vendors between the Knoxville Real Estate Company and B. M, Gaston, also joined in the answer of the defendant Price, and thereby failed to take issue to his position. (Their course is a reminder of the criminal plea of nolle contendere.)
The material facts, briefly, are: The Knoxville Real Estate Company was engaged in the real estate business in Knoxville, and owned a large boundary of wooded land lying upon the Kingston Pike, which has developed into the first residential section of the City of Knoxville. This boundary fronted for about 500 feet upon the Kingston Pike, a boulevard or principal street through this residential section, and this strip of about 500 feet ran back for about the same distance where it spread out and covered'a large acreage of land which was laid off for residential lots and remained accessible to the Pike by a roadway leading through the west boundary of the strip in question to the Kingston Pike. The lot which was afterwards purchased by Gaston lay next to the roadway leading from the Kingston Pike to the addition behind the lot in question, and the Price lot lay immediately to the east of the Gaston lot, and fronted about 100 feet on the Kingston Pike. These lots will be designated as the east and west lots. At the time of Price’s purchase, the company tried to sell him the west lot hut he decided he preferred the east lot and purchased it with the intention of constructing his house on a knoll about 250 feet back from Kingston Pike. This knoll or small ridge ran parallel with the Pike through the east and west lots and also to the east of the property on to the property owned by Shields who constructed his house upon the knoll. Price expected to construct a valuable residence upon the knoll and was apprehensive that the purchaser of the west lot would divide it and construct a building facing upon the roadway leading to the rear of the property and known as the Tow-anda Trail, and the rear of these houses would be in front and to the side of his lot and residence. And the purchaser might construct a residence, even in the event the lot was not subdivided, nearer the street than the Price house, and thereby injure Price’s property. The real estate company, the vendor, recognized these objections, and orally agreed with Mr. Price to so restrict the use of the west lot so as to conform to the uses anticipated by Mr. Price. No covenant was placed in the Price deed, giving an interest in the land retained by the vendor, that Price could enforce against the vendor, and it was not anticipated that such covenant would be placed in the Price deed. However, when the company sold the west lot to Mr. M. D. Arnold, Jr., it did place the following restriction in the deed:
*546“Only one dwelling shall be erected on said lot about on line with Shields and Price.”
Mr. Arnold sold this lot to the defendant Johnston by warranty deed which did not contain this restriction; and Mr. Johnston conveyed the property to the complainant Gaston by warranty deed which did not contain the restriction, but did refer to his chain of title for description. Mr. Arnold at the time of his purchase knew of the agreement between Price and the real estate company in reference to the restriction. Mr. Johnston was also advised by his attorney of the restriction contained in the Arnold deed, but Mr. Gaston purchased the property by warranty deed without actual notice of the agreement between Price and the realty company; his only, notice was a constructive notice obtained in his chain of- title.
Mr. Gaston purchased the property for the purpose of building a residence upon the lot but he thereafter suffered financial reverses and abandoned his purpose to construct a residence. He attempted to sell the lot to Mr. Price, who declined to buy it for satisfactory reasons. Mr. Gaston expressed to Mr. Price his purpose to construct an apartment house upon the lot, or to sub-divide it, or to sell it for these purposes; Mr. Price made known to him his agreement with the realty company and the restrictive covenant contained in the Arnold deed and asserted his right to rely upon it.
Mr. Price, after this controversy arose, went to the liquidating agents of the Knoxville Real Estate Company and procured a deed from them conveying to him whatever right or interest the company owned in the covenant, with a right to enforce it against the vendee. Thereupon Gaston filed the bill in this cause.
The chancellor decreed that the restrictive covenant was void because indefinite; that if valid it reserved an interest in the vendor only which attached to its remaining land. But the easement was an incident to the land which was lost to the vendor when it parted with the land. Therefore the vendor had no interest to convey when it made its second deed to the defendant Price and the restrictive covenant was a cloud upon the complainant’s title which was ordered removed and the defendants Johnston and Arnold were dismissed. The defendant Price appealed, and the complainant Gaston filed the record for writ of error, assigning as error the action of the court in dismissing the bill as to Arnold and Johnston, in the event the' court is of the opinion the covenant is a valid covenant.
The questions presented under Price’s assignments are: Is the restrictive covenant valid? And has he such an interest in it that he can enforce it?
Counsel for the appellee then state that the question has been answered in the negative by this court in the case of Emory v. Sweat, 9 Tenn. App., 167, and that this answer is conclusive of the case. *547In the Emory case, this court construed the restrictive covenant to he a valid one and the vendor could enforce it. A subsequent vendee, who had purchased one of the remaining lots from the vendor, joined with the vendor and sued for damages against the vendee Sweat for a violation of the covenant. His name was Henderson, and the court, in disposing of his claim for damages, held that there was no privity between him and the covenantor, Sweat, and that he acquired no legal interest in the restrictive covenant made by Sweat that would serve as the basis for a recovery in damages suffered by Plenderson, sustained by the breach. The question decided was not Henderson’s right to enforce the covenant by injunctive process of the court. In our investigation of the English and American cases dealing with the restrictive covenant, generally called an equitable easement, we have found none that would justify a recovery of damages suffered by a subsequent vendee, because of a breach of a covenant made by a prior vendee with the vendor. But the right of a subsequent vendee to restrain a violation of a restrictive covenant made by a prior vendee is recognized. This question was decided by our Supreme Court in the case of Laughlin v. Wagner, 146 Tenn., 654, 244 S. W., 475, where it is said:
“The restrictive clause in this deed being valid and not contrary to public policy (Devlin on Deeds, Section 991-b) and enforcible in equity by the original grantor and by a property owner who purchased other property from him in the vicinity who holds the property largely under similar restrictive clauses, it remained to apply to the situation shown to exist.”
This case establishes and recognizes the doctrine of equitable easements, which is one not recognized in law and is enforced on the theory of an estoppel. Privity of contract is not necessary but notice of the prior undertaking must be brought home to the vendee before the doctrine or principles of estoppel can be applied. This notice must be either actual or constructive. This doctrine of restrictive covenants , or equitable easements is defined and elucidated in the text-books on real property, deeds and equity jurisprudence. To illustrate the doctrine, we will quote extensively from Pomeroy’s Equity.
“Section 1696. (Sec. 275.) Actions by purchaser of. other lands. When it clearly appears that such restrictions are intended to inure to the benefit of other lands, at the time of conveyance or formerly belonging to the grantor, a subsequent grantee of such other parcels may enforce the restriction by injunction. The principle question to be determined in such cases is whether the intent is sufficiently clear to warrant the court in giving relief. It is a matter for construction of the words of the covenant, in connection Math the surrounding circumstances. If the language is explicit to state the intent, the grantee’s rights are admitted. Difficulty arises when the covenant merely restrains the use without indicating the beneficiary.
*548“Where an owner of a tract of land lays it out in building lots, making a plan showing the general building scheme, and sells in accordance therewith to various purchasers, inserting restrictions in all deeds, the intent will be inferred. The purpose of a restriction is merely to benefit all the land in the tract and to make an inducement for purchase. Accordingly, one grantee may enjoin a breach by another, or by one who takes with notice. Some courts have intimated that either a general building scheme or express declaration in the covenant is essential; but the better view seems to be that the intent may be otherwise determined.”
The author cites the following note as authority for his last statement :
“The rules are summed up in DeGray v. Monmouth Heath Club House Company, 50 N. J. Eq., 329, 24 Atl., 388, as follows:
• “ ‘The action is held not to be maintainable between two purchasers not parties to the original covenant, in which (1) it does not appear that the covenant was entered into to carry out some general scheme or plan for the improvement or development of the property which the acts of the defendant disregard in some particular. (2) It does not appear that the covenant was entered into for the benefit of the land of which complainant has become the owner. (3) It appears that the covenant was not entered into for the benefit of subsequent purchasers, but only for the benefit of the original grantor and his next of kin. (4) It appears that the covenant has not entered into the consideration of the complainant’s purchase. (5) It appears that the original plan has been abandoned without dissent, while the character of the neighborhood has so changed that it defeats the purpose of the covenant, and to thus render its enforcement unreasonable.’
“All of the statements being fully supported by authorities, with the exception of the third. In probably the majority of the eases where injunctions have been granted, there has been a general building scheme. iBut it will be seen that such relief has been granted where there has been no such scheme.” *
The facts of this case bring it within the second designation, for it is insisted that it does appear that the covenant was entered into for the benefit of the defendant’s land. But he is a prior and not a subsequent purchaser, and upon this question, Mr. Pomeroy says:
“Section 1697 (Sec. 275A). Actions by prior purchaser. — Difficulty arises where a prior purchaser of one of the lots attempts to enforce a restriction contained^ in the deed to a lot subsequently purchased from the common grantor. If the lots are embraced within a general building scheme, this, is not held to be a practical difficulty, even though the deeds are silent as to any intention on the part of the grantor to impose restrictions on the future purchasers; the restrictions may be enforced by and against grantees, regardless of the order of their purchases. If there is no general scheme, the mere fact that *549there is a covenant, similar to the plaintiff’s, in the deed of a lot subsequently sold by the common grantor, does not give the plaintiff a right of action to enforce the covenant. There must, ordinarily, be a binding agreement made by the grantor at the time of the sale of the plaintiff’s lot, to insert the restriction in the deed to the lot subsequently sold. The grantor’s land thus becomes bound, in favor of the plaintiff, from the time of the first sale. ’ ’
In support of this test, the author cites in Note 19, the case, among others, of Doerr v. Cobbs; 145 Mo. App. 342, 123 S. W., 547, adding “(An instructive case; bare intention of grantors to make the covenant inure to the benefit of all persons then or thereafter claiming under him is not enough, unless it is indicated to purchasers so as to affect them with notice when they bought.) ”
This case was dealing with covenants' which appeal” in both the vendee’s deeds. We have been unable to find a case where the prior vendee is asserting the right to enforce the covenant contained in a subsequent vendee’s, deed and was not himself bound by a like covenant. See annotations on restrictive covenants, 21 A. L. R., 1281, supplemented in 33 A. L. R., 679, and in 60 A. L. R., 1219.
The grantor has a right to place any burden upon an estate he desires to place, but whether or not his vendee who is not granted the right can assert an equity in the premises made by the vendor is to be determined upon the general rules of equitable estoppel upon which this doctrine is based.
“It has been said that it is a principle upon which all the courts unite, that the right to equitable relief depends upon the following considerations:
“First, a preceding agreement in some form by which a restriction is imposed upon the lot owned or held by defendant, for the benefit of the lot owned or held by the plaintiff.
“Second, in case the agreement is made by the defendant’s predecessor in title, notice of some form to the defendant of the fact and nature of the agreement, either from the language of the deed under which he holds, or otherwise.” Coughlin v. Barker (1891), 64 Mo. App., 64.
“In making a conveyance the grantor has the legal right to impose a condition from any motive, it is immaterial what that motive is; and it has even been said that he may impose it in favor of property he does not own, if he sees fit to do so.” Hays v. St. John’s M. E. Church (1902), 196 Ill., 633, 63 N. E. 1040.
To quote from annotation 21 A. L. R., 1281:
“Nor is it necessary that there be any privity between the parties. It is not necessary, in order to sustain the action, that there should be privity either of estate or contract; nor is it essential that an action at law should be maintainable on the covenant; but there must be found somewhere the clear intent to establish the restriction for *550the benefit of the party suing or his grantor, of which right the defendant must have either actual or constructive notice. Equitable Life Insurance Association v. Blunnen (1896), 148 U. S., 661, 43 N. E., 173.”
Conceding that the proof shows this restrictive covenant was made for the benefit of Price, and that he could have enforced the same against the first vendee, Arnold, who had actual notice of the agreement, then the question remains, Can he enforce it against the complainant Gaston, who had no actual knowledge of the agreement and is only charged with constructive knowledge $f the contents of the Arnold deedf
"We think the authorities support the proposition that before Gas-ton can be bound by the covenant, in favor of Price, he must have been charged with notice of the agreement between Price and his vendor. Counsel for Price insist that the covenant itself gives him this notice. And that the recitals of his deed call this covenant to his attention. It is true he is bound -by the recitals of his deed and is put upon notice of the covenant. This covenant was notice to the purchaser that the original vendor had reserved to himself a legal interest in the estate conveyed to Arnold, and the purchaser took the property subject to the estate reserved by the vendor, the Knoxville Real Estate Company. There was nothing in the covenant to indicate, that Price also had an interest in the estate; this claim is based upon an equity and has to be established by oral testimony. There is nothing in the covenant to put the purchaser on notice of such an oral undertaking.
"We cannot escape the conclusion that the constructive notice went only to the estate retained by the vendor, the Knoxville Real Estate Company, and did not put him upon inquiry to ascertain if any prior purchaser (not subsequent purchaser) had acquired an interest in the right retained by the vendor.
The defendant Price acquired no interest in the deed executed by the liquidating committee of the Knoxville Real Estate Company, for the reason that at the date of the deed the Knoxville Real Estate Company had parted with all interest in the land retained after the execution of the Price and Gaston deeds and before the execution of the last deed to Price.
“The covenant cannot be enforced by the grantor who created the covenant, nor by his heirs, after he or they have parted with all interest in any land benefited by the covenant.” 4 Thompson on Real Estate, Section 3442.
The company at the time of its last deed had no interest in this subdivision.
After the chancellor had decreed that Price had no interest in the restrictive covenant that he could enforce, and that the Knoxville Real Estate Company had no interest in the covenant that it could enforce, *551he then held the covenant void because indefinite, and removed it as a cloud upon Gaston’s title. We think his action in this respect was error for the reason he could not adjudicate the validity of the restrictive covenant when there was no one before the court with an interest to defend. The subsequent purchasers from the Knoxville Real Estate Company may have or may. not have acquired this easement; before this can be determined they should be before the court, in a proceeding of this kind. It is not sufficient to introduce witnesses who would testify that their deeds did not contain such provision, and the provision may not have been necessary in the deed; their rights cannot be determined until they are before the court and the' provision cannot be removed as a cloud when there is no one before the court to defend. The court should have restricted its adjudication to the right of Price and the right of the real estate company, which in effect had transferred what rights it had to Price.
The decree will be modified as indicated, and in all other respects affirmed. In the lower court the complainant was unsuccessful in its claim against Arnold and Johnston, and should have been taxed with costs. The costs of the lower court and of this court are divided equally between the parties.
Snodgrass and Thompson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1575490/ | 17 So. 3d 298 (2009)
EARLY
v.
STATE.
No. 3D07-2239.
District Court of Appeal of Florida, Third District.
September 2, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575494/ | 17 So. 3d 1229 (2009)
E.B.
v.
STATE.
No. 2D08-2478.
District Court of Appeal of Florida, Second District.
September 18, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575499/ | 612 F. Supp. 2d 397 (2009)
In re MOODY'S CORPORATION SECURITIES LITIGATION.
No. 07 Cv. 8375 (SWK).
United States District Court, S.D. New York.
April 29, 2009.
*398 Aaron D. Hovan, Daniel Hume, Ira M. Press, Kirby McInerney LLP, Frederick W. Gerkens, III, Glancy Binkow & Goldberg LLP, New York, NY, Benjamin J. Hinerfeld, Jennifer L. Keeney, Michael K. Yarnoff, Lauren Wagner Pederson, Barroway Topaz Kessler Meltzer & Check, LLP, Radnor, PA, for Plaintiffs.
Sharon L. Nelles, Darrell Scott Cafasso, Stephen Ehrenberg, Sullivan & Cromwell, LLP, New York, NY, for Defendants.
OPINION AND ORDER
SHIRLEY WOHL KRAM, District Judge.
Moody's Corporation ("Moody's" or "the Company"), Raymond W. McDaniel, Jr., Brian M. Clarkson, and Michael Kanef (collectively, "Defendants") bring two motions before the Court. The first is a motion for reconsideration of the Court's February 23, 2009 Opinion and Order, In re Moody's Corp. Sec. Litig., 599 F. Supp. 2d 493 (S.D.N.Y.2009) (the "Opinion"), granting in part, and denying in part, Defendants' motion to dismiss the Consolidated Amended Complaint ("AC") submitted by Teamsters Local 282 Pension Trust Fund, Charles W. McCurley, Jr., and Lewis Wetstein (collectively, "Plaintiffs"). Defendants also move to correct a misstatement of fact in the Opinion. For the following reasons, the Court grants the motion to correct the record and denies the motion for reconsideration.
I. BACKGROUND
The Court assumes the parties' familiarity with the facts and issues of the case as detailed in the Opinion. In the instant motion, Defendants contend that the Court's misconstruction of relevant factual information resulted in "erroneous conclusions of law" with respect to its loss-causation analysis. (Defs.' Mot. 1.) First, Defendants argue that the Court misconstrued stock price data submitted in support of their motion to dismiss. (Defs.' Mot. 2.) Next, Defendants state the Court used an improper time frame when conducting its loss-causation analysis. (See Defs.' Mot. 3-4.) Defendants contend that the corrected facts require the Court to conclude that Plaintiffs' loss causation pleadings are insufficient. (Defs.' Mot. 1.) Alternatively, Defendants claim that the Court overlooked relevant precedent rendering Plaintiffs' loss-causation pleadings inadequate. (See Defs.' Mot. 5-7.) Finally, Defendants ask the Court to correct a misattribution contained in the Opinion.
II. DISCUSSION
A. Legal Standard
A motion for reconsideration under Local Civil Rule 6.3 "will generally be denied unless the moving party can point to controlling decisions or data that the court overlookedmatters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995). The standard for granting a motion for reconsideration is "strict" and the decision resides "within the sound discretion *399 of the district court." McNeil-PPC v. Perrigo Co., 05 Cv. 1321 (WHP), 2007 WL 104513, at *1 (S.D.N.Y. Jan. 17, 2007) (internal quotation marks and citation omitted).
As the Court stated in its Opinion, loss causation is
the causal link between a defendant's misconduct and economic harm ultimately suffered by the plaintiffs .... A showing of loss causation requires a plaintiff to demonstrate that (1) a misstatement or omission concealed something from the market that, when disclosed, negatively affected the value of the security, and (2) that the loss was a foreseeable consequence of the misrepresentation or omission.
In re Moody's Corp. Sec. Litig., 599 F.Supp.2d at 511-12 (internal citations omitted). Plaintiffs must adequately allege, under the pleading standards of Federal Rule of Civil Procedure 8, that the company's misrepresentation was the cause of the economic loss. In re Tower Automotive Sec. Litig., 483 F. Supp. 2d 327, 348-49 (S.D.N.Y.2007) ("The [Supreme Court in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005)] assumed arguendo that the notice pleading standards of Rule 8 govern the pleading of loss causation, and nearly all courts addressing the issue since have also applied Rule 8, rather than the heightened pleading standard of Rule 9.") (citation omitted). A plaintiff, however, must make a more detailed showing of loss causation when there is evidence of an industry-wide downturn, Lentell v. Merrill Lynch & Co., 396 F.3d 161, 174 (2d Cir. 2005), or when the record indicates that the company's stock lost almost all its value before the first alleged corrective disclosure. 60223 Trust v. Goldman, Sachs & Co., 540 F. Supp. 2d 449, 461 (S.D.N.Y. 2007). Defendants argue that both situations arise in this case. The Court disagrees.
B. Defendants Do Not Provide Evidence Indicating a Downturn in the Ratings Industry
As the Court stated in its Opinion,
In cases of an intervening event, the question of causation is reserved for trial and is not subject to analysis in a Rule 12(b) (6) motion to dismiss. Where there is a market-wide downturn in a particular industry, however, Plaintiffs must show that their loss was caused by the Defendants' fraud, rather than the intervening events, in order to survive a motion to dismiss.
In re Moody's Sec. Litig., 599 F.Supp.2d at 513 (internal citations omitted). The Court explained that in an industry-wide downturn, "one would expect the stock prices for Moody's competitors to fall along with that of Moody's." Id. Using stock prices for the entire class period, the Court concluded that there was no market-wide downturn in the ratings industry because the stock prices for Moody's competitors did not drop commensurate to that of Moody's. Id. at 513-14.
Defendants' instant motion alleges several errors in the Court's analysis. First, Defendants claim that the Court conflated the stock price of one of Moody's competitors with that of another entity. (See Defs.' Mot. 3.) Defendants contend that the data, when viewed in its proper light, requires the Court to conclude that a market-wide downturn, rather than corrective disclosures, caused the drop in Moody's stock price. Defendants also claim that the proper comparison for the stock prices begins "at the time the corrective disclosures" occurred, rather than over the entire class period." (See Defs.' Mot. 3.) Examining stock prices from the date of the first corrective disclosure reveals *400 that the stock price for Moody's dropped by 38%, while the stock price for McGraw-Hill dropped by 28%. (Defs Mot. 4.) According to Defendants, this figure constitutes evidence of a market-wide downturn in the credit ratings industry. (See Defs.' Mot. 3-4.)
The Court disagrees. Defendants ask the Court to conclude solely on the basis of one data pointthe decline of the stock price of McGraw-Hill, the parent company of Standard and Poorsthat there was a downturn in the ratings industry as a whole. Defendants do not, however, support their implicit claim that the decline in McGraw-Hill's share price derives from its ownership of Standard and Poors. To put it another way, the characterization of McGraw-Hill's stock price as a reflection on the industry of one of its subsidiaries is unsubstantiated. McGraw-Hill's stock price could have fallen for a number of reasons wholly unrelated to any problems in the ratings industry. Cf. Dura, 544 U.S. at 343, 125 S. Ct. 1627 (noting that a drop in share price "may reflect ... changed economic circumstances, changed investor expectations, new industry-specific or firm-specific facts, conditions or other events."). Moody's other primary competitors are both private companies with no published stock price. Lacking a relevant basis for comparison, the Court cannot conclude that there was an industry-wide downturn even "at the time of the first alleged corrective disclosure," and thus "the question of causation is reserved for trial." In re Moody's Corp. Sec. Litig., 599 F.Supp.2d at 513.[1]
C. Moody's Stock Had Not Lost "Almost All" Its Value Before the First Corrective Disclosure
In the context of pleading loss causation, when corrective disclosures follow a loss of "almost all" of a stock's value, 60223 Trust v. Goldman, Sachs & Co., 540 F.Supp.2d at 461, plaintiffs must demonstrate that the continued decline in the stock price is "attributable to the alleged fraud, rather than simply a continuation of the loss in value" that preceded the disclosure. In re Merrill Lynch & Co. Research Reports Sec. Litig., 568 F. Supp. 2d 349, 364 (S.D.N.Y.2008). Although no court has yet established a minimum threshold, two courts in this District have indicated that a loss of approximately 80% of the stock's value before the first corrective disclosure constitutes a loss "almost all" of its value. See In re Merrill Lynch & Co., 568 F.Supp.2d at 365 (holding that a 78% loss is sufficient); 60223 Trust, 540 F.Supp.2d at 461 (concluding that an 79.76% loss is almost all of a stock's value).
In its loss causation analysis, the Court must determine "when, if ever, the [Moody's] stock lost its value, and whether that loss was causally related to the claimed misrepresentation." 60223 Trust, 540 F.Supp.2d at 460-61. The question becomes: Did the precipitous drop in value of Moody's stock occur before or after the corrective disclosures? Cf. 60223 Trust, 540 F.Supp.2d at 460.
In answering that question, the 60223 Trust Court essentially compared the stock's value on the first day of the class period with the value on the date of the first corrective disclosure. In order to *401 calculate the amount of pre-disclosure loss ("Pre-CD Loss"). See 60223 Trust, 540 F.Supp.2d at 460 (using "the first day of the class period"); See In re Merrill Lynch & Co., 568 F.Supp.2d at 365 (using the "day Defendants initiated coverage," also the first day of the class period).
The calculations in Defendants' current motion do not adhere to this framework. Defendants calculate the loss from the stock's highest value during the class period to the day preceding the first corrective disclosure. (See Defs.' Mot. 6 (arguing that Moody's stock "dropped more than $25 per share from $74.84 on February 8, 2007 (the height of its value during the class period) to $49.16 on October 11, 2007 (the day immediately preceding the first alleged corrective disclosure)," representing a 35% decline in share value.).) A calculation using the proper dates, however, reveals that Moody's lost $13.92 per share from 62.15 on February 3, 2006[2] (the first day of the class period) to $48.23 on October 11, 2007 (the day immediately preceding the first corrective disclosure).[3] This constitutes only a 22% decline in share value. This loss, while hardly insignificant, is not on the scale of the decline at issue in 60223 Trust and In re Merrill Lynch & Co., and does not constitute "almost all" the stock's value.
Even assuming arguendo that Defendants' methodology is acceptable, their calculated loss is not great enough to warrant an explanation from Plaintiffs. Defendants claim that the loss of a "great portion" of Moody's stock value requires Plaintiffs to "explain how the decline of the stock price following the issuance of the alleged corrective disclosures was attributable to the alleged fraud." (Defs.' Mot. 6-7 (internal quotations and alterations omitted).) Both the 60223 Trust and In re Merrill Lynch & Co. courts, however, concluded that plaintiffs in the respective cases had not shown that the corrective disclosures had caused the drop in share value because the stock in question had lost "almost all" its value prior to the first corrective disclosure. In re Merrill Lynch & Co., 568 F.Supp.2d at 365; See 60223 Trust, 540 F.Supp.2d at 461.
Because the 22% Pre-CD Loss suggests that the majority of the loss suffered by Moody's occurred after the first corrective disclosure, not before, Plaintiff's allegations are not inadequate, and the issue of loss causation is reserved for trial.
D. Motion for Correction of the Record
Rule 60(a) permits the Court to correct a "clerical mistake or mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record." Fed.R.Civ.P. 60(a). Based upon the record, the sentence beginning beginning "The conversation ends ...." should be deleted from the Court's Opinion.
III. CONCLUSION
For the foregoing reasons, the Court denies Defendants' motion for reconsideration and grants Defendants' motion to correct the record.
SO ORDERED.
NOTES
[1] In their Reply, Defendants also compare Moody's share price to the share price of the S & P Financials Index. (See Defs.' Reply 3-7.) In so doing, Defendants implicitly claim that the firms of the S & P 500 Financials Index represent the Company's peers. (See Defs.' Reply 3.) They do not, however, cite authority indicating why the Court should classify Moody's as a financial firm (rather than a firm that performs financial research for corporate entities), or how financial firms constitute a group of Moody's peers. The Court cannot accept this conclusory and unsubstantiated classification.
[2] The Court uses the closing price on the first day of the class period, to be consistent with the methodology employed by 60223 Trust. See 540 F.Supp.2d at 460.
[3] The Court takes judicial notice of Moody's historical stock prices. Ganino v. Citizens Utilities Co., 228 F.3d 154, 167 n. 8 (2d Cir. 2000). The Court is using stock prices from finance.yahoo.com adjusted for dividends and splits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575517/ | 308 S.W.3d 489 (2010)
ETAN INDUSTRIES, INC. and Etan Industries, Inc. d/b/a CMA Cablevision and/or CMA Communications, Appellant,
v.
Ronald LEHMANN and Dana Lehmann, Appellees.
No. 03-07-00539-CV.
Court of Appeals of Texas, Austin.
March 26, 2010.
*494 Mark W. Bayer, Gardere Wynne Sewell LLP, Dallas, for appellant.
Ronald Lehmann, Dana Lehmann, Giddings, pro se.
Before Justices PATTERSON, WALDROP and HENSON.
OPINION
JAN P. PATTERSON, Justice.
This appeal from a judgment following a jury trial arises from a dispute between appellant Etan Industries, Inc. and Etan Industries, Inc., d/b/a CMA Cablevision and/or CMA Communications ("Etan") over its authority to install, own, and operate fiber optic and coaxial cable lines on land owned by appellees Ronald and Dana Lehmann without the Lehmanns' permission. The jury found that (i) Etan trespassed and made a negligent misrepresentation concerning one of two properties, (ii) $15,000 would reasonably compensate the Lehmanns for their damages that resulted from Etan's actions, and (iii) the Lehmanns' reasonable attorney's fees through trial were $65,000. The district court entered judgment in accordance with the jury's findings. In seven issues, Etan challenges the district court's award of injunctive and declaratory relief, damages, and attorney's fees, and contends that the Lehmanns' tort claims of trespass and negligent misrepresentation are barred as a matter of law based upon limitations. For the reasons that follow, we affirm the district court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Controversy
In 1986, the Lehmanns acquired property in Lee County, Texas, which is located on Highway 77 south of Giddings (the "Hwy 77 Property"). At that time and continuing through the time of trial, Bluebonnet Electric Cooperative, Inc. ("Bluebonnet") owned and operated an electric transmission line on the Hwy 77 Property. Bluebonnet had obtained an easement from one of the Lehmanns' predecessors in interest to install and maintain an "electric transmission line or distribution line or system" on the property. Ronald Lehmann's brother, Steven Lehmann, also owned property located on Highway 77 south of Giddings, and Bluebonnet had a similar easement on his property.[1]
*495 Etan operates cable television and internet systems. Etan and its predecessors in interest[2] either bought preexisting lines or built them to operate its systems. Etan and its predecessors entered into pole attachment agreements with electric cooperatives, including Bluebonnet, that authorized them to attach their lines to the cooperatives' poles. In 2000, Etan and Bluebonnet entered into an amendment to their operative pole attachment agreement, that provided for a "joint project to design, construct, and maintain a fiber optic cable facility" utilizing Bluebonnet's poles along Highway 77. The amendment contemplated a fiber optic line that would attach to 125 Bluebonnet poles.[3] Etan thereafter attached the fiber optic line to Bluebonnet's poles along Highway 77 and began operating the line.
Steven observed the line attached to Bluebonnet's poles on the day that Etan installed it across his property. He observed that the line crossed both his property and the Hwy 77 Property and that his property had been damaged. Ronald and Steven discussed the installation of the line that day, and they agreed that Steven would contact Bluebonnet about it. Steven did so the following day. Bluebonnet referred him to Etan. Steven then contacted Etan and spoke with its employee, Jerry Smith. At that time, Smith told Steven that Etan had an easement for the line. Steven requested a copy of the easement, and Smith said that he would send a copy to him. After some time passed without receiving a copy, Steven contacted Smith again, and Smith told him that "they'd just been having trouble finding it" but that he would send one to him. Steven contacted Smith a third time in the summer of 2001. This time Smith told Steven that he was "mistaken" that Etan had an easement. Smith told him that Bluebonnet and Etan were "in partnership" concerning the line and that Etan had Bluebonnet's permission to use Bluebonnet's easement. Steven kept his brother informed of his communications with Etan and Bluebonnet, and, upon being advised that Etan had Bluebonnet's permission to use Bluebonnet's easement, Steven and Ronald decided not to pursue the matter further.
In December 2002, Ronald heard about a Texas Supreme Court decision that cable companies could not use cooperative electrical easements for their cable lines.[4] The brothers again discussed Etan's line on their properties, deciding that Steven would contact Bluebonnet again. Steven did so, and a Bluebonnet employee, Jim Wolf, told Steven that Bluebonnet had agreed to allow Etan to attach its lines to Bluebonnet's poles but that Etan had to obtain its own easements and rights-of-way. Wolf told Steven that Wolf would contact Etan and that Etan would probably be in contact. During the time that they were waiting to hear back, Ronald searched the official records of Lee County for easements that Bluebonnet or Etan *496 had obtained on their properties and found nothing.
In the middle of 2003, the Lehmanns and Steven had not heard anything further from Bluebonnet or Etan, and they hired an attorney. Their attorney contacted Bluebonnet and requested copies of easements and other documents concerning the properties. Around July 2004, Bluebonnet provided copies of its easements that authorized it to place, construct, and operate electric transmission or distribution lines on the properties. Bluebonnet also provided the Lehmanns with copies of pole attachment agreements between Bluebonnet and Etan and Etan's predecessors. The pole attachment agreements authorized Etan to attach its lines to Bluebonnet's poles for a fee, authorized Bluebonnet to remove any unauthorized attachments from its poles at Etan's expense and charge a penalty for unauthorized attachments, and provided that each party was responsible for obtaining its own easements and rights-of-way.
In 2003, the Lehmanns acquired additional property on Highway 290 west of Giddings (the "Hwy 290 Property"). At that time, Etan owned and operated a coaxial cable line attached to Bluebonnet's poles that crossed this property.[5] Ronald contacted Jerry Smith in April 2005 concerning this line, and Smith told him that he "did not have a copy of any easement that was granted that far back." Ronald then contacted Bluebonnet, and Bluebonnet subsequently provided documents concerning the Hwy 290 Property. Etan did not have an easement on the Hwy 290 Property, and Etan's pole attachment agreement with Bluebonnet provided that each party was to obtain its own easements and rights-of-way.
Litigation Commenced
Steven brought suit against Etan for trespass in December 2004 concerning Etan's fiber optic line that crossed his property and sought injunctive relief for the removal of the line on his property. Etan thereafter constructed and activated an alternative line and deactivated the line that crossed Steven's property and the Hwy 77 Property in February 2005. Etan also removed the portion of the line that was on Steven's property at that time, but it did not remove the portion of the line that was on the Hwy 77 Property. Steven ultimately settled his suit with Etan in September 2005.
In October 2005, the Lehmanns brought suit against Etan for claims concerning Etan's coaxial cable line crossing the Hwy 290 Property and, in February 2006, Etan removed its line from that property after installing an alternative line. In April 2006, the Lehmanns amended their petition to include claims concerning Etan's fiber optic line crossing the Hwy 77 Property. The Lehmanns' causes of action included trespass, negligence, gross negligence, and negligent misrepresentation, and they sought damages, attorney's fees, and declaratory and injunctive relief.[6] The Lehmanns' trespass claim included Etan's operation of its linesthe transmission of signalsacross the Lehmanns' properties. Etan's affirmative defenses included that the Lehmanns' tort claims were barred because they were not filed within the applicable statute of limitations *497 periods. The Lehmanns pleaded in response, among their defenses to limitations, that the discovery rule, the continuing tort doctrine, and Etan's fraudulent concealment of its wrongful conduct tolled the applicable limitations periods.
The Trial
The jury trial occurred in June 2007. It was undisputed that Etan had removed the lines from the Hwy 77 Property and the Hwy 290 Property prior to trial.[7] The disputed facts included (i) whether Etan had trespassed on the Lehmanns' properties or made negligent misrepresentations concerning the properties, (ii) whether Etan's alleged actions damaged the Lehmanns, (iii) the date that the Lehmanns discovered or should have discovered their injury from Etan's alleged actions, and (iv) Etan's authority to install, own, and operate its lines on Bluebonnet's poles on the Lehmanns' respective properties. The Lehmanns contended that Etan's conduct was wrongful and caused them injury and that they discovered or should have discovered their injury in July 2004 when Bluebonnet provided copies of its easements and pole attachment agreements between Bluebonnet and Etan and its predecessors. Etan countered, among its defenses, that it had a prescriptive easement on the Hwy 290 Property because the line had been on the property for over 10 years and limitations barred the Lehmanns' tort claims as to the Hwy 77 Property because the Lehmanns were aware that Etan owned the line in December 2000.
The Lehmanns' witnesses included Ronald and Steven Lehmann and Jerry Smith. As to the Hwy 77 Property, Ronald and Steven testified to the discovery of Etan's line crossing their respective properties in December 2000; communications with each other, Bluebonnet, and Etan; their efforts to determine Etan's authority to install, own, and operate lines on their properties[8]; and their respective understandings of the Krohn I supreme court opinion. As to the Hwy 290 Property, Ronald testified to his discovery in late 2004 or early 2005 of Etan's line that crossed that property and his conversations with Smith concerning that line. Ronald also testified to the Lehmanns' alleged damages.[9]
Smith's testimony was pivotal. He testified that he was employed from the 1980s in basically the same job and at the same office for Etan and all of its predecessors, except for Insight. He testified concerning (i) his communications with Steven, Ronald, and employees of Bluebonnet, (ii) the agreements between Etan and Bluebonnet including an oral agreement that he made with an employee of Bluebonnet, David Peterson, that authorized Etan to use Bluebonnet's easements on the Hwy 77 Property,[10] (iii) a similar oral agreement *498 that he made with Gary Nietsche, the general manager of Fayette Electric Cooperative, for Etan to use Fayette's easements; (iv) cable companies' standard practice of using cooperatives' easements on private property for their lines without obtaining their own easements, (v) his understanding of Krohn I, and (vi) Etan's actions to address potential claims by private property owners for unauthorized lines. He testified that he had been involved in obtaining two easements with private property owners in all of his years in the business and that Etan had not addressed alleged unauthorized lines unless sued.
The Lehmanns also called Byron Wren, an employee of Bluebonnet; Gary Don Nietsche, the general manager of Fayette; William Weiser, a land surveyor who testified concerning a survey that he prepared for Etan in November 2006; and Max Roesch, the Lehmanns' attorney who testified concerning attorney's fees. Wren testified concerning his position at Bluebonnet as a right-of-way specialist, the relationship and agreements between Bluebonnet and Etan and its predecessors, and his communications with the Lehmanns' attorney, beginning in the middle of 2003. He testified that conducting the search to obtain the relevant documents was time consuming and difficult and that he was unable to provide documents to the Lehmanns' attorney until July 2004. Wren further testified to Bluebonnet's easements. He testified that they were for electric transmission or distribution lines, and not telecommunications easements. Copies of the easements and pole attachment agreements were admitted into evidence.[11] The pole attachment agreements included provisions requiring each party to obtain its own easements and rights-of way.
Wren also testified concerning the pole attachment agreements and the amendment to the operative pole attachment agreement between Etan and Bluebonnet concerning the Hwy 77 Property. It was his understanding that, although Bluebonnet and Etan agreed that Etan could attach and operate the fiber optic line on Bluebonnet's poles, Etan was required to obtain its own easement from affected private property owners. He further testified concerning his understanding of cable companies' practices prior to Krohn I that they would install their lines on electric cooperatives' poles without obtaining their own easements from private property owners.[12]
Nietsche testified concerning Fayette's pole attachment agreements with Etan and concerning standard practices in the cable industry. He testified that the standard practice for cable companies was to attach their lines to electric cooperative's poles only after obtaining their own easements from private property owners, and he denied that he had entered into an oral agreement on behalf of Fayette with Smith that authorized Etan to use Fayette's easements.
Both parties rested at the conclusion of the Lehmanns' witnesses, and the district *499 court submitted the case to the jury. The jury found that Etan trespassed on the Hwy 77 Property but not on the Hwy 290 Property[13] and that Etan made a negligent misrepresentation on which the Lehmanns justifiably relied concerning the Hwy 77 Property. The jury also found that (i) Etan's trespass and/or negligent misrepresentation proximately caused damage to either the Lehmanns' property or the property rights associated with their ownership, (ii) $15,000 would fairly and reasonably compensate the Lehmanns for their damages that resulted from Etan's trespass and/or negligent misrepresentation, (iii) $65,000 was a reasonable fee for the necessary services of the Lehmanns' attorney through trial, (iv) the Lehmanns filed their lawsuit within two years of the date that they discovered or, in the exercise of reasonable diligence, should have discovered the injury to their properties or their property rights caused by Defendant's actions, (v) Etan fraudulently concealed its actions of trespass and/or negligent misrepresentation as to the Hwy 77 Property but not the Hwy 290 Property, and (vi) the date that the Lehmanns knew or should have known that Etan had fraudulently concealed its wrongful conduct was July 1, 2004.
The district court thereafter entered judgment in accordance with the jury's verdict. The district court awarded the Lehmanns damages of $15,000 plus attorney's fees of $65,000 and granted declaratory and injunctive relief.[14] This appeal followed.
ANALYSIS
In seven issues, Etan contends that (i) the Lehmanns' tort claims are barred as a matter of law based upon limitations, (ii) the district court erred in granting injunctive relief, (iii) there was no evidence to support injunctive relief, (iv) the district court erred in granting declaratory relief, (v) the district court erred in awarding actual damages based on a loss of use measure of damages, (vi) the evidence was legally and factually insufficient to support the damages award, and (vii) the district court erred in awarding attorney's fees.
Limitations
In its first issue, Etan contends that the Lehmanns' tort claims of trespass and negligent misrepresentation concerning the Hwy 77 Propertybrought in April 2006are barred as a matter of law based upon limitations.[15] Etan urges that the *500 applicable two-year limitations periods expired in December 2002 because the Lehmanns were aware of Etan's line on the Hwy 77 Property in December 2000. See Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (West Supp.2009) (two-year limitations period for trespass for injury to property); HECI Expl. Co. v. Neel, 982 S.W.2d 881, 885 (Tex.1998) (two-year statute of limitations applies to negligent misrepresentation claims). The Lehmanns counter, among their defenses, that the fraudulent concealment doctrine applied to toll the accrual of the limitations periods until July 2004. They contend that they first knew or should have known of their injury concerning the Hwy 77 Property when they received the documents from Bluebonnet in July 2004.[16]
In order to establish that limitations barred the Lehmanns' tort claims, Etan had to establish the date on which the Lehmanns' tort claims accrued. See W.W. Laubach Trust v. Georgetown Corp., 80 S.W.3d 149, 159 (Tex.App.-Austin 2002, pet. denied). Generally, a cause of action accrues and the statute of limitations begins to run when facts come into existence that authorize a party to seek a judicial remedy. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). The date a cause of action accrues for purposes of limitations is a question of law for the court. See Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 274-75 (Tex.2004); Knott, 128 S.W.3d at 221.
1. Fraudulent Concealment Doctrine
The affirmative defense of fraudulent concealment, when applicable, defers the accrual of a cause of action because "a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run." See S.V. v. R.V., 933 S.W.2d 1, 6 (Tex.1996); see also Kerlin v. Sauceda, 263 S.W.3d 920, 925 (Tex.2008); Cherry v. Victoria Equip. & Supply, Inc., 645 S.W.2d 781, 782 (Tex.1983). The burden is on the plaintiff to establish the elements of fraudulent concealment. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 749-50 (Tex.1999); Santanna Natural Gas Corp. v. Hamon Operating Co., 954 S.W.2d 885, 890 (Tex.App.-Austin 1997, pet. denied).
Fraudulent concealment does not extend a limitations period indefinitely; it defers it until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the wrongful conduct. Kerlin, 263 S.W.3d at 925; KPMG Peat Marwick, 988 S.W.2d at 750. Whether fraudulent concealment exists and when a plaintiff knows, or in the exercise of reasonable diligence should know, of the wrongful conduct are fact questions. See Cherry, 645 S.W.2d at 782 ("The ultimate duty to weigh the evidence, determine credibility and decide if fraudulent concealment actually existed rests upon the trier of fact."); Cadle Co. v. Wilson, 136 S.W.3d 345, 352 (Tex.App.-Austin 2004, no pet.) ("When a plaintiff knew or should have known of an injury is generally a question of fact."); Santanna Natural Gas Corp., 954 S.W.2d at 892 ("Determining what a reasonable person would have done or *501 should have known are normally questions of fact.").
2. Legal Sufficiency of the Evidence
Etan urges that it did not fraudulently disclose anything and there was no fact issue to submit to the jury regarding fraudulent concealment. Etan in essence challenges the legal sufficiency of the evidence to support the jury's findings that (i) Etan fraudulently concealed its wrongful conduct of trespass and/or negligent misrepresentation concerning the Hwy 77 Property, (ii) the Lehmanns filed suit within two years of when they discovered or, in the exercise of reasonable diligence, should have discovered their injury, and (iii) the Lehmanns knew, or in the exercise of reasonable diligence should have known, that Etan had fraudulently concealed its trespass and negligent misrepresentation as of July 1, 2004. These findings support that the Lehmanns' causes of action accrued in July 2004, giving them until July 2006 to file their claims. See Santanna Natural Gas, 954 S.W.2d at 890. Their claims brought in April 2006, therefore, would not be time barred. We turn to a review of the evidence then to support the jury's findings.
A) Standard of Review
A legal sufficiency challenge may be sustained when the record discloses one of the following situations: (i) a complete absence of evidence of a vital fact; (ii) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (iii) the evidence offered to prove a vital fact is no more than a mere scintilla; or (iv) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). In determining whether a finding is supported by legally sufficient evidence, we view the evidence in the light most favorable to the finding, "crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Id. at 807. We indulge every reasonable inference that would support the finding. Id. at 822.
Moreover, it is within the province of the jury to resolve conflicts in the evidence. See id. at 819-20; Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003) (jury remains sole judge of witnesses' credibility and weight to be given their testimony); McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986) (jury can choose to believe one witness over other witnesses or resolve inconsistencies in their testimony).
B) Fraudulent Concealment Finding
Because Etan does not challenge the definition of fraudulent concealment given to the jury, we measure the sufficiency of the evidence against the definition of fraudulent concealment in the charge. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000). The jury was instructed that fraudulent concealment occurs when a party conceals or fails to disclose a material fact within the knowledge of that party, the party knows that the other party is ignorant of the fact and does not have equal opportunity to discover the truth, the party intends to induce the other party to take some action by concealing or failing to disclose the fact, and the party suffers injury as a result of acting without knowledge of the undisclosed fact.
Etan relies on the Lehmanns' knowledge of the line in 2000 and Smith's acknowledgment to Steven in December 2000 that Etan owned the line. The Lehmanns' knowledge of the line, however, was not the disputed issue, and Etan's authority to own and operate the line on the Lehmanns' property was disputed. Whether Smith concealed or failed to disclose a *502 material fact concerning Etan's authority to own and operate the line within his knowledge with the intent to induce the Lehmanns to take action that resulted in injury to them was contested at trial. Evidence at trial showed that the Lehmanns decided to wait and not pursue the matter because they believed Smith's statements that Etan was authorized to be on their propertyfirst that Etan had an easement and then that Etan had an agreement with Bluebonnet jointly to own and operate the line on Bluebonnet's poles along Highway 77.
There was also evidence to support a reasonable inference that Smith knew his statements to be misrepresentations. See City of Keller, 168 S.W.3d at 822. The evidence was that Smith, when first approached by Steven, told him that Etan had an easement for the line and that he would send Steven a copy. Smith testified at trial, however, that he had only obtained two easements from private property owners in all of his years in the business, and he had been working from the same office from the 1980s, except for the years that Insight owned the business. The jury could have concluded that Smith was not credible and could have reasonably inferred that he misrepresented Etan's authority to be on the Lehmanns' propertya fact that the Lehmanns did not know and did not have equal opportunity to discover the truthto induce the Lehmanns not to pursue the matter. See id.; Golden Eagle Archery, Inc., 116 S.W.3d at 761; McGalliard, 722 S.W.2d at 697.
Similarly, the evidence was that Smith told Steven in the summer of 2001 that he was "mistaken" as to the easement but that Etan was "in partnership" with Bluebonnet concerning the line and had Bluebonnet's permission to use Bluebonnet's easements. Smith did not disavow these statements. Again, the jury could have reasonably inferred that Smith misrepresented the terms of the partnership between Bluebonnet and Etan concerning the line and Etan's authority under its agreements with Bluebonnetagreements not known by the Lehmanns and to which they did not have equal opportunity to discover the truthto induce the Lehmanns to stop pursuing the matter.[17]
Smith also testified to a letter he received from Bluebonnet in December 2002 concerning Krohn I and Bluebonnet's position that cable companies were required to obtain their own easements from private property owners.[18] Smith testified that he *503 did not contact the Lehmanns or any other landowners or take any other action in response to the letter. This evidence supports a reasonable inference that Smith knew at least by December 2002 that Etan lacked authority to place its cable line on the Lehmanns' property. The jury could have concluded that he concealed or failed to disclose that his prior statements to the Lehmanns were false to induce the Lehmanns to not act.
Based on this evidence, we conclude that the evidence was legally sufficient to support the jury's finding of fraudulent concealment. See City of Keller, 168 S.W.3d at 810.
C) Time of Discovery Finding
The issue of when the Lehmanns discovered or should have discovered Etan's wrongful conduct was also contested at trial. See Kerlin, 263 S.W.3d at 925. Ronald testified "July of '04" when asked "when do you believe you knew for the very first time that you had a claim against [Etan] for trespass on your Highway 77 property." He testified that he did not know before July 2004 because he did not have a copy of the agreements or easements. He testified concerning the reasons for the delay in discovering the claims against Etan, including the statements by Smith, his reliance on Smith's statements which he believed to be true, and the difficulty in obtaining the documents to determine Etan's authority to own and operate the line on the Hwy 77 Property.[19] It was undisputed that the Lehmanns did not obtain a copy of the relevant documents, such as the amendment between Etan and Bluebonnet that provided the terms of the "joint project" concerning the line along Highway 77, until July 2004.[20]
The corporate representative for Bluebonnet, Byron Wren, testified consistently that the requested documents were difficult to locate and that it took a significant amount of time:
A. From the early times wewhen we were going to build an electric facility on peoples' property our line designer, we call them, and staking techs would go out and design the *504 line. They would draw it on a piece of paper, kind of like graphing paper, and it would show the open circles for proposed poles, any closed-in circles for existing poles. So it would show on a construction sheet, we called it, the proposed line to be built. And normally it would show some kind of landmark or whatever, you know, like a highway or things like that.
Q. And if I walked into your office today and said, you know, I own such and such piece of property and I need to know where your easement is, do I have to provide you my prior landowner?
A. It's nice if you do, because these lines were built many years ago.
Q. Okay. And I asked you for some documents, you did some searching and digging and that was a pretty in-depth
A. It was very in-depth, yeah.
Q. Okay.
A. I needed help with it, put it that way.
Q. It took a while?
A. It took somebody with experience to really know how to do that kind of stuff.
Q. All right. And we heard testimony from Mr. Steve Lehmann that you provided some documents back to me in July of '04. Does that sound right to you?
A. That's correct.
During cross-examination, Wren confirmed that it took Bluebonnet a year to respond to the Lehmanns' request.
Although a Bluebonnet representative told Steven in December 2002 that Etan was required to obtain its own easements, the representative's position was inconsistent with Smith's statements to Steven that Etan was authorized based, at least in part, on the partnership agreement between Etan and Bluebonnet concerning the line along Highway 77. The evidence also showed that, prior to July 2004, Bluebonnet did not charge a penalty to Etan for unauthorized attachments, did not demand that Etan remove the line, and did not remove the line itself despite having the authority to take each of these actions pursuant to the agreement between Etan and Bluebonnet. The jury could have credited this evidence as further support for its finding that July 1, 2004, was the date that the Lehmanns knew or should have discovered Etan's wrongful conduct. See City of Keller, 168 S.W.3d at 807, 822.
That the Lehmanns did not bring their suit against Etan within two years of December 2002 when Krohn I was released does not support setting aside the jury's finding. See Cherry, 645 S.W.2d at 782. Although Ronald testified to his understanding that cable companies were not permitted to use electric cooperative easements after Krohn I, he testified that he did not have a copy of the decision or even know its name until July 2004 and it was not until he had a copy of the case and the relevant documents that he knew he had a claim against Etan. Even Smith testified that it took him time to understand the impact of Krohn I and that he continued to question the opinion's applicability to the line on the Lehmanns' property. Smith also testified that he did not know what the decision said or anything about the process up to the supreme court and then back to the trial court.[21]
We conclude that the evidence was legally sufficient to support the jury's findings *505 that Etan fraudulently concealed its wrongful conduct and the Lehmanns discovered or should have discovered this conduct by July 1, 2004.
Alternatively, Etan urges that the fraudulent concealment doctrine was inapplicable to toll the limitations periods because the doctrine is limited to situations in which a defendant has a duty to disclose, such as when there is a fiduciary relationship between the parties. See Cadle Co., 136 S.W.3d at 354 (fraudulent concealment doctrine limited to those situations in which the defendant has a duty to disclose; cases where the doctrine applies are rare, such as those involving fiduciary relationships). The existence of a duty to disclose is a question of law for the court. Id. In Cadle, this Court held the doctrine inapplicable to toll limitations where "[n]o such duty [to disclose] or relationship" was asserted by either party. See id.
That the Lehmanns do not assert a fiduciary relationship with Etan, however, does not preclude the doctrine from applying here. The doctrine may also apply when a defendant makes affirmative misrepresentations. See Santanna Natural Gas Corp., 954 S.W.2d at 891 ("We therefore hold that affirmative misrepresentations can support a fraudulent concealment defense to a statute of limitations bar even in the absence of a duty to disclose."); see also World Help v. Leisure Lifestyles, Inc., 977 S.W.2d 662, 670 (Tex. App.-Fort Worth 1998, pet. denied) (duty to disclose may arise when "a party later learns that a previous affirmative representation was false or misleading"). The Lehmanns asserted and presented evidence that Smith, on behalf of Etan, made affirmative misrepresentations concerning Etan's authority to place its cable line on their property on which the Lehmanns relied. The lack of a fiduciary relationship between Etan and the Lehmanns then did not foreclose the doctrine from applying based upon Smith's "affirmative misrepresentations." See Santanna Natural Gas Corp., 954 S.W.2d at 891.
We conclude that the accrual date of the Lehmanns' tort causes of action was tolled until July 1, 2004, and, therefore, that limitations did not bar those claims. We overrule Etan's first issue.[22]
Declaratory Relief
In its fourth and seventh issues, Etan contends that the district court erred in granting the Lehmanns' declaratory relief. See Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-.011 (West 2008) (the "Act"). Etan urges that the declaratory judgment was improper because there was no live justiciable controversyEtan's cable lines were removed from both properties prior to trialand the declarations added nothing to what was otherwise implicit or express in the final judgment concerning the Lehmanns' trespass claim. Etan also contends that declaratory relief was unavailable without joining Bluebonnet as a responsible third party to the suit and that it was harmed and prejudiced by the district court's ruling during trial reinstating the Lehmanns' declaratory claims. Further, based upon its contention that declaratory relief should not have been granted, Etan *506 contends that the district court erred in awarding attorney's fees under the Act.
The district court made the following declarations in the final judgment:
Bluebonnet Electric Cooperative's electrical easements across Plaintiffs' Hwy 77 Property and Plaintiffs' Hwy 290 Property ... did not and do not provide Defendant (or any of Defendant's predecessors) with a telecommunications easement or any right-of-way on, over or across Plaintiffs' Hwy 77 Property or Plaintiffs' Hwy 290 Property ... for the construction, installation, presence, operation or maintenance of fiber optic cable(s) or television cable(s) for television or any other communication services.
[N]one of Defendant's (or Defendant's predecessors') agreements with Bluebonnet Electric Cooperative (or Bluebonnet Electric Cooperative's predecessors) (including all written or oral agreements and/or amendments thereto) provided or provides Defendant (or any of Defendant's predecessors) with a telecommunications easement or any right-of-way on, over or across Plaintiffs' Hwy 77 Property or Plaintiffs' Hwy 290 Property ... for the construction, installation, presence, operation or maintenance of fiber optic cable(s) or television cable(s) for television or any other communication services.
The district court also awarded the Lehmanns their attorney's fees through trial of $65,000.
1. Standard of Review
Declaratory judgments are reviewed under the same standards as other judgments or decrees. Id. § 37.010. We must uphold the judgment of the trial court if it can be sustained upon any legal theory supported by the evidence. See Bell v. Katy Indep. Sch. Dist., 994 S.W.2d 862, 864 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Oak Hills Props. v. Saga Rests., Inc., 940 S.W.2d 243, 245 (Tex. App.-San Antonio 1997, no writ).
Pursuant to section 37.009 of the Act, "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." See Tex. Civ. Prac. & Rem.Code Ann. § 37.009. We review the award of attorney's fees under the Act for abuse of discretion. See Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex.1998). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). It is an abuse of discretion to award attorney's fees under the Act when the statute is relied upon solely as a vehicle to recover attorney's fees. See Strayhorn v. Raytheon E-Sys., Inc., 101 S.W.3d 558, 572 (Tex.App.-Austin 2003, pet. denied). "[A] party cannot use the Act as a vehicle to obtain otherwise impermissible attorney's fees." See MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex.2009) ("[T]he Act cannot be invoked when it would interfere with some other exclusive remedy or some other entity's exclusive jurisdiction.").
2. Are the Lehmanns' declaratory claims moot?
Etan first contends that the Lehmanns' declaratory claims are moot because Etan removed its cable lines from the Lehmanns' properties during the pendency of the case. The mootness doctrine requires that courts avoid rendering advisory opinions by only deciding cases that present a "live" controversy at the time of the decision. Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988). "A case becomes moot when: (1) it appears that one seeks to obtain a judgment on some controversy, when in reality *507 none exists; or (2) when one seeks a judgment on some matter which, when rendered for any reason, cannot have any practical legal effect on a then-existing controversy." Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846-47 (Tex.App.-Austin 2002, pet. denied). A case may become moot when allegedly wrongful behavior has passed and could not be expected to recur. Securities & Exch. Comm'n v. Medical Comm. for Human Rights, 404 U.S. 403, 406, 92 S. Ct. 577, 30 L. Ed. 2d 560 (1972).
A declaratory judgment action, however, is not moot "when a party voluntarily abandons the conduct at issue `without any binding admission or extrajudicial action that would prevent a recurrence of the challenged action.'" Bexar Metro. Water Dist. v. City of Bulverde, 234 S.W.3d 126, 131 (Tex.App.-Austin 2007, no pet.) (quoting Texas Health Care Info. Council, 94 S.W.3d at 849-50); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) ("A defendant's voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case."). The standard for determining whether a case has been mooted by the defendant's voluntary conduct is stringent: "A case might become moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, 528 U.S. at 170, 120 S. Ct. 693 (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968)). The "`heavy burden of persuading' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Id. at 189, 120 S. Ct. 693. And declaratory relief is appropriate to "fully terminate all controversies between the parties." See Bright v. Addison, 171 S.W.3d 588, 606 (Tex.App.-Dallas 2005, pet. denied) (trial court "has discretion to enter a declaratory judgment as long as it will serve a useful purpose or will terminate the controversy between the parties").
Although Etan removed the cable lines from both properties prior to trial, Bluebonnet's easements remained on the properties; Etan and Bluebonnet continued their business relationship; and the pole attachment agreement remained in place between Etan and Bluebonnet going forward. Further, Etan's authority to place its cable lines on the Lehmanns' properties was contested at trial with Smith testifying that Etan was authorized to use Bluebonnet's easements. Smith testified that Etan was authorized to use Bluebonnet's easements based in part on his oral agreement with Peterson. As to the Hwy 77 Property, Smith testified:
Q. Okay. And so that the jury knows, in February of 2007 when I took your deposition you still thought [Etan] had at least the authority to have been on the Highway 77 poles on my clients' property.
A. Yes, and I still do.
Etan also contended that the line on the Hwy 77 Property was owned jointly by Bluebonnet and Etan12 strands of fiber optic were owned by Bluebonnet, and 12 strands were owned by Etanpursuant to the amendment to the pole attachment agreement concerning that line.
Smith further testified that (i) Etan has continued to place its lines on private property without private property owners' permission, (ii) Etan has not contacted private property owners that had previously been toldsimilar to the Lehmannsthat Etan was authorized to use Bluebonnet's easements to place its lines on their private *508 property,[23] (iii) he had not obtained easements on Etan's behalf from private property owners for the placement of its lines, except in two instances, (iv) Etan has taken actions only when sued,[24] and (v) Etan has not changed how it does business. Etan continued to operate "260 to 80 miles" of coaxial cable line and "probably less than half" of fiber optic lines.[25]
The effect of Krohn I on Etan's authority to maintain lines on private property also remained contested at trial. Although Smith testified that cable companies' lines on private property without easements from the landowner would be trespassing after Krohn I, he also testified to his understanding that "things have changed" based upon Krohn v. Marcus Cable Assocs., L.P., 201 S.W.3d 876 (Tex.App.-Waco 2006, pet. denied) ("Krohn II").[26] Given the continued relationship between Bluebonnet and Easement, Etan's course of conduct, and Etan's position at trial, we conclude that Etan's removal of its cable lines during the pendency of the case did not moot the Lehmanns' declaratory claims. See Bright, 171 S.W.3d at 606.
3. Was declaratory judgment improper because it added nothing to what was implicit or explicit in the final judgment?
*509 Relying on Hageman/Fritz, Byrne, Head & Harrison, L.L.P. v. Luth, 150 S.W.3d 617, 627 (Tex.App.-Austin 2004, no pet.), Etan urges that the district court's declarations add nothing to what is "implicit or expressed" in the final judgment on the Lehmanns' trespass claim. In that case, this Court concluded that: "[t]here is no basis for declaratory relief when a party is seeking in the same action a different, enforceable remedy, and a judicial declaration would add nothing to what would be implicit or express in a final judgment for the enforceable remedy." Id. (quoting Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283, 296 (Tex.App.-Houston [1st Dist.] 2001, pet. denied)).
Etan does not dispute the merits of the district court's declarations and fails to address that the final judgment does not provide the Lehmanns with an "enforceable remedy" for Etan's alleged trespass on the Hwy 290 Property. See id. Given the jury's findings that Etan did not trespass on the Hwy 290 Property but on the Hwy 77 Property, the jury's finding that Etan has a prescriptive easement on the Hwy 290 Property, Smith's position at trial concerning Krohn II, and Etan's ongoing agreement with Bluebonnet to use its easements, the declarations afforded the parties' "relief from uncertainty and insecurity" with respect to their "rights, status, and other legal relations" concerning the central dispute in the caseEtan's authority to attach its cable lines to Bluebonnet's poles on the Lehmanns' properties without the Lehmanns' permission. See Tex. Civ. Prac. & Rem.Code Ann. § 37.002; Universal Printing Co., 73 S.W.3d at 296-97 (in dispute over access to an alley, declaratory relief warranted because of existence of adverse possession affidavits in public records to alley and individuals at trial continued to testify that they owned the alley). Further, the Texas Supreme Court recently explained that the existence of another adequate remedy does not bar the right to maintain an action for declaratory judgment. See MBM Fin. Corp., 292 S.W.3d at 669; see also Tex. Civ. Prac. & Rem.Code Ann. § 37.003(a) ("A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.").
On this record, we cannot conclude that the district court's declarations "add[ed] nothing to what would be implicit or express in a final judgment for the enforceable remedy" of trespass on the Hwy 77 Property.[27]See Hageman/Fritz, Byrne, Head & Harrison, L.L.P., 150 S.W.3d at 627.
4. Was declaratory relief improper because Bluebonnet was not joined as a party?
Etan also contends that declaratory relief was improper because the Act required the Lehmanns to join Bluebonnet as a responsible third party. Etan urges that Bluebonnet was a responsible third party because it owned 12 of the 24 strands of fiber optic cable on the Hwy 77 Property and it was a party to agreements that the district court construed. See Tex. Civ. Prac. & Rem.Code Ann. § 37.006(a) ("When declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties.").
*510 As a general rule, trial courts exercise broad discretion in matters of joinder. Davis v. Devon Energy Prod. Co., 136 S.W.3d 419, 421 (Tex.App.-Amarillo 2004, no pet.). Furthermore, a person's absence will seldom deprive a court of jurisdiction to adjudicate the rights of the parties who are present. Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982).
Although the agreements between Bluebonnet and Etan and Etan's predecessors were the subject of the declarations, the Lehmanns sought declarations limited to Etan's rights under the agreements, not Bluebonnet's. See Davis, 136 S.W.3d at 421. Moreover, as to the fiber optic line on the Hwy 77 Property, the evidence at trial showed that Bluebonnet did not pay for the line and never accessed the line before the line's removal.[28]See Tex. Civ. Prac. & Rem.Code Ann. § 37.006(a) (declarations do not prejudice parties not joined); Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163 (Tex.2004). We conclude that the Lehmanns' failure to join Bluebonnet did not preclude the district court's declarations against Etan.
5. Did the district court err in reinstating the declaratory claims during trial?
Etan further complains that the district court's reversal of its ruling granting Etan's motion for partial summary judgment on the Lehmanns' declaratory claims during trial prevented Etan from properly presenting its claims and defending against the Lehmanns' claims.[29] A trial court may set aside a previously granted summary judgment as long as the trial court affords the parties the opportunity to litigate the issue. See Bi-Ed, Ltd. v. Ramsey, 935 S.W.2d 122, 123 (Tex.1996); Elder Constr., Inc. v. City of Colleyville, 839 S.W.2d 91, 92 (Tex.1992). Here, after the district court's ruling setting aside its summary judgment ruling on the Lehmanns' declaratory claims, both sides had the opportunity to present evidence concerning those claims. Further, Etan has failed to show what it would have done differentlyhow it was prejudiced or harmed by the timing of the district court's ruling. See Tex.R.App. P. 44.1.
We conclude that the district court did not err in awarding declaratory relief to the Lehmanns. We overrule Etan's fourth issue.
6. Attorney's Fees
In its seventh issue, Etan does not challenge the amount of attorney's fees awarded but contends that the district court erred in awarding any attorney's fees under the Act because the Lehmanns' declaratory claims "were simply a thinly-veiled attempt to collect attorneys' fees in a tort case."
The Lehmanns' tort claims do not support an award of attorney's fees. See Z.A.O., Inc. v. Yarbrough Drive Ctr. Joint Venture, 50 S.W.3d 531, 550 (Tex.App.-El Paso 2001, no pet.) ("[A]ttorney's fees are *511 not recoverable in tort actions."). The issue then is whether the declarations sought were redundant of their tort claims already before the district court. Given our conclusion that they were not, we cannot conclude that the district court abused its discretion in awarding the Lehmanns attorney's fees under the Act. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009; Bocquet, 972 S.W.2d at 20. We overrule Etan's seventh issue.
Injunctive Relief
In its second and third issues, Etan contends that the district court erred in granting injunctive relief. Etan urgesas it did regarding the declaratory relief awarded by the district courtthat there was no live controversy because Etan removed its lines from the Hwy 77 Property before the trial. Alternatively, Etan contends that there was no evidence to support two of the elements for granting injunctive reliefimminent harm and irreparable injury.
The district court's injunctive relief is consistent with the district court's declarations concerning the Hwy 77 Property that Etan does not have an easement or an agreement that authorizes it to construct, install, or operate its cable lines on that property. The district court permanently enjoined and restrained Etan from:
1. Constructing, installing, hanging, placing, attaching, allowing, commingling, operating or maintaining any additional or other fibers, sets of fibers or fiber optic cables on any of the electric utility poles which run across Plaintiffs' Hwy 77 Property...;
2. Constructing, installing, hanging, placing, attaching, allowing, commingling, operating or maintaining any additional or other fibers, sets of fibers, or fiber optic cables on any other part or portion of Plaintiffs' Hwy 77 Property ...;
3. Entering on, traveling across or traversing any part or portion of Plaintiffs' Hwy 77 Property ...;
4. Interfering with, interrupting, disrupting, preventing, delaying or prohibiting the full, sole and exclusive use, enjoyment and possession of Ronald Lehmann and Dana Lehmann of Plaintiffs' Hwy 77 Property....
The district court also made the following findings in its judgment with respect to the Lehmanns' claims for injunctive relief: (i) the failure to grant permanent injunctive relief to the Lehmanns would likely result in further interference and invasion of the Lehmanns' property rights and/or damages, (ii) the Lehmanns have demonstrated the need for permanent injunctive relief to protect their property rights and to prevent further damages, and (iii) unless a permanent injunction is issued, the Lehmanns would suffer immediate and irreparable injury and would have no adequate remedy at law.
Injunctive relief is an equitable remedy that may be granted upon a showing of (1) the existence of a wrongful act, (2) the existence of imminent harm, (3) the existence of irreparable injury, and (4) the absence of an adequate remedy at law. See Beathard Joint Venture v. West Houston Airport Corp., 72 S.W.3d 426, 432 (Tex.App.-Texarkana 2002, pet. denied); Webb v. Glenbrook Owners Ass'n, 298 S.W.3d 374, 383-84 (Tex.App.-Dallas 2009, no pet.) (mem.op.). We review the granting or denial of a permanent injunction for an abuse of discretion. See Operation Rescue-Nat'l v. Planned Parenthood, 975 S.W.2d 546, 560 (Tex.1998); Downer, 701 S.W.2d at 241-42.
1. Are the Lehmanns' claims for injunctive relief moot?
*512 Consistent with its position that the Lehmanns' declaratory claims were moot, Etan urges that the Lehmanns' claims for injunctive relief are moot. For the same reasons that we conclude Etan's removal of its lines did not moot the Lehmanns' claims for declaratory relief, we also conclude that the removal of the lines on the Hwy 77 Property did not moot the Lehmanns' request for injunctive relief. See Camarena, 754 S.W.2d at 151; Texas Health Care Info. Council, 94 S.W.3d at 849-50. The controversy remained at trial concerning Etan's authority to place and operate its fiber optic lines on the Hwy 77 Property, and Etan maintained a pole attachment agreement with Bluebonnet. See also State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 804 (Tex.1979) ("The probability of the continuation of the prohibited practices is not a matter which is susceptible of direct proof, and injunctive relief is proper when the trial court finds it justified under the rules of equity, notwithstanding a defendant's cessation of the activity or solemn promises to cease the activity.").
2. Was the evidence legally sufficient to support injunctive relief?
Relying on the removal of its lines on the Hwy 77 Property, Etan also challenges the legal sufficiency of the evidence of imminent harm and irreparable injury, urging that there was no evidence to support these elements. See City of Keller, 168 S.W.3d at 810. Irreparable injury may be satisfied "where the remedy at law is inadequate because of the nature of the injury or the multiplicity of actions necessary to obtain re-dress." Beathard Joint Venture, 72 S.W.3d at 432. The district court could have considered the "nature of the injury or the multiplicity of actions" and credited the evidence of Etan's continued course of conduct to conclude that there was evidence of irreparable injury to the Lehmanns without injunctive relief. See id. The evidence showed that Etan removed the portion of its line on Steven's property after Steven brought suit but did not remove the portion of the line on the Hwy 77 Property at that time; the trespass on the Hwy 77 Property continued after the Lehmanns filed suit against Etan; Etan continued its relationship with Bluebonnet pursuant to the pole attachment agreement; and Etan continued to operate cable lines on private property without obtaining easements from landowners unless sued.
Concerning imminent harm, although Etan urges that there is no evidence that it intends to place cable line on the Hwy 77 Property, Etan also maintained at trial that it had an oral agreement with Bluebonnet to use its poles and questioned the breadth of Krohn I based upon our sister court's ultimate resolution in Krohn II. Etan's continued relationship with Bluebonnet and its position at trial support the finding of imminent injury to the Lehmanns without injunctive relief. See Texas Pet Foods, Inc., 591 S.W.2d at 804. We conclude that the evidence was legally sufficient to support findings of imminent harm and irreparable injury to the Lehmanns without injunctive relief.
On this record, we cannot conclude that the district court abused its discretion in granting injunctive relief as to the Hwy 77 Property consistent with its declarations. See Operation Rescue-Nat'l, 975 S.W.2d at 560. We overrule Etan's second and third issues.
Damages
In its fifth and sixth issues, Etan contends that the district court submitted an improper measure of damages to the jury and, even if the submitted measure of damages was proper, the evidence was *513 legally and factually insufficient to support the jury's award of $15,000.
1. Measure of Damages
Etan urges that the district court submitted an improper measure of damages to the jury because the proper measure of damages for its trespass is permanent damage to land or the difference in market value immediately before and immediately after the trespass. See Porras v. Craig, 675 S.W.2d 503, 504 (Tex.1984) (measure of damages for permanent injury to land is difference in market value immediately before and immediately after the trespass); Mieth v. Ranchquest, Inc., 177 S.W.3d 296, 303 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (measure of damages for permanent injury to land is diminution in value); Krohn II, 201 S.W.3d at 881 (cable line on property for decade constituted permanent trespass).
Rule 278 of the rules of civil procedure requires a court to submit questions, instructions, and definitions to the jury that are raised by the written pleadings and the evidence and necessary to enable the jury to render a verdict. Tex.R. Civ. P. 278; Goose Creek Consol. Indep. Sch. Dist. v. Jarrar's Plumbing, Inc., 74 S.W.3d 486, 499 (Tex.App.-Texarkana 2002, pet. denied). Complaints of error in the jury charge are reviewed under an abuse of discretion standard. In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000) ("The trial court has considerable discretion to determine necessary and proper jury instructions."); Downer, 701 S.W.2d at 241-42. To reverse a judgment based on a claimed error in the jury charge, a party also must show that the error probably resulted in the rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1); Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex.2002) (error in refusing an instruction); Goose Creek Consol. Indep. Sch. Dist., 74 S.W.3d at 500 (where instruction is defective in stating the proper measure of damages, error is subject to harmless error review); Niemeyer v. Tana Oil & Gas Corp., 39 S.W.3d 380, 387 (Tex.App.-Austin 2001, pet. denied) (error in jury charge).
The district court asked the jury what sum of money would fairly and reasonably compensate the Lehmanns for their damages, if any, that resulted from Etan's actions of trespass and/or negligent misrepresentation with the following instruction:
Consider the elements of damages listed below and none other.
Loss of UseThe reasonable value for the loss of the use of Plaintiffs' properties or their property rights used by the Defendant when Defendant transmitted signals through or added new or additional products into its cable across Plaintiffs' Hwy 77 Property and Plaintiffs' Hwy 290 Property. Do not include any amount in your answer that you find Plaintiffs could have avoided by the exercise of reasonable care.
The jury answered $15,000 for the Hwy 77 Property and zero damages for the Hwy 290 Property.[30]
*514 The Lehmanns did not seek or present evidence that would support an award of damages based upon the difference in market value before and after Etan placed its cable line on the Hwy 77 Property. The district court would have erred then in submitting the measure of damages that Etan proposes. See Tex.R. Civ. P. 278 (court not authorized to submit instructions that are not raised by pleadings and evidence). The Lehmanns sought and the district court instructed the jury that the applicable measure of damages was temporary injury or the value of the loss of use of their property or their property rights. See Southwestern Bell Tel. Co. v. Hamil, 116 S.W.3d 798, 800 (Tex. App.-Fort Worth 2003, no pet.); Goose Creek Consol. Indep. Sch. Dist., 74 S.W.3d at 499. Under this measure of damages, where the property at issue is not "rentable," the owner may resort to proving the actual worth of the use. Goose Creek Consol. Indep. Sch. Dist., 74 S.W.3d at 497. The Lehmanns' theory was that Etan trespassed on the Hwy 77 Property both by installing and operating its line. Their measure of damages then was the "actual worth" of Etan's useoperating the lineof the Lehmanns' property or property rights. See id.
The analysis and reasoning in Hamil is instructive. In Hamil, landowners discovered a buried telephone line on their property and brought suit against Southwestern Bell Telephone Company for trespass and declaratory relief regarding the absence of a right-of-way on the property. 116 S.W.3d at 799. The jury found that the telephone line constituted a trespass and awarded damages for Southwestern Bell's use of the property. Id. Our sister court stated the measure of damages when "a land owner establishes that his land has been trespassed upon and used by another" to be "actual damages in the amount of the reasonable value of the use of the portion of the land occupied by the trespasser." Id. at 800. Here, the measure of damages in the district court's instruction"reasonable value for the loss of the use of Plaintiffs' properties or their property rights used by the Defendant" conforms with the measure of damages utilized in Hamil to compensate the landowners for the unauthorized telephone line on their property. See id.
Further, even if we were to conclude that the Lehmanns' injury was permanent, the "general rule [of damages for permanent injury to land as diminution in value] should be varied so as to obtain a just and equitable result when the strict adherence to the general rule would result in an outcome which would be unfair or unjust." See B.A. Mortgage Co. v. McCullough, 590 S.W.2d 955, 957 (Tex.Civ.App.-Fort Worth 1979, no writ). Our sister court in McCullough explained the rationale behind this exception:
The rationale behind this exception is that the purpose of the general rule is to make the injured plaintiff whole where *515 the general rule will not do so. If an unjust result will follow from the application of the general rule, the most reasonable measure of damages under the circumstances is to be used as an alternative.
Id.
Here, the evidence supported a different measure of damages than the general rule for permanent injury to land. If we limit the Lehmanns' damages as Etan suggests, it would result in an unjust outcomeEtan would profit from the operation of its unauthorized line and escape liability simply because there was no evidence that the line's operation resulted in a diminution in the value of the Hwy 77 Property. See id.; see also Porras, 675 S.W.2d at 506 (case remanded in interest of justice when no evidence that reduction in market value from permanent injury to land but evidence that might have allowed landowner to recover under different theory); Windfohr v. Johnson's Estate, 57 S.W.2d 215, 216 (Tex.Civ.App.-Fort Worth 1932, no writ) (measure of damages for injury to land is not "an inflexible rule" and "may be whatever comes nearest to affording actual compensation for the injury").
Whether or not the Lehmanns' injury is determined to be permanent or temporary then, we cannot conclude that the district court abused its discretion in instructing the jury that the measure of damages here was for loss of use of the Lehmanns' property or property rights used by Etan. See Hamil, 116 S.W.3d at 800. We turn then to a review of the sufficiency of the evidence to support damages in the amount of $15,000.
2. Sufficiency of Evidence to Support Damages
Etan challenges the legal and factual sufficiency of the evidence to support the damages award of $15,000. We have previously cited the standard of review for a legal sufficiency challenge. See discussion supra (citing City of Keller, 168 S.W.3d at 810). When considering a factual sufficiency challenge, the reviewing court considers all of the evidence and "should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).
Evidence supporting the damages award includes Ronald's testimony. Ronald testified that the Lehmanns received $15,000 from Qwest Communications in December 2002 for the purchase of a telecommunications easement for buried cable that Qwest had placed on the Hwy 77 Property without the Lehmanns' permission. Ronald testified that he negotiated the amount to be paid for the easement and to the "bargaining power" that he had because Qwest did not obtain the Lehmanns' permission before installing the line. Ronald further testified that the amount of money Qwest paid to him "represents the value of the property right that [Qwest] took."[31]See Porras, 675 S.W.2d at 504 (property owner may opine about his property's value).
Considering all the evidence, there was evidence that supported a lower damages award. Ronald testified that he would have sold an easement to Etan for "50 *516 bucks" had Etan asked him before installing the line on his property. Smith testified that Etan's line was shorter than the Qwest line on the property. There was also evidence that Insight paid $1 for easements that it obtained from landowners. Although this evidence would have supported a lower damages award, it was within the province of the jury to determine the Lehmanns' damages within the range of evidence presented. See Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex.2002) (in determining damages, jury has discretion to award damages within range of evidence presented at trial).
Etan's reliance on Hamil is misplaced. Although the damages award was reversed and remanded for a new trial based upon factual insufficiency of the evidence, our sister court concluded that evidence from the landowner of what a buyer was willing to pay for a similar easement for the buried telephone line would have supported a lower award. 116 S.W.3d at 801, n. 3.[32] Here, the damages award is supported by the landowner's testimony of what a buyer was willing to pay for a similar easement.
We conclude that the evidence was factually and legally sufficient to support the jury's finding that $15,000 would fairly and reasonably compensate the Lehmanns for Etan's actions. See City of Keller, 168 S.W.3d at 810; Cain, 709 S.W.2d at 176. We overrule Etan's fifth and sixth issues.[33]
CONCLUSION
Having considered and overruled Etan's issues, we affirm the district court's judgment.
Dissenting Opinion by Justice WALDROP.
G. ALAN WALDROP, Justice, dissenting.
I respectfully dissent. By December 2002, the Lehmanns knew or should have known that Etan did not have a contractual *517 or legal right to use Bluebonnet's easement, and had reason to believe that Etan did not have its own easement over their property. They waited to file suit until October 2005, more than two years later. Consequently, their tort claims are barred by limitations as a matter of law. Because the Lehmanns' tort claims are barred, and because I conclude the Lehmanns are not entitled to either injunctive or declaratory relief, I would dissolve the injunction and reverse the portions of the district court judgment awarding damages, declaratory relief, and attorneys' fees.
Limitations
The majority applies the doctrine of fraudulent concealment and holds that the Lehmanns did not actually know until July 2004 that Etan was not authorized to use the Bluebonnet easement and that the placement of the cables was, therefore, actionable. However, even construing the facts and evidence in a light most favorable to the Lehmanns with respect to their allegations of fraudulent concealment,[1] the Lehmanns' causes of action, in fact, accrued in December 2002, when they acquired knowledge of facts that, in the exercise of reasonable diligence, would lead to the discovery of the wrongful act.
It is undisputed that the Lehmanns learned that Etan had run cable along Bluebonnet's poles on the Highway 77 Property in December 2000. The Lehmanns contend that they were told, and believed, that Etan either had its own easement or had an agreement with Bluebonnet whereby it was authorized to use Bluebonnet's easement for its cable lines. However, by December 2002, (1) Bluebonnet had told the Lehmanns that Etan, while permitted to attach its cable to Bluebonnet's poles, was contractually obligated to acquire its own easements from the property owner, (2) the Lehmanns knew that Etan had failed to provide them with any proof of its having acquired its own easement, and (3) the Lehmanns had searched the Lee County records and found no record that Etan or any other entity had acquired an easement for cable lines over their property. The Lehmanns were also aware in December 2002 of the Krohn case,[2] which held that cable companies were not permitted to "piggy-back" on electric cooperative easements. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 699 (Tex.2002) (easement that permits holder to use private property for purpose of constructing and maintaining "an electric transmission or distribution line or system" does not allow easement to be used for cable-television lines).
By December 2002, then, the Lehmanns knew or should have known of facts that, in the exercise of reasonable diligence, would have led them to the discovery that Etan did not have a contractual or legal right to use Bluebonnet's easement. The Lehmanns also had reason to believe that Etan did not have its own easement over their property.[3] Consequently, regardless *518 of the application of either the doctrine of fraudulent concealment or the discovery rule, limitations began to run at the latest in December 2002. See Bell v. Showa Denko, K.K., 899 S.W.2d 749, 754 (Tex. App.-Amarillo 1995, writ denied) (limitations period triggered when plaintiff has knowledge of facts that would cause a reasonable person to diligently make inquiry to determine his legal rights). The Lehmanns did not bring their tort claims within two years of when they accrued. See Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (West 2008) (two-year statute of limitations applies to action for trespass or injury to property). Therefore, their tort claims are barred, and the district court's judgment should be reversed. Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 274-75 (Tex.2004) ("Accrual of limitations is a question of law for the court.").[4]
Declaratory Relief
In addition, the majority errs by holding that the district court's grant of the Lehmanns' requested declaratory relief was proper. The district court made the following declarations:
1. Bluebonnet's electrical easement across the Highway 77 Property and the Highway 290 Property did not and does not provide Etan with a telecommunications easement or any right-of-way on, over or across those properties for the construction, installation, presence, operation or maintenance of fiber optic cable(s) or television cable(s) for television or any other communication services; and
2. No agreement between Bluebonnet and Etan provides Etan with a telecommunications easement or right-of-way on, over or across the Highway 77 Property and the Highway 290 Property.
I would hold that declaratory relief was improper because the declarations in this case add nothing to what would be implicit or express in a final judgment for the other remedies sought in the same action. See MBM Fin. v. Woodlands Operating Co., 251 S.W.3d 174, 182 (Tex.App.-Beaumont 2008, no pet.); Hageman/Fritz, Byrne, Head & Harrison, L.L.P. v. Luth, 150 S.W.3d 617, 627 (Tex.App.-Austin 2004, no pet.); Kenneth Leventhal & Co. v. Reeves, 978 S.W.2d 253, 258-59 (Tex.App.-Houston [14th Dist.] 1998, no pet.).
*519 Regarding the Highway 77 Property, the final judgment rendered by the district court includes a finding that Etan trespassed on the property. Trespass to real property requires a showing of an unauthorized physical entry onto the plaintiff's property. Cain v. Rust Indus. Cleaning Servs. Inc., 969 S.W.2d 464, 470 (Tex.App.-Texarkana 1998, writ denied). Implicit in the jury's finding that Etan trespassed is a determination that Etan was not authorizedby virtue of the Bluebonnet easement, its agreements with Bluebonnet, or otherwiseto place its cable over the Highway 77 Property. A declaration that Etan had no right to use the Bluebonnet easement adds nothing to what is implicit in the finding that Etan trespassed on the Lehmanns' property.[5]
Regarding the Highway 290 Property, the final judgment rendered by the district court includes a finding that Etan had a prescriptive easement over the property. A prescriptive easement requires open and notorious, exclusive, uninterrupted and continuous use of another's land adverse to the owner's claim of right for ten years. Implicit in the finding that Etan's use was "adverse" is the determination that Etan was not authorized to use the easement by virtue of the Bluebonnet easement or otherwise. A declaration that Etan did not obtain such a right from Bluebonnet is duplicative of and adds nothing to what is implicit or explicit in the prescriptive easement finding. See Hageman/Fritz, Byrne, Head & Harrison, L.L.P., 150 S.W.3d at 627; MBM Fin., 251 S.W.3d at 182.
Moreover, the district court's finding rendered the question of whether Etan had a right to use the Bluebonnet easement on the Highway 290 Property moot. Declaratory judgments are only appropriate when a real controversy exists between the parties and the entire controversy may be determined by the declaration. OAIC Commercial Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 745 (Tex. App.-Dallas 2007, pet. denied). In the present case, Etan claimed to have an easement by prescription over the Highway 290 property. A declaration that Etan did not obtain an easement by agreement or otherwise from Bluebonnet would not resolve the dispute between Etan and the Lehmanns as to whether Etan had obtained a prescriptive easement over the Highway 290 Property by its own use of the property. See Brooks v. Northglen Ass'n, 141 S.W.3d 158, 164 (Tex.2004) (declaratory judgment requires justiciable controversy, and declaration sought must *520 actually resolve controversy). Furthermore, once the district court rendered judgment that Etan had easement rights over the Highway 290 Property by virtue of the prescriptive easement, there was no further controversy regarding Etan's right to maintain the cable line on the property.
Having concluded that declaratory relief was not authorized, I would also reverse the district court's award of attorneys' fees made pursuant to the Uniform Declaratory Judgments Act. See Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (West 2008).
Injunctive Relief
I also disagree with the majority's affirming of the district court's award of injunctive relief. In its final judgment, the district court enjoined Etan from:
1. Constructing, installing, hanging, placing, attaching, allowing, commingling, operating or maintaining any additional or other fibers, sets of fibers or fiber optic cables, on any of the electric utility poles that run across the Highway 77 Property, or on any other part or portion of the Highway 77 Property;
2. Entering on, traveling across or traversing any part or portion of the Highway 77 Property; and
3. Interfering with, interrupting, disrupting, preventing, delaying or prohibiting the full, sole and exclusive use, enjoyment and possession of the Highway 77 Property by Ronald Lehmann and Dana Lehmann.
I believe the trial court abused its discretion by granting this injunctive relief. My review of the record indicates that the evidence was not sufficient to raise a fact issue on imminent harm.
To obtain the injunctive relief sought, the Lehmanns had the burden of presenting evidence of an imminent threat that Etan would attempt to enter their Highway 77 Property, hang cable on poles located on the property, or otherwise interfere with or disrupt their use and enjoyment of the property. See Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex.1986) (party seeking injunction has burden of showing that clear equity demands it); Frey v. DeCordova Bend Estates Owners Ass'n, 632 S.W.2d 877 (Tex.App.-Fort Worth 1982), aff'd, 647 S.W.2d 246 (Tex.1983) (party seeking injunction has burden of proof).
Evidence that Etan believed, and continues to believe, that it had a right to hang its cables on poles on the Highway 77 Property is not sufficient to sustain the Lehmanns' burden of establishing imminent harm. See Democracy Coalition v. City of Austin, 141 S.W.3d 282, 296 (Tex. App.-Austin 2004, no pet.) (purpose of injunctive relief is to "halt wrongful acts that are threatened or in the course of accomplishment, rather than to grant relief against past actionable wrongs or to prevent the commission of wrongs not imminently threatened"). That Etan engaged in such conduct in the past is also not enough to show imminent harm. Frey, 647 S.W.2d at 248. The evidence at trial established that Etan removed the cable line from the Highway 77 Property before trial. Etan spent a considerable amount of money setting new poles to relocate the cable line off the Highway 77 Property and onto the state highway right-of-way on the other side of the highway. There was no evidence indicating that Etan has any intention of entering the Highway 77 Property. Thus, there is no evidence in this context of imminent harm. See Markel v. World Flight, Inc., 938 S.W.2d 74, 80 (Tex. App.-San Antonio 1996, no writ) ("An injunction does not lie to prevent an alleged threatened act, the commission of which is speculative and the injury from which is merely conjectural.").
*521 Conclusion
Having concluded that the Lehmanns' tort claims arising out of Etan's unauthorized placement of cable on its Highway 77 Property are barred by limitations, I would reverse the portion of the district court's judgment awarding $15,000 in damages and $1,627.35 in pre-judgment interest, and render judgment that the Lehmanns take nothing by way of those claims. Having also concluded that the Lehmanns are not entitled to declaratory relief under the circumstances of this case, I would reverse the portion of the district court judgment awarding the Lehmanns declaratory relief and attorneys' fees. Finally, since the Lehmanns failed to meet their burden of establishing imminent harm, I would dissolve the injunction.
NOTES
[1] We refer to Ronald and Dana Lehmann as the Lehmanns, Ronald Lehmann as Ronald, and Steven Lehmann as Steven.
[2] Etan's predecessors in interest included Television Cable Company, Insight Communications Company, L.P., and Cencom Partner, L.P. d/b/a Crown Cable.
[3] The fiber optic cable had 24 strands. The amendment provided that Etan would construct the line, the parties would split the cost of construction, and Bluebonnet and Etan would both own 12 of the 24 strands. The evidence at trial was that, although invoiced for half of the cost of the line in 2004, Bluebonnet did not pay for or have access to the line at any time.
[4] See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697 (Tex.2002) ("Krohn I"). Ronald testified that he "found out" about the case from the media, but he did not read the opinion or know how to get a copy of the opinion at the time.
[5] Etan operated the coaxial cable line to provide cable television service to apartments. The line was built in 1984 by one of Etan's predecessors and conveyed to Etan in 1999.
[6] Etan moved for partial summary judgment on the Lehmanns' declaratory claims. The district court granted Etan's motion prior to trial but set aside its ruling and reinstated the Lehmanns' declaratory claims during the trial.
[7] Etan attempted to remove the line on the Hwy 77 Property in March 2007, but a dispute arose between the parties at the property. Etan subsequently removed the line a few weeks before the trial.
[8] Ronald testified to the reason that he and his brother decided to get a lawyer involved:
We had a story from [Etan] that said one thing and we had a story supposedly that... Bluebonnet was going to contact [Etan] with another version of the story and those stories didn't meet. We couldn't find anything in the courthouse and we thought we weren't getting anywhere, we were going to have to seek an attorney to figure out how we were going to get the information that we needed to figure out who could allow them or how they could be allowed to be on the poles.
[9] Ronald testified that he bought and sold properties, including commercial and investment properties, and that he was familiar with real estate values in the area.
[10] Peterson was not a witness at trial. He no longer worked for Bluebonnet but for a cooperative in Kerrville. Smith testified that Peterson denied the existence of any oral agreement with Smith.
[11] Bluebonnet obtained an easement on the Hwy 77 Property in 1962 and two easements for separate locations on the Hwy 290 Property in 1961 and 1980, respectfully. Assignment and transfer agreements concerning pole attachment agreements also were admitted as exhibits at trial.
[12] Wren testified:
Q. Because before Krohn everyone out therewhen I say out there I'm talking about Bluebonnet Electric Co-op, all these cable companies thought that they could hang cable lines on your poles; isn't that true?
A. That's correct.
[13] The jury found in Etan's favor that Etan's negligence, if any, did not proximately cause injury to the Lehmanns' properties and that Etan did not trespass or make a negligent misrepresentation as to the Hwy 290 Property. The jury also found that Etan had a prescriptive easement on the Hwy 290 Property and that the harm to the Lehmanns was not the result of Etan's malice. The Lehmanns have not appealed the jury's findings in favor of Etan regarding the Hwy 290 Property.
[14] In accordance with the jury verdict, the district court found that Etan had a prescriptive easement over the Hwy 290 Property:
This Court finds that Defendant has established the elements for a prescriptive easement over Plaintiffs' Hwy 290 Property ... within the boundaries of Bluebonnet Electric Cooperative's current electrical easement as located on and across Plaintiffs' Hwy 290 Property ..., for the sole purpose of installing, operating, maintaining, removing and replacing a single telecommunication cable to be attached to Bluebonnet Electric Cooperative's poles located within the boundaries of Bluebonnet Electric Cooperative's current easement as located on and across Plaintiffs' Hwy 290 Property. ...
The Lehmanns have not challenged this finding.
[15] Because the jury found in favor of Etan on the Lehmanns' tort claims concerning the Hwy 290 Property and the Lehmanns do not appeal those findings, we limit our discussion in this section to the Hwy 77 Property.
[16] The Lehmanns also asserted the defenses of the discovery rule and the continuing tort doctrine. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.2003) (discovery rule discussed); W.W. Laubach Trust v. Georgetown Corp., 80 S.W.3d 149, 159 (Tex.App.-Austin 2002, pet. denied) (discovery rule and continuing tort doctrine discussed). Because we conclude that the fraudulent concealment doctrine applies to toll the limitations periods, we need not address the Lehmanns' other two defenses to limitations. See Tex.R.App. P. 47.1.
[17] The jury also could have concluded that Smith was not credible based upon his testimony on related matters. Smith testified that he had an oral agreement with Peterson for Etan to use Bluebonnet's easements, but Smith acknowledged that Peterson denied any oral agreement and the alleged oral agreement directly conflicted with the pole attachment agreements that required each party to obtain its own easements and rights-of-way. Smith further testified that the standard practice for cable companies was not to obtain their own easements. Nietsche testified otherwise, and the evidence showed that Insightthe predecessor company that did not employ Smithobtained easements from private property owners. Smith's testimony concerning the standard practice in the industry was further undermined by his own testimony that he obtained an oral agreement with Peterson to use Bluebonnet's easements. Etan would not have needed an oral agreement with Bluebonnet if the standard practice allowed Etan to use Bluebonnet's easements in any event.
[18] The December 2002 letter was not provided to the Lehmanns prior to the litigation. Bluebonnet's representative states in the letter:
Recently, a property owner south of Giddings, Texas was inquiring about [Etan] having the right to contact the Cooperative's distribution poles. The property owner also questioned whether or not the Cable Company should have to acquire their own easements when crossing private property. We responded by informing the property owner that the Cooperative has a contract with [Etan] which allows them to contact the [Bluebonnet] distribution poles. We further explained that the contract does not, however, provide assignment of the Cooperative's electrical utility easement to [Etan]. Therefore, the Cable Company is required to secure their own easements when crossing private property with their facilities.
The property owner pointed out that a [Etan] representative informed him, that the distribution line south of Giddings was a joint venture with [Bluebonnet] and that [Etan] did not have to acquire easements from private landowners. This is a misinterpretation, because the Cooperative's contract with [Etan] does not reflect anything that substantiates [Etan] not having to acquire their own easements on joint projects. By now, you may have heard that the Supreme Court has recently confirmed the law regarding one utility's use of another utility's easement. The Supreme Court ruled in a case out of the Hill Country, Texas, area that cable companies have to get their own easements from private landowners. Therefore, the Cooperative will continue to emphasize that all Cable Companies will have to acquire their own easements when crossing private property.
[19] Ronald testified that, in order to obtain the documents, they needed to know who the property owners were at the time the lines were constructed. Steven testified that they had to provide the names of the prior owners of their properties for Bluebonnet to look up their easements.
[20] Etan does not contend that the easements or pole attachment agreements were recorded in the real property records of Lee County so as to put the Lehmanns on notice.
[21] Etan continues to question Krohn I with this Court; Etan states that "[i]t is not clear if Krohn applies to fiber optic cable," the cable at issue on the Hwy 77 Property.
[22] Etan's reliance on our sister court's ultimate resolution on remand of Krohn I is misplaced. See Krohn v. Marcus Cable Assocs., L.P., 201 S.W.3d 876 (Tex.App.-Waco 2006, pet. denied) ("Krohn II"). In Krohn II, our sister court held that the Krohns' claim of trespass for unauthorized cable line was time barred because their claim accrued when the cable line was placed on their property. Id. at 881. But the Krohns failed to plead the discovery rule, and there were no allegations of fraudulent concealment to toll the limitations period. Id. at 880.
[23] Although Smith testified that they knocked on doors to let landowners know that they were removing the abandoned line on Highway 77, he testified:
Q. Okay. Now, you told me in your deposition during the construction of the Highway 77 line you spoke I believe you said with six or so landowners.
A. I didn't specifically. The people [Etan] employees spoke with some, I spoke with some. I don'tthat was just a number off the top of my head. I was guessing.
Q. Okay. And you told me that each time one of those people talked to one of y'all that you told them that you were in partnership with Bluebonnet and you had Bluebonnet's permission to use the easement.
A. Yes, I did.
Q. Same thing you ultimately ended up telling Steve Lehmann.
A. Yes.
* * *
Q. And all of those people that you told you're in partnership with Bluebonnet and you have permission to use their easement, have you ever gone back, sir, and told them that that's in fact not right?
A. No, sir, I have not.
Q. Okay. In fact, you have no intention of doing that, do you?
A. Not unless I'm directed to.
[24] For example, after Steven brought suit against Etan for trespass on his property, Etan deactivated the line along Highway 77 and removed the portion of the line on Steven's property. Etan did not remove the portion of the line on the Lehmanns' Hwy 77 Property at that time. It was only after the Lehmanns brought suit that Etan removed the line from their properties.
[25] Smith testified that Etan had fiber optic lines from Schulenburg to Weimar, Schulenburg to La Grange, and Schulenburg to Halletsville.
[26] Smith testified:
Q. Okay. We've talked about Krohn in 2002, right?
A. Right.
Q. All right. Your lawyer can ask you all he wants to about the limitations. I'm just talking about trespassing, not whether or not you can sue for it. Is it a trespass? Okay. You've told me that after Krohn if you are attached to a pole on private property without an easement from a landowner that is a trespass, correct?
A. I would have said that in my deposition and as I said, that was beforeI understand things have changed. So I don't really know how to answer that question.
* * *
Q. And have you agreed with me, sir, that after Krohn, which is 2002, [Etan] would be trespassing on my clients' Highway 77 property up until the day the line was removed?
A. From Krohn 2002 I would have to say that we were but I don'tthere has been some change to the Krohn since then.
[27] For example, as to the Hwy 290 Property, the district court's declaration sets out the parameters of the prescriptive easement resolving uncertainty between the parties as to the scope of the easement. See Tex. Civ. Prac. & Rem.Code Ann. § 37.002 (West 2008).
[28] The amendment between Etan and Bluebonnet concerning the fiber optic line along Highway 77 stated that "[u]pon receipt of mutually agreed upon funds," Etan agreed to provide Bluebonnet access to the line. Wren testified that Bluebonnet was never granted access and never operated the line. Wren also testified that the first invoice that Bluebonnet received from Etan for half of the cost of the line's construction was in 2004 and that Bluebonnet did not intend to pay the invoice.
[29] Etan also urges that it did not try by consent the Lehmanns' declaratory claims. But, Etan's consent was not required for the district court to set aside its summary judgment ruling on the Lehmanns' declaratory claims. See Bi-Ed, Ltd. v. Ramsey, 935 S.W.2d 122, 123 (Tex. 1996); Elder Constr., Inc. v. City of Colleyville, 839 S.W.2d 91, 92 (Tex. 1992).
[30] Etan does not challenge the jury's finding of trespass or the definition of trespass submitted to the jury. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000). Trespass was defined for the jury as follows:
"[T]respass" means to enter and/or remain on the property of another without having consent of the owner. To constitute trespass, entry and/or continued presence upon another's property need not be in person but may be done by causing or permitting a thing or object to cross the boundary of the property. Every unauthorized entry or continued presence upon the land of another is a trespass and the intent, motive or good faith prompting the trespass is immaterial.
The jury also answered "yes" when asked "[w]as the transmission of signals through or the addition of new or additional products into Defendant's cable across Plaintiffs' Hwy 77 Property or Plaintiffs' Hwy 290 Property, intermittent or recurrent until said transmissions or additional products were terminated by Defendant." The jury was instructed that "an injury is temporary if it is intermittent or recurrent" and "an injury is permanent if it is sufficiently constant or regular, so that future impact can be reasonably evaluated." See Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 274-75 (Tex.2004) (discussion of difference between temporary and permanent injury to land). Smith testified that the line on the Hwy 77 Property was activated and operational until February 2005 and that Etan added new productsmore channels and high-speed internetat various times during the line's operation.
[31] Ronald testified that he knew market values in Lee County:
Q. ... [B]ased upon your experience do you feel like you have a pretty good handle on what market values in Lee County are?
A. I do.
He also testified that $15,000 represented the "fair market value of the land right that [Qwest] took from [him]" and that "I knew that [the Qwest easement] was worth at least $15,000 because if it wasn't worth that they would have taken [the line] out."
[32] The jury in Hamil awarded an amount exceeding $100,000, and our sister court concluded that the evidence of what a buyer would have paid for a similar easement only supported an award of $45,000. See Southwestern Bell Tel. Co. v. Hamil, 116 S.W.3d 798, 801, n. 3 (Tex.App.-Fort Worth 2003, no pet.).
[33] Further, even if we were to conclude that the measure of damages in the instruction was in error, Etan has failed to show how the error probably resulted in the rendition of an improper judgment. See Tex.R.App. P. 44.1(a)(1); Goose Creek Consol. Indep. Sch. Dist. v. Jarrar's Plumbing, Inc., 74 S.W.3d 486, 500 (Tex.App.-Texarkana 2002, pet. denied). The jury was instructed to award damages to the Lehmanns based upon its findings of negligent misrepresentation and/or trespass. The jury was instructed that negligent misrepresentation occurs when:
a. a party makes a representation in the course of its business or in a transaction in which it has a pecuniary interest;
b. the representation supplies false information for the guidance of others; and
c. the party making the representation did not exercise reasonable care or competence in obtaining or communicating the information.
A plaintiff may recover damages for the tort of negligent misrepresentation that are "necessary to compensate the plaintiff for the pecuniary loss to him of which the misrepresentation is legal cause," including "pecuniary loss suffered otherwise as a consequence of the plaintiff's reliance upon the misrepresentation." See Federal Land Bank Ass'n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991) (quoting Restatement (Second) of Torts § 552B (1977)); see also D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662, 663-64 (Tex. 1998) (explaining that a plaintiff can recover loss otherwise suffered as consequence of misrepresentations). Given our conclusion that the evidence supports the damages award based upon trespass, however, we need not address this alternative ground for upholding the damages award.
[1] For the purposes of the analysis in this case, I express no opinion as to whether the discovery rule is applicable under the circumstances presented here or whether Etan's conduct constituted fraudulent concealment. Under the facts of this case, limitations has run even assuming, without deciding, that the Lehmanns have the benefit of the discovery rule and the doctrine of fraudulent concealment. See Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983) (fraudulent concealment); Steel v. Rhone Poulenc, Inc., 962 S.W.2d 613, 618 (Tex.App.-Houston [1st Dist.] 1997), aff'd, 997 S.W.2d 217 (Tex. 1999) (discovery rule).
[2] Given that the Lehmanns were aware of the holding of the Krohn case, I do not find significant that they "did not have a copy of the decision or even know its name."
[3] A point confirmed by the Lehmanns' seeking the advice of an attorney in mid-2003.
[4] The Lehmanns' tort claims are barred even if, as the Lehmanns alternatively contend, the injury to their property giving rise to their tort claims is not the presence of the cable on their property, but rather the signal running through the cable. The Lehmanns argue that a new and different cause of action accrued each time a "pulsing, sporadic and intermittent" signal was transmitted down the line and that causes of action for any alleged trespasses occurring in the two-year period prior to their filing suit were not time-barred.
In Schneider National Carriers, Inc. v. Bates, the supreme court held that a nuisance is "permanent" if it is sufficiently constant or regular, no matter how long between occurrences, that the future impact on the property can be reasonably evaluated. 147 S.W.3d 264, 281 (Tex.2004). A cause of action for a permanent injury accrues when the injury first occurs or is discovered. By contrast, when the future impact of the nuisance is speculative because it is so irregular or intermittent that future injury cannot be estimated with reasonable certainty, the nuisance is considered "temporary," the continuing tort doctrine applies, and the plaintiff is permitted to assert a new claim each time the nuisance occurs. Id. at 281. Applying this analytical framework, I would conclude that even if the trespass at issue is the signal going through the cable line rather than the presence of the cable line itself, the injury is permanent. The purpose of the cable line is to transport signals. Although each signal is itself discrete, the transmission of signals through the cable is sufficiently constant or regular that the impact on the property may be reasonably evaluated. The alleged injury here, therefore, is a permanent one, and the continuing tort doctrine does not apply.
[5] The majority relies on Universal Printing Co. v. Premier Victorian Homes, 73 S.W.3d 283 (Tex.App.-Houston [1st Dist.] 2001, pet. denied), to hold that, because Etan took the position at trial that it had the right to use Bluebonnet's easement, a declaration that Etan did not have the right to use the easement was proper and required. In Universal Printing, a homebuilder sued neighboring homeowners to prevent them from blocking an alley. 73 S.W.3d at 283. At issue was whether the homebuilder had a right to ingress and egress through an alley superior to the homeowners' rights to use the alley. The homeowners took the position that they owned the alley and filed affidavits of adverse possession in public records. The homeowners testified at trial that they owned the alley and did not revoke their adverse possession affidavits, which remained in the deed records. The court of appeals held that "we are persuaded by a significant matter here the existence of the adverse possession affidavits (which were recorded in the public records)that a declaratory action was proper." Id. at 297. The justification for permitting declaratory relief in Universal Printing does not exist here. In the present case, Etan merely presented testimony at trial in defense of a claim of trespassthat Etan believed it had an oral agreement with Bluebonnet allowing it to use Bluebonnet's easement. If a defendant's presentation of evidence to refute a plaintiff's claims were sufficient to warrant declaratory relief, declaratory relief would be proper in every contested case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/731006/ | 102 F.3d 204
UNITED STATES of America, Plaintiff-Appellee,v.Anthony E. BRADSHAW, Defendant-Appellant.
No. 94-6487.
United States Court of Appeals,Sixth Circuit.
Argued June 7, 1996.Decided Dec. 6, 1996.
1
Stuart J. Canale, Asst. U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Memphis, TN, for Plaintiff-Appellee.
2
Anthony E. Bradshaw, Leavenworth, KS, pro se.
3
Gerald L. Gulley, Jr. (argued and briefed), Baker, McReynolds, Byrne, Brackett, O'Kane & Shea, Knoxville, TN, for Defendant-Appellant.
4
Before: MILBURN and SUHRHEINRICH, Circuit Judges; ROSEN, District Judge.*
5
ROSEN, District Judge.
6
In this case we decide whether Appellant's motion to suppress evidence that was obtained after he was stopped for driving with an altered temporary vehicle license tag should have been granted. The District Court denied the motion, and we now AFFIRM.
I. FACTUAL BACKGROUND
7
During a routine traffic patrol on October 19, 1991, Memphis police officer Martin Kula ("Officer Kula") came up behind Defendant-Appellant Anthony E. Bradshaw's ("Appellant's") vehicle, while both vehicles were travelling in the same direction on a street in Memphis. Subsequently, Officer Kula stopped directly behind Appellant's vehicle at two intersections. During these stops, Officer Kula observed an altered temporary license certificate or "drive-out" tag in the rear window of Appellant's car. In particular, he noticed two different prints on the drive-out tag, one in ink and the other in felt marker. Officer Kula then put on his police lights and siren and pulled Appellant over to check the drive-out tag. As Officer Kula approached Appellant's vehicle, he observed the drive-out tag more closely and confirmed that it had indeed been altered, specifically the dates and the information concerning the issuer had been changed.
8
While Officer Kula was inspecting the drive-out tag, Appellant exited his vehicle and approached him. Officer Kula testified that Appellant was acting "nervous" and "jittery" and had actually begun to sweat. At that point, Officer Kula asked Appellant to take a seat in the back of his police car. Officer Kula testified that asking Appellant to sit in his police car under these circumstances was merely a routine matter of proper police procedure.
9
After Appellant was seated in the back of Officer Kula's police car, Officer Kula performed radio checks on Appellant's driver's license and vehicle certification. He also issued a citation for the altered drive-out tag--a violation of vehicle registration and inspection laws. Performing the radio checks and issuing the citation took approximately 20 minutes.
10
During this time, Officer Tim Cooper ("Officer Cooper"), who was also out on a routine patrol, stopped at the scene, exited his vehicle, and approached Officer Kula's car.1 While Officer Kula was performing the radio checks and issuing the citation, Officer Cooper walked to Appellant's car and looked in the passenger side window to determine if there were other people in the vehicle or if there were weapons or alcohol laying on the seat. From this vantage point, he saw a small plastic bag which appeared to contain marijuana. As he reached for the plastic bag, Officer Cooper noticed the handle of a .357 magnum sticking out from under the driver's seat. Officer Cooper took the bag and the gun and returned to Officer Kula's vehicle. Shortly thereafter, the officers arrested Appellant because of the suspicious plastic bag2 and the gun. As Appellant remained in the squad car, the officers told him to place his hands on the screen of the squad car while they went to inventory Appellant's vehicle.
11
Next, the officers proceeded to search Appellant incident to his arrest. As Officer Kula patted down Appellant, he felt a "hard spot" near the groin area of Appellant's pants. Then, while Officer Kula was handcuffing Appellant, Appellant broke free and tried to run from the officers. During his attempted flight, the officers observed Appellant reach into his pants and discard two pill bottles. The officers eventually apprehended, handcuffed, and returned Appellant to Officer Kula's police car. The officers then recovered the two Tylenol pill bottles that Appellant had thrown; together these bottles contained thirty "rocks" of crack cocaine.3 After a thorough search of Appellant's vehicle, including its trunk, the officers found $440, more marijuana, and an additional handgun.
12
Both Officers testified to the above matters at an initial suppression hearing presided over by Magistrate Judge Aaron Brown, Jr. (the "Magistrate"). The Magistrate granted Appellant's motion to suppress, reasoning that Officer Kula lacked credibility as a witness because of inconsistencies in his testimony regarding the timing and location of and lighting conditions at the stop. Specifically, the Magistrate found, based on Officer Cooper's testimony4, that it was likely too dark for Officer Kula to have seen the altered drive-out tag.
13
The Magistrate's ruling was subsequently overturned by the District Court after it held its own hearing devoted solely to resolving the issue of whether Officer Kula saw the altered drive-out tag before he made the stop. Despite some contradictions in the testimony of Officers Kula and Cooper regarding the precise time and location of the stop and their descriptions of the lighting conditions that evening, the District Court concluded that Officer Kula had seen the altered drive-out tag before Appellant was stopped, and that his earlier credibility problems were the result of his misunderstanding certain questions.
14
During the initial hearing before the Magistrate, Officer Kula testified that "it was light out" when he stopped Appellant's car, whereas Officer Cooper testified that it was dark when Appellant's vehicle was stopped. Before the District Court, Officer Kula testified it was still daylight, but was getting darker. Further, Officer Kula also said there were other light sources which illuminated Appellant's vehicle. Meanwhile, Officer Cooper likewise noted there were other light sources, but testified that it was "dark as far as the sun goes."
15
Similarly, the officers differed in their accounts of what time Appellant's vehicle was stopped. Officer Kula testified initially that the stop took place at 7:30 p.m. Before the District Court, he testified that the stop took place at 6:55 p.m. Officer Kula said he was certain of this time after consulting the traffic citation which was issued at 7:15 p.m, figuring that Appellant was stopped approximately twenty minutes before the citation was issued.
16
The location of the stop was another point on which the officers' testimony was in some conflict. Officer Kula testified that he simply ended up behind Appellant heading westbound on Court Street. He further testified that Appellant stopped twice at stop signs, and that he was located directly behind Appellant's vehicle at both of these stops. On the other hand, Officer Cooper's testimony indicates that Appellant was observed travelling northbound on Claybrook while the officers were travelling west on Court Street. Similarly, the arrest ticket also states Appellant was travelling northbound on Claybrook.5
17
When it reversed the Magistrate's ruling on the motion to suppress, the District Court addressed these discrepancies in the officers' testimony. The Court found that, despite some initial confusion concerning questions about time and place, Officer Kula's testimony as to what he saw when he pulled over Appellant corroborated his earlier testimony. Further, it concluded that light coming from nearby church and medical center parking lots would have been sufficient to illuminate the area where Appellant was stopped. Accordingly, the Court ruled that Officer Kula did see the altered drive-out tag; and, as a result, that the circumstances justified the initial detention of Appellant and the plain view search of his car.
18
In the time following his arrest, but preceding the suppression hearing, Appellant was a fugitive, having failed to appear at his pre-trial conference. Eventually, with some difficulty, officers with the Trident Task Force6 located Appellant after receiving information that he was at a particular apartment. When the Task Force officers arrived at this apartment, they went to the front door, knocked, and identified themselves. One of them, Officer Rush, also "peeped" through a mail slot in the front door, which enabled him to observe an African-American male enter a bathroom which was at the top of a flight of stairs that was directly in front of the door. Eventually, a woman opened the door and let the officers in after they had identified themselves and stated the purpose of their visit. Although the officers searched the apartment twice thoroughly, they could not find Appellant. However, Officer Rush decided to search the bathroom one more time. During this search, he opened the medicine cabinet in the bathroom and observed that the bathroom wall behind the medicine cabinet had been punched through into the adjoining apartment.
19
At this time, Officer Rush yelled to his fellow officers that Appellant was next door. As Officer Rush and the other officers were running to the next-door apartment, they encountered a woman running from this apartment, who told them that Appellant was indeed in that apartment. The officers entered the next-door apartment through its open front door and found Appellant a few feet from the front door. The officers immediately seized and arrested Appellant.
20
The residents of the next-door apartment later explained to the officers how Appellant came to be in their apartment. Specifically, they stated that Appellant had crawled into their apartment through the aforementioned hole in the bathroom wall and, once in their apartment, that he had held a knife to the throat of one of the occupants and ordered the others to be quiet. Appellant denies ever having a knife or threatening anyone.
II. PROCEDURAL HISTORY
21
On November 5, 1991, Appellant was indicted by a Federal Grand Jury and charged with two counts: (1) possession with intent to distribute cocaine base, 18 U.S.C. § 841, and (2) carrying and use of a firearm in relation to a drug-trafficking crime, 18 U.S.C. § 924(c). Appellant failed to appear for arraignment on December 11, 1991, and his bond was revoked. He was eventually arrested and made his initial appearance on September 8, 1993, before the Magistrate. On September 24, 1993, Appellant filed a Motion to Suppress Evidence, claiming that the cocaine and firearms were obtained during an illegal search and seizure in violation of the Fourth Amendment.
22
On October 8, 1993, a Superseding Indictment was returned against Appellant charging: (1) unlawful possession with intent to distribute of cocaine base, 18 U.S.C. § 841; (2) carrying and use of a firearm during and in relation to a drug-trafficking crime, 18 U.S.C. § 924(c); (3) being a convicted felon in possession of a firearm, Armed Career Criminal Act, 18 U.S.C. § 924(e); and (4) violating the Bail Reform Act, 18 U.S.C. § 3146.
23
Thereafter, on November 8, 1993, Appellant filed an Amended Motion to Suppress Evidence. The Magistrate conducted an evidentiary hearing on the motion that same day. In a Report and Recommendation issued on November 19, 1993, the Magistrate recommended that the Motion to Suppress be granted. The United States filed Objections to the Magistrate's Report, and the District Court, on December 28, 1993, held an additional hearing to consider Appellant's Motion to Suppress. Two days later, the District Court ordered that the motion be denied. The District Court later denied Appellant's Motion to Reconsider.
24
Following a jury trial, Appellant was convicted on the two additional counts alleged in the Superseding Indictment: being a convicted felon in possession of a firearm, Armed Career Criminal Act, 18 U.S.C. § 924(e) and violating the Bail Reform Act, 18 U.S.C. § 3146. The jury, however, was unable to reach a verdict on the original two counts. Subsequently, the District Court sentenced Appellant to 300 months imprisonment for the § 924(e) charge and 27 consecutive months as to the § 3146 charge. Thus, Appellant's total sentence was 327 months of imprisonment followed by a three-year term of supervised release. Thereupon, Appellant filed this appeal.
III. ISSUES ON APPEAL
25
Appellant asserts that there are four issues on appeal. First, Appellant contends that the District Court erred in finding that the police had reasonable suspicion to make an investigative stop of his vehicle. He argues that given the lighting conditions on the evening of October 19, 1991, and the inconsistencies in the testimony of the arresting officers, the District Court's findings amount to clear error.
26
Second, Appellant contends that the District Court erred in refusing to suppress the marijuana and the handgun found in the passenger compartment of his car. He argues that the search and seizure were invalid, notwithstanding the plain view doctrine, because the marijuana and the gun were the fruit of an illegal stop and seizure.
27
Third, Appellant argues that the District Court erred in refusing to suppress the crack cocaine that he tossed away as he fled from the police. The District Court found the seizure justifiable, but again, Appellant urges that this evidence was tainted by the allegedly illegal stop, seizure, and subsequent arrest.
28
Finally, Appellant contends that the District Court erred in computing Appellant's sentence. Here, he argues that his sentence should have been reduced for accepting responsibility for his actions pursuant to the United States Sentencing Guidelines. We address each issue seriatim.
IV. ANALYSIS
29
A. The Standards Governing This Appeal.
30
In reviewing the District Court's ruling on a motion to suppress evidence, this Court applies the clearly erroneous standard to findings of fact, while reviewing conclusions of law de novo. United States v. Dotson, 49 F.3d 227, 229-230 (6th Cir.1995), cert. denied, --- U.S. ----, 116 S. Ct. 141, 133 L. Ed. 2d 87 (1995); United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993).
31
B. The Initial Traffic Stop Was Properly Supported by Probable Cause.
32
Appellant argues that the actions of Officers Kula and Cooper were unlawful because the officers did not have a reasonable suspicion to justify an investigatory stop.7 Appellant claims the inconsistencies in the testimony of the two officers, combined with Officer Kula's allegedly disingenuous testimony, indicate that there was no reasonable suspicion for the stop. In particular, Appellant points to the discrepancies in the officer's testimony regarding the lighting, timing, and location of the stop. Further, Appellant claims that the writing on the drive-out tag was too small to have been observed by Officer Kula. The Government contends that the findings of the District Court were fully supported by the evidence.
33
In finding that Officer Kula did see the altered drive-out tag, the District Court addressed only the question of lighting.8 The District Court stated that the discrepancies regarding the lighting conditions were likely the result of misunderstood questions at the initial hearing.9 The District Court also noted that there was artificial lighting present at the point of the stop, and that Officer Kula's actions following the stop corroborate the claim that he observed the altered drive-out tag from his car.10
34
The District Court's findings of fact should be upheld because they are not clearly erroneous. The Court accepted the testimony of the two officers and also articulated plausible explanations for any apparent inconsistencies in the testimony concerning the lighting conditions. The Court also implicitly found that any other factors, such as the exact time or location of the stop, were not relevant because they did not affect Officer Kula's ability to view the drive-out tag from his car.11 Because the District Court was in the best position to judge credibility, and because that Court plausibly resolved the discrepancies in the testimony, its findings of fact should not be disturbed.
35
In light of these factual findings, it is clear that the initial stop of Appellant's vehicle was proper. This Court has held that "so long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resultant stop is not unlawful and does not violate the Fourth Amendment." United States v. Ferguson, 8 F.3d 385, 391 (6th Cir.1993). The probable cause determination turns on "what the officer knew at the time he made the stop." Id. at 391 (emphasis in original). Under Ferguson, the focus in traffic stop cases is "whether this particular officer in fact had probable cause to believe that a traffic offense had occurred, regardless of whether this was the only basis or merely one basis for the stop." 8 F.3d at 391 (emphasis added).12
36
In the instant matter, the District Court found, and we have now affirmed, that Officer Kula did in fact view the altered drive-out tag from his vehicle before he stopped Appellant. Thus, Officer Kula's view of the altered drive-out tag provided probable cause for stopping Appellant's vehicle pursuant to a traffic violation. Consequently, the stop, the subsequent detention in the squad car, the plain view search of Appellant's vehicle, and the resulting arrest were all lawful and well within Ferguson.13
37
C. Placing Appellant in The Police Car and Performing a Plain View Search of His Vehicle Fell Within The Scope of a Traffic Stop.
38
The U.S. Supreme Court has articulated two requirements for a valid plain view search: (1) the incriminating nature of the item in plain view must be "immediately apparent," and (2) the officer must be lawfully located in a position from which he or she can plainly see the item and have lawful access to it. Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 2307-08, 110 L. Ed. 2d 112 (1990). The officer need not come across the seized item inadvertently. Id. at 130-31, 110 S.Ct. at 2304-05. Additionally, in a plurality opinion, the Supreme Court has stated that a motorist has "no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers." Texas v. Brown, 460 U.S. 730, 740, 103 S. Ct. 1535, 1542, 75 L. Ed. 2d 502 (1983) (citations omitted).
39
The District Court held that Officer Cooper satisfied the Horton requirements with respect to both the marijuana and the handgun found in the passenger compartment of Appellant's vehicle. Therefore, the Court concluded that the seizure of the marijuana and the handgun were valid plain view seizures .14
40
Appellant asserts only one challenge to the plain view search of his vehicle. He claims that his detention in the police car amounted to an arrest without probable cause, and that Officer Cooper, therefore, did not lawfully arrive at a position from which the items in Appellant's car could be viewed lawfully.15 He believes the confiscated items are fruits of an unlawful arrest and should be excluded. The Government argues that a person detained in a police car is not necessarily arrested for Fourth Amendment purposes.
41
Detention in a police car does not automatically constitute an arrest. See e.g., United States v. Parr, 843 F.2d 1228, 1230 (9th Cir.1988) (finding no per se rule that detention in a police car is tantamount to an arrest); United States v. Thompson, 597 F.2d 187, 189-90 (9th Cir.1979) (motorist's committing traffic infractions and his inability to produce identification at the subsequent traffic stop justified his detention in a police car while an identification search took place)16; United States v. Rodriguez, 831 F.2d 162, 166 (7th Cir.1987) (detention in patrol car for several minutes is merely a normal part of police procedure for identifying delinquent drivers and does not constitute a custodial arrest).17
42
Nevertheless, it is true that detention in a police car may rise to the level of an arrest under some circumstances. For example, in United States v. Mesa, 62 F.3d 159, 162 (6th Cir.1995), we found that a motorist could not be lawfully detained in a police car once the purposes of the initial traffic stop were completed.18
43
Thus, the question becomes whether this detention19 exceeded the purpose and objective of the stop. We find it did not. Officer Kula began to write a traffic citation when the radio checks came back negative. It was during this time that Officer Cooper discovered the marijuana and the handgun, thereafter presenting them both to Officer Kula. Based upon these facts, the initial detention of Appellant in the police car clearly did not exceed the scope of the traffic stop. Officer Kula could lawfully detain Appellant until he finished performing the radio checks and issuing the citation; this would be well within the bounds of the initial stop.
44
When the marijuana and the handgun were found in the vehicle passenger compartment and brought to Officer Kula's attention during Appellant's initial detention in the squad car, this clearly provided probable cause for further detention and the resulting arrest. Therefore, Mesa 's requirement that some additional suspicious activity is necessary to justify further detention beyond the scope of the original stop is met here.
45
In sum, because Appellant's detention in Officer Kula's police car was a legitimate exercise of valid routine police procedure, and because he was not detained for a period of time exceeding the purposes of the initial stop, all evidence in plain view within Appellant's car was lawfully seized.D. Seizure of The Crack Cocaine.
46
Having found that: (1) Appellant was lawfully stopped; (2) Appellant was lawfully detained in the police car; and (3) Officer Cooper's plain view search was valid, it follows that the subsequent arrest and search of Appellant were also valid.20
47
It is well-settled that law enforcement officers are permitted to search an arrestee's person incident to an arrest. United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 476-77, 38 L. Ed. 2d 427 (1973); Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685 (1969). In this instance, the search of Appellant revealed a hard substance located near the groin area of Appellant's pants. Before the officers could handcuff Appellant and determine what the object was, Appellant fled, and while fleeing, discarded the pill bottles. Appellant's unlawful flight does not allow him to "abandon" that which the officers would have otherwise lawfully seized from him. United States v. McLaughlin, 525 F.2d 517, 519-20 (9th Cir.1975) (seizure of abandoned marijuana lawful where defendant threw it from his truck while fleeing drug enforcement officers); United States v. Wider, 951 F.2d 1283, 1286 (D.C.Cir.1991) (search of bag containing cocaine rocks lawful where the appellant abandoned the bag by leaving it behind in a public place). See also, California v. Hodari D., 499 U.S. 621, 628, 111 S. Ct. 1547, 1551-52, 113 L. Ed. 2d 690 (1991) (seizure of abandoned cocaine rock lawful where the defendant disposed of it while fleeing from police on foot). Therefore, the subsequent seizure of the discarded pill bottles containing crack cocaine was permissible.
48
E. Acceptance of Responsibility.
49
Lastly, we turn to Appellant's argument that he is entitled to a two point reduction in his federal criminal sentencing guidelines. As stated above, Appellant was convicted on two of the four counts in the Superseding Indictment: Count 3, being a felon in possession of a firearm, pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e); and Count 4, a violation of the Bail Reform Act, 18 U.S.C. § 3146. Appellant was sentenced to 300 months on Count 3 and 27 consecutive months on Count 4, followed by three years of supervised release.
50
Prior to trial, Appellant failed to appear for arraignment and his bond was revoked. As discussed earlier, Appellant was finally located when the Trident Task Force received information indicating that Appellant was located at an apartment complex. Upon entering the specified apartment, the Task Force officers noticed that Appellant had created a hole in a bathroom wall and had escaped to the next-door apartment. Apparently, Appellant thereafter obtained a knife, which he held to the neck of one of the residents. Appellant was eventually apprehended in the next-door apartment and placed in custody. Thus, he made his initial appearance nearly 2 years after the date originally scheduled for his arraignment.
51
At the sentencing hearing, the District Court found that while Appellant was fleeing from the officers, he used a knife. According to the Court, Appellant's use of the knife "recklessly endangered" the occupants of the next-door apartment to which he had fled. Because the District Court found reckless endangerment, it denied Appellant a sentence reduction for Acceptance of Responsibility. See U.S.S.G. § 3E1.1. In fact, the Court found that because of these circumstances, Appellant's sentence should be enhanced for Obstruction of Justice. See U.S.S.G. § 3C1.1. Nevertheless, Appellant claims that the denial of his Acceptance of Responsibility credit was improper because the District Court only considered the characteristics of Appellant's offenses, without due consideration being given to his acceptance of responsibility at trial.21
52
The United States Sentencing Guidelines dictate that several factors should be taken into consideration in Acceptance of Responsibility claims. See U.S.S.G. § 3E1.1. The relevant factors in this case are the following:
53
1. Truthfully admitting the conduct comprising offenses of conviction;
54
2. Voluntary termination or withdrawal from criminal conduct or associations; and
55
3. Voluntary surrender to authorities promptly after commission of the offense.
56
U.S.S.G. § 3E1.1 (Commentary). Furthermore, the Guidelines indicate that conduct resulting in an enhancement for Obstruction of Justice under § 3C1.1 ordinarily indicates that a defendant has not accepted responsibility for his conduct. U.S.S.G. § 3C1.1.
57
Appellant's argument that the District Court did not sufficiently consider his admissions at trial might be valid if the Guidelines only took into consideration express admissions of responsibility at any point in time. This approach, however, is simply not the case. The Guidelines indicate that courts should weigh the totality of a defendant's conduct beginning at the commission of his offense, of which any admission of guilt is one factor.
58
Although Appellant admitted to some of the conduct underlying his charged crime in his trial testimony, he did not terminate his criminal conduct, and he did not voluntarily surrender to authorities in a prompt fashion.22 Additionally, the Guidelines reflect that a sentence enhancement for Obstruction of Justice is inherently incompatible with a reduction for Acceptance of Responsibility. See, U.S.S.G. § 3C1.1; § 3E1.1.
59
On review, the determination of the sentencing judge is entitled to great deference. United States v. Wilson, 878 F.2d 921, 923 (6th Cir.1989); see also U.S.S.G. § 3E1.1, Commentary, Application Note 5. The determination of whether Appellant has accepted responsibility is a finding of fact, and enjoys the clearly erroneous standard of review. United States v. Lassiter, 929 F.2d 267, 270 (6th Cir.1991). Given this deferential standard of review, and considering the factors stated in the Sentencing Guidelines, we affirm the District Court's denial of the Acceptance of Responsibility.
V. CONCLUSION
60
For the above stated reasons, WE AFFIRM the rulings of the DISTRICT COURT.
*
The Honorable Gerald E. Rosen, United States District Court Judge for the Eastern District of Michigan, sitting by designation
1
Officer Cooper was in this vicinity and had observed Officer Kula's pulling Appellant over because Officer Cooper and Officer Kula had just jointly arrested another person a short distance from where Officer Kula had stopped Appellant
2
Tests later confirmed that the plastic bag did indeed contain marijuana
3
At trial, Appellant admitted to possession of the crack cocaine, although he claimed it was for his personal use. He also admitted ownership of the gun found in the passenger compartment of his vehicle
4
Officer Cooper testified at this initial suppression hearing that it was dark at the time that Officer Kula was observing Appellant's drive-out tag
5
Appellant does not take exception to Officer Kula's statement that he did in fact follow directly behind Appellant before making the traffic stop
6
These officers, affiliated with the U.S. Marshals, are responsible for locating fugitives
7
Following oral argument, Appellant urged the Court to consider United States v. Caicedo, 85 F.3d 1184 (6th Cir.1996), which he argued may have some bearing on whether there was a reasonable suspicion for Appellant's stop and the subsequent plain view search. Caicedo, however, addressed the issue of whether a person's outward appearance revealing some conscious evidence of guilt provides the necessary probable cause to detain that person before the officers have a separate basis for probable cause, such as a traffic violation. Thus, Caicedo is not relevant to the instant matter because the District Court made a factual finding that Appellant had violated vehicle registration and inspection laws, thereby giving Officer Kula the right to pull Appellant over and detain him. Appellant's nervous and jittery behavior, raising safety concerns for Officer Kula, was merely an additional factor justifying the detention in the squad car
8
The District Court additionally found, as a matter of law, that Officer Kula's ability to view the tag provided reasonable suspicion for the stop
9
The District Court stated that the testimony of the two officers was not necessarily in conflict. Even if the testimony did conflict, the District Court found that the conflict did not raise doubts as to Officer Kula's credibility
10
Following the stop, Officer Kula approached Appellant's car and viewed the drive-out tag. He then proceeded to issue a citation to Appellant
11
In particular, the location of the stop does not really bear upon whether Officer Kula viewed the drive-out tag. It is undisputed that Officer Kula directly followed behind Appellant's car for some time before pulling him over. Whether Kula noticed Appellant's car while on a street different than the one Appellant was travelling does not affect this point
12
Indeed, the U.S. Supreme Court has recently gone even farther in Whren v. United States, --- U.S. ----, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), in which it held that when a police officer makes a routine traffic stop, it does not matter what the officer's motive was, or whether an objectively reasonable officer would have acted differently, so long as the officer had probable cause to believe that a traffic violation had occurred. --- U.S. at ---- - ----, 116 S. Ct. at 1774-75
Thus, because Appellant does not argue explicitly that Officer Kula's stop was pretextual, Ferguson and Whren control a fortiori, given that the District Court found, and we have affirmed, that Officer Kula did see the altered drive-out tag and that he subsequently pulled Appellant over, pursuant to probable cause, as a consequence of Appellant's violation of the vehicle registration and inspection laws. Appellant also seems to argue that instead of being pretextual, Officer Kula's relying on the altered drive-out tag was a post-hoc justification for the stop. This argument, however, is also foreclosed by the District Court's finding, which we have now affirmed, that Officer Kula did have probable cause for the stop due to his prior observation that Appellant's drive-out tag was altered.
13
Both sides cite Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), in addressing whether the stop was a valid investigatory stop. Ferguson, however, is more on point because it specifically defines a test for traffic stop situations. Nevertheless, the result in this case would be no different if the initial stop were to be analyzed under the less-stringent Terry "reasonable suspicion" standard. Moreover, a Ferguson stop and a Terry stop are certainly analogous since both are legitimate detentions that do not rise to the level of an arrest
14
Based on his testimony, the District Court found that Officer Cooper viewed the marijuana while looking in the front passenger side window. This view justified the seizure of the marijuana. Thus, the District Court further found that Officer Cooper was lawfully located within the car (to seize the marijuana) when he noticed the handgun sticking out from under the driver's seat. This plain view made the seizure of the handgun lawful
15
It is unclear whether Appellant includes in his challenge to the validity of the plain view search the argument that during the search he was outside his vehicle and being detained in Officer Kula's car. However, this argument too would be unavailing as this Court has ruled previously that a plain view search during a protective detention does not violate the Fourth Amendment. In United States v. Weatherspoon, 82 F.3d 697 (6th Cir.1996), on facts very similar to the present case, we held that a police officer could peer inside a vehicle if it were possible for a member of the general public to do the same, regardless of whether the defendant was inside or outside the car. In Weatherspoon, an officer defendant stopped the defendant for having a faulty tail light and thereupon asked the defendant to exit his vehicle and step over to his squad car. During this brief detention where the defendant was outside his car, the officer, using a flashlight, saw the barrel of a gun sticking out from under the driver's seat, and the defendant was arrested. 82 F.3d at 699. This Court concluded that if an officer legitimately saw the barrel of a gun sticking out from under the seat of a lawfully stopped vehicle, he could seize the gun without a warrant. Id. The fact that the defendant was outside his vehicle was not relevant to the Court's inquiry. Id. at 699-700
16
Appellant argues that factual distinctions undermine the relevance of this case. He contends that he did not fail to provide identification, and that Thompson therefore is not instructive here. However, Appellant's driving a vehicle with an altered drive-out tag clearly does raise an issue of insufficient--indeed fraudulent--identification. Moreover, Appellant's exiting his vehicle and approaching Officer Kula in a "nervous" and "jittery" manner certainly provides a further basis for detention--i.e., safety concerns
17
Appellant believes that this case is not applicable because, unlike Rodriguez, the officers here possessed no information suggesting that Appellant might leave the area. Appellant, however, has misread Rodriguez. In Rodriguez, the Drug Enforcement Agency ("DEA"), suspecting that Rodriguez was a member of a drug conspiracy and believing that he might be leaving the area, asked the state police to stop Rodriguez's car briefly to check his identification. Thus, pursuant to the DEA request and this collective information about Rodriguez, the state police stopped Rodriguez's car to check his identification. The information relating to possible flight was not used to uphold Rodriguez's subsequent detention in the police car, however, because it was normal traffic police procedure to seat an individual in a squad car while his identity was determined. Rodriguez, 831 F.2d at 166. Therefore, Rodriguez is still instructive
18
At the very most, Mesa stands for the proposition that some activity must occur during the initial stop which raises reasonable suspicion in order to justify further detention that is unrelated to the initial traffic stop. Mesa does not require that reasonable suspicion be present "up-front" for an officer to detain a motorist in his squad car while conducting a records search that is related to the traffic violation for which the motorist was stopped. It should be noted that the Mesa Court did not seem to find detention in a police car to be problematic per se. Rather, it was problematic to prolong detention in a police car
19
Here, Appellant was detained in the squad car for 2 reasons: (1) Officer Kula was performing radio checks on him and issuing him a citation and (2) Appellant's "nervous" and "jittery" demeanor raised safety concerns for Officer Kula. Indeed, Officer Kula testified that in such circumstances, seating the person in a squad car is a matter of routine police procedure. We do not believe it is appropriate for us, in the quietude of our chambers, to second-guess standard police procedure and this on-the-scene judgment
20
Appellant was placed under arrest after Officer Cooper returned to Officer Kula's car with the marijuana and the handgun found in the passenger compartment of Appellant's vehicle. Those two items clearly provided the requisite probable cause for an arrest
21
In his trial testimony, Appellant admitted that he had possessed the firearm and jumped bail, which led to his convictions under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and the Bail Reform Act, 18 U.S.C. § 3146
22
Not only did Appellant flee from authorities, but he placed others at risk in the process. His actions during his apprehension (i.e., crawling through a bathroom wall and holding his neighbor's at knifepoint) certainly belie his argument that he voluntarily accepted responsibility for his actions | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1918244/ | 764 A.2d 708 (2000)
Tina CHARLES, Petitioner,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs October 6, 2000.
Decided December 29, 2000.
*709 Garry Wamser, Bloomsburg, for petitioner.
James K. Bradley, Harrisburg, for respondent.
Before SMITH, Judge, KELLEY, Judge, RODGERS, Senior Judge.
RODGERS, Senior Judge.
Tina Charles (Claimant) petitions for review of the April 13, 2000 order of the Unemployment Compensation Board of Review (Board) affirming a referee's denial of benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law).[1] We affirm.
Claimant was employed by Days Inn (Employer) as a banquet waitress at an hourly rate of $2.84 plus gratuities. Employer permitted Claimant to supplement her employment with available office work at the rate of $6.00 per hour, in order to maintain a full time position and qualify for certain benefits. In October of 1999, Claimant was promoted to banquet captain, with a salary of $4.40 per hour plus half of one percent of the total gratuity collected at banquets.
Shortly thereafter, Claimant's supervisors spoke to Claimant about the manner in which she supervised other banquet workers; specifically, the supervisors told Claimant she was not to allow other employees to take unauthorized breaks. Then, due to illness, Claimant was unable to work over the Thanksgiving weekend as scheduled. Claimant notified Employer, but she failed to follow Employer's policy requiring her to arrange for replacement workers.
On or about December 3, 1999, Employer informed Claimant that she was being demoted from banquet captain to banquet waitress. Claimant complained to her immediate supervisors that the demotion was unjustified. Claimant was scheduled to work the next day, but she called before going in and asked her supervisor if Employer had brought her rate of pay back up. Upon learning that her demotion remained in effect, Claimant voluntarily quit her employment.
The local job center denied Claimant benefits and Claimant appealed. At hearings before a referee, Claimant testified that she voluntarily quit her employment because she believed that her demotion was not justified. Claimant argued that Employer's progressive disciplinary policy, as reflected in a memo dated September 21, 1999, requires that a verbal warning be given following a first violation of Employer's rules. Claimant asserted that her supervisors had discussed her job performance with her, but had never warned her or otherwise indicated that her position was in jeopardy.
*710 Employer's witnesses acknowledged that Claimant had not been warned in accordance with its disciplinary policy. However, they believed that the demotion was justified based upon Claimant's violation of Employer's policy and rules concerning the supervision of employees and the requirement to arrange for replacement workers.
The referee determined that the demotion was justified and upheld the denial of benefits under Section 402(b) of the Law. Claimant appealed to the Board, which resolved conflicting testimony in Employer's favor and adopted the referee's findings of fact. Relying on Allegheny Valley School v. Unemployment Compensation Board of Review, 548 Pa. 355, 697 A.2d 243 (1997), the Board affirmed the referee's decision.[2]
On appeal to this Court,[3] Claimant first argues that the Board erred in determining that her demotion was justified, because Employer failed to follow its disciplinary policy. Initially, we observe that this argument is relevant where a claimant has been discharged by the employer. In those circumstances, if the discharged employee is to be ineligible for unemployment compensation, the discharge must be in accordance with the employer's own rules. PMA Reinsurance Corp. v. Unemployment Compensation Board of Review, 126 Pa.Cmwlth. 94, 558 A.2d 623 (1989).
However, a different analysis is applied when unemployment results from a claimant's voluntary termination of her employment. Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636 (Pa.Cmwlth.1998). In order to be entitled to benefits, a claimant who voluntarily terminates her employment bears the burden of establishing necessitous and compelling reasons for such action. Livingston v. Unemployment Compensation Board of Review, 702 A.2d 20 (Pa.Cmwlth.1997).
In Allegheny Valley School, the Supreme Court held that, where a claimant voluntarily quits following a demotion, the relevant inquiry is limited to determining whether the demotion was justified. The court reasoned that where the demotion was justified, a claimant does not have necessitous and compelling reasons to voluntarily terminate her employment, because the change in duties and/or remuneration was the result of the claimant's fault. Id.
In Allegheny Valley School, the court made clear that no other factor is appropriately considered:
As previously recognized ... an employer can demote an employee for valid reasons.... To require an examination of a factor other than the justification for the demotion would lead to employers never demoting employees because of fear of being subject to claims for benefits.
Id. at 366, 697 A.2d at 248 (citation omitted). Therefore, we reject Claimant's argument that the Board erred in failing to find that her demotion was unjustified based on Employer's failure to follow its disciplinary policy
Claimant also argues that the Board erred in failing to identify the specific findings made by the referee that support its determination that the demotion was justified. Claimant maintains *711 that this alleged error is significant, because the reasons provided by Employer at the remand hearing differed from the reasons given to Claimant and stated at the first hearing. Again, this argument would be relevant had Employer terminated Claimant's employment.[4] As previously stated, however, the statutory analysis applied where unemployment is due to a discharge is not relevant where a claimant's unemployment is due to her voluntarily terminating her employment. Rapid Pallet. Employer did offer different reasons for the demotion, but, since Claimant does not allege that any of the reasons provided would render her demotion unjustified, the Board did nor err by failing to more specifically identify the findings upon which it relied.
Accordingly, we affirm.
ORDER
NOW, December 29, 2000, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
NOTES
[1] Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b), which provides that a claimant shall be ineligible for benefits for any week in which her unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.
[2] After Claimant appealed to the Board, it was discovered that one of the hearing tapes was blank. Accordingly, the Board remanded the matter for the taking of additional testimony and the transcript of the second hearing was submitted to the Board before it rendered its decision.
[3] Our scope of review in an unemployment compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. Peoples First National Bank v. Unemployment Compensation Board of Review, 159 Pa.Cmwlth. 134, 632 A.2d 1014 (1993).
[4] In order to deny benefits to a discharged employee, the employer's stated reasons for the discharge must be the actual cause of the claimant's unemployment. Century Apartments, Inc. v. Unemployment Compensation Board of Review, 30 Pa.Cmwlth. 485, 373 A.2d 1191 (1977). In addition, the alleged conduct cannot be temporally remote from the ultimate discharge or previously been condoned. Panaro v. Unemployment Compensation Board of Review, 51 Pa.Cmwlth. 19, 413 A.2d 772 (1980); Lower Gwynedd Township v. Unemployment Compensation Board of Review, 44 Pa.Cmwlth. 646, 404 A.2d 770 (1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918286/ | 730 So.2d 515 (1999)
STATE of Louisiana, Appellee,
v.
Quincy Bernard SCOTT, Appellant.
No. 31,617-KA.
Court of Appeal of Louisiana, Second Circuit.
February 24, 1999.
*516 Charles Kincade, Monroe, Counsel for Appellant.
Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, H. Stephens Winters, Assistant District Attorney, Counsel for Appellee.
Before STEWART, PEATROSS and DREW, JJ.
STEWART, J.
This criminal appeal arises from the Fourth Judicial District Court, Ouachita Parish, the Honorable Michael S. Ingram, presiding. The defendant, Quincy Bernard Scott, was charged by bill of information with three counts of distribution of marijuana and one count of conspiracy to distribute marijuana. A jury found the defendant guilty of two counts of distribution of marijuana, a violation of La. R.S. 40:966. The trial judge sentenced the defendant to serve a sentence of twelve (12) years at hard labor on each count to run concurrently. From this conviction and sentence, the defendant now appeals urging the evidence was insufficient to support the verdicts. We affirm.
FACTS
On three separate dates, March 27, 1996, March 28, 1996, and April 3, 1996, an undercover police officer purchased marijuana from the defendant and/or the defendant's brother. The three transactions in question were recorded on audio cassettes. David May (May), an officer with the West Monroe Police Department, testified that the defendant and his brother, Shawn Scott, were the focus of a drug investigation on March 27, 1996. Deputy Jeremy Taylor (Taylor), Winn Parish Sheriff's Department, was used as an *517 undercover officer on March 27, 1996. Taylor was aided by a confidential informant. Taylor negotiated all of the drug deals. May ran the operation and listened to the transactions.
On March 27, 1996, Taylor and the confidential informant arrived at the buy location at about 5:30 p.m., and the defendant arrived a few minutes later. The transaction was brief as the defendant handed Taylor the suspected marijuana, and Taylor handed the defendant the money. Taylor paid $50 for a quarter or a half ounce of marijuana. On March 27, 1996 (count 1), Taylor purchased a half ounce of suspected marijuana for $50. These suspected drugs were submitted to the crime lab on March 28, 1996.
On March 28, 1996 (count 2), Taylor contacted the defendant in order to buy some more marijuana, and the defendant said he would send his brother, Shawn, to make the sale. Taylor purchased an ounce of the suspected marijuana from Shawn for $100. Since the amount of marijuana appeared to be insufficient for the price, Taylor tried to get Shawn to take less money, but Shawn indicated the price was set since the drugs belonged to the defendant. The defendant was not present at the transaction of March 28, 1996. These suspected drugs were submitted to the crime lab on March 29, 1996.
On April 3, 1996, Taylor made another buy from the defendant. They met at a site picked by the defendant, and when the defendant arrived, Taylor complained about the bag being short on the last purchase. The defendant said he would make up for the amount being short the last time, and he told Taylor to drive around the corner to the defendant's residence. Both the defendant and Shawn were at the residence. On April 3, 1996 (count 3), Taylor purchased an ounce of suspected marijuana for $100. These suspected drugs were submitted to the crime lab on April 4, 1996.
On April 22, 1996, Taylor selected the defendant's photo during a photo line-up. The defendant was charged by bill of information with three counts of distribution of marijuana and one count of conspiracy to distribute marijuana. On December 8-9, 1997, the defendant was tried by a twelve person jury.
The audio cassette recordings of the three transactions in question were played for the jury. The tape from March 27th was played for the jury, and after if was played, Taylor identified the defendant as the person from whom he bought the drugs. The tape from the March 28th transaction was played for the jury. The tape of the April 3rd purchase was played for the jury, and then, Taylor indicated that he purchased the suspected marijuana from the defendant. Taylor identified the package he purchased on April 3, and said he paid $100 for it. Taylor said he did not entice the defendant into selling the suspected drugs on any occasion.
Although no individual identifies himself as Quincy Scott, on the tapes from March 27 and April 3, Taylor stated the only times he ever saw the defendant were on March 27 and April 3. Taylor indicated that he was sure he purchased the suspected drugs from the defendant on those dates, not from Shawn Scott. Taylor said he did not know the person that was with the defendant on March 27, but the person was not Shawn. However, Taylor said Shawn was with the defendant on April 3, that Shawn handed the drugs to Taylor on this date and that both the defendant and Shawn came to Taylor's vehicle when the purchase was made.
Although the crime lab reports were not submitted into evidence during the testimony of either May or Taylor, the reports were certified, and they indicate that the material submitted to the lab after each transaction was marijuana.
Based on this evidence, the jury found the defendant guilty of two counts of distribution of marijuana. These convictions concerned the transactions which occurred on March 27 and April 3. The defendant now appeals, urging insufficient evidence.
SUFFICIENCY OF THE EVIDENCE
On appeal, the defendant urges that the trial court erred as the evidence presented did not support the verdict rendered therein in light of the standards set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
*518 The record does not indicate that a motion for post verdict judgment of acquittal was filed. However, this court will review a sufficiency of the evidence issue even when the issue is raised solely by an assignment of error. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.
The relevant inquiry when reviewing a conviction for the sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard, initially enumerated in Jackson, and now legislatively embodied in La.C.Cr.P. art. 821, is applicable in cases involving both direct and circumstantial evidence. State v. Cotton, 25,940 (La.App.2d Cir.3/30/94), 634 So.2d 937. For circumstantial evidence to sustain a conviction, upon assuming every fact to be proved that the evidence tends to prove, the evidence must exclude every reasonable hypothesis of innocence. Id. Ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational juror that the defendant is guilty beyond a reasonable doubt. Id.
Under Jackson v. Virginia, supra, the state bears the burden of negating any reasonable probability of misidentification in cases where the defendant asserts he was not the perpetrator or he remains silent. State v. Powell, 27,959 (La.App.2d Cir.6/26/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Ford, 28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847. The appellate court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Cotton, supra.
The crime of distribution is the knowing or intentional distribution of a controlled dangerous substance. State v. Miller, 587 So.2d 125 (La.App. 2d Cir.1991). Distribution is defined as "delivery" or "physical transfer." Id. In addition to delivery, the state must prove the defendant must have known or had guilty knowledge of the controlled dangerous substance when he or she transferred it. Id. The exact identity of the controlled dangerous substance is an essential element of the crime of distribution thereof. Id.
The state proved beyond a reasonable doubt that the defendant was guilty of distributing marijuana on March 27, 1996 and on April 3, 1996. Taylor testified that on March 27, the defendant handed the marijuana to him in exchange for money. Taylor said that on April 3, Shawn Scott handed him the marijuana. While the defendant did not hand the drugs to the officer, the defendant told Taylor to go to the location, and the defendant was on the scene when the transaction occurred. The circumstances surrounding the sales indicate that the defendant knew he was distributing a controlled dangerous substance.
While the sufficiency of the evidence is questioned here, the defense counsel does not argue that the prosecution failed to show that the substances identified by the police officers were marijuana. The minutes indicate that Susan Rutledge, a crime lab analyst, testified and that the crime lab reports were submitted into evidence. As the crime lab reports show the substances submitted to the lab to be marijuana, the evidence was sufficient to support the verdicts. Thus, the state proved that the substances the defendant sold were controlled dangerous substances.
For these reasons, we find that the trial court did not abuse its discretion. The evidence presented supports the verdict rendered. This assignment of error is without merit.
At sentencing, the trial court informed the defendant, Scott, that he has the right to seek post-conviction relief within three years. However, it does not appear the defendant was informed of when the prescriptive period begins to run. The prescriptive period for post conviction relief is not *519 three years from the date of sentence. The three-year prescriptive period does not begin to run until the judgment is final under La.C.Cr. P. art. 914 or 922; thus, prescription has not yet begun to run. La.C.Cr.P. art. 930.8(A). State v. Mock, 602 So.2d 776 (La.App. 2d Cir.1992); State v. Harvey, 26,613 (La.App.2d Cir.1/25/95), 649 So.2d 783. Because the trial court did not inform the defendant that the prescriptive period begins to run from the date the conviction and sentence become final, the trial court inadequately complied with La.C.Cr.P. art. 930.8. State v. Lofton, 26,732 (La.App.2d Cir.1/25/95), 649 So.2d 148.
Therefore, we direct the district court to send appropriate written notice to the defendant within 10 days of the rendition of this opinion and to file proof of defendant's receipt of such notice in the record of the proceedings. State v. Mock, supra; State v. Smith, 600 So.2d 745 (La.App. 2d Cir.1992). This defect has no bearing on the sentence and is not grounds to reverse the sentence or remand the case. State v. Mock, 602 So.2d 776 (La.App. 2d Cir.1992); State v. Cox, 604 So.2d 189 (La.App. 2d Cir.1992); La.C.Cr.P. arts. 921, 930.8(C).
DECREE
For the above assigned reasons, the defendant's conviction and sentence are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918224/ | 764 A.2d 125 (2001)
STATE
v.
Marc GOMES.
No. 00-42-C.A.
Supreme Court of Rhode Island.
January 8, 2001.
*126 *127 *128 Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Virginia M. McGinn, Aaron L. Weisman, Providence, For plaintiff.
Richard K. Corley, Providence, For defendant.
OPINION
BOURCIER, Justice.
Following his convictions, after a Superior Court jury trial, on one count of first-degree murder and one count of carrying a pistol without a license, and after sentence *129 and final judgment entered thereon, the defendant, Marc Gomes (Gomes), appeals to this Court, seeking reversal of his convictions and a new trial.
I
Facts and Procedural History[1]
At approximately 1 a.m., on November 25, 1997, the decedent, Robert Wray (Wray), was cold-bloodedly shot dead on the doorstep of his mother's apartment at 8 Whelan Road, in the Hartford Avenue Housing Complex in Providence. Minutes later, the police arrived, and they spoke to Wray's friend, Tavell Yon (Yon), who told them that he had been visiting at the apartment when the shooting occurred.
Yon told the police that shortly before 1 a.m., he and Wray had been sitting in the living room watching television when he heard a knock at the rear door of the apartment. He said he answered the door knock and encountered a young black male whom he never had seen before. The young man asked to speak to Wray, so Yon called Wray to the door and then returned to the living room. From the living room, Yon overheard the young man ask for "Frankie" and then tell Wray that: "you know who I am, I'm Frankie's cousin." Wray informed him that Frankie was not in the apartment, and the visitor then left.
Several minutes later, there was a second knock at the rear door. Once again, Yon went to the door and encountered the same young man, who again said he was looking for Wray. Yon again called Wray to the door and then went back inside the apartment. Within seconds, Yon heard a loud bang sounding like a gunshot and immediately looked over to where Wray had been standing in the doorway. He saw Wray now lying on the ground with one foot extending inside the door opening. Wray's younger brother, who also was in the apartment, immediately dialed 911 for police assistance. The police arrived within minutes. Yon then related to one of the officers the events that had taken place before the shooting and described the young stranger at the door as:
"a short black male with Jerry curls with a moustache. He had craters and pimples in his face and he was wearing a black leather jacket."
The description of the murder suspect was immediately transmitted via the police broadcast system to all police personnel in the area, along with a warning that the suspect could be armed and dangerous.
After hearing the broadcast, one officer who immediately responded to the shooting scene was Patrolman Jose Deschamps (Officer Deschamps). Officer Deschamps briefly assisted in securing the crime scene and then proceeded a short distance down Hartford Avenue to the Olneyville Square section to search for the suspect. While in Olneyville Square, the officer decided to go to a nearby "Store 24," better known as "Sam's," where he was friendly with the employees. He wanted to alert them that a murder had just been committed a short distance away and the suspected murderer *130 was at large and believed to be armed. The officer was concerned for the employees' safety because recently they had been the victims of an armed robbery and because the store was one of the few places that remained open in the Olneyville Square area at that early-morning hour. The officer arrived at the store ten to fifteen minutes after the shooting. As he entered, he observed a person who appeared to be making a phone call from a pay telephone located on the outside wall of the store. The officer was unable to see the person's face. After entering the store, Officer Deschamps described the shooting suspect to the store employees and warned them that the subject might be armed and dangerous. He then left the store.
As he exited, Officer Deschamps again looked in the direction of the person he had observed earlier, and noticed that he was still using the outside public telephone. This time, however, he looked more closely at the individual and was able to see his face. He observed the individual to be a black male of approximately "five foot four to five foot six" inches in height, with a "crater face, or pimples," and "slicked, very greasy" hair with "Jerry curls." He also observed that the man, despite the cold night weather, was not wearing any jacket, but "was sweating." Recalling the police radio description of the00485B shooting suspect and relating it to that of the male individual using the telephone, who also appeared to be very nervous and sweating, Officer Deschamps's suspicions were aroused. He started to approach the young man. While doing so, he began asking him several rapid questions concerning the person's identity and what was he doing out so late. As he did, the young man appeared to become more nervous and began "stuttering, mumbling his words" while attempting to answer the officer's questions. He appeared to be "very much in a nervous state."
When Officer Deschamps reached where the young man was standing, he attempted to place his right hand on the young man's left shoulder to initiate a protective pat-down search for possible weapons. Just then, the young man suddenly jerked back, and as he did, Officer Deschamps's arm accidentally slid down the person's side and he felt what he believed to be the bulk of a gun under the young man's shirt. He quickly lifted the shirt and observed a loaded 9-millimeter pistol in the person's waistband. He immediately pulled it out and observed it to be cocked and ready to fire. The officer then placed the pistol on the ground and secured it with his foot. While detaining the young man, Officer Deschamps immediately radioed for police back up assistance to aid in placing the young man under arrest.
Meanwhile, another officer, Patrolman Charles Matracia (Officer Matracia), who had just left the murder scene, was driving through Olneyville Square when he heard Officer Deschamps's radio call for assistance. At the time, he was driving the witness Yon to the Providence police headquarters to be interviewed. Officer Matracia quickly made a "U-turn" in the road and within seconds he was about five feet from where Officer Deschamps was detaining the young suspect. Upon seeing Gomes, Yon, seated in the police vehicle, suddenly exclaimed "that's him right there" and, he "was the guy that came to the door." Officer Matracia then jumped from his police vehicle and proceeded to assist Officer Deschamps in placing the suspect under arrest and securing the pistol found on him. The young man was placed in a police vehicle and taken to police headquarters. Shortly thereafter, Yon was interviewed at the Providence police headquarters. He gave a detailed statement in which he reiterated his earlier identification of the young man, now identified as the defendant, Marc Gomes. He said that Gomes "was the guy that came to the door" and that he "saw him clearly." He added that "the only thing different [from when he originally described Gomes] was that the guy wasn't *131 wearing a leather jacket anymore, but it definitely was the same guy that came to the door."
Gomes was later indicted, tried before a Superior Court trial jury, and convicted both for the first-degree murder of Robert Wray and for carrying a pistol without a license. This appeal followed. In his appeal, Gomes contends that the trial justice committed various errors during trial, and for those alleged errors, he seeks reversal of his convictions and a new trial.
Additional facts will be noted as required in the course of this opinion.
II
The Police Broadcast
Gomes asserts here on appeal that the description given of the suspected murderer by Tavell Yon to Officer Thomas Calabro and then broadcast by Calabro via police radio to other officers in the immediate area of the murder scene constituted "rank hearsay" and should not have been admitted into evidence at his trial, and that its admission constituted prejudicial error.
"It is axiomatic that an out-of-court statement is not hearsay unless it is offered for the truth of the matter asserted." State v. Johnson, 667 A.2d 523, 530 (R.I.1995) (citing State v. Brash, 512 A.2d 1375, 1379 (R.I.1986)). "Statements not offered to prove the truth of what they assert are not hearsay and as such do not require the assistance of an exception to the hearsay rule in order to be00485B admissible." In re Jean Marie W., 559 A.2d 625, 629 (R.I.1989) (citing Gordon v. St. Joseph's Hospital, 496 A.2d 132, 136 (R.I.1985)).
In the present case, "[t]he entire purpose of [Officer Deschamps's] testimony was to show why he apprehended [the defendant]. It was not objectionable hearsay because the radio message was not offered to prove [the defendant's] guilt." State v. Palmigiano, 112 R.I. 348, 359, 309 A.2d 855, 862 (1973). See also State v. Mastracchio, 112 R.I. 487, 498, 312 A.2d 190, 197 (1973). It is well settled that reliable hearsay may be used in order to establish probable cause for the purpose either of an arrest or issuance of a warrant. See, e.g., Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed.2d 684 (1965); Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L. Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
Rule 801 of the Rhode Island Rules of Evidence defines hearsay as being "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Gomes apparently neglects to note that Rule 801(d)(1) provides that an out-of-court statement is not hearsay if:
"[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (C) one of identification of a person made after perceiving the declarant."
In this case, the declarant was Tavell Yon. At the murder scene, Tavell Yon gave the description of the suspected murderer to Officer Calabro within minutes of the shooting. He later testified under oath at the defendant's trial. He was subjected to cross-examination concerning his00485B identification and description of the person who had lured his friend, Robert Wray, out of the apartment to be shot and killed, and confirmed the accuracy of the description that was broadcast by Officer Calabro.
Thus, the pertinent inquiry for this Court to undertake is not, as Gomes contends, that the police radio description broadcast was inadmissible hearsay, but instead, whether it was sufficiently reliable when relayed by Officer Calabro to Officers Deschamps and Matracia to constitute *132 the probable cause necessary to permit the officers later to detain, arrest and search Gomes in Olneyville Square minutes after the murder of Robert Wray. That was the purpose for the testimony concerning the radio broadcast of the murder suspect's description and not whether the murderer was, in fact, Gomes. Thus, Gomes's "rank hearsay" allegation of error is without merit.
III
The Seizure of the Gun
In his appeal, Gomes also contends that Officer Deschamps lacked reasonable suspicion to approach and detain him while he simply was using the telephone outside Sam's store in Olneyville. He additionally asserts that the officer had no legal right to conduct a pat-down search of him before his arrest and had no probable cause later to arrest him. In his appellate brief, Gomes contends that the trial justice erred in permitting Officer Deschamps "to testify to the seizure of the gun." He bases that contention on his assertion that "Deschamps's testimony establishes that he searched Marc Gomes simply because he was in the neighborhood where the shooting occurred."
That assumption by Gomes simply is erroneous. It assumes the nonexistence of the articulable and undisputed facts upon which the officer relied and acted upon in detaining and later arresting Gomes. The record discloses that when Officer Deschamps unexpectedly came upon Gomes in00485B Olneyville Square, where Gomes was purporting to be using the public telephone on the outside wall of Sam's store, the officer had just minutes before left the murder scene at 8 Whelan Rd., where he had observed the murder victim's body. He was aware that the victim had been lured out of the Whelan Road apartment and shot to death. He also was aware that a person who was visiting at the apartment had twice talked with and seen the young black man who had lured the victim out of the apartment and had given a detailed description of him to the police. Having been given the suspect's description and information that the suspected murderer had fled from the murder scene and might still be armed, the officer also was aware that Sam's store in Olneyville Square was but a short run down Hartford Avenue from the murder scene. That was the nature of the information possessed by Officer Deschamps when he came upon Gomes in Olneyville Square and observed that Gomes matched perfectly the broadcast description of the suspected murderer that had been given to Officer Francis Calabro at the murder scene.[2]
"[A] police officer may conduct an investigatory stop, provided [the officer] has a reasonable suspicion based on specific and articulable facts that the person detained is engaged in criminal activity." State v. Abdullah, 730 A.2d 1074, 1076 (R.I.1999) (per curiam) (quoting State v. Halstead, 414 A.2d 1138, 1147 (R.I.1980)). "An investigatory stop differs from a full arrest and search both in the duration of the detention and in the quantum of suspicion necessary to conduct it." In re John N., 463 A.2d 174, 176 (R.I.1983). "An investigatory stop is defined as `[a] brief stop of a suspicious individual, in order to determine his [or her] identity or *133 to maintain the status quo momentarily while obtaining more information, [such a stop] may be most reasonable in light of the facts known to the officer at the time.'" Abdullah, 730 A.2d at 1076 (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972)).
In Abdullah, we stated that:
"Numerous factors exist which may contribute to a finding of reasonable suspicion of criminal activity. * * * Some of the factors that may contribute to a reasonable suspicion of criminal activity include the location in which the conduct occurred, the time at which the incident occurred, the suspicious conduct or unusual appearance of the suspect, and the personal knowledge and experience of the police officer." 730 A.2d at 1077.
"During an investigatory stop of an individual whom a police officer reasonably suspects (1) has engaged in wrongdoing, and (2) may be armed and thus dangerous to the officer or others, Terry allows the officer to negate the presence of an obvious weapon on the suspect such as a gun, knife, or club by conducting a limited and self-protective patdown search of the suspect's outer clothing."[3]State v. Black, 721 A.2d 826, 829-30 (R.I.1998).
In United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), the Court expanded Terry to permit a policeman who has reasonable suspicion grounded in specific and articulable facts to conduct a Terry stop to investigate that suspicion in connection with a completed felony. The Court in Hensley, reversed a Sixth Circuit Court of Appeals holding that had determined that Terry manifested a clear intention to restrict investigative stops to situations involving only the investigation of ongoing crimes. The Court noted:
"We do not agree with the Court of Appeals that our prior opinions contemplate an inflexible rule that precludes police from stopping persons they suspect of past criminal activity unless they have probable cause for arrest. To the extent previous opinions have addressed the issue at all, they have suggested that some investigative stops based on a reasonable suspicion of past criminal activity could withstand Fourth Amendment scrutiny. Thus United States v. Cortez, 449 U.S. 411, 417, n. 2 [101 S.Ct. 690, 66 L.Ed.2d 110] (1981), indicates in a footnote that `[o]f course, an officer may stop and question a person if there are reasonable grounds to believe that person is wanted for past criminal conduct.' And in United States v. Place, 462 U.S. 696 [103 S.Ct. 2637, 77 L.Ed.2d 110] (1983), decided barely a month before the Sixth Circuit's opinion, this Court stated that its prior opinions acknowledged police authority to stop a person `when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.' Id., at 702 [103 S.Ct. 2637] (emphasis added). See also Michigan v. Summers, 452 U.S. 692, 699, and n. 7 [101 S.Ct 2587, 69 L.Ed.2d 340] (1981). Indeed, Florida v. Royer [460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)] itself suggests that certain seizures are justifiable under the Fourth Amendment even in the absence of probable cause `if there is articulable suspicion that a person has committed or is about to commit a crime.'" Hensley, 469 U.S. at 227, 105 S.Ct. at 679-80, 83 L.Ed.2d at 611.
In this case, when Officer Deschamps determined that Gomes fit the description of the suspected murderer, he approached Gomes to inquire of his identity and presence. He noticed that Gomes grew very nervous and began to stutter and mumble in response to his questions. When the officer came close to Gomes and reached out in an attempt to pat him down for possible weapons, Gomes suddenly jerked back away from the officer. As he did, the officer's hand accidentally brushed *134 along Gomes's side, and the officer then felt a "bulk" that he immediately believed to be a gun. Officer Deschamps quickly lifted Gomes's shirt and observed a 9-millimeter pistol tucked under his waistband. The officer seized the gun and observed that it was cocked and ready to fire. He put the pistol on the ground, placed his foot on it to secure the pistol and radioed for police assistance to assist in arresting Gomes and transporting him to police headquarters.
We are convinced from the record of events in this case that when Officer Deschamps approached Gomes he had more than probable cause not only to detain but also to arrest Gomes and, incidental to that arrest, to search Gomes to determine whether he was armed.[4] The trial justice did not err in permitting the testimony of Officer Deschamps about his seizure of the gun from inside Gomes's waistband. Indeed we need only cite to our recent holding in State v. Guzman, 752 A.2d 1, 4 (R.I. 2000), for authority to reject Gomes's contention of error regarding Officer Deschamp's testimony concerning his arrest of Gomes and seizure of the pistol that was later determined to be the actual murder weapon.
In Guzman, we stated that:
"a police officer may arrest a suspect without a warrant if, before the arrest, the officer has probable cause to believe that the suspect has committed a crime. * * * The existence of probable cause to arrest without a warrant depends on whether, under the totality of the circumstances, the arresting officer possesses sufficient trustworthy facts and information to warrant a prudent officer in believing that the suspect had committed or was committing an offense." Id.
Our de novo review of the trial evidence convinces us that Officers Deschamps and Matracia had probable cause to arrest and search Gomes when they came upon him a short distance from the scene of the murder.
IV
The Opinion Evidence
At trial, Officer Robert Badessa, a twenty-five year veteran of the Providence Police Department and a seven-year member of its Bureau of Criminal Identification Unit (the "BCI Unit"),[5] testified about his investigation of the crime scene and his collection and documentation of evidence. On appeal, and for the first time, defendant attempts to challenge Officer Badessa's qualifications to testify about the dissipation of gunshot residue from articles of clothing.
During the trial, Officer Badessa testified that the recovery of trace evidence of gunshot residue from clothing is affected by:
"[j]ust the movement of the clothing, just the movement of somebody's hands and firing the weapon, all of them movement [sic], and the, you know, just air around you as you're waving an arm, swinging. It dissipates very quickly."
*135 The defendant at no time voiced objection to that testimony at trial.
We often have repeated that a "basic rule of our appellate practice is that this [C]ourt will not review objections that were not raised at trial." State v. Morris, 744 A.2d 850, 859 (R.I.2000) (quoting State v. Bettencourt, 723 A.2d 1101, 1107 (R.I.1999)). "`Consequently, allegations of error committed at trial are considered waived if they were not effectively raised at trial, despite their articulation at the appellate level.'" Id. (quoting Bettencourt, 723 A.2d at 1107-08). However, assuming, arguendo, that the issue had been raised below, the defendant's appeal on this issue would be unavailing.
"The qualification of an expert is a matter addressed to the sound discretion of the trial justice, and the exercise of that discretion will not be disturbed on appeal absent abuse." Bettencourt, 723 A.2d at 1112 (quoting DeChristofaro v. Machala, 685 A.2d 258, 267 (R.I.1996)). "Rule 702 permits a witness who is qualified `by knowledge, skill, experience, training, or education' to testify as an expert." Id. "Prior to the admission of expert testimony, a trial justice must consider whether the testimony sought is relevant, within the witness's expertise, and based on an adequate factual foundation." Id. (quoting Rodriquez v. Kennedy, 706 A.2d 922, 924 (R.I.1998) (per curiam)). "As a rule of thumb, expert testimony should be permitted on nearly every subject so long as it is beyond the understanding of laypersons of ordinary intelligence." State v. Lyons, 725 A.2d 271, 274 (R.I.1999) (citing State v. Bryant, 670 A.2d 776, 782 (R.I.1996)).
Our review of the record indicates that even if the defendant had objected, the trial justice would not have abused his discretion in admitting the disputed testimony. At trial, Officer Badessa testified that he had been a member of the Providence Police Department for twenty-five years, and of that, he had spent the previous seven years as a member of the BCI unit. During the latter period, he handled approximately thirty homicides, had training with respect to bullet holes and impact, and had experience in the testing of gunshot residue on clothing. In addition, his testimony was limited to the general characteristics of clothing that has been exposed to gunshot residue evidence. At no point did he form an opinion about the actual clothing that the defendant was wearing on the night of the murder.[6] Furthermore, in light of the fact that Prof. Dennis C. Hilliard, the director of the state crime laboratory and a prominent and acknowledged expert in forensic laboratory testing, had testified without objection00485B about the same opinion evidence, namely, the dissipation of gunshot residue from articles of clothing, even if the admission of Officer Badessa's opinion testimony had been error, it would be harmless error beyond any reasonable doubt since the same opinion evidence also had been presented to the jury by Professor Hilliard and without any objection by defense counsel
V
The Rule 404(b) Challenge
At trial, the state presented the testimony of Ralph Mosley (Mosley), a former prison cellmate of Gomes while Gomes was incarcerated and awaiting trial. During Mosley's testimony, the following colloquy took place:
"Q. * * * Do you recall him indicating talking about any of his cousins?
"A. Yes.
"Q. Did he use any names then?
"A. Yes.
"* * *
"Q. And, what did he indicate to you concerning his cousin Ray?
*136 "A. That they were all pretty close, and they were all good boosters.
"THE COURT: All good what?
"A. Boosters.
"Q. And do you know what that phrase `boosters' means?
"A. Yes, sir.
"Q. What is that?
"MR. CORLEY: Objection.
"THE COURT: You may answer.
"A. Thieves."
Immediately thereafter, the defendant failed to move to strike the challenged testimony and did not request either a curative instruction from the trial justice and/or move to pass the case. He asserts that:
"the introduction of the testimony that the defendant's cousins were `boosters' which the Court allowed along with its definition as referring to `thieves' was error pursuant to Rule 404(b) of the Rhode Island Rules of Evidence."
He contends that Mosley's testimony was both prejudicial and irrelevant. Specifically, Gomes asserts that the challenged testimony went directly to his character and was without any probative value. Assuming that this issue had been raised below, we conclude that the defendant's contentions are unpersuasive.
Only if evidence of prior criminal acts is both prejudicial and irrelevant is it inadmissible under Rule 404(b) of the Rhode Island Rules of Evidence. See State v. Garcia, 743 A.2d 1038, 1050 (R.I. 2000). "[Q]uestions of relevancy of evidence, including whether the probative value of proffered testimony is outweighed by the danger of undue prejudice, are left to the sound discretion of the trial justice." Id. (quoting State v. Gordon, 508 A.2d 1339, 1347 (R.I.1986)). A trial justice's decision concerning relevancy will not be disturbed on appeal unless that determination was both a prejudicial "abuse of discretion and if the admission of the irrelevant evidence was prejudicial to the rights of the accused." State v. Robertson, 740 A.2d 330, 335 (R.I.1999); see also Garcia, 743 A.2d at 1050.
After reviewing the facts of this case, we conclude that the trial justice reasonably could have determined that because the term "boosters" already had been put before the jury without objection, an00485B explanation of that term would be of assistance to the jury. Even if we were to agree that the above questions were irrelevant and unnecessary and that the trial justice abused his discretion by permitting the questions to be asked, that determination would not be sufficient to constitute reversible error because the answers as given did not serve to prejudice the defendant. See Robertson, 740 A.2d at 336.
"When a defendant objects to a remark as prejudicial, the trial justice is obliged to evaluate the potential prejudice of the statement or question on the outcome of the case by examining the statement in its factual context." State v. Fernandes, 526 A.2d 495, 498 (R.I.1987) (citing State v. Collazo, 446 A.2d 1006 (R.I.1982)). "[P]rejudice exists when the challenged comment or question `so inflames the passions of the jury as to prevent their calm and dispassionate examination of the evidence.'" Id. (quoting State v. Brown, 522 A.2d 208, 211 (R.I.1987)). "This Court has held that in order to show prejudice, a reasonable possibility must exist that the improper evidence contributed to a defendant's conviction." Robertson, 740 A.2d at 336 (citing State v. Gallagher, 654 A.2d 1206, 1211 (R.I. 1995)). "In order to determine whether this reasonable possibility exists, we must decide what probable impact the improper evidence would have had on an average jury." Id. (citing State v. Burke, 427 A.2d 1302, 1304 (R.I.1981)). "Then, we assume that the improper evidence had the same impact on the jury in the case at bar." Id. The admission of objectionable evidence is "harmless if we determine that it is not reasonably possible that such evidence would influence an average jury on the ultimate issue of guilt or *137 innocence." State v. Burns, 524 A.2d 564, 568 (R.I.1987) (quoting State v. Poulin, 415 A.2d 1307, 1311 (R.I.1980)).
Having reviewed the entire record of this case, we conclude that there is no reasonable possibility that the testimony now being challenged contributed to the defendant's convictions. In the00485B first place, it is not clear that the challenged testimony even referred to the defendant. When Mosley testified that "they were all good boosters" he did not specifically include the defendant as being a member of that group; indeed, the reference was made only in response to a series of questions about the defendant's cousins. Secondly, "[t]his Court has previously held that the admission of impermissible evidence need not be prejudicial in a case in which there is independent overwhelming evidence of a defendant's guilt." Robertson, 740 A.2d at 337.
In this case, an eyewitness had identified the defendant as being at the scene only seconds before the gunshots; within ten to fifteen minutes of the murder and within only a few blocks of the scene, the defendant was discovered to be in possession of the actual murder weapon; and, the defendant confessed to Mosley that the murder was both a "sanctioned hit," and that he went to the door to draw the victim out of the house. Consequently, even if it was error to admit the general reference to the term "boosters" and its subsequent explanation as relating to "thieves," we conclude that its admission was harmless beyond any reasonable doubt.
VI
The Leading Questions
At the conclusion of the defendant's cross-examination of Mosley, the state asked Mosley a number of questions during redirect examination. The defendant asserts that these questions were leading and that the trial justice erred in admitting them over his objection.
"A leading question is most generally defined as a question that suggests the desired answer." State v. Girouard, 561 A.2d 882, 888 (R.I.1989) (citing Urbani v. Razza, 103 R.I. 445, 448, 238 A.2d 383, 385 (1968)). "While it is true that as a general rule leading questions are prohibited on direct examination, a trial justice has considerable latitude in sustaining or overruling objections to leading questions." Id. "As the admission of leading questions is within the discretion of the trial justice, his or her ruling upon this matter will be overturned only upon an abuse of discretion or where there is substantial injury to the defendant." Id.
In the instant case, during its redirect examination of Mosley, the state asked a series of questions to which the defendant objected. After allowing six of these questions, the trial justice interrupted the state's line of questioning, stating that "we're not going to rehash everything on direct." Although the questions propounded by the state's prosecutor clearly were leading and improper, the facts elicited by those questions already were in evidence from Mosley's earlier testimony during direct examination. Thus, given that the questions amounted to a reiteration of testimony already in evidence and that the trial justice did caution the prosecutor, "there was no substantial injury to defendant from the question[s] and the trial justice did not abuse his discretion in overruling the objection[s] to [them]." Girouard, 561 A.2d at 888.
We reiterate, however, the clear and still-prevailing rule that the purpose of redirect examination is to clarify matters that are brought out or raised for the first time on cross-examination, and is not intended to permit a prosecutor to rehash the witness's direct examination and get in the last word. See State v. Studley, 671 A.2d 1230, 1231 (R.I.1996) (per curiam) (reiterating that "the scope of redirect examination is limited to matters testified to on cross-examination"). Our last words to the wise, we trust, will not go unheeded.
*138 VII
Conclusion
For the foregoing reasons, the defendant's appeal is denied and dismissed. The judgments of conviction are affirmed and the papers in this case are remanded to the Superior Court.
NOTES
[1] The facts we relate here are taken from the testimony of witnesses who testified at the trial. The facts that are reported in Gomes's appellate brief are based primarily upon what Gomes told the police while at police headquarters following his arrest. Gomes did not testify; thus the exculpatory statement of facts that he related to the police constitutes pure hearsay. See State v. Harnois, 638 A.2d 532, 535-36 (R.I.1994).
For some unexplained reason, it was the state prosecutor who, in questioning Detective Robert S. Clements, had the officer relate to the jury all that Gomes wanted the jury to hear without his having to testify and be cross-examined. In Harnois, 638 A.2d at 535-36, we said that such evidence was clearly inadmissible. We, of course, do not fault Gomes for accepting the unsolicited assistance rendered to him by the state's prosecutor. However, we still view Gomes's exculpatory statements that he treats now as established facts in his appellate brief with some degree of skepticism, especially when viewed in light of his later and contrary admissions of guilt made to the trial justice at the time of his sentencing.
[2] Although the defendant was not wearing a black or brown leather jacket, that fact alone does not defeat a finding of reasonable suspicion, because "[i]t is proper for the police to take account of the `possibility that by a change of circumstances or efforts at concealment some aspects of the description may no longer be applicable.'" State v. Clark, 721 So.2d 1202, 1205 n. 2 (Fla.Dist.Ct.App. 1998) (quoting 4 Wayne LaFave, Search and Seizure § 9.4(g) at 202 & n. 316 (3d ed.1996)). "[I]nvestigating officers must be allowed to take account of the possibility that some of the descriptive factors supplied by the victims or witnesses may be in error. What must be taken into account is the strength of those points of comparison which do not match up and whether the nature of the descriptive factors which do not match is such that an error as to them is not improbable." Id.
[3] Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
[4] "Probable cause, as the very name implies, deals with probabilities. These are not technical; they are the factual and practical considerations in every day life on which reasonable and prudent men, not legal technicians, act. Probable cause exists when the facts and circumstances within the arresting officer's knowledge and of which he has reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense had been or is being committed. * * * Probability, and not a prima facie showing, of criminal activity is the standard for determining probable cause * * * and the standard of proof is accordingly correlative to what must be proved." Saunders v. Commonwealth, 237 S.E.2d 150, 155 (Va. 1977).
[5] Officer Badessa described the BCI Unit as the division that "is charged with the responsibility of covering major crime scenes including rapes, murders, burglaries, robberies, anything felonious, crimes documenting crime scenes through photographs, and with diagrams if need be."
[6] The trial justice sustained defense objections to Badessa's references to gun powder residue on the defendant because the prosecutor failed to provide a proper foundation for that information during the direct examination of Badessa. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515783/ | COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION
Cause Number: 01-19-00331-CV
Trial Court Cause
Number: 2015-69097
Style: Jack J. Grynberg and RSM Production Corporation
v. Rodeo Resources, L.P. and Jim Ford
Date motion filed*: March 9, 2020
Type of motion: Motion for Extension of Time
Party filing motion: Appellants
Document to be filed: Reply Brief
Is appeal accelerated? Yes No
If motion to extend time:
Original due date: March 9, 2020
Number of previous extensions granted: 1
Date Requested: 4 days
Ordered that motion is:
Granted
If document is to be filed, document due: March 13, 2020
Absent extraordinary circumstances, the Court will not grant additional motions to extend time
The Court will not grant additional motions to extend time.
Denied
Dismissed (e.g., want of jurisdiction, moot)
Other: _____________________________________
Judge's signature: /s/ Evelyn V. Keyes
Acting individually Acting for the Court
Date: March 12, 2020 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1575522/ | 17 So. 3d 429 (2009)
STATE of Louisiana, Appellee,
v.
Bradley K. CULP, Appellant.
No. 44,270-KA.
Court of Appeal of Louisiana, Second Circuit.
July 15, 2009.
*432 Edward K. Bauman, Lake Charles, for Appellant.
Richard C. Nevils, District Attorney, Steven D. Crews, Assistant District Attorney, for Appellee.
Before WILLIAMS, STEWART and GASKINS, JJ.
WILLIAMS, J.
The defendant, Bradley Culp, was charged by amended bill of information with distribution of methamphetamine, a violation of LSA-R.S. 40:967, and illegal possession of a firearm by a convicted felon, LSA-R.S. 14:95.1. After a jury trial, the defendant was found guilty as charged. Defendant's motion for new trial was denied. Defendant was sentenced to 15 years of imprisonment at hard labor without benefit of probation or suspension of sentence for distribution of methamphetamine, and 15 years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence for the firearms conviction, with the sentences to run concurrently. The defendant appeals. For the following reasons, we affirm defendant's convictions and the sentence for possession of a firearm by a convicted felon. However, we remand the case for resentencing with respect to the sentence imposed for distribution of methamphetamine.
*433 FACTS
The defendant was previously convicted of distribution of methamphetamine in September 2006, and sentenced to serve 10 years' imprisonment at hard labor. The defendant's sentence was suspended and he was placed on supervised probation for 3 years, subject to general and special conditions, including that defendant and his property would be subject to a search at all times and he would not be allowed to possess any firearms.
On June 13, 2007, David Ford, a probation officer, and Darrell Winder, a detective with the Winn Parish Sheriff's Office, traveled to defendant's residence in Winn Parish, where both a trailer and a house were located. Officer Ford, who was monitoring the defendant's probation, made the visit to perform an interview and drug screen. Det. Winder accompanied Officer Ford to serve a child support warrant on the defendant. After being admitted into the house, Ford and Winder saw defendant sitting in the living room with three other individuals. After going to another room, Officer Ford told the defendant that he had received some information regarding drug use and the defendant admitted that he had taken drugs. Officer Ford advised the defendant he needed to perform a "residence check" and to give defendant a drug screen. The defendant then stated there were firearms that belonged to his wife in the house. Officer Ford retrieved a shotgun and a rifle from the residence.
During a search of the living room, a small bag containing suspected methamphetamine was recovered, along with suspected drug paraphernalia. The defendant was arrested and transported to the Winn Parish Sheriff's Office, where he submitted to a drug screen and tested positive for THC (from marijuana) and amphetamines. Defendant was charged with distribution of methamphetamine and illegal possession of a firearm by a convicted felon. A jury found defendant guilty as charged and his motion for new trial was denied. Defendant was sentenced to serve 15 years at hard labor without benefits for each conviction, with the sentences to run concurrently. This appeal followed.
DISCUSSION
The defendant contends the testimony of the witnesses was insufficient to support his convictions. Defendant argues that no rational trier of fact, viewing all of the evidence in a light most favorable to the prosecution, could have found guilt beyond a reasonable doubt given the lack of credibility of the state's witnesses.
When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence since the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30 (1981). The standard of appellate review for a sufficiency claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hearold, 603 So. 2d 731 (La.1992).
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient *434 for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So. 2d 471 (La.1983); State v. Parker, 42,311 (La. App.2d Cir.8/15/07), 963 So. 2d 497. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, XXXX-XXXX (La.2/22/06), 922 So. 2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So. 2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So. 2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So. 2d 758, writ denied, XXXX-XXXX (La.12/14/07), 970 So. 2d 529.
Pursuant to LSA-R.S. 40:967(A), it is unlawful for any person to knowingly or intentionally distribute a Schedule II controlled dangerous substance, which includes methamphetamine. See LSA-R.S. 40:964. To prove the crime of distribution, the state must show (1) "delivery" or "physical transfer;" (2) guilty knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance. State v. Anderson, 29,282 (La.App.2d Cir.6/18/97), 697 So. 2d 651.
To support a conviction for possession of a firearm by a convicted felon, the state must prove: (1) the possession of a firearm; (2) a previous conviction of an enumerated felony; (3) absence of the 10-year statutory period of limitation; and (4) general intent to commit the offense. LSA-R.S. 14:95.1; State v. Husband, 437 So. 2d 269 (La.1983); State v. Ray, 42,096 (La.App.2d Cir.6/27/07), 961 So. 2d 607. The general intent to commit the offense of possession of a firearm by a convicted felon may be proved through the actual possession of the firearm or through the constructive possession of the firearm. State v. Johnson, XXXX-XXXX (La.4/14/04), 870 So. 2d 995; State v. Chatman, 43,184 (La.App.2d Cir.4/30/08), 981 So. 2d 260. For purposes of the offense of possession of a firearm by a convicted felon, whether the proof is sufficient to establish possession turns on the facts of each case. Further, guilty knowledge may be inferred from the circumstances of the transaction and proved by direct or circumstantial evidence. State v. Chatman, supra.
Constructive possession of a firearm occurs when the firearm is subject to the defendant's dominion and control. A defendant's dominion and control over a weapon constitutes constructive possession even if it is only temporary and even if the control is shared. State v. Bailey, 511 So. 2d 1248 (La.App. 2d Cir.1987), writ denied, 519 So. 2d 132 (La.1988). Constructive possession entails an element of awareness or knowledge that the firearm is there and the general intent to possess it. State v. Chatman, supra; State v. Kennedy, 42,258 (La.App.2d Cir.8/15/07), 963 So. 2d 521.
In the present case, Officer Ford testified that he and Winder went to the house on defendant's property and that Ashley Andrews answered the door. Ford stated that he observed the defendant sitting in the living room with Ronnie Ferguson and James Morrison. Ford testified that he spoke privately with defendant, who admitted that he had been "doing some drugs." Officer Ford advised the defendant that he needed to perform a "residence check" and defendant said there were firearms in the house. The defendant told Ford the location of the guns, which he said belonged to his wife. Officer Ford stated that he retrieved *435 a shotgun and a .22 caliber rifle from the residence.
Detective Winder testified that after placing defendant under arrest for the child support warrant, he recovered a little pink bag containing suspected methamphetamine from underneath the couch cushion next to where the defendant had been seated. Det. Winder stated that he mistakenly listed the color of the bag as "yellow" in his police report. The crime lab later confirmed that the substance in the baggie was methamphetamine. Det. Winder testified that he advised everyone present of their rights, and then asked each person whether the methamphetamine belonged to them and that each individual denied ownership of the drug. In addition, five glass pipes and a "torch," objects commonly used with illegal drugs, were recovered from the scene. At trial, the seized shotgun, methamphetamine and drug paraphernalia were identified and introduced into evidence.
Morrison testified that shortly before the police arrived, the defendant offered him a glass pipe and that he took a "hit," meaning "a smoke," from the pipe, believing the pipe contained methamphetamine. Ferguson corroborated that the defendant passed a pipe to Morrison. Ferguson testified that he observed defendant stick the pipe and methamphetamine into the couch when the officers arrived. On cross-examination, both Morrison and Ferguson acknowledged that they had agreed to testify truthfully against defendant as part of a plea bargain with the state to reduce their potential sentences.
Andrews testified that she had observed defendant load the glass pipe with a substance from a little plastic bag in his pocket and then pass the pipe to Morrison. Andrews acknowledged that in exchange for her truthful testimony her pending charges of possession of methamphetamine and drug paraphernalia would be dismissed.
In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App.2d Cir.5/9/07), 956 So. 2d 769. Here, the testimony demonstrated that defendant placed methamphetamine from a small bag into a pipe and physically transferred the pipe to another. The defendant's knowledge that the pipe contained an illegal drug was shown by his attempt to hide the small bag under the couch cushion, from where it was recovered by police. The bag was later determined to contain methamphetamine.
In addition, Officer Ford testified that defendant had been convicted of a felony and that defendant knew the location of the firearms inside his house. This testimony demonstrated that defendant was a convicted felon who exercised control over the guns. After reviewing the record, we conclude that the physical evidence and the testimony, which was believed by the trier of fact, was sufficient to support the defendant's convictions of distribution of methamphetamine and illegal possession of a firearm by a convicted felon. Thus, the assignment of error lacks merit.
Use of Peremptory Challenges in Jury Selection
The defendant contends the trial court erred in preventing him from using one of his 12 peremptory challenges under LSA-C.Cr.P. art. 799. Defendant argues that the court's erroneous ruling violated his due process rights, requiring a new trial.
The denial of a motion for new trial is not subject to appellate review except for error of law. LSA-C.Cr.P. art. *436 858; State v. Jones, 41,672 (La.App.2d Cir.1/14/09), 999 So. 2d 1156. The decision to grant or deny a new trial rests in the sound discretion of the trial court. State v. Brisban, XXXX-XXXX (La.2/26/02), 809 So. 2d 923. Generally, a motion for new trial will be denied unless the defendant establishes that he or she has suffered some injustice. LSA-C.Cr.P. art. 851; State v. Burrell, 561 So. 2d 692 (La.1990), cert. denied, 498 U.S. 1074, 111 S. Ct. 799, 112 L. Ed. 2d 861 (1991); State v. Jones, supra.
LSA-C.Cr.P. art. 841(A) provides that an irregularity or error cannot be raised after trial unless it was objected to at the time of occurrence. At the time the ruling or order of the court is made, a party must make known to the court his objections to the action of the court and the grounds therefor. Under Article 841, the defendant must make known the grounds for his objection and he is limited on appeal to those grounds articulated at trial; he must point to the specific error so that the trial court has the opportunity to make the proper ruling and prevent or cure any possible error. State v. Sullivan, 97-1037 (La.App. 4th Cir.2/24/99), 729 So. 2d 1101, writ denied, 99-0797 (La.9/17/99), 747 So. 2d 1093. There are two purposes to this rule: to put the trial court on notice of the alleged irregularity or error, so that the trial judge can cure the error, and to prevent a party from gambling for a favorable outcome and then appealing on errors that could have been addressed by an objection if the outcome is not as hoped. State v. Lanclos, XXXX-XXXX (La.4/8/08), 980 So. 2d 643; State v. Knott, 05-2252 (La.5/5/06), 928 So. 2d 534.
The court in State v. Hailey, XXXX-XXXX (La.App. 4th Cir.9/17/03), 863 So. 2d 564, writ denied, XXXX-XXXX (La.2/18/05), 896 So. 2d 20 succinctly explained backstriking and the procedure for exercising peremptory challenges:
Backstriking is a party's exercise of a peremptory challenge to strike a prospective juror after initially accepting him. State v. Plaisance, XXXX-XXXX, p. 30, n. 4 (La.App. 4th Cir.3/6/02), 811 So. 2d 1172, 1193, n. 4, writ denied, XXXX-XXXX (La.11/27/01), 831 So. 2d 270, cert. denied, Plaisance v. Louisiana, 538 U.S. 1038, 123 S. Ct. 2084, 155 L. Ed. 2d 1071 (2003). An accused has a constitutionally guaranteed right to peremptorily challenge jurors. La. Const. Art. I, § 17. La.C.Cr.P. art. 795(B)(1) states only that peremptory challenges shall be exercised prior to the swearing of the jury panel. La.C.Cr.P. art. 788(A) states that when a prospective juror is accepted by the State and the defendant, he shall be sworn immediately as a juror, subject to the provisions of La. C. Cr. P. art. 795. Thus, in State v. Watts, 579 So. 2d 931 (La.1991), the Louisiana Supreme Court cited La. C.Cr.P. art. 795(B)(1) in holding that even though a prospective juror is "temporarily" accepted and immediately sworn as juror in accordance with La.C.Cr.P. art. 788, that juror may nevertheless be challenged peremptorily prior to the swearing of the entire jury panel.
In State v. Taylor, 93-2201 (La.2/28/96), 669 So. 2d 364, the Louisiana Supreme Court agreed with the defendant that Watts was violated when the trial court denied the defendant the right to use backstrikes, i.e., exercise his remaining peremptory challenges immediately before the jury panel was sworn, but found the error harmless. In Plaisance, supra, this court held that La. C.Cr.P. art. 795(B)(1), as interpreted in Watts, provided for backstrikes. This court further held that the trial court in Plaisance had erred in denying the defendant the right to use backstrikes, but *437 found the error harmless, citing Taylor, supra. Thus, a defendant has a right under La.C.Cr.P. art. 795(B)(1) to employ backstrikes, but the erroneous denial of that right is subject to the harmless error analysis.
LSA-C.Cr.P. art. 799 provides in part that in trials of offenses punishable necessarily by imprisonment at hard labor, each defendant shall have 12 peremptory challenges, and the state shall have 12 for each defendant.
In the present case, the jury was sworn in at the end of the day on May 12, 2008. The next morning, before the jury was brought in to begin the second day of trial, the defense attorney raised an objection and the following discussion transpired:
BY MS. DESLATTE: ... Yesterday, and I know that we havewe selected a jury, that jury has been sworn in by the clerk yesterday afternoon before they were dismissed, before the panel was dismissed. For thethe record I would like toto lodge another objection in addition to that that was done at sidebar. That being that when [we] were at sidebar yesterday, that the CourtI had issued aa seventh peremptory challenge that was rejected by the Court that I had already used mine. And in the case of twelve jurors there are twelve peremptory exceptions that are allowed to each side to exercise, and I wasI was limited and not able to exercise all of those.... So, based on that I make that objection, give notice toto take an appeal on that process and also ask for a mistrial.
BY MR. NEVILS: ... I will say, Your Honor, that prior to empaneling of any juror, the Court, after a discussion with counsel, gave defense counsel the opportunity to backstrike whoever they wanted to. That counsel has not run out of challenges, was free to challenge whoever that they felt was necessary to challenge and did not do so. So, I don't know that there's any legitimacy to that argument at all because through agreement of counsel and through the Court's own order the defendant was afforded an opportunity to challenge whoever theythey decided to.
BY MR. CREWS: Your Honor, if I remember what happened yesterday was we all agreed to this procedure once we got the panel set and if she wanted to do backstrikes, that would be the time. You know we could certainly have addressed that yesterday had there been an issue dealing with that. But, everyone was given ... the same opportunities and she had an opportunity, and I think that .... it really didn't have anyany prejudicial effect.
BY MS. DESLATTE: That's somewhat correct, Judge, in that we agreed on the procedure to be used for backstrikes. But in preparation or in an attempt to use my seventh backstrike, I was informed by the Court that I had already used six and then my seventh one was taken off of my list. And in that there was error in that there was still six peremptory challenges at my disposal to use on that second panel or the remaining jurors. And I think that will be notedthat that conversation should be also on the record.
BY THE COURT: Thatall of that is on the record. Bear with me. I'm looking for the article. I thought it was six. Thought each side had six.
BY MR. CREWS: No. We got twelve.
* * *
BY THE COURT: II believe you, but I've got to see it.
*438 BY MR. CREWS: I think it's six where it's not necessarily at hard labor.
BY THE COURT: That is correct.
BY MS. DESLATTE: It's six and then sixsix person jury.
BY THE COURT: In a trial of offenses punishable by death or necessarily by imprisonment at hard labor, which this is
BY MS. DESLATTE: That's correct.
BY THE COURT:each defendant shall have twelve peremptory challenges, and the state twelve for each defendant. In all other cases each defendant shall have six peremptory challenges. So, I apologize for my mistake and your objection is noted.
BY MS. DESLATTE: And then again, Your Honor, we move for a mistrial based on the fact that we were not able to exercise those rights that we're entitled to in selecting the jury, and that there are backstrikes. They would have made evidence by the note that we gave to Your Honor and the reporter yesterday and we're not able to use.
BY THE COURT: Mistrial denied. Are you ready for the jury?
* * *
BY MS. DESLATTE: And, Your Honor, also, just for the record, we're going to object to the first ruling regarding the testimony of Ms. Andrews as well as the objection regarding the the mistrial.
BY THE COURT: That is all noted. Please bring in the jury.
(Emphasis added.)
Thereafter, a hearing on the defendant's motion for new trial was held on July 1, 2008. Initially, the district judge noted that he had listened to the recordings of the jury selection and sidebar conferences and taken notes from those recordings, but did not read the transcripts. The defendant's attorney argued that a new trial was necessary because the court had previously prevented defendant from exercising a seventh peremptory challenge. The district attorney responded that he did not recall that a seventh peremptory challenge was either made or denied. The court stated that while the strikeback issue was evident from the sidebar recording, the alleged restriction to six peremptory challenges was not. Defense counsel replied that she had written on a sheet of paper the names of the jurors that defendant wanted to challenge and submitted the list to the court. Counsel asserted that she was then told she "needed to take one off and a name was scratched off of it. So I had to withdraw that peremptory challenge." However, the defendant's attorney acknowledged she did not object to this alleged limitation of challenges until after the jury had been sworn, explaining that she realized while reviewing her notes after court was dismissed on May 12 that she had been limited on the peremptory challenges. The parties then agreed that the judge and counsel would listen to the recording of the sidebar discussion held after the second juror panel was questioned. During the second sidebar conference, after the parties had agreed to a joint motion to challenge a certain prospective juror for cause, the following discussion was held:
BY THE COURT: Don'tdon't you already have four?
BY MS. DESLATTE: Did I already use four? Is that how many I used? How many did I haveWell, yeah
BY THE COURT: Used four.
BY MS. DESLATTE:because I had to useYeah. I had to use that other one. That's right.
*439 BY THE COURT: See. Here'shere's my list. You used four.
BY MS. DESLATTE: I had to use the one I didn't want to use. That's right. Okay. I forgot I had to add Mr. Banta.
BY THE COURT: Okay. The State has excused Mary Turner.
BY MS. DESLATTE: Okay.
BY THE COURT: And that's all and the defense has excused Stacy Howell and Robert Heard. Okay.
(Emphasis added.)
Thereafter, there was some counting and it was determined that there were 12 prospective jurors plus two alternates. Then the following transpired:
BY THE COURT: There's the defense. Right nowSo, are y'all gonna question further and see about a backstrike?
* * *
BY MR. CREWS: We've already questioned. So,
* * *
BY MR. CREWS:if you gonna have to backstrike, go ahead and do it now. You got anybody you want to backstrike?
BY MR. NEVILS: So, it's up to you. Look at your one through twelve and see if you want to backstrike any of them.
BY MS. DESLATTE: Well, and Banta probably would have been the one that I would have had to come back with
BY MR. CREWS: You would have done it this point anyway.
BY MS. DESLATTE: I'd a done at this point. However, I wouldn't have done it initially. So, I mean, you know, it's one of those and ten after four. I don't, you know, I don't haveI don't have grounds at this point to say based on the questioning,
BY MR. CREWS: Huh-uh (No.)
BY MS. DESLATTE:you know, where we are
BY MR. CREWS: Huh-uh (No.)
BY MS. DESLATTE:that there would be any that shouldshould go back and be removed. Banta would have been my concern. Banta, McAllister.
BY MR. CREWS: Think we need two alternates?
BY MS. DESLATTE: We dealt with McAllister.
* * *
BY THE COURT: ... Then we'll be ready.
BY MR. CREWS: All right.
COURT REPORTER NOTE: End of second sidebar.
(Emphasis added.)
Neither the transcript of the second sidebar nor the district court minutes reflect any express contemporaneous objection to the trial court's alleged refusal to allow the defense to exercise a seventh peremptory challenge. To the contrary, the transcript demonstrates that after the defendant had already made six peremptory challenges, the court specifically asked whether defendant wanted to make any additional backstrikes and the defense counsel did not challenge any other juror.
Consequently, the record supports a finding that the defense was, in fact, offered the opportunity to exercise additional backstrikes (peremptory challenges) before the jury was accepted and sworn, but chose not to exercise any further challenges. Because the record shows that the defense had previously exercised six peremptory *440 challenges, any additional backstrike would have been the seventh peremptory challenge. Thus, the defendant was not limited to six peremptory challenges as alleged herein.
In any event, even if the trial court had erroneously prevented the defendant from exercising his remaining peremptory challenges, any error was harmless because the jury verdicts were unanimous. See State v. Taylor, supra. Based upon the evidence contained in the record, including the transcription of the two sidebar conferences, we cannot say that the district court abused its discretion in denying the defendant's motion for new trial. The assignment of error lacks merit.
Error Patent
We have reviewed the record for error patent. LSA-R.S. 14:95.1(B) provides that whoever is found guilty of possession of a firearm by a convicted felon shall be imprisoned for not less than ten years at hard labor without benefits and "be fined not less than one thousand dollars nor more than five thousand dollars." In this case, the trial court imposed an illegally lenient sentence by failing to assess any fine. Pursuant to LSA-C.Cr.P. art. 882(A), an illegal sentence "may" be corrected at any time by the court that imposed the sentence or by an appellate court on review. However, as we recognized in State v. Griffin, 41,946 (La.App.2d Cir.5/2/07), 956 So. 2d 199, this court is not required to take such action. The state has not objected to the error and defendant is not prejudiced in any way by the failure to impose the mandatory fine. Thus, considering the defendant's apparent indigent status, we decline to remand for correction of the sentence to include a fine for the conviction of felon in possession of a firearm.[1]
However, with respect to the conviction of distribution of methamphetamine, because the district court incorrectly believed that the statute required defendant to serve at least five years of the sentence without benefit of probation or suspension of sentence, we must vacate the sentence and remand for resentencing. The penalty for the offense of distribution of methamphetamine is imprisonment at hard labor for not less than 2 years nor more than 30 years and a possible fine of not more than $50,000. LSA-R.S. 40:967(B). There is no requirement that any portion of the sentence be served without benefits.
In this case, the district court stated that the applicable sentencing range was imprisonment at hard labor for not less than 5 years nor more than 50 years, with at least 5 years of the sentence to be served without benefit of probation or suspension of sentence. The court then sentenced defendant "to serve 15 years at hard labor without benefit of probation or suspension of sentence." A sentence founded on an incorrect view of the law should be set aside. State v.Spruell, 403 So. 2d 63 (La.1981); State v. Dewhirst, 527 So. 2d 475 (La.App. 5th Cir.1988). Accordingly, we vacate the sentence imposed for distribution of methamphetamine and remand for resentencing consistent with the statute of conviction and the guidelines of LSA-C.Cr.P. art. 894.1.
CONCLUSION
For the foregoing reasons, the defendant's convictions and the sentence imposed *441 for the offense of illegal possession of a firearm by a convicted felon are affirmed. The sentence imposed for distribution of methamphetamine is vacated and the case is remanded for resentencing.
CONVICTIONS AFFIRMED; SENTENCE FOR POSSESSION OF A FIREARM BY A CONVICTED FELON AFFIRMED; SENTENCE FOR DISTRIBUTION OF METHAMPHETAMINE VACATED AND REMANDED FOR RESENTENCING.
NOTES
[1] The record shows that this defendant is indigent. At the trial level, he was certified as eligible for indigent defender services and on appeal, he was represented by the Louisiana Appellate Project, circumstances indicating his indigent status. See State v. Chatman, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575537/ | 612 F. Supp. 1057 (1985)
George A. BURTON, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Defendant.
No. C79-2300.
United States District Court, N.D. Ohio, E.D.
July 3, 1985.
*1058 Henry A. Roth, Zucker & Garson, Nancy L. Olson, Cleveland, Ohio, for plaintiff.
Annette G. Butler, Asst. U.S. Atty., Cleveland, Ohio, for defendant.
ORDER
BATTISTI, Chief Judge.
On December 14, 1979, Plaintiff filed the instant action which was amended on July 7, 1982. The first amended complaint alleges that plaintiff's termination from the United States Postal Service was racially discriminatory and retaliatory in nature (Count I of the Complaint.) Count II of the Complaint sought district court review of the Merit Systems Protection Board decision, 10 M.S.P.B. 402, 11 M.S.P.R. ___, upholding plaintiff's termination from government service. Defendant Postal Service filed motions to dismiss plaintiff's action and to strike plaintiff's demand for punitive damages.
On January 22, 1985, Magistrate Jack B. Streepy filed his Report and Recommendation. The Magistrate recommended that plaintiff be given "thirty days from the issuance of the Court's order" to amend his complaint in order to cure the potentially fatal lack of specificity in his racial discrimination claim. In addition, the Magistrate recommended that plaintiff also be given thirty days to respond why the defenses of waiver, estoppel or equitable tolling might apply to his failure to file his administrative complaint in a timely fashion; otherwise, the Magistrate noted dismissal for untimely exhaustion of administrative remedies must be entered. Magistrate's Report at 7. Finally, the Magistrate found that Count 2 of Plaintiff's Complaint be dismissed for lack of jurisdiction and that defendant's motion to strike plaintiff's punitive damages demand be stricken since punitive damages are not available in Title VII actions.
The plaintiff did not file objections to the Magistrate's Report. However, on February 22, 1985, plaintiff filed a Second Amended Complaint. The Second Amended Complaint is limited to the racial discrimination count and corrects pleading errors of the First Amended Complaint. See Section IV infra. On the same date plaintiff filed a "Supporting Brief in Opposition to Defendant's Motion for Summary Judgment." On April 18, 1985, defendant filed a motion to dismiss plaintiff's second amended complaint. On June 14, 1985 plaintiff filed a Supplemental Brief in Opposition *1059 to Defendant's Motion to Dismiss. Therefore, this Court must review plaintiff's two submissions and defendant's April 18th Motion to Dismiss in light of the Magistrate's Recommendation and Plaintiff's Supplemental Brief. In particular, the Court must examine whether plaintiff can survive summary judgment for failing to timely file his administrative complaint, and whether the Court has jurisdiction to entertain the appeal of the MSPB decision.
I.
TIMELINESS OF FILING THE ADMINISTRATIVE CLAIM
In order to have his administrative claim processed, an employee must bring his claim to the Equal Employment Opportunity Counselor within 30 days of the discriminatory incident. 29 C.F.R. § 1613.214(a)(1)(i). Second, the employee must file a formal written complaint before the EEO officer or manager within 15 days of the final interview with the EEO counselor. 29 C.F.R. § 1613.214(a)(1)(ii).
In the instant case, plaintiff concedes he filed the formal written complaint approximately 14 days late. Defendant's argument that the fifteen-day rule is jurisdictional and therefore plaintiff's complaint should be dismissed was properly rejected by the Magistrate. However, while timely filing is not jurisdictional, the time requirements are subject to waiver, estoppel and equitable tolling.
On June 14, 1985, plaintiff filed a "Supplemental Brief in Opposition to Defendant's Motion to Dismiss" wherein the Court gave plaintiff an opportunity to demonstrate how waiver, estoppel or equitable tolling would excuse his delay in filing his formal complaint with the EEOC. Plaintiff's brief states that "plaintiff was effectively without assistance of counsel through no fault of his own. Mr. Burton acted with the utmost diligence in pursuing his claim." Supplemental Brief at 4.
The Sixth Circuit has held that time limitations may be tolled on equitable grounds not inconsistent with the legislative purpose. Leake v. Univ. of Cincinnati, 605 F.2d 255, 259 (6th Cir.1979). Similarly, in Jones v. TransOhio Savings Association, 747 F.2d 1037 (6th Cir.1984), the Court held that equitable tolling could be considered with regard to the Truth in Lending Act. The Court went on to state "In determining whether equitable tolling is appropriate, `the basic inquiry is whether congressional purposes is effectuated by tolling the statute of limitations.'" Id. at 1040. The Supreme Court has previously stated that "a technical reading of Title VII's filing provisions would be `particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process'". Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397, 102 S. Ct. 1127, 1134, 71 L. Ed. 2d 234 (1982).
This Court believes that the circumstances of the instant case merit a finding that the time limitation here be equitably tolled. Here, plaintiff indeed pursued his claim as diligently as possible according to plaintiff's affidavit. His attorney, Steve Fitten, apparently failed to contact him following the April 27, 1979 interview with the EEOC. Attorney Fitten seems to have irresponsibly abandoned his client and the case and left town without informing his client. However, as the Magistrate notes, the formal written complaint is dated May 10, 1979 although not mailed until May 29, 1979. Therefore, plaintiff's attorney prepared the formal written complaint to the EEOC but failed to mail it on time. Plaintiff retained new counsel in June 1979, according to his affidavit. The instant case presents a clear situation whereby penalizing an innocent plaintiff for the irresponsibility of his counsel would defeat the remedial purpose of Title VII and work to the detriment of the untrained laymen referred to in Zipes. Furthermore, the defendant's interest in prompt notice has not been substantially damaged by a delay in filing since the notice was received within approximately two weeks of the deadline.
Accordingly, defendant's motion to dismiss which has been converted into a motion for summary judgment is denied with *1060 respect to the racial discrimination claim under 42 U.S.C. § 2000e. (Count I).
II.
The Magistrate has correctly concluded that Count II of plaintiff's Complaint, seeking judicial review of a Merit Systems Protection Board decision, does not present a "mixed case" of both discrimination and non-discrimination issues. Hence, this Court lacks jurisdiction under 5 U.S.C. § 7702(a)(1). Accordingly, Count II of plaintiff's complaint is dismissed; defendant's motion to dismiss Count II is granted.
III.
Since, the Sixth Circuit has held that punitive damages are not recoverable in Title VII actions, defendant's motion to strike plaintiff's demand for punitive damages is granted.
IV.
Plaintiff has properly named the Postmaster General as defendant in his Second Amended Complaint filed February 22, 1985. Additionally, plaintiff has cured the lack of specificity in his pleading by stating that plaintiff's supervisor "engaged in racial discrimination against the plaintiff by constantly forcing excessive work demands on plaintiff that were not placed on his white co-workers," specifically 600 stops per route assigned to plaintiff versus a normal route of 300 stops. Second Amended Complaint, ¶ 9-10, at 2-3. Thus, defendant's motion to dismiss Count I for improper party and lack of specificity is denied.
V.
For the aforementioned reasons, defendant's motion to dismiss Count I of plaintiff's Second Amended Complaint is denied on the grounds that the EEO filing deadline was equitably tolled; defendant's motion to dismiss Count II of plaintiff's First Amended Complaint is granted for lack of jurisdiction; and defendant's motion to strike plaintiff's prayer for punitive damages is granted.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575543/ | 829 S.W.2d 600 (1992)
Lillas HEACOX, Appellant,
v.
ROBBINS EDUCATIONAL TOURS, INC., Respondent.
No. 58966.
Missouri Court of Appeals, Eastern District, Division Four.
March 24, 1992.
Rehearing Denied April 22, 1992.
Application to Transfer Denied June 2, 1992.
*601 Gary E. Snodgrass, Steven J. Hughes, St. Louis, for appellant.
Edward S. Meyer, Priscilla F. Gunn, St. Louis, for respondent.
SATZ, Judge.
This is a personal injury action. Plaintiff, Lillas Heacox, sued defendant, Robbins Educational Tours, Inc., for injuries she sustained when she fell on an asphalt pathway on the St. Louis riverfront, returning from an excursion on the riverboat S.S. President. The trial court granted defendant's motion for directed verdict at the close of all the evidence. Plaintiff appeals. We affirm.
To review the grant of a directed verdict in favor of a defendant, we view the evidence and permissible inferences most favorably to the plaintiff, disregard contrary evidence and inferences and determine whether, on the evidence so viewed, the plaintiff made a submissible case. Sisters *602 of St. Mary v. Blair, 766 S.W.2d 773, 774 (Mo.App.1989).
Defendant company organizes and sells "motor coach tours." Plaintiff belongs to a foster grandparent organization which meets in Sikeston, Missouri at the Senior Citizens Nutrition Center. Ms. Bobbie White is the "Administrator" of the Center. She also had been "trained by" and "worked with" defendant company in arranging tours. Plaintiff, along with a number of other senior citizens, purchased a ticket for a tour which included transportation by bus to the S.S. President and a half-day excursion on that boat.
Ms. White collected the money for the tour tickets, transferred it to the president of the defendant company, Mr. William Robbins, and accompanied the group throughout the tour. She takes each tour free as compensation, and she characterizes herself as a "hostess" or "tour director". Mr. Robbins engaged a bus company for transportation to the boat and purchased tickets for the group's excursion on the boat. He knew there would be a number of "senior citizens" on the tour.
The S.S. President docks on the St. Louis riverfront. Sometime prior to this tour, Mr. Robbins went to the riverfront to determine whether any "problem" would be caused in boarding the boat. The riverfront where the boat docks slopes down from a roadway, and the slope is paved with cobblestones. However, part of the cobblestones are paved over with asphalt to provide an asphalt pathway from the road down to a gangplank which leads to the boat.
At the time of her fall, plaintiff was five feet two inches in height, weighed about 184 pounds and had a "bad leg, knee and ankle". She was not asked whether she needed assistance, and she requested none. She got off the bus and descended the asphalt pathway, walking slowly and without incident. When the boat returned from the excursion, she did not ask for assistance to ascend the pathway because she "had made it down ... and ... thought [she] could make it back up...." She walked "six or eight steps" up the pathway and then "fell face forward", putting her "hands out to try to catch [her] fall". She saw no debris or waste on the pathway. She said she did not know what caused her to fall "other than [the pathway] was really steep". Her left wrist was fractured, her nose was broken and the rotator cuffs in both shoulders were torn and required surgery.
Having suffered injuries, plaintiff understandably seeks a theory for relief. To her, this case is one of "first impression in... Missouri on the issue of what duty a tour company owes to an elderly passenger throughout the course of a tour...." She derives defendant's duty to her from an alleged "special relationship" existing between her and defendant, or from defendant's assumption of a duty to inspect. As we understand plaintiff's argument, either duty would require defendant to have foreseen a "steep" incline would cause an unreasonable risk to plaintiff traversing it without an escort. Defendant's failure to provide an escort or to warn her, plaintiff contends, was a breach of that duty, and the breach caused her injuries.
We need not and do not address the existence of either duty. For our purposes here, we assume either or both existed. We do address, however, the issue of whether plaintiff made a prima facie showing that the incline of the pathway was a foreseeable risk and, if so, whether she made a prima facie showing that risk caused her to fall.
To state the obvious, a defendant's duty is measured by the scope of foreseeable unreasonable risks. E.g. McKim v. Sears Rodeo Ass'n. Inc., 789 S.W.2d 217, 220 (Mo.App.1990). Plaintiff was required to show that defendant knew or should have known the incline of the pathway was an unreasonable risk to plaintiff, a senior citizen. To make a prima facie showing of the unreasonable risk of the pathway as an ultimate fact, plaintiff, in turn, was required to prove operative facts from which a reasonable juror could draw an inference of the existence of that ultimate fact. Plaintiff did not do so.
*603 Plaintiff relies solely on her own testimony that the incline of the pathway was "steep". Logically, plaintiff argues, this testimony permits the favorable inference that the pathway was "dangerous". Plaintiff omits additional testimony which, arguably, also would be favorable to her. The bus driver testified:
"[I]t wasn't really a steep slope, but it would be a steep slope for someone heavy or an elderly lady,.... It might be pretty steep for them."
However, neither plaintiff's testimony nor the bus driver's, alone or together, make a prima facie showing that the incline of the pathway was an unreasonable risk. There is no evidence in plaintiff's case showing the degree of the incline nor is there any other standard for the jury to use to evaluate sensibly the testimony of the plaintiff and the bus driver. We liberally view the legitimacy of inferences in plaintiff's favor. But, this liberal view does not include speculative free leaps to the desired inference. To be sure, plaintiff had two photographs of the pathway, but, neither one illustrates or shows the degree of the incline. Given plaintiff's evidence, a reasonably thoughtful defendant would not consider the incline a significant fact to consider in guiding practical conduct. See Grube v. Associated Dry Goods, Inc., 663 S.W.2d 310, 312 (Mo.App.1983); see also Melton v. Allied Supermarkets, Inc., 456 S.W.2d 644 (Mo.App.1970).
More important, perhaps, plaintiff did not make a prima facie showing that the degree of the incline caused her to fall, even if the incline were in fact an unreasonable risk to her. The traditional and most often used test for cause is the "but for test": a defendant's negligence is a cause of an injury where the injury would not have occurred but for defendant's negligent conduct. E.g. Delisi v. St. Luke's Episcopal-Presbyterian Hospital, Inc., 701 S.W.2d 170, 175 (Mo.App.1985). Defendant's negligence need not be the sole cause but simply a cause or a contributing cause. To make a prima facie showing of cause, however, the plaintiff must show defendant's negligent conduct more probably than not was a cause of the injury. Morgan v. Toomey, 719 S.W.2d 129, 131 (Mo.App.1986). Obviously, the fact that plaintiff fell on the pathway does not show the incline of the pathway more probably than not caused her to fall. It is guesswork where the greater probabilities lie.
The bus driver's testimony that the incline "would be a steep slope for someone heavy or [for] an elderly lady" does not reasonably imply the incline would cause heavy or old people to fall. The more sensible or, certainly, equally sensible implication is that heavy or old people would find it tiring to walk up the incline. But, a prima facie showing of cause is not made where the operative facts, at best, support two equal inferences, only one of which would make the defendant liable. E.g. Cato v. Modglin, 545 S.W.2d 307, 311 (Mo. App.1976).
Moreover, on direct examination, plaintiff candidly admitted she does not know what caused her to fall "other than ... [the pathway] was ... really steep." This is not a statement of an operative fact showing cause. Here again, we liberally view the legitimacy of inferences in plaintiff's favor. But, at best, her statement is only a guess as to the cause of her fall. How and why plaintiff fell, on this record, is nothing more than speculation and conjecture, and speculation and conjecture do not constitute a prima facie showing of cause. See e.g. Craddock v. Greenberg Mercantile, 297 S.W.2d 541, 547-548 (Mo.1957).
Judgment affirmed.
CARL R. GAERTNER, C.J., and SMITH, P.J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575539/ | 829 S.W.2d 648 (1992)
Dennis R. NAGY, Plaintiff/Respondent,
v.
MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Defendant/Appellant.
No. 60216.
Missouri Court of Appeals, Eastern District, Division Two.
April 14, 1992.
*649 John D. Warner, Jr., St. Louis, for defendant/appellant.
Cordell P. Schulten, Clayton, for plaintiff/respondent.
GRIMM, Presiding Judge.
Plaintiff Dennis Nagy was struck and injured as he drove across the newly opened southbound lanes of Highway 141. The lanes had been constructed under the direction of the Missouri Highway and Transportation Commission (MHTC).
Plaintiff sued MHTC under the sovereign immunity waiver statute for dangerous condition of a government entity's property. He alleged MHTC's failure to warn the new lanes were opened created the dangerous condition. The jury agreed and assessed 25% fault to MHTC.
On appeal, MHTC contends (1) the trial court lacked subject matter jurisdiction; (2) plaintiff failed to present evidence of the three elements required by the sovereign immunity waiver statute; (3) it had no duty to warn of the lane openings; (4) matters relating to highway design are beyond the knowledge of lay jurors and no expert testimony was presented; (5) the verdict director (a) included extraneous material, (b) did not include all the elements necessary for recovery, and (c) erroneously implied a duty to warn of the lane openings; and (6) the verdict form based on MAI 37.07 erroneously states the law. We affirm.
I. Background
In July of 1984, MHTC entered into a contract with Bangert Brothers Construction Company for the construction of new lanes for Highway 141 at its intersection with Interstate 44. The contract set forth the terms, conditions, and specifications for the construction. Design drawings for each stage of the project also had been prepared at this time.
A mistake in the design plans for the traffic signal control configuration was discovered in June of 1987. A change order was then entered providing for temporary traffic control signals. These signals were placed on span wires between wooden poles at each corner of the intersection.
For a week or so prior to the opening of the new lanes, construction barrels were placed along the Interstate 44 exit ramp and across the unopened lanes of 141 to the far lanes where there was a stoplight. The far lanes handled both the north and south traffic for Highway 141.
On August 13, 1986, prior to 11:30 p.m., MHTC placed permanent striping on the highway. The construction barrels were removed from the southbound lanes but not from along the ramp. The temporary tape was picked up from either side of the exit ramp and across the new southbound lanes. A 24-inch bar was painted at the end of the eastbound exit ramp and across both lanes.
Temporary signals for the 44 East exit ramp, which had been there for at least the preceding week, were left in place. Two blinking signals for southbound Highway 141 traffic were moved over the new lanes. The stopping point for traffic travelling down the 44 East exit ramp was moved back to the western-most edge of the new southbound lanes. At 4:00 p.m. that day, Bangert Brothers and MHTC agreed to open the southbound lanes.
Plaintiff had travelled to and from work through the Highway 141 and Interstate 44 interchange regularly that summer. On August 13, 1986, at 11:30 p.m., he drove down the exit ramp as he had previously that week. The construction barrels still lined the ramp, and the red traffic control *650 signals were in the same place as in prior weeks. Plaintiff continued across the new southbound 141 lanes toward the middle of the intersection which was the old stopping point for eastbound traffic. His car was struck by a vehicle heading south across the new lanes.
The distance from the new stopping point to the temporary signals was at least 124 feet. This distance exceeded that recommended by the Uniform Manual for Traffic Control Devices. The design standard required the use of a near-side signal for a distance exceeding 120 feet. In addition, span wires extended across the western edge of the southbound lanes, but no signals had been placed there at the time of the accident.
The jury assessed plaintiff's damages at $30,000. It assessed 25% fault to MHTC, 25% fault to Bangert Brothers, and 50% fault to plaintiff.
II. Jurisdiction
In its first point, MHTC asserts the trial court erred in failing to grant its motion for directed verdict because the trial court lacked subject matter jurisdiction over the claim. MHTC contends that Missouri Constitution article IV, § 29, "vests all questions concerning the design of highways solely with the Missouri Highway and Transportation Commission, thereby depriving [the trial court] of jurisdiction over the subject matter of this suit."
Article IV, § 29 reads:
The department of highways and transportation shall be in charge of a highways and transportation commission.... The highways and transportation commission shall have authority over all state transportation programs and facilities as provided by law, including, but not limited to, bridges, highways, aviation, railroads, mass transportation, ports, and waterborne commerce, and shall have authority to limit access to, from and across state highways where the public interest and safety may require.
Mo. Const. art. IV, § 29.
The state has specifically waived sovereign immunity for injuries caused by the dangerous condition of a public entity's property. § 537.600.1(2).[1] MHTC asserts that article IV, § 29 "places a limit on the degree to which the statute waives sovereign immunity and places the design of highways, at issue in this case, within the discretion of MHTC."
In Brown v. Missouri Highway and Transp. Comm'n, 805 S.W.2d 274 (Mo. App.W.D.1991), plaintiff appealed the dismissal of his petition against MHTC which he brought under § 537.600.1(2). He alleged injuries resulting from a dangerous property condition due to a defective highway design. Id. at 275-76. MHTC contended that article IV, § 29 of the Missouri Constitution abrogates the applicability of § 537.600. The Western District said MHTC's argument was without merit. Id. at 278. "Plaintiff's allegations in his petition fall within those instances where sovereign immunity is waived as set out by § 537.600." Id.
MHTC's argument in this case is indistinguishable from its argument in Brown. Point denied.
III. Sovereign Immunity Exception
In its second point, MHTC asserts the trial court erred in failing to grant its motion for a directed verdict because plaintiff failed to present evidence of three of the elements required by § 537.600.1(2). MHTC asserts plaintiff failed to prove (1) the public entity owned the property, (2) the property was in a dangerous condition, and (3) the dangerous condition caused the injury.
In our review, we consider the evidence in a "light favorable to the plaintiff and take his evidence as true, giving him the benefit of all reasonable inferences arising from the evidence, rejecting all unfavorable inferences and disregarding the defendants' evidence unless it aids the plaintiff's *651 case." Todd v. Watson, 501 S.W.2d 48, 50 (Mo.Div. 2 1973).
A. Public entity owned the property.
During trial, the court took judicial notice of § 226.010, et seq., RSMo 1986, which provides for the creation and operation of MHTC. Section 226.130, RSMo 1986, gives MHTC the power to "[p]repare plans, specifications and estimates for all state highways; [and] [l]et all contracts for the construction or improvement of state highways." (emphasis added).
In discussing MHTC's motion for a directed verdict, the trial judge said, "the mere fact the State Highway Commission was overseeing and supervising and entered into a contract with Bangert Brothers would show they had the authority. And I suppose the statutes would tell us they wouldn't be doing that unless it was a state highway."
We agree with the trial judge. Plaintiff's exhibit 23, the contract between MHTC and Bangert Brothers, was entered into evidence. The contract was for the construction of the intersection at which the plaintiff was injured. This evidence is sufficient for a jury to find that the State of Missouri owned the property and that MHTC, through its authority vested by the State, owned the property within the meaning of § 537.600.1(2).
MHTC relies on Claspill v. State of Missouri, Div. of Economic Dev., 809 S.W.2d 87 (Mo.App.W.D.1991) to support its contention that the ownership element is not met. That case involved an allegedly defective road at a railroad crossing. "The trial court dismissed the petition because the land upon which the traffic control devices were located was not owned by the State of Missouri but by other public entities." Id. at 88. The appellant in Claspill argued that "it is not necessary that the dangerous condition of land created by a public entity's employees be owned or occupied by the same public entity as that for which the negligent employees are employed... [but rather] may be occupied by any public entity." Id. The western district held that
the legislature did not so broadly expand the waiver of sovereign immunity so as to make all public entities liable for conditions on other public entities' lands over which they have some control. It surely cannot be the intent of the legislature to make the state liable for conditions on property which is not owned by the state.
Id. at 89.
Claspill is inapplicable. It involved a suit against a public entity which did not own the property which was the subject of the appellant's allegations. Here, the evidence was sufficient to show that MHTC owned the highway under the meaning of the statute.
B. Dangerous Condition
MHTC also asserts that "as a matter of law, Plaintiff failed to prove a `dangerous condition' of the property." It states that the failure to warn that a road is not functioning properly does not constitute a dangerous condition. Rather, it says, a plaintiff must prove a defect in the physical condition of the road.
In support of its position, MHTC relies on Kanagawa v. State by and through Freeman, 685 S.W.2d 831 (Mo. banc 1985). There, the plaintiff alleged she was kidnapped, assaulted, and raped by an escaped prisoner. Id. at 833-34. She contended the prison property constituted a dangerous property condition because the gate was not properly secured and the surrounding fences were inadequate to prevent an escape. Id. at 833. The supreme court affirmed dismissal of plaintiff's claim. It held sovereign immunity had not been waived because the allegations fell short of "averring a defect, through either faulty construction or maintenance, in the condition of the prison's property." Id. at 835.
Subsequently, our appellate courts have held some petitions which did not allege a physical defect in the public entity's property sufficient under the dangerous property exception. See Alexander v. State, 756 S.W.2d 539 (Mo. banc 1988) (placement of ladder against a partition created physical deficiency which constituted dangerous *652 condition); Jones v. St. Louis Housing Auth., 726 S.W.2d 766 (Mo.App.E.D.1987) (decedent struck by debris flung from a lawn mower; presence of debris was physical deficiency which created dangerous property condition).
Other decisions since Kanagawa include factual situations involving negligent, defective or dangerous highway design. See Donahue v. City of St. Louis, 758 S.W.2d 50 (Mo. banc 1988) (allegations of fallen stop sign at an intersection alleged to have caused a collision sufficient to plead a dangerous condition of property under § 537.600.1(2)); Wilkes v. Missouri Highway and Transp. Comm'n, 762 S.W.2d 27 (Mo. banc 1988) (a dangerous condition of property existed where a bridge was situated so that drivers had no notice of it until almost on it and where there was no warning of ice on the bridge or to reduce speed; summary judgment was reversed); Cole v. Missouri Highway and Transp. Comm'n, 770 S.W.2d 296 (Mo.App.W.D.1989) (allegations of failure to warn of a sudden curve in a road and an obscured intersection were sufficient to plead dangerous condition of property); Fox v. City of St. Louis, 823 S.W.2d 22 (Mo.App.E.D.1991) (the failure to reinstall a traffic control device which was not in place at an intersection where a collision occurred was encompassed in the sovereign immunity exception for dangerous condition of property; summary judgment was reversed).
Plaintiff alleged that MHTC failed to adequately warn him of what was essentially a new intersection. In light of the foregoing cases, the situation alleged by plaintiff clearly fits within the sovereign immunity waiver.
C. Causation
Plaintiff has also sufficiently proved causation. Plaintiff testified that for a week or more prior to the accident, the exit ramp was lined with construction barrels to direct traffic down the ramp, across the first lanes of Highway 141, and to the far lanes where there was a stoplight. On August 13, the day of the accident, the barrels were still lining the exit ramp, and the temporary light at the far side of the intersection had not been moved. A state highway department employee testified the light violated established standards for signal placement. Plaintiff was braking to stop at the same place he had previously when a car hit his car on the left side. This evidence is sufficient to prove MHTC's failure to warn of the lane openings caused the accident. Point denied.
IV. No Duty to Warn
MHTC's third assertion of error is an elaboration of its second point. It alleges MHTC did not breach a duty to warn of the lane openings because (1) MHTC had no duty to warn and (2) plaintiff admitted he was already aware of the construction and periodic lane changes. Therefore, MHTC states the failure to warn driver of something he already knew could not have caused his injuries.
Section 226.130(8) and (9) vests MHTC with the duty to let all contracts for the construction or improvement of state highways. One of the "primary purposes in the design of roads and highways....[is] safety." Donahue, 758 S.W.2d at 52. Plaintiff's allegation of a failure to warn is an allegation of a breach of this duty to design safe roads.
Further, plaintiff at no time admitted that he knew the southbound lanes were open. To the contrary, he testified the construction barrels were still lining the ramp, the temporary signal was in the same place, and he proceeded through the intersection as if the southbound lanes were not open. This testimony at least creates a jury question as to whether plaintiff should have known the lanes were open. Point denied.
V. Expert Testimony
In its fourth point, MHTC alleges the trial court erred in failing to grant its motion for a directed verdict because plaintiff failed to present expert testimony to prove the highway design was defective. Matters relating to highway design, it claims, are beyond the knowledge of lay jurors.
*653 "[W]here the conduct in question does not involve skill or technique in an area where knowledge of such is a peculiar possession of the profession and does involve a matter which any layman (or court) could know, then such `professional' testimony is not necessary." Goodenough v. Deaconess Hosp., 637 S.W.2d 123, 126 (Mo.App. E.D.1982) (quoting Steele v. Woods, 327 S.W.2d 187, 199 (Mo.Div. 2 1959)).
In this case, the question for the jury was whether MHTC failed to warn drivers that the southbound lanes of Highway 141 were opened and whether this constituted a dangerous condition. The jury was competent to make this determination without the aid of expert testimony. Point denied.
VI. Verdict Director and Verdict Form
In its final two points, MHTC asserts that the trial court erred in giving plaintiff's not-in-MAI verdict director and in giving a verdict form patterned after MAI 37.07.
MAI does not contain an appropriate pattern instruction. When a not-in-MAI instruction is given, the instruction shall be "simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts." Rule 70.02(e). MHTC bears the burden of demonstrating that the instruction was prejudicial in order for it to constitute reversible error. Lee v. Mirbaha, 722 S.W.2d 80, 83 (Mo. banc 1986).
Further, "in a verdict directing instruction based on a statutory violation,[2] it is not necessary to use the exact language of the statute as long as the substance of that language is incorporated." Dennis v. St. Louis Bd. of Educ., 809 S.W.2d 20, 22 (Mo.App.E.D.1991). A verdict director is not defective if the omitted element is necessarily inferred from the other required findings, Reed v. Sale Memorial Hosp. and Clinic, 698 S.W.2d 931, 938 (Mo.App. S.D.1985), and it is not necessary to include uncontested elements or facts. Huff v. Union Electric Co., 598 S.W.2d 503, 515 (Mo.App.E.D.1980).
The verdict director which was given is not a model. The instruction may contain some extraneous evidentiary facts; however, those facts were not contested at trial, and MHTC has not shown prejudice. In applying the enunciated rules, we find the instruction adequately advised the jury and MHTC was not prejudiced. Point denied.
As to the verdict form, MHTC does not contend that MAI 37.07 [1986 New], comparative fault verdict form, does not apply. Rather, it argues that it erroneously states the law.
"If an MAI instruction applies, the instruction must be given to the exclusion of all others." Elliott v. Kesler, 799 S.W.2d 97, 104 (Mo.App.W.D.1990). The verdict forms published in MAI are approved and adopted by the supreme court and "must be used." See, e.g., Supreme Court of Missouri en banc Order dated May 12, 1981, found at p. XXI in MAI (Third Ed.), and Supreme Court of Missouri en banc Order dated April 9, 1991, found at p. XXI in MAI (Fourth Ed.).
The verdict form given in this case was approved by the Missouri Supreme Court in 1986. It was applicable when this case was tried in 1990, and it appears unchanged in the new 1991 MAI Fourth Edition. Point denied.
The judgment is affirmed.
CRANDALL, J., concurs.
SATZ, J., concurs in result.
NOTES
[1] All statutory references are to RSMo (Cum. Supp.1990) unless otherwise indicated.
[2] Section 537.600 is a procedural law, and, as such, "does not create a new cause of action but provides a remedy for a cause of action already existing for which redress could not be had because of the immunity." Wilkes v. Mo. Highway and Transp. Comm'n, 762 S.W.2d 27, 28 (Mo. banc 1988). However, the statute also sets out the cause of action for which the remedy is provided. Therefore, the verdict director may be based on the elements set out in the statute. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575556/ | 743 N.W.2d 267 (2008)
VOICESTREAM MINNEAPOLIS, INC., d/b/a T-Mobile, a Delaware corporation, Respondent,
v.
RPC PROPERTIES, INC., Appellant.
No. A06-394.
Supreme Court of Minnesota.
January 10, 2008.
*269 Lawrence H. Crosby, Jay D. Olson, Crosby & Associates, St. Paul, MN, for Appellant.
Tamara O'Neill Moreland, Larkin, Hoffman, Daly & Lindgren, Ltd., Bloomington, MN, for Respondent.
Considered and decided by the court en banc without oral argument.
OPINION
MEYER, Justice.
Appellant RPC Properties, Inc. (RPC) brought a motion seeking enforcement of a settlement agreement with VoiceStream Minneapolis, Inc., d/b/a T-Mobile (T-Mobile). Although the district court granted RPC's request for enforcement and for attorney fees related to the motion, it remained silent as to RPC's request for damages allegedly arising out of T-Mobile's delay in performing under the settlement agreement. RPC appealed, asking for an explicit ruling on damages, and the court of appeals concluded that silence was equivalent to a denial of the request. VoiceStream Minneapolis, Inc. v. RPC Props., Inc., 2007 WL 509621, at *2 (Minn. App. Feb.20, 2007). We reverse and remand to the district court.
In November 2000, appellant RPC and respondent T-Mobile contracted to allow T-Mobile to place its transmission equipment on the roof of a building owned by RPC. In 2004 RPC demanded that T-Mobile remove its equipment, and in response T-Mobile filed a complaint in which it claimed that RPC had breached the parties' lease contract. T-Mobile asked for a declaratory judgment determining the parties' rights and interests under the contract and requested injunctive relief to prevent RPC from terminating the lease or removing T-Mobile's equipment. In October 2004, the district court granted T-Mobile's motion for a temporary injunction prohibiting RPC from evicting T-Mobile and removing its property.
In April 2005, the parties entered into a settlement agreement that required T-Mobile to pay RPC a sum of money, to remove and relocate its equipment on RPC's roof, to coordinate with RPC for selection of a roofing contractor to supervise this work, and to pay the costs related to the supervision. After the performance and repairs required under the agreement, the parties were "to enter into a Release that will release T-Mobile of any claim for damage to the entire roof of the Building up to and including the date of the Release." The parties were to execute a "Stipulation of Dismissal with Prejudice" at the same time. The agreement did not specify a date for completion of performance.
As of early September 2005, T-Mobile had not yet performed this work, and RPC brought a motion to enforce the settlement agreement. RPC requested three forms of relief: (1) an order that T-Mobile remove and relocate its equipment within five days; (2) "monetary damages, to be established in a subsequent evidentiary hearing," for the breach of the settlement agreement; and (3) other relief including attorney fees and costs.
A hearing on the motion was held on September 22, 2005. By that time, T-Mobile *270 had almost completed the work. RPC noted this and asked "for a hearing where we can have witnesses and documentary testimony on account of the damages that RPC has suffered when T-Mobile simply didn't move." The district court said: "So what you're really asking for at this point is an opportunity to present to the Court any damages that may have been incurred as a result of the delay?"
In its September 29, 2005, order, the district court found that the parties intended that performance be completed within a reasonable time and that a five-month delay in performance under the settlement agreement was not reasonable. The motion to enforce the settlement was granted, as was the request for attorney fees and costs of bringing the motion. The order did not mention the request for damages. The court asked RPC to submit an affidavit setting forth the attorney fees and costs for the motion. RPC submitted affidavits relating to attorney fees and costs as well as to damages, to which T-Mobile objected by letter to the district court. RPC submitted another affidavit asking the court to decide whether a hearing to determine damages would be held. T-Mobile objected by affidavit. RPC renewed by affidavit its request that the court "clarify its position as to whether [RPC] has the right to present evidence as to the damages caused by the delay on the part of T-Mobile." T-Mobile again objected by affidavit.
On December 14, 2005, the district court issued an order awarding RPC attorney fees and costs in the amount of $2,550 "for work regarding breach of settlement agreement in this case," but again did not address damages. On appeal by RPC, the court of appeals determined that failure to rule on the request for damages was equivalent to a denial of the request. VoiceStream, 2007 WL 509621, at *2.
We are asked to decide whether a district court must explicitly grant or deny a claim for damages arising out of a breach of settlement agreement. T-Mobile argues that the record clearly shows the district court considered RPC's request and implicitly denied it by not granting it. RPC concedes that the Minnesota Rules of Civil Procedure do not specifically address the issue in this case, but contends that it is a fair request to ask a court to make a decision regarding the requested relief. This case thus presents a purely legal question, which we review de novo. See Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003).
RPC proceeded by motion in the original lawsuit to enforce the settlement agreement and did not elect to file a separate action for breach of contract. A district court is not required to make written or recorded oral findings of fact and conclusions of law in decisions on motions. Minn. R. Civ. P. 52.01. This does not, however, address the issue of whether silence can itself be a decision. The court of appeals relied on our precedent in Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194 (Minn.1986), in concluding that the district court by its silence denied RPC's request. VoiceStream, 2007 WL 509621, at *2. In Hughes, the district court granted a motion requesting attorney fees, but said nothing about the accompanying request for a multiplier of 1.5. 389 N.W.2d at 200. We concluded, based on the wording of the petition and the order, that the district court had considered and denied the request. Id. In Johnson v. Johnson, we held that although the better practice was to prepare written findings of fact, they were not "technically required" when a district court decided pursuant to motions not to modify child support. 304 Minn. 583, 584, *271 232 N.W.2d 204, 205-06 (1975). In Sanvik v. Maher, we held that when the affirmative defense of laches had been pleaded, the absence of a finding of laches in the trial court's findings of fact, conclusions of law, and order for judgment was equivalent to a finding that laches did not exist. 280 Minn. 113, 115, 158 N.W.2d 206, 208 (1968).[1]
Herr and Haydock have indicated that decisions on motions "which amount to a decision on the merits" do not require findings of fact and conclusions of law unless they also resolve factual issues. 2 David F. Herr & Roger S. Haydock, Minnesota PracticeCivil Rules Ann. § 52.4 (4th ed.2004). Discussing the fact that Rule 52(a) specifically does not require findings of fact and conclusions of law when decisions are made on motions, Wright and Miller have said that "regardless of what the rule in terms requires, whenever decision of a matter requires the court to resolve conflicting versions of the facts, findings are desirable and ought to be made." 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2575 (2d ed.1995). They cite, among others, to an Eighth Circuit case, Ackra Direct Marketing Corp. v. Fingerhut Corp., in which the court indicated that it could "remand when the lack of findings by the district court would substantially hinder our review." 86 F.3d 852, 857 (8th Cir.1996); see 9A Wright & Miller, supra, § 2575 n. 15 (Supp.2007).[2]
As we said in Johnson, the better practice is for the district court explicitly to rule on a motion, perhaps even more so when, as here, the moving party has repeatedly requested an evidentiary hearing and a factual determination by the court. We believe it is important to consider the nature of the motion in this caseis there something in the nature of a motion to enforce a settlement agreement and the procedural posture of this case that should inform the rule of law we adopt?
The motion in this case sought to enforce a settlement agreement. Settlement of claims is encouraged as a matter of public policy. E.g., Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 205 (Minn.1986). An agreement entered into as compromise and settlement of a dispute is contractual in nature. Mr. Steak, Inc. v. Sandquist Steaks, Inc., 309 Minn. 408, 410, 245 N.W.2d 837, 838 (1976); Jallen v. Agre, 264 Minn. 369, 373, 119 N.W.2d 739, 743 (1963). As such, a settlement agreement "can be enforced by an ordinary action for breach of contract." Mr. Steak, 309 Minn. at 410, 245 N.W.2d at 838. Generally speaking, settlement agreements can also be enforced by motion in the original lawsuit. Ryan v. Ryan, 292 Minn. 52, 52-53, 193 N.W.2d 295, 296-97 (1971); see Eliseuson v. Frayseth, 290 *272 Minn. 282, 288, 187 N.W.2d 685, 688 (1971) (concluding that the trial court has discretion to vacate a settlement through independent action or motion).
As a general rule, the enforcement of a settlement agreement requires a hearing if the issues are sharply conflicting and there are questions of fact for the fact finder to decide. 15A C.J.S. Compromise and Settlement §§ 70, 74 (2002). "Trial courts have[ ] `the inherent power to summarily enforce a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous.'" Lewis v. Benjamin Moore & Co., 574 N.W.2d 887, 888 (S.D.1998) (emphasis omitted) (quoting Gatz v. Sw. Bank of Omaha, 836 F.2d 1089, 1095 (8th Cir. 1988)). If material facts are disputed, an evidentiary hearing is required. Id.
If, instead of proceeding by motion in the original lawsuit, RPC had brought a separate action for breach of the settlement agreement, either party could have moved for summary judgment. If summary judgment had been granted for either party, the district court would not have been required to make findings of fact or conclusions of law, Minn. R. Civ. P. 52.01, but the entry of judgment would at least have been an explicit ruling on RPC's request. If the case had not been fully disposed of by a grant of summary judgment, the district court would have had to "ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted" and then "make an order specifying the facts that appear without substantial controversy." Minn. R. Civ. P. 56.04. Again, this would have resulted in an explicit ruling such as RPC requests. If summary judgment had been denied to either party, the case would have gone to trial, and RPC would have had the opportunity to present its evidence. Under any scenario, the district court could not have, by its silence, granted summary judgment to either party in the breach of contract action.
Another way to enforce a settlement agreement is to move for permission to amend the pleadings based on a breach of the settlement agreement. See Minn. R. Civ. P. 15.01. Leave to amend should be freely granted unless it results in prejudice to the other party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). The district court has wide discretion in the matter, and its actions will be reversed only for a clear abuse of discretion. Id. The court may deny the motion when the additional claim could not survive summary judgment. See M.H. v. Caritas Family Servs., 488 N.W.2d 282, 290 (Minn. 1992) (upholding denial of motion to amend when no facts supported new claim). The court of appeals has required a district court to rule on a motion to amend. TCF Bank & Sav., F.A. v. Marshall Truss Sys., Inc., 466 N.W.2d 49, 54 (Minn.App.1991), rev. denied (Minn. Feb. 19, 1991), overruled on other grounds by Lloyd F. Smith Co. v. Den-Tal-Ez, Inc., 491 N.W.2d 11, 17 (Minn.1992); see Gilbride v. Trunnelle, 620 N.W.2d 244, 249 (Iowa 2000) (applying a summary judgment standard when ruling on an amendment to the pleadings to assert settlement as an additional claim in the original lawsuit). In this case, RPC could have sought an explicit ruling on a motion for permission to amend the pleadings. If the new claim could withstand summary judgment, a district court would have permitted the amended pleading. A denial would have been explicit and reviewable for an abuse of discretion.
In sum, if RPC had either moved for permission to amend the pleadings or brought a separate breach of contract action, the district court could not have, by silence, denied RPC's claim for damages *273 caused by the breach of contract. The question in the case is thus brought into focus: should RPC's procedural rights be different because it proceeded by motion to enforce the settlement agreement rather than by the alternatives of amending the pleadings or bringing a separate breach of contract action?
We believe fairness requires the court to explicitly rule under the facts of this case. In light of the important public policy of encouraging (and enforcing) settlement of claims, we hold that a district court shall treat a motion to enforce a settlement agreement as it would a motion for summary judgment, and explicitly grant or deny each claim. The district court in this case must either grant a hearing on consequential damages or explicitly deny the claim for damages and indicate that no material facts are in controversy. We leave it to the district court to determine whether T-Mobile's unreasonable delay in performance under the settlement agreement caused any damages.
Reversed and remanded to the district court for further proceedings consistent with this opinion.
PAGE, J., took no part in the consideration or decision of this case.
NOTES
[1] Sanvik cites to Alsdorf v. Svoboda, 239 Minn. 1, 57 N.W.2d 824 (1953), as does T-Mobile in its brief. Sanvik, 280 Minn. at 115, 158 N.W.2d at 208. Alsdorf is distinguishable because in that case there were findings, although they were not as detailed as the defendants would have liked. See Alsdorf, 239 Minn. at 10, 57 N.W.2d at 830. The district court also denied a motion for amended findings. Id. at 11, 57 N.W.2d at 830. We said that "[w]here the court denies a motion for amended findings of fact, that is equivalent to making findings negativing the facts asked to be found." Id., 57 N.W.2d at 830.
[2] Wright & Miller also cite to Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158 (9th Cir.2003). 9A Wright & Miller, supra, § 2575 n. 2 (Supp. 2007). In that case, regarding a motion for summary judgment, the court said that Rule 52(a) "does not relieve a court of the burden of stating its reasons somewhere in the record when its `underlying holdings would otherwise be ambiguous or inascertainable.'" Holly D., 339 F.3d at 1180 (quoting Couveau v. Am. Airlines, 218 F.3d 1078, 1081 n. 3 (9th Cir.2000)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918240/ | 764 A.2d 507 (2000)
LDM, INC., t/a The Ivy Inn; Lahiere's Restaurant Inc.; Annex Grill Inc., t/a The Annex Restaurant & Bar; and National Smokers Alliance, Plaintiffs,
v.
PRINCETON REGIONAL HEALTH COMMISSION, Defendant.
Superior Court of New Jersey, Law Division, Mercer County.
Decided August 29, 2000.
*510 Ross A. Lewin, Princeton, for plaintiffs (Jamieson, Moore, Peskin & Spicer, attorneys).
Michael J. Herbert, Princeton, and Karen L. Cayci, Trenton, for defendant (Herbert, Van Ness, Cayci & Goodell, attorneys).
R. Bruce Crelin for amicus curiae New Jersey Breathes (Kern, Augustine Conroy & Schoppmann, P.C., attorneys). *508
*509 FEINBERG, A.J.S.C.
PROCEDURAL HISTORY
On June 1, 2000, the Princeton Regional Health Commission ("PRHC") adopted Ordinance 2000-01 which prohibits smoking in all indoor public places in Princeton Township and Princeton Borough except homes, retail tobacco stores, and hotel or motel rooms or other lodging establishments with separate ventilation systems. On June 8, 2000, the plaintiffs, LDM, Inc., t/a The Ivy Inn ("Ivy Inn"), Lahiere's Restaurant Inc. ("Lahiere's"), Annex Grill Inc., t/a The Annex Restaurant & Bar ("Annex"), and National Smokers Alliance ("NSA") (collectively the "plaintiffs"), filed an order to show cause and verified complaint in lieu of prerogative writ against the defendant, PRHC, seeking a preliminary injunction enjoining PRHC from enforcing or taking any other action to enforce the smoking ban imposed by Ordinance 2000-01.
On June 8, 2000, following a telephonic conference call initiated by the court, PRHC voluntarily agreed to delay the enforcement of the Ordinance pending the return date of the order to show cause.[1] Consistent with the established briefing schedule, PRHC filed papers in opposition to the application for a preliminary injunction and, at the same time, filed a notice of motion to remove the NSA as a party to the action. As the result of a second telephonic conference, initiated by the *511 court on June 27, 2000, a second case management order was entered on July 5, 2000. The second case management order, in pertinent part, limited the issues on the return date of the order to show cause to adjudicate count one of the complaint (preemption) and the defendant's motion to remove NSA as a party plaintiff. With the consent of the parties, the court bifurcated the remaining counts of the verified complaint pending a resolution of count one of the complaint.[2]
On July 7, 2000, the court granted the application by New Jersey Breathes ("NJB") for leave to appear as amicus curiae. On July 20, 2000, the return date of the order to show cause, the court granted the application for injunctive relief pending a final determination on the merits[3].
BACKGROUND
The plaintiffs are three longstanding commercial eating and drinking establishments located in downtown Princeton and the NSA, a non-profit organization. According to certifications submitted by the three commercial establishments, each one has enacted its own smoking policy in accordance with State law. More specifically, the Ivy Inn is a commercial establishment licensed by the Division of Alcohol and Beverage Control ("Division") and is located at 248 Nassau Street in Princeton, New Jersey. The Ivy Inn has been doing business in Princeton since 1966 and currently permits smoking in accordance with applicable State statutes. Lahiere's is a commercial establishment licensed by the Division. Lahiere's has been doing business in Princeton since 1919 and currently permits smoking in accordance with applicable State statutes. The Annex is a commercial establishment licensed by the Division. The Annex has been doing business in Princeton for nearly fifty years and currently permits smoking in accordance with applicable State statutes.
NSA, a non-profit membership organization comprised of over three million adult members nationwide, including New Jersey, supports the accommodation of smokers and nonsmokers in public places and workplaces. NSA opposes government imposed smoking bans and discrimination against smokers, and advocates the rights of business owners to determine their own smoking policies.
PRHC is a regional health commission established in accordance with N.J.S.A. 26:3-83 et seq. and was established by the municipal boards of health of Princeton Township and Princeton Borough.[4]
NJB is a coalition, convened by the Medical Society of New Jersey, that focuses on three primary goals: (1) to eliminate smoking in public places; (2) to prohibit the tobacco industry's access to youth; and (3) to dramatically reduce use of tobacco by pregnant woman and minority populations.[5]*512 NJB represents that it has substantial and significant knowledge which bears directly upon the central issues in this case.
On June 1, 2000, PRHC adopted an ordinance which bans smoking in virtually every indoor public area except homes, retail tobacco stores and rooms in hotels, motels or other lodging establishments with separate ventilation systems. The enumerated purposes of the Ordinance are that:
[ (1) ] ... [T]obacco is a major contributor to indoor air pollution and breathing secondhand smoke is a cause of disease to nonsmokers; and
[ (2) ] health hazards of breathing second-hand smoke include lung cancer, heart disease, respiratory infection and decreased respiratory function; and
[ (3) ] active smoking of tobacco and the passive inhalation of environmental tobacco smoke are the most prevalent causes of preventable death, disease and disability; and
[ (4) ] the U.S. Surgeon General found that separating smokers from non-smokers within the same air space does not eliminate the exposure of nonsmokers to environmental tobacco smoke; and
[ (5) ] the State of New Jersey has acknowledged that smoking is the leading cause of death from fire; and
[ (6) ] the State of New Jersey has entered into litigation against various tobacco product manufacturers and others for the purpose of improving the public's health and adopting policies and programs to achieve a significant reduction in smoking by its citizens and, in particular, by youth; and
[ (7) ] as a part of its settlement the State of New Jersey will receive significant funding for the advancement of the public's health, including the implementation of important tobacco-related public health measures and restrictions; and
[ (8) ] the Legislature has deemed the control of smoking to be a necessary and proper exercise of municipal authority pursuant to N.J.S.A. 40:48-1 et seq. and 40:48-2 et seq. and N.J.S.A. 2C:33-13 for the preservation of the public health, safety, and welfare of the community; and
[ (9) ] on the basis of scientific reports, other authoritative data and published warnings of the U.S. Surgeon General, the [PRHC] finds that the public interest and public trust to safeguard the welfare of the citizens of Princeton require that certain measures be established to eliminate exposure to the risk of harm due to the use of lighted tobacco products and due to environmental tobacco smoke in order to: 1) protect the public health and welfare from dangerous, unnecessary or involuntarily health risks by prohibiting smoking in public places and workplaces; and 2) guarantee that the need to breathe smoke-free air shall take priority over the desire to smoke and create health hazards for smokers and nonsmokers alike ....
Based on these nine enumerated rationales, the PRHC "prohibit[s] at all times within Princeton Borough and Township" smoking in all enclosed public places with the exception of hotels, motels or other lodging establishments and retail tobacco stores. The PRHC defines prohibited smoking as "inhaling, exhaling, burning or carrying any lighted cigarette, cigar, pipe and other such devices that contain tobacco and/or other smoke producing products." Additionally, the Ordinance provides that:
Smoking may occur at a reasonable distance outside an enclosed area where smoking is prohibited. A reasonable distance shall be any distance from which tobacco smoke does not enter the air people breath through entrances, exits, *513 windows, ventilation systems or any other means.
In their verified complaint, the plaintiffs challenge the Ordinance on these grounds:
(1) Under State law, PRHC is not authorized to establish mandates regulating smoking in indoor public places; and
(2) The Ordinance establishes mandates in direct violation of State law and is illegal and unenforceable; and
(3) The Ordinance is preempted by State law; and
(4) The PRHC lacks statutory authority to enact the Ordinance; and
(5) The Ordinance was enacted in violation of the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq. ("LGEL"); and
(6) PRHC is barred by R.P.C. 1.8 from accepting monies from New Jersey Breathes or any other third party to fund the defense of any litigation instituted against PRHC arising out of the passage of the Ordinance.
I.
WHETHER NSA IS A PROPER PARTY PLAINTIFF
Standing is a threshold determination which governs the ability of a party to initiate and maintain suit before the court. In re Adoption of Baby T., 160 N.J. 332, 734 A.2d 304 (1999). Generally, in New Jersey, "[e]ntitlement to sue requires a sufficient stake and real adverseness with respect to the subject matter of the litigation." New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, 82 N.J. 57, 67, 411 A.2d 168 (1980) (quoting Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107, 275 A.2d 433 (1971)). Additionally, "[a] substantial likelihood of some harm visited upon the plaintiff in the event of an unfavorable decision is needed for purposes of standing." Ibid. (quoting Home Builders League of S. Jersey, Inc. v. Berlin Township, 81 N.J. 127, 134-35, 405 A.2d 381 (1979)).
Similarly, an association may have standing to maintain suit on its own behalf, based on either associational or representational standing. In re Ass'n of Trial Lawyers of Am., N.J., & Chapter 197 of the Laws of 1987, 228 N.J.Super. 180, 186, 549 A.2d 446 (App.Div.), certif. denied, 113 N.J. 660, 552 A.2d 180 (1988). In Ass'n of Trial Lawyers, the court explained that "[f]irst, an association `may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.'" Ibid. (quoting Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343, 362 (1975)). Under this principle, an association may assert the rights of its members insofar as the alleged infractions affect the "`members' associational ties.'" Ibid. Second, if an association has not itself suffered injury, then the "`association may have standing solely as the representative of its members.'" Ibid.
The NSA has not alleged that it has "associational" standing; the NSA is not seeking judicial relief in its own right from injury to itself or to vindicate whatever rights and immunities the association itself may enjoy. Instead, the NSA maintains that it has standing in a "representational" capacity. That is, the NSA submits that it has standing to challenge Ordinance 2000-01 solely as the representative of its members.
For standing to exist based upon a "representational" basis, the "association must allege that its members, or any one of them, `are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.'" Ibid. Here, the NSA submits that its members who live in or around the Princetons stand to suffer injury if the Ordinance goes into effect. The NSA represents that it has obtained letters from at least twenty members of its organization who live in or around Princeton *514 Township or Borough in support the NSA's involvement in this lawsuit and in opposition to the Ordinance. Assuming this is true, there can be no doubt that the NSA stands in a representational capacity.
The question then, is whether those twenty NSA members would have standing if they initiated this lawsuit in an individual capacity. Based on the following, the court finds that they would have standing to participate in the present lawsuit and consequently, the NSA has standing in its representational capacity of those members. The NSA has demonstrated a sufficient stake in the action and a real adverseness. Again, there are at least twenty NSA members who live in or around Princeton Township or Borough that oppose enforcement of the Ordinance. A common goal of the NSA is to protect the ability of its members to smoke in public. Because the challenged Ordinance prohibits smoking in virtually all enclosed public places, the NSA and its local members certainly have a "stake" in the outcome of the lawsuit.
Additionally, the challenge by NSA to the Ordinance evinces real adverseness. If plaintiffs do not prevail in this action, the Ordinance will go into effect and smoking will be banned in virtually all enclosed, public places in Princeton Township and Borough. The local NSA members will be "harmed" because they will be legally precluded from smoking in nearly all enclosed public places.
The PRHC contests standing by NSA on the grounds that smoking is not a "right" but "merely an amorphous concept without any concrete legal basis."[6] The standing requirement, however, does not mandate that a legal challenge must allege the infringement of a constitutionally protectable "right". Instead, the courts only require a real adverseness and a substantial likelihood that the parties will suffer harm in the event of an unfavorable decision. Regardless of whether or not smoking is a constitutionally protected "right", enforcement of the Ordinance is adverse to the interests of NSA members who seek to smoke in enclosed, public places.
Based on this, the court finds that the NSA has standing in a representational capacity to participate in this action as a party plaintiff. Accordingly, the court denies the application by PRHC to remove the NSA.
II.
WHETHER OR NOT ORDINANCE 2000-01 IS PREEMPTED BY STATE STATUTE
The power to adopt ordinances for the public health, safety and welfare of the municipality and its inhabitants is coterminous with the police power of the Legislature. N.J.S.A. 40:48-1, entitled General and Regulatory Powers and N.J.S.A. 40:48-2, entitled Other Necessary and Proper Ordinances, authorize the governing municipal body to make, amend, repeal and enforce certain ordinances as necessary and proper and delegate broad powers to municipalities to adopt ordinances reasonably related to public health, safety and welfare. See State v. Crawley, 90 N.J. 241, 247, 447 A.2d 565 (1982). Thus, municipalities may enact regulatory ordinances on any subject matter of local concern which are reasonably related to a legitimate object of public health, safety or welfare, New Jersey Builders Ass'n v. Mayor & Township Council of East Brunswick, 60 N.J. 222, 227, 287 A.2d 725 (1972), provided that the State has not preempted the field, Overlook Terrace Management Corp. v. Rent Control Board of West New York, 71 N.J. 451, 460, 366 A.2d 321 (1976).
A municipality may not contradict a policy the Legislature establishes. Auto-Rite Supply Co. v. Mayor & Township Committeemen of Woodbridge, 25 N.J. 188, 194, 135 A.2d 515 (1957); Plaza *515 Joint Venture v. City of Atlantic City, 174 N.J.Super. 231, 416 A.2d 71 (App.Div. 1980). Hence, an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes. Township of Chester v. Department of Envtl. Protection, 181 N.J.Super. 445, 450, 438 A.2d 334 (App.Div.1981).
"When the Legislature has preempted a field by comprehensive regulation, a municipal ordinance attempting to regulate the same field is void if the municipal ordinance adversely affects the legislative scheme." Plaza Joint Venture, supra, 174 N.J.Super. at 238, 416 A.2d 71 (citing Fair Lawn Educ. Ass'n v. Fair Lawn Bd. of Educ., 79 N.J. 574, 586, 401 A.2d 681 (1979); Summer v. Township of Teaneck, 53 N.J. 548, 554, 251 A.2d 761 (1969)). Justice Schreiber, in Overlook Terrace Management Corp., supra, stated that the pertinent questions for consideration in determining the applicability of preemption are:
1. Does the ordinance conflict with state law, either because of conflicting policies or operational effect (that is, does the ordinance forbid what the Legislature has permitted or does the ordinance permit what the Legislature has forbidden)?
2. Was the state law intended, expressly or impliedly to be exclusive in the field?
3. Does the subject matter reflect a need for uniformity?
4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation? ...
5. Does the ordinance stand "as an obstacle to the accomplishment and execution of the full purposes and objectives" of the Legislature?
[Overlook Terrace Mgmt. Corp., supra, 71 N.J. at 461-62, 366 A.2d 321 (citations omitted).]
In Plaza Joint Venture, supra, the Appellate Division noted:
A legislative intent to preempt a field will be found either where the state scheme is so pervasive or comprehensive that it effectively precludes the coexistence of municipal regulation or where the local regulation conflicts with the state statute or stands as an obstacle to state policy expressed in enactments of the Legislature.
[174 N.J.Super. at 238, 416 A.2d 71 (quoting Garden State Farms, Inc. v. Bay, 77 N.J. 439, 450, 390 A.2d 1177 (1978) (emphasis in original)).]
Preemption is a judicially created doctrine which supports the principle that a municipality cannot act contrary to the State. Summer, supra, 53 N.J. at 554, 251 A.2d 761.
In the case at bar, the preemption analysis requires a methodical review of the five criteria set forth above for the type of facility, establishment or activity attempted to be regulated or controlled by the municipality. Initially, a court must carefully examine in detail the actual ways in which state and municipal ordinances conflict. Overlook Terrace Mgmt. Corp., supra, 71 N.J. at 461, 366 A.2d 321. "The question is, in every practical sense, as much one of fact as one of law. `As a general proposition an intent to preempt the power of municipalities will not be lightly inferred ..., but in the final analysis the answer must depend on the particular setting, the values involved, and the impact of local legislation upon those values.'" Mannie's Cigarette Serv., Inc. & C.I.C. Corp. v. Town of W. New York, 259 N.J.Super. 343, 348, 613 A.2d 494 (App. Div.1992) (quoting State v. Ulesky, 54 N.J. 26, 29, 252 A.2d 720 (1969)).
The applicability of preemption begins with an analysis of Title 26, Chapter 3D, entitled Smoking in Public Places and Title 26, Chapter 3E, entitled Restaurants. In enacting each of these statutes, the Legislature set forth its legislative findings and declarations as follows:
The Legislature finds and declares that the resolution of the conflict between the *516 right of the smoker to smoke and the right of the nonsmoker to breathe clean air involves a determination of when and where, rather than whether, a smoker may legally smoke. It is not the public policy of this State to deny anyone the right to smoke.
[N.J.S.A. 26:3D-1 (passenger elevators); N.J.S.A. 26:3D-7 (health care facilities and doctor's offices); N.J.S.A. 26:3D-15 (educational institutions); N.J.S.A. 26:3D-23 (places of employment); N.J.S.A. 26:3D-32 (food and marketing stores); N.J.S.A. 26:3D-38 (indoor public places); N.J.S.A. 26:3D-46 (government buildings); and N.J.S.A. 26:3E-7 (smoking in restaurants) (emphasis added).]
Despite the exactness of the language set forth in the first nine lines of the legislative findings and declaration for each particular section of the statute, the last sentence of the legislative findings for each section varies. See N.J.S.A. 26:3D-1 ("purpose ... is to prohibit smoking in passenger elevators in every building other than a single family dwelling[ ]"); N.J.S.A. 26:3D-7 ("purpose ... is to control smoking in health care facilities, except in designated areas, and in the waiting rooms of offices of persons licensed to practice the healing arts[ ]"); N.J.S.A. 26:3D-15 ("purpose ... is to control smoking on the premises of schools, colleges, universities and professional training schools, except in designated areas[ ]"); N.J.S.A. 26:3D-23 ("purpose ... is to control smoking in places of employment, except in designated areas[]"); N.J.S.A. 26:3D-32 ("purpose ... is to prohibit smoking in enclosed retail food and marketing stores[]"); N.J.S.A. 26:3D-38 ("purpose ... is to control smoking in certain indoor public places[ ]"); N.J.S.A. 26:3D-46 ("purpose ... is to protect the interest of nonsmokers in government buildings and allow smokers the right to smoke in designated areas in government buildings[ ]"); N.J.S.A. 26:3E-7 ("Legislature finds that it is in the interest of the public health to encourage restaurants to establish nonsmoking areas[ ]").
Consistent with the standards articulated in Overlook Terrace Management Corp., supra, the court must evaluate the State statute in detail and determine whether preemption applies. Despite the laborious nature of this process, it cannot be ignored. Therefore, the discussion that follows will identify, review and analyze the separate and distinct sections enumerated in N.J.S.A. 26:3D-1 et seq. and N.J.S.A. 26:3E-1 et seq. to determine whether any or all of these sections preempt Ordinance 2000-01.
A.
Restaurants
Ordinance 2000-01 provides that "smoking shall be prohibited at all times in Princeton Borough and Princeton Township in all restaurants, bars, cabarets and taverns."[7]N.J.S.A. 26:3E-1 defines a restaurant as "any facility or part thereof in which food is prepared and provided or served for consumption on the premises...." The Committee Statement provides:
The purpose of Assembly Bill No. 547, as amended by the Senate Law, Public Safety and Defense Committee, is to *517 encourage restaurants to establish nonsmoking sections.
* * * * * *
The committee also amended the bill to remove from section 1, which contains the Legislature's policy statement, a sentence stating that the Legislature finds that the right of a nonsmoker to breathe clean air should supersede the right of the smoker to smoke.
By amendment, the committee also removed from section 1 a statement that the purpose of the bill is to control smoking in certain restaurants and replaced it with a statement that the Legislature finds it to be in the interest of the public health to encourage restaurants to establish nonsmoking areas.
N.J.S.A. 26:3E-7, entitled Legislative findings, provides that the Legislature finds that "it is in the interest of the public health to encourage restaurants to establish nonsmoking areas." See also N.J.S.A. 26:3E-8 ("`[b]ar' means an establishment or portion of a restaurant, including any contiguous lounge or common area in which the principal business is the sale of alcoholic beverages for consumption on the premises of such establishment or in such portion of a restaurant[ ]"); and N.J.S.A. 26:3E-9 ("[t]he provisions of this act shall apply to all restaurants but shall not apply to any bar[ ]").
As noted above, N.J.S.A. 26:3E-9 specifically excludes bars:
a. The provisions of this act shall apply to all restaurants but shall not apply to any bar.... A restaurant which does not provide a nonsmoking section shall in the same manner post a sign stating that "This restaurant does not offer a nonsmoking area, as permitted by law."
...
b. The size and location of the nonsmoking area shall be determined by the owner or manager or person in charge in accordance with patron needs.
The language of the statute is clear and unambiguous. The statute allocates to the restaurant owner, manager or person in charge, the authority to determine whether or not a nonsmoking section will be provided. Furthermore, the decision in reference to the size and location of the nonsmoking area, if one is designated, is left to the sole discretion of the owner, manager or person in charge. N.J.S.A. 26:3E-9(b).
In an effort to dispel the notion that nonsmoking sections were mandatory, the Legislature enacted N.J.S.A. 26:3E-10(a):
The State or any agency or political subdivision thereof may suggest guidelines for establishing nonsmoking areas in restaurants which may be adopted by the owner, manager or person in charge but in no case shall they be mandatory.
The intent of the Legislature to vest the authority of whether or not to designate a nonsmoking section solely with the restaurant owner, manager or person is further bolstered by the language set forth in section (b) of the statute. N.J.S.A. 26:3E-10(b), provides that
The provisions of this act shall supersede any other statute, municipal ordinance, and rule or regulation adopted pursuant to law concerning smoking in restaurants except where smoking is prohibited by municipal ordinance under authority of R.S. 40:48-1 and 40:48-2 or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire.
The statutory language set forth above provides the necessary foundation to evaluate whether or not Ordinance 2000-01 is preempted by State statute. Inherent in that analysis, is a review of the five factors set forth in Overlook Terrace Management Corp., supra. In the case at bar, the court finds:
(1) That the Ordinance adopted by PRHC expressly conflicts with State law by forbidding that which is specifically authorized by State statute; and
(2) That Chapter 3E reflects and expresses a clear and unequivocal intent to *518 exclusively govern and regulate smoking; and
(3) That requirement of uniform statewide treatment on this subject matter is reflected in the Legislative findings and declaration of policy set forth in Title 26 and the regulations are so comprehensive that little, if anything, is left to municipal control; and
(4) That the State scheme is so pervasive and comprehensive that it precludes coexistence of municipal regulation; and
(5) That the Ordinance represents an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature.
The statute, therefore, precludes a municipality from banning smoking in restaurants based on the alleged deleterious effects of smoking on the public health. The authority of the municipality to restrict smoking in restaurants is limited to protecting life and property from fire. Plaintiffs submit that "PRHC has simply attempted to concoct a fire safety rationale to aid in the legal defense of its smoking ban and that the mere invocation of the term fire safety does not transform a broad-ranging smoking ban based on public health concerns into a fire safety ordinance designed and implemented in all its particulars based on fire safety concerns."[8]
Later in this opinion, the court will address whether or not the smoking ban for restaurants is authorized under the authority of N.J.S.A. 40:48-1 and 40:48-2 or any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire.
B.
Bars and Taverns
Ordinance 2000-01, in pertinent part, provides that smoking shall be prohibited at all times in all restaurants, bars, cabarets and taverns. N.J.S.A. 26:3E-1 defines a restaurant as "any facility or part thereof in which food is prepared and provided or served for consumption on the premises but shall not include mobile food establishments or any temporary food establishment which operates at a fixed location for a limited period of time in connection with a fair, carnival, public exhibition or similar transitory gathering or charitable fund-raising event." Interestingly, N.J.S.A. 26:3E-9 provides that "[t]he provisions of this act shall apply to all restaurants but shall not apply to any bar." (Emphasis added). A bar is defined as "an establishment or portion of a restaurant, including any contiguous lounge or common area in which the principal business is the sale of alcoholic beverages for consumption on the premises of such establishment or in such portion of a restaurant." N.J.S.A. 26:3E-8.
Two possible interpretations emerge from the determination by the Legislature to exclude bars. First, it may be argued that the exclusion of bars vests the municipality with the authority to regulate this area. Second, it may be argued that by excluding bars, the Legislature specifically intended not to regulate smoking in bars. Based on the extensive statutory scheme and the narrow purpose clause, "[t]herefore, the Legislature finds that it is in the interest of the public health to encourage restaurants to establish nonsmoking areas," set forth in N.J.S.A. 26:3E-7, the second interpretation is the more reasonable one.
The court rejects the argument by PRHC that, by expressly excluding bars from N.J.S.A. 26:3E-1 et seq., Ordinance 2000-01 does not conflict with the statute and therefore the doctrine of preemption does not apply. Whether or not the ordinance adopted by a municipality expressly conflicts with State law by forbidding that which is specifically authorized by State statute is not the only factor *519 to be considered by the court. Rather, all five factors must be carefully evaluated. This position is consistent with Plaza Joint Venture, supra, wherein the Appellate Division noted:
A legislative intent to preempt a field will be found either where the state scheme is so pervasive or comprehensive that it effectively precludes the coexistence of municipal regulation or where the local regulation conflicts with the state statute or stands as an obstacle to state policy expressed in enactments of the Legislature.
[174 N.J.Super. at 238, 416 A.2d 71 (quoting Garden State Farms, Inc., supra, 77 N.J. at 450, 390 A.2d 1177).]
Most importantly, in the case at bar, the remaining four factors apply:
(1) Chapter 3E reflects and expresses a clear and unequivocal intent to exclusively govern and regulate smoking in bars, taverns and cabarets; and
(2) The requirement of uniform statewide treatment on this subject matter is reflected in the Legislative findings and declaration of policy set forth in Title 26 and the regulations are so comprehensive that little, if anything, is left to municipal control;
(3) The State scheme is so pervasive and comprehensive that it precludes coexistence of municipal regulation; and
(4) The Ordinance represents an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature.
The illogical result inherent in the statutory interpretation proposed by PRHC is amply illustrated by the statutory provisions exempting bars from regulation. The statute makes clear that bars can be part of a restaurant or a stand alone establishment. See N.J.S.A. 26:3E-8(a). In regulating restaurants, the State Legislature made clear that its purpose was to encourage restaurants to establish nonsmoking sections, not to prohibit smoking in restaurants. Implementing this purpose, the statute contains an express exemption for bars. See N.J.S.A. 26:3E-9(a). The legislative history reflects that the bill was purposefully amended "to exclude bars from the bill's requirements."[9] Thus, when exempting bars from regulation, the Legislature intentionally freed them from regulation and had no intention of permitting any other public body like the PRHC to overrule that decision and to ban smoking in bars. It would be illogical to permit municipal smoking bans in bars; the exact type of establishment the Legislature determined should be entirely free from regulation.
Additionally, the interpretation advanced by PRHC proposes that restaurants with bars be treated differently from stand alone bars. As noted herein, N.J.S.A. 26:3E-10 precludes a municipality from imposing a smoking ban in restaurants. Therefore, municipal authorities lack the authority to regulate any portion of a restaurant, including its bar area. However, under the premise offered by the PRHC, no similar preemption would apply to stand alone bars. This statutory interpretation thus creates the illogical situation where the Legislature would protect restaurant bars from any municipal regulation, but expose stand alone bars to any and all municipal requirements, including a smoking ban. Obviously, the Legislature did not intend such a result.
In sum, the interpretation by PRHC ignores general principles of statutory construction. Where the State Legislature has expressly declared its intent to balance the interests of smokers and nonsmokers and, in so doing, chose specified areas in which to impose regulations, but exempted others, the only reasonable conclusion is that the Legislature chose not to impose or permit any regulation in those areas.[10] Based on the above, Ordinance 2000-01 is preempted by State statute.
*520 C.
Places of Employment or Workplaces
Ordinance 2000-01 provides that smoking shall be prohibited at all times within Princeton Borough and Princeton Township in all workplaces as defined by section 2(I). That section provides:
[A]ny enclosed area under the control of a public or private employee which employees use during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference and classrooms, and hallways. A private residence is not a place of employment unless it is used as a childcare, adult day care or health care facility.
In determining whether or not the Ordinance is preempted, one must examine efforts by the Legislature to regulate smoking in the workplace. N.J.S.A. 26:3D-24(b) defines place of employment as "a structurally enclosed location or portion thereof which is not usually frequented by the public at which 50 or more individuals perform any type of service or labor for consideration of payment under any type of employment relationship with or for a private corporation, partnership or individual." The statute further requires that the
[E]mployer [ ] establish written rules governing smoking in that portion within a building for which the employer is responsible ... which policy shall include designated nonsmoking areas but may include designated smoking areas, unless otherwise prohibited by municipal ordinance under the authority of R.S. 40:48-1 and R.S. 40:48-2 or other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire.
[N.J.S.A. 26:3D-25.]
The statute mandates that an employer designate nonsmoking areas in locations, not usually frequented by the public, at which 50 or more individuals perform employment related services and permits an employer to designate smoking areas, unless required by statute to protect life and property from fire. Therefore, unless a municipality can demonstrate a legitimate fire safety reason, an employer who is required to provide nonsmoking areas at the same time may include designated smoking areas.
The plaintiffs submit that the Ordinance is preempted by State statute. Once again, an evaluation begins with a review of the Overlook Terrace Management Corp. standards. In the case at bar, the court finds:
(1) That the Ordinance adopted by PRHC expressly conflicts with State law *521 by forbidding that which is specifically authorized by State statute; and
(2) That N.J.S.A. 26:3D-23 to -32 reflects and expresses a clear and unequivocal intent to exclusively govern and regulate smoking; and
(3) That requirement of uniform statewide treatment on this subject matter is reflected in the Legislative findings and declaration of policy set forth in Title 26 and the regulations are so comprehensive that little, if anything, is left to municipal control; and
(4) That the State scheme is so pervasive and comprehensive that it precludes coexistence of municipal regulation; and
(5) That the Ordinance represents an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature.
Once again, the intent by the Legislature to exclusively govern the subject matter is reflected in N.J.S.A. 26:3D-26(a) and (b):
[ ]The State or any agency or political subdivision thereof may suggest guidelines for rules governing smoking in places of employment which may be adopted by employers, but in no case shall they be mandatory.
[ ]The provisions of this act shall supersede any other statute, municipal ordinance, and rule or regulation adopted pursuant to law concerning smoking in places of employment except where smoking is prohibited by municipal ordinance under authority of R.S. 40:48-1 and R.S. 40:48-2 or by other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire.
The statute, therefore, precludes a municipality from banning smoking in a location or portion thereof which 50 or more individuals perform an employment related service except for the purpose of protecting life and property from fire. Later in this opinion, the court will address whether or not the PRHC has demonstrated that a smoking ban for a location or portion thereof which is usually frequented by the public at which 50 or more individuals perform an employment related service is authorized under the authority of R.S. 40:48-1 and 40:48-2 or any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire.
D.
Workplace in a Location in Which Less Than 50 Individuals Perform an Employment Related Service
N.J.S.A. 26:3D-24(b) defines place of employment, in part, as a "structurally enclosed location or portion thereof which is not usually frequented by the public at which 50 or more individuals perform any type of service ...." Not surprisingly, PRHC asserts that Ordinance 2000-01 does not offend the doctrine of preemption since the statute does not include places of employment consisting of less than 50 or more employees. The court does not agree.[11]
The position advanced by PRHC, while at first blush may appear reasonable, is inconsistent with the clear and unequivocal intent of the legislature to exclusively govern the issue of smoking. N.J.S.A. 26:3D-25, entitled Employer rules governing smoking, in pertinent part, provides that "[e]very employer shall establish written *522 rules governing smoking in that portion within a building for which the employer is responsible[ ] ... which policy shall include designated nonsmoking areas but may include designated smoking areas." The Legislature, by including locations in which 50 or more individuals perform any type of employment service, intended to exclude smaller places of business from providing nonsmoking areas for its employees. Implicit in this exclusion, is the determination by the Legislature to allocate to private employers the decision as to whether or not smoking should be permitted on the premises and under what circumstances. And, the Legislature reaffirmed its intent by adopting N.J.S.A. 26:3D-26(b), which provides that "[t]he provisions of this act shall supersede any other statute, municipal ordinance, and rule or regulation adopted pursuant to law concerning smoking in places of employment...."
The position asserted by PRHC, in its supplemental brief, that the municipality is free to regulate places of employment that employ less than 50 employees, is without merit. The legislative decision to exclude certain areas from smoking regulation under its comprehensive statutory scheme in no way reflects an intent to leave such regulation to municipal authorities. Indeed, this statutory scheme is so comprehensive and detailed that the Legislature's clear intent to exempt these areas reflects a deliberate choice to keep these areas free from any regulation.
In interpreting a statute, a court's overriding goal is to determine the Legislature's intent in enacting the statute. Roig v. Kelsey, 135 N.J. 500, 515, 641 A.2d 248 (1994) (citing Lesniak v. Budzash, 133 N.J. 1, 626 A.2d 1073 (1993)). "Sources of legislative intent are the language of a statute, the policy behind a statute, concepts of reasonableness, and legislative history." Toll Bros., Inc. v. West Windsor Township, 312 N.J.Super. 540, 547, 712 A.2d 266 (App.Div.), certif. denied, 157 N.J. 543, 724 A.2d 803 (1998) (citations omitted). A court must consider the legislative policy underlying a statute. Lesniak, supra, 133 N.J. at 10, 626 A.2d 1073. Official legislative history and legislative statements can also serve as valuable interpretive aids in determining the Legislature's intent. State v. McQuaid, 147 N.J. 464, 480, 688 A.2d 584 (1997) (citations omitted). Moreover, where, as here, the court must discern the Legislature's intent in enacting one or more of a series of statutes, the court must consider the entire legislative scheme of which each statute is a part. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 234, 708 A.2d 401 (1998)(citing Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 129, 527 A.2d 1368 (1987)).
In the present case, the pertinent statutes make clear that the State Legislature enacted a comprehensive statutory scheme governing the regulation of smoking in indoor public places in an effort to strike a balance between the rights of smokers and nonsmokers. The language in the statutes makes it clear that the Legislature intended that areas exempt from regulation should be free from regulation. The preamble of each statute, repeatedly emphasizes that the purpose of the statutes is to balance the rights of smokers and nonsmokers and that "[i]t is not the public policy of this State to deny anyone the right to smoke." N.J.S.A. 26:3D-1; N.J.S.A. 26:3D-7; N.J.S.A. 26:3D-15; N.J.S.A. 26:3D-23; N.J.S.A. 26:3D-32; N.J.S.A. 26:3D-38; N.J.S.A. 26:3D-46; N.J.S.A. 26:3E-7. By carefully determining when, where, and under what circumstances smoking would be allowed, the Legislature attempted to achieve the intended balance by making it abundantly clear that State agencies and political subdivisions could not take actions that would alter that balance. Indeed, by directing that such authorities may only suggest guidelines but not mandates, and that these State laws shall supersede any other ordinance, rule or regulation, with limited exceptions, the Legislature declared that it *523 would regulate smoking and that it would choose where and how such regulation would occur.
The position advanced by PRHC that it can ban smoking in those areas expressly exempt from State regulation is inconsistent with the Legislative intent. By striking a balance, the Legislature mediated between the competing interests raised in a variety of different business establishments and consciously articulated different outcomes in different circumstances ranging from a smoking ban in certain establishments to exemption of other establishments from regulation altogether.
E.
Indoor Public Places
Ordinance 2000-01 provides that smoking shall be prohibited at all times in Princeton Borough and Princeton Township in all enclosed public places as defined by sections 2(e) and 2(g). See Section 1(a). Section 2(e) and 2(g) must be read together:
2(e) Enclosed Area shall mean all space, extending from the floor to the ceiling, which is enclosed on all sides by solid walls or windows (exclusive of doors or passage ways), including all space therein screened by partitions or dividers which do not extend to the ceiling or are not solid, office-type structures.
2(g) Public Place shall mean any enclosed area to which the public is invited or in which the public is permitted, except a private residence and a "workplace" as defined herein.
Similar to the foregoing sections, the preemption analysis begins with a review of N.J.S.A. 26:3D-38 et seq. More particularly, N.J.S.A. 26:3D-39(a) defines an indoor public place as:
[A] structurally enclosed area generally accessible to the public in theaters, gymnasiums, libraries, museums, concert halls, auditoriums, or other similar facilities which are neither owned or leased by a governmental entity or qualify as a health care facility or the waiting room of a person licensed to practice the healing arts. Race tracks facilities, casinos licensed under the "Casino Control Act," P.L.1977, c. 110 (C. 5:12-1 et seq.), facilities used for the holding of boxing and wrestling exhibitions or performances, football, baseball, and other sporting events facilities, bowling alleys, dance halls, ice and roller skating rinks and other establishments providing ambulatory recreation are excluded from this definition.
The aforementioned provision must be read in conjunction with N.J.S.A. 26:3D-40. This section provides:
a. The owner, manager, proprietor, or other person who has control of an indoor public place shall establish nonsmoking areas in those places for which he is responsible. In establishing nonsmoking areas, the owner, manager, proprietor, or other person in charge shall provide areas for nonsmokers to use to conduct business or participate in activities free from the annoyance and health hazard of smoke.
b. Smoking is prohibited in pharmacies, drug stores, or areas registered with the board of pharmacy of the State of New Jersey and to which permits have been issued for the dispensing of prescription drugs, and in any areas where hearing aids are sold at retail.
c. Smoking areas for employees may be permitted in any indoor public place covered under this act as long as they are separate areas and not generally accessible to the public except where smoking is prohibited by municipal ordinance under the authority of R.S. 40:48-1 and R.S. 40:48-2 for the purposes of protecting life and property from fire.
Importantly, N.J.S.A. 26:3D-41(a) provides that the municipality "may suggest guidelines for establishing nonsmoking areas in indoor public places which may be followed by the owner, manager, proprietor or other person in charge of an indoor *524 public place but in no case shall the guidelines be mandatory." In the case at bar, the court finds:
(1) That the Ordinance adopted by PRHC expressly conflicts with State law by forbidding that which is specifically authorized by State statute; and
(2) That N.J.S.A. 26:3D-38 to -45 reflects and expresses a clear and unequivocal intent to exclusively govern and regulate smoking; and
(3) That requirement of uniform statewide treatment on this subject matter is reflected in the Legislative findings and declaration of policy set forth in Title 26 and the regulations are so comprehensive that little, if anything, is left to municipal control; and
(4) That the State scheme is so pervasive and comprehensive that it precludes coexistence of municipal regulation; and
(5) That the Ordinance represents an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature.
As noted heretofore, the express, clear and unequivocal intent to exclusively govern and regulate smoking by the Legislature is evinced by the enactment of N.J.S.A. 26:3D-41(b):
The provisions of this act shall supersede any other statute, municipal ordinance, and rule or regulation adopted pursuant to law concerning smoking in indoor public places except where smoking is prohibited by municipal ordinance under authority of R.S. 40:48-1 and R.S. 40:48-2 or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire.
N.J.S.A. 26:3D-40(c) provides that "[s]moking areas for employees may be permitted in any indoor public place covered under this act as long as they are separate areas and generally not accessible to the public except where smoking is prohibited by municipal ordinance ... for the purposes of protecting life and property from fire." Accordingly, smoking by employees is permitted so long as the employer provides a separate area and the designated section is not accessible to the public. Therefore, the municipality lacks the authority to regulate this area but for a legitimate and demonstrable showing that the smoking ban is necessary for purposes of protecting life and liberty from fire. As noted heretofore, the court will address the fire safety issues later in this opinion.[12]
The Legislature specifically excluded race track facilities, casino licensed facilities under the Casino Control Act and a host of other sporting event facilities, bowling alleys and other establishments providing ambulatory recreation. One interpretation is that the exclusion of these types of facilities and establishments supports the determination that they are not preempted by State statute, thereby vesting in the municipality the authority to control and to regulate smoking. The more logical conclusion is that the Legislature intended to exclude these facilities, establishments and activities from any and all smoking regulations, including the requirement that they establish nonsmoking areas.
F.
All Restrooms, Lobbies, Reception Areas, Hallways, Elevators, Service Lines and any Other Common-Use Areas in Enclosed Public and Workplaces
Ordinance 2000-01 provides that "smoking shall be prohibited at all times within Princeton Borough and Princeton *525 Township in all restrooms, lobbies, reception areas, hallways, elevators, service lines and any other common-use areas in enclosed public and workplaces." Once again, this court finds that the Ordinance is preempted by State statute for all of the reasons set forth in the previous section.
G.
Other Statutory Provisions
In this opinion, the court has referred to the broad and comprehensive scope of Chapter 3D (smoking in public places) and Chapter 3E (smoking in restaurants). Although not enumerated in detail herein, Chapter 3D includes: (1) N.J.S.A. 26:3D-7, Health Care Facilities and Doctor's Offices; (2) N.J.S.A. 26:3D-17, Educational Institutions; (3) N.J.S.A. 26:3D-32, Food and Marketing Stores; and (4) N.J.S.A. 26:3D-46, Government Buildings. For each of the types of facilities, offices, buildings, institutions and stores set forth therein, the Legislature has included the following:
[ ]The State or any agency or political subdivision thereof may suggest guidelines for establishing nonsmoking areas... which may be adopted ... but in no case shall they be mandatory.
[ ]The provisions of this act shall supersede any other statute, municipal ordinance, and rule or regulation adopted pursuant to law concerning smoking in restaurants except where smoking is prohibited by municipal ordinance under authority of R.S. 40:48-1 and R.S. 40:48-2 or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire.
[N.J.S.A. 26:3D-10(a) & (b) (health care facilities and doctors's offices); N.J.S.A. 26:3D-19(a) & (b) (educational institutions); N.J.S.A. 26:3D-32(a) & (b) (food and marketing stores); and N.J.S.A. 26:3D-46(a) & (b) (government buildings).]
These categories, coupled with those discussed in detail in this opinion,[13] evidence the clear and unequivocal intent by the Legislature to exclusively govern smoking.[14]
H.
Summary
PRHC and NJB rely on C.I.C. Corp. v. Township of East Brunswick, 266 N.J.Super. 1, 628 A.2d 753 (App.Div.), aff'd, 135 N.J. 121, 638 A.2d 812 (1994), a case that allowed municipal bans of cigarette vending machines, in support of their argument that Ordinance 2000-01 is not preempted. Based on the following, however, the court finds that their reliance on C.I.C. is misplaced.
In C.I.C., the Township of East Brunswick, concerned for the health of its minor residents affected by early smoking, enacted an ordinance in July, 1990 banning such machines. The plaintiffs, owners and operators of cigarette vending machines, challenged the legality of the ordinance on the ground of preemption and equal protection. The trial judge concluded that the *526 ordinance was preempted by the Cigarette Tax Act, N.J.S.A. 54:40A-1 to -45, and the Unfair Cigarette Sales Act, N.J.S.A. 56:7-18 to -38. The Appellate Division reversed.
Importantly, in C.I.C., the Appellate Division recognized that both the Cigarette Tax Act and the Unfair Cigarette Sales Act were enacted to raise revenues and control the abuses arising from non-licensed sale of cigarettes, such as smuggling. Id. at 9, 628 A.2d 753 (quoting Coast Cigarettes Sales, Inc. v. Mayor & City Council of Long Branch, 121 N.J.Super. 439, 447, 297 A.2d 599 (Law Div. 1972)). By contrast, the court held that the purpose of the Township ordinance was to prevent the sale of cigarettes to minors. Since the Township ordinance focused on purchasers of cigarettes, while the State laws sought to regulate sellers of cigarettes, the court found that the purpose of the laws were quite different. Accordingly, the court concluded that East Brunswick's ordinance was not preempted because there was no clear legislative intent to establish the exclusive regulation of cigarette vending machines nor any existing State law with which the municipal ordinance conflicted. Id. at 12, 628 A.2d 753.
In the case at bar, the statutory scheme compels an opposite conclusion. As noted heretofore, there is a clear intent by the State Legislature to comprehensively regulate smoking in indoor public places, and to do so exclusively. The State Legislature promulgated requirements designed to regulate when, where, and under what circumstances smoking is allowed. Their varying requirements seek to balance the rights of smokers and nonsmokers, a balance that would be thwarted by municipal smoking bans like that under challenge.
NJB cites Oregon Restaurant Ass'n v. City of Corvallis, 166 Or.App. 506, 999 P. 2d 518 (2000), in support of its position that preemption does not apply. In Corvallis, the municipality adopted an ordinance prohibiting smoking in all enclosed public spaces within the City or located on City owned property including, but not limited to, various listed locations, including restaurants. In Corvallis, the plaintiffs asserted that it was preempted by the Oregon Indoor Clean Air Act and that the ordinance was void because it was unconstitutionally vague. The court held, relying on the ancillary authority set forth by statute, that the statute did not preempt the ordinance.[15]
Reliance by NJB on the finding reached by the court is misplaced. Importantly, in Corvallis, the court found that the Oregon statute specifically permitted further regulation because the statute did not prohibit smoking in other locations, but it provided that the regulations that it authorized "`are in addition to and not in lieu of any other law regulating smoking.'" Id. at 519, 999 P.2d 518. The court rejected plaintiffs' facial vagueness challenge to the ordinance.
To summarize this court's analysis, in determining the applicability of preemption, the following factors must be considered: whether the ordinance conflicts with state law, either because of conflicting policies or operational effect; whether the state law was intended, expressly or impliedly, to be exclusive in the field; whether the subject matter reflects a need for uniformity; whether the state scheme is so pervasive or comprehensive that it precludes the coexistence of municipal regulation; and whether the ordinance stands as an obstacle to the accomplishment of the full purposes and objectives of the legislature. Overlook Terrace Mgmt. Corp., supra, *527 71 N.J. at 461-62, 366 A.2d 321. Based on the court's in depth analysis of the State statutory scheme regarding smoking regulations, the court finds that (1) the Ordinance conflicts with State law; (2) the State law is intended, expressly or impliedly, to be exclusive in the field; (3) the subject matter reflects a need for uniformity; (4) the State scheme is so pervasive and comprehensive that it precludes coexistence of municipal regulation; and (5) the Ordinance adopted by the PRHC stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the Legislature. Accordingly, the Ordinance is preempted by State law.
III.
WHETHER THE ORDINANCE IS SUSTAINABLE BASED ON FIRE SAFETY ISSUES
Ordinance 2000-01, on its face, primarily addresses the impacts of smoking on the public health of the community that are unrelated to fire safety issues. The Ordinance is preceded by seven separate "whereas" clauses highlighting the effects of tobacco smoke. The first four relate to the health hazards of breathing second-hand smoke. The first page of the ordinance is set forth below:
Whereas, numerous studies have found that tobacco is a major contributor to indoor air pollution and that breathing second-hand smoke is a cause of disease, including lung cancer, in nonsmokers; and
Whereas, the health hazards of breathing second-hand smoke include lung cancer, heart disease, respiratory infection and decreased respiratory function; and
Whereas, the active smoking of tobacco and the passive inhalation of environmental tobacco smoke are the most prevalent causes of preventable death, disease and disability; and
Whereas, the U.S. Surgeon General found that separating smokers from non-smokers within the same air space does not eliminate the exposure of nonsmokers to environmental tobacco smoke; and
Whereas, the State of New Jersey has acknowledged that smoking is the leading cause of death from fire; and
Whereas, the State of New Jersey has entered into litigation against various tobacco product manufacturers and others for the purpose of improving the public's health and adopting policies and programs to achieve a significant reduction in smoking by its citizens and, in particular, by youth; and
Whereas, as part of its settlement the State of New Jersey will receive significant funding for the advancement of the public's health, including the implementation of important tobacco-related public health measures and restrictions; and
Additionally, the last "whereas" clause provides:
[O]n the basis of scientific reports, other authoritative data and the published warnings of the U.S. Surgeon General, the PRHC finds that the public interest and public trust to safeguard the welfare of the citizens of Princeton require that certain measures be established to eliminate exposure to the risk of harm due to the use of lighted tobacco products and due to environmental tobacco smoke in order to: (1) protect the public health and welfare from dangerous, unnecessary or involuntary health risks by prohibiting smoking in public places and workplaces; and (2) guarantee that the need to breathe smoke-free air shall take priority over the desire to smoke and create health hazards for smokers and nonsmokers alike.
The court agrees with the plaintiffs in their assertion that, based on the Legislative history[16] and the language of the Ordinance, it does not appear that the *528 Ordinance was adopted for the purposes of protecting life and property from fire. Section 1 of the Ordinance prohibits smoking in virtually all buildings without reference to such fire safety issues as the existence of sprinkler systems, other fire suppression systems, the ease of entry and exit, the special characteristics of users of the facility or the like. Section 4 of the Ordinance also prohibits smoking at a reasonable distance outside each building to ensure that "tobacco smoke does not enter the air people breathe through entrances, exits, windows, ventilation systems or any other means" and does not focus on fire issues, but a concern for inhaling smoke. Section 5(a) exempts hotels, motels and other lodging establishments from the smoking ban if rooms "have separate ventilation systems", not if the rooms have a working fire suppression system. Similarly, Section 5(b) of the Ordinance exempts retail tobacco stores, an exemption not based on fire-related rationale.
Perhaps most interesting is that the Ordinance exempts residential dwellings.[17] If the PRHC was truly focused on fire safety, it would not have prohibited smoking in the types of establishments actually regulated by the Ordinance, but would have regulated residential buildings exempt from Ordinance 2000-01. Viewed as a whole, the Ordinance cannot be credibly defended as a fire safety measure. On its face, the Ordinance is a near absolute smoking ban that is not guided by fire safety concerns, but is designed to address the deleterious effects of tobacco smoke.
The court finds that the mere invocation of the term "fire safety" does not transform *529 a broad-ranging smoking ban based on public health concerns into a fire safety ordinance designed and implemented in all its particulars based on fire safety concerns. As the legislative history makes perfectly clear, the PRHC is a health commission that was motivated by its concern over public exposure to tobacco smoke. The PRHC cannot disguise its true purpose and intent and claim that the Ordinance is a fire safety measure simply by adding a single "whereas" clause on fire dangers and then adopting, without change, the Ordinance's operative provisions designed to address exposure to tobacco smoke.
Based on the above, the court specifically finds that Ordinance 2000-01 cannot be sustained based on fire safety reasons.
IV.
DID PRHC HAVE THE AUTHORITY TO ADOPT ORDINANCE 2000-01 BASED ON FIRE SAFETY REASONS
N.J.S.A. 26:3-84 permits the "[b]oards of health of 2 or more municipalities to form an association to furnish such boards with public health services." N.J.S.A. 26:3-92, entitled "Powers, duties and jurisdiction of regional health commission," provides the following:
Each regional health commission shall have jurisdiction in matters of public health within the geographic area of the participating municipalities. It shall succeed to all powers and perform all the duties conferred and imposed upon the municipal boards of health ....
As noted above, the authority of the regional health commission is derived from the powers and duties allocated to municipal boards of health. The general powers and duties of a local board of health are set forth in N.J.S.A. 26:3-31. The introductory paragraph provides "[t]he local board of health shall have the power to pass, alter or amend ordinances and make rules and regulations in regard to the public health within its jurisdiction...." Thereafter, the statute lists sixteen separate and distinct paragraphs outlining with specificity the general powers and duties of the local board of health. Interestingly, none of the enumerated powers identify fire safety or are in any way related to fire safety.
In its supplemental brief, PRHC argues that local boards of health possess general powers to enact ordinances and to make rules and regulations in the interest of public health and that the enumeration of the specific powers and duties set forth in N.J.S.A. 26:3-31, has been found not to be a limitation upon the general powers of a board of health with regard to matters pertaining to public health. Zullo v. Board of Health of Woodbridge Township, 9 N.J. 431, 88 A.2d 625 (1952). Relying on Board of Health of Weehawken Township v. New York Central Railroad Co., 4 N.J. 293, 300, 72 A.2d 511 (1950), PRHC asserts that its authority to adopt a fire safety ordinance is based on the commissioners' public health interest in protecting the community from the threat of fire. This reliance is misplaced.
The State smoking statutes provide a narrow exception for municipal regulation of smoking for fire safety reasons. The statutes provide, in pertinent part, that:
The provisions of this act shall supersede any other statute, municipal ordinance, and rule or regulation adopted pursuant to law concerning smoking [ ] except where smoking is prohibited by municipal ordinance under authority of R.S. 40:48-1 and 40:48-2 or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire.
[N.J.S.A. 26:3D-10(b) (health care facilities); N.J.S.A. 26:3D-19(b) (educational institutions); N.J.S.A. 26:3D-26(b) (places of employment); N.J.S.A. 26:3D-41(b) (indoor public places); N.J.S.A. 26:3D-49 (government *530 buildings); N.J.S.A. 26:3E-10(b) (restaurants) (emphasis added).]
The statutory citation to N.J.S.A. 40:48-1 and -2 is no accident and refers to the power of municipalitiesnot local boards of health or regional health commissions to enact fire safety laws. N.J.S.A. 40:48-1 defines the general and regulatory powers of a municipality and states that "[t]he governing body of every municipality" may pass ordinances in 31 enumerated areas, several of which encompass fire safety issues. See N.J.S.A. 40:48-1(14) and (24). Similarly, N.J.S.A. 40:48-2 provides that:
Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.
[Emphasis added.]
The foregoing statutes, which are expressly referenced in the fire safety exception, build upon other fire safety statutes delegating fire safety powers to municipal governments. The Uniform Fire Safety Act, N.J.S.A. 52:27D-192 et seq., recognizes the right of each "municipality to adopt an ordinance dealing with fire safety...." N.J.S.A. 52:27D-202(b). The Uniform Fire Safety Act also provides that "[e]ach municipality in this State is authorized to adopt an ordinance providing for local enforcement of this act" and may designate either the municipal fire department, county fire marshall or a fire district as the local enforcing agency. N.J.S.A. 52:27D-202(a). Likewise, N.J.S.A. 40:48-2.28 permits "the governing body of any municipality ... [to] provide for the regulation and control of ... matters related to fire prevention." (Emphasis added). Taken together, these statutes make it abundantly clear that the municipal authority to pass fire safety ordinances resides in the municipal governing body, rather than a regional health commission such as the PRHC.
Regional health commissions have no more authority than the local boards of health that they supersede. N.J.S.A. 26:3-92. Those powers are limited to public health issues and do not extend to fire safety. N.J.S.A. 26:3-31 enumerates the specific powers and duties of local boards of health. It provides: "[t]he local board of health shall have power to pass, alter or amend ordinances and make rules and regulations in regard to the public health within its jurisdiction, for the following purposes ...." Id. (emphasis added). Chapter 3 then lists sixteen purposes, all of which focus on health and sanitation including protecting the public water supply, regulating the sanitary conditions of various establishments, compelling sewer connections, and regulating the accumulation of offal and any decaying or vegetable substance. Id. Fire safety is not mentioned once among these enumerated powers.
Although the powers of local boards of health are not strictly limited to those enumerated in N.J.S.A. 26:3-31, "[a]n exercise of delegated power in a manner not within the contemplation of the Legislature must be restrained within the proper bounds and be held void." Hasbrouck Heights Hosp. Ass'n v. Borough of Hasbrouck Heights, 15 N.J. 447, 455, 105 A.2d 521 (1954) (citations omitted). This is clearly the case here. Local boards of health were created "to prevent nuisances in conservation of the public health[ ]", and "to prevent disease and discomfort, such as might arise from contamination of air, water or food." Garrett v. State, 49 N.J.L. 94, 101-02, 7 A. 29 (Sup. Ct.1886). They were not created to prevent fires. The remaining ninety-three sections of Title 26 confirm the limited and focused role of local boards of health. Importantly, *531 not one of those sections mentions fire safety. For example, N.J.S.A. 26:3-64 authorizes local boards of health to "enact and amend health ordinances" (emphasis added). N.J.S.A. 26:3-33 empowers local boards of health to "[s]ecure the sanitary conditions of every building ...", including the authority to regulate plumbing, ventilation and drainage thereof. Numerous provisions of Title 26 direct local boards of health to prohibit and regulate nuisances. See N.J.S.A. 26:3-45; N.J.S.A . 26:3-46; N.J.S.A. 26:3-47; N.J.S.A. 26:3-56. In the same vein, local boards of health must annually advise the municipal governing body of "the appropriation which it believes necessary for health purposes." N.J.S.A. 26:3-41 (emphasis added).
Finally, the agreement forming the PRHC supports these limits on its authority. There is no mention of fire safety in the agreement. Under Section 4, entitled "General powers, duties and jurisdiction," the PRHC's authority is limited to "matters of public health." (Spano Cert. at Ex. D (emphasis added)). Under Section 5, entitled "Services to be performed," the agreement states that "[t]he Commission shall furnish for each local board all public health services for the local district." See id. (emphasis added).
This court is satisfied that PRHC did not possess the statutory authority to enact Ordinance 2000-01 for fire safety purposes. Since State law preempts any municipal regulation of smoking except for fire safety reasons, and since the power to enact fire safety regulations rests with the municipal governing bodies and not the PRHC, Ordinance 2000-01 is invalid and unenforceable on fire safety grounds.
V.
CONCLUSION
Based on all of the reasons set forth herein, Ordinance 2000-01 is declared void and of no force and effect.
NOTES
[1] The court signed an order on June 19, 2000. The order, in pertinent part, established a briefing schedule and included a continuation of the injunctive relief pending the court's decision on July 20, 2000.
[2] On the return date of the order to show cause and motion to remove NSA as a party plaintiff, two additional issues were raised. The first was whether Ordinance 2000-01 was sustainable on fire safety grounds and the second was whether the PRHC had the authority to enact the Ordinance on fire safety grounds. Those issues are addressed in this opinion.
[3] Based on the standards set forth in Crowe v. De Gioia, 90 N.J. 126, 132-34, 447 A.2d 173 (1982), the court held that (1) plaintiffs demonstrated a reasonable probability of ultimate success on the merits; (2) plaintiffs demonstrated that, absent judicial intervention, plaintiffs would suffer substantial, immediate and irreparable harm; (3) plaintiffs demonstrated that the equities amongst the parties favored granting the relief requested; and (4) plaintiff demonstrated that the public interest favors granting the relief requestedan injunction will simply maintain the status quo within the community.
[4] See N.J.S.A. 26:3-92 (providing that "[e]ach regional health commission shall have jurisdiction in matters of public health within the geographic area of the participating municipalities. It shall succeed to all powers and perform all the duties conferred and imposed upon the municipal boards of health ....").
[5] See Certification of Robert J. Conroy, Esq., counsel for NJB, and Exhibit A.
[6] See PRHC's brief at 8.
[7] A restaurant is defined as a retail food establishment whose principal business is the sale, service and/or preparation of food for consumption on or off the premises, including but not limited to coffee shops, cafeterias, sandwich stands, private and public cafeterias and any other eating establishments, which give or offer food to the public, guests or employees. See Section 2(e). A cabaret is defined as a place where entertainment is performed, and whose principal purpose is to provide entertainment and/or dancing in conjunction with the service of food and/or beverages. See Section 2(b). A tavern is defined as a retail establishment or separately enclosed section thereof in which the principal business is the sale of alcoholic beverages for consumption on the premises of such establishment. See Section 2(k).
[8] Reply brief in support of plaintiffs' request for preliminary injunction and in opposition to defendant's motion to remove NSA as a plaintiff, pages 13 and 14.
[9] See Spano Cert. at Ex. C (emphasis added).
[10] Even assuming arguendo that the court finds that the State Legislature did not intend to prohibit regulation in these exempted areas, the Ordinance cannot be salvaged from infirmity by the severability clause included in the second to last provision of the Ordinance. Under New Jersey law, "[i]t is not enough in itself that the invalid portion or section of a statute is excisable in fact; additionally, in such case, a clear intention must appear on the part of the Legislature to authorize severability and consequent continued viability of the statute." New Jersey Chapter, Am. Inst. Planners v. New Jersey State Bd. of Prof'l Planners, 48 N.J. 581, 594, 227 A.2d 313 (1967), cert. denied, 389 U.S. 8, 88 S.Ct. 70, 19 L.Ed.2d 8 (1967) (citation omitted). A severability clause provides a rule of construction which may sometimes aid in determining legislative intent; but it is merely an aid, not an inexorable command. State, by McLean v. Lanza, 27 N.J. 516, 143 A.2d 571 (1958). Here, there is no provision of the Ordinance that can be excised; rather, the Ordinance requires a total re-write. Moreover, from the moment of the Ordinance's contemplated inception, the PRHC intended to impose a virtual blanket smoking ban throughout Princeton Township and Princeton Borough. It is eminently clear that the PRHC had no intention of enacting this smoking ban simply with respect to bars, places of employment with fewer than fifty employees, and food and marketing stores with less than 4,000 square feet and never evaluated that prospect. The PRHC cannot now in good faith argue that when it included the severability provision at the end of the Ordinance, it contemplated that virtually all of the Ordinance would be deemed invalid and, if so, the Ordinance should still apply in the few areas where it might remain valid.
[11] For the same reasons, the court rejects the assertion by PRHC that food and marketing stores as defined in N.J.S.A. 26:3D-33, with less than 4,000 square feet may be the subject of municipal regulation. N.J.S.A. 26:3D-32 et seq., entitled Food and Marketing Stores, provides in relevant part that "the purpose of this act, therefore, is to prohibit smoking in enclosed retail food and marketing stores." Enclosed retail food and marketing stores, as used in the act, include "[a]ny establishment where food is sold primarily for off-premises consumption and in which the selling area open to the public exceeds 4,000 square feet." N.J.S.A. 26:3D-33(a).
[12] See also N.J.S.A. 26:3D-40(b), which provides that without demonstrating the need to protect life and property from fire, the municipality may ban smoking in pharmacies, drug stores, or areas registered with the board of pharmacy of the State of New Jersey and to which permits have been issued for the dispensing of prescription drugs, and in any areas where hearing aids are sold at retail.
[13] As with the express exclusion of bars and employers with less than 50 employees, when exempting certain businesses like small food stores from regulation, the Legislature recognized that there was no reason to upset the economic equilibrium of small food stores by imposing the same burden of regulation as placed on large food stores. To view this purposeful exemption as a green light to municipal smoking bans distorts the balance carefully crafted by the Legislature and produces the anomaly that those establishments deemed by the Legislature to be most worthy of an exemption from regulation will experience the most intensive regulationa smoking ban. This type of statutory interpretation cannot be countenanced. See Stonehill Property Owners Ass'n, Inc. v. Township of Vernon, 312 N.J.Super. 68, 711 A.2d 346 (App.Div. 1998) (providing that when construing a statute, a court must read the statute sensibly and not arrive at a construction which distorts its true intent).
[14] N.J.S.A. 26:3D-1, entitled Legislative findings and declarations "prohibits smoking in passenger elevators in every building other than a single family dwelling".
[15] The plaintiffs' responsive brief in opposition to the brief of amicus curiae cites three cases from other jurisdictions striking down smoking ordinances on state preemption grounds, see Justiana v. Niagara County Dep't of Health, 45 F.Supp.2d 236 (W.D.N.Y.1999), Anchor Inn Seafood Rest. v. Montgomery County Council, Civil No. 1999692 (Montgomery County, Md. Cir. Ct., June 15, 2000) and Leonard v. Dutchess County Dep't of Health, No. 99 Civ 11886 WCC, 2000 WL 948800 (S.D.N.Y. July 11, 2000).
[16] PRHC commenced its discussion and consideration of a smoking ban in February of 1999. See PRHC Brief at 3. Version 1 (not introduced) justified the smoking ban solely as a public health measure and contained no reference whatsoever to fire safety. See Supplemental Certification of Ross A. Lewin ("Lewin Supp. Cert.") at Ex. A. Ordinance 2000-01 was formally introduced on February 15, 2000. Id. at Ex. B. The operative terms of the Ordinance as introduced closely resemble those ultimately enacted by the PRHC. Once again, however, the "whereas" clauses in the Ordinance simply describe the Ordinance as a public health measure with absolutely no reference to fire safety. The official minutes of the February 15, 2000 meeting reflect that the Chair commenced the meeting by stating that the PRHC "felt it was necessary to take a public stance on this issue as a public health protection measure" and the Vice-Chair "emphasized that the ordinance was intended to protect nonsmokers from the adverse health effects of environmental tobacco smoke." Id. at Ex. C (emphasis added). Moreover, one Commission member who was absent from the evening's proceedings submitted a letter in support of the Ordinance stating "recent evidence is irrefutable that passive smoke exposure is a major public health hazard ... it accomplishes the goal of increasing protection from the hazards of exposure to tobacco smoke." Id. at Ex. D. The Ordinance was then subject to further revision, dated April 18, 2000, prior to its enactment, with the principal issue focusing on whether private social clubs would be exempt from the Ordinance. Id. at Ex. E. Ultimately, Ordinance 2000-01 was enacted without an exemption for private social clubs because, according to the Chair of the PRHC, such an exemption "would diminish health protection especially for employees at the clubs who had long term exposure to second hand smoke." Id. at Ex. F (emphasis added). The PRHC added a single "whereas" clause on the fire safety issue: "WHEREAS, the State of New Jersey has acknowledged that smoking is the leading cause of death from fire[.]" See Cayci Cert. at Ex. A. Except for the insertion of this phrase, not a single revision was made to the Ordinance to address fire safety issues. See Lewin Supp. Cert. at Ex. E.
[17] The only evidence on fire safety that PRHC has produced is a "N.J. Fire Safety Report" identified in Paragraph 3 of the certification of William Hinshillwood. This "Report" is a single page entitled "What you Can Do to Prevent a Fire" from the web site of the New Jersey Department of Community Affairs' Division of Fire Safety. The "Report" urges the installation of smoke detectors in homes and specifies various measures to "[p]revent a fire from starting in your home." Ibid. (emphasis added). One of these tips advises that smoking is the leading cause of fire deaths and the second most common cause of residential fire. If you are a smoker, do not smoke in bed, never leave burning cigarettes unattended, do not empty smoldering ashes in the trash, and keep ashtrays away from upholstered furniture and curtains. Ibid. Ordinance 2000-01, however, exempts residential buildings from the smoking ban. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918275/ | 28 Wis.2d 50 (1965)
WHITMAN, Respondent,
v.
WHITMAN, Appellant.
Supreme Court of Wisconsin.
June 2, 1965.
June 25, 1965.
*55 For the appellant there were briefs by Benton, Bosser, Fulton, Menn & Nehs, attorneys, and Peter S. Nelson of counsel, all of Appleton, and oral argument by Mr. Nelson.
For the respondent there was a brief and oral argument by Edgar E. Becker of Appleton.
BEILFUSS, J.
Did the trial court abuse its judicial discretion by permitting the plaintiff to remove the minor children to Florida?
*56 The statutory authority for revision of a divorce judgment insofar as custody of the children is concerned is contained in sec. 247.25, Stats.:
"The court may from time to time afterwards, on the petition of either of the parties and upon notice to the family court commissioner, revise and alter such judgment concerning the care, custody, maintenance and education of any of the children, and make a new judgment concerning the same as the circumstances of the parents and the benefit of the children shall require." (Emphasis added.)
The extent of the review permitted an appellate court of orders affecting custody of children was recently well stated in Belisle v. Belisle (1965), 27 Wis. (2d) 317, 321, 134 N. W. (2d) 491:
"Custody matters are highly discretionary and the rule is well established that the trial court's determination will not be upset in the absence of a clear abuse of discretion. Although each case must be considered in light of all the particular facts and circumstances, guidelines have been established to aid the trial court in its decision. True, other things being equal, preference will ordinarily be given to the mother if she is not unfit. This is not a rule of law, but merely an important element to be considered; the crucial and controlling factor is the welfare of the child."
Otherwise stated, "this court relies heavily upon the determination by the trial court." Pollock v. Pollock (1956), 273 Wis. 233, 243, 77 N. W. (2d) 485. Especially important is the fact that the trial court is in a better position than this court to determine the best interests of the children, State ex rel. Hannon v. Eisler (1955), 270 Wis. 469, 71 N. W. (2d) 376; and to see and observe the parties and the way in which they conduct themselves. Brown v. Brown (1960), 9 Wis. (2d) 322, 101 N. W. (2d) 48; Pollock v. Pollock, supra; Greenlee v. Greenlee (1964), 23 Wis. (2d) 669, 127 N. W. (2d) 737.
*57 The overriding rule in custody disputes between divorced parents, assuming that neither has been found unfit, is that the best interests of the minor child shall dictate to whom custody shall be awarded.
In this instance the issue is not which parent shall have custody but whether the mother can remove them from the state.
In Peterson v. Peterson (1961), 13 Wis. (2d) 26, 28, 108 N. W. (2d) 126, we stated:
"The majority of the cases deciding this point support the rule that if the parent who has custody of a child has good reason for living in another state and such course of action is consistent with the welfare of the child, the courts will permit the removal. See Annos. 154 A. L. R. 558, and 15 A. L. R. (2d) 468.
"Generally, the same considerations which determine custody of children are applied to the question of removal of children out of the state. The controlling consideration is the welfare of the child and it has often been said by this court that the determination of that welfare is primarily the task of the trial court and, except where there is a clear abuse of discretion, the trial court's order should prevail. Smith v. Smith (1957), 1 Wis. (2d) 174, 83 N. W. (2d) 672; Dodge v. Dodge (1955), 268 Wis. 441, 67 N. W. (2d) 878."
From the record and the memorandum opinion of the trial court, it appears that the physical facilities for the maintenance of the children, their educational opportunities, and their moral and religious instruction and supervision would be substantially the same in Fort Myers, Florida, as in Appleton, Wisconsin.
Two further approbative considerations in this case are that the children should have the day-by-day love, care, discipline, and protection of their mother, and should be able to know their father and have the benefit of his love and guidance through adequate visitation.
*58 Under the order of the court, permitting the mother to remove the children to Florida and providing for generous rights of visitation, these objectives can be accomplished. This is not a case where the interests of the children would be best served by removal from the state because of economic, health, educational, moral, or emotional reasons.
The issue then becomes, under these circumstances, is it fair to impose additional burdens of time, distance, and expense upon the father in the exercise of his right of visitation in order to accommodate the mother's desire to move to Florida.
A divorced man or woman is free to move about and pursue his or her life and living without restraint from his former spouse; as divorced parents of minor children they may be required to curtail these liberties or forfeit some of their rights to custody or visitation, as the case may be, consistent with the best interests of the children and the rights of the other parent.
The trial court concluded that plaintiff wanted to move to Florida to continue to reside near her parents; that this desire was natural and not deplorable; that the children should be with the mother and that she should be permitted to take the children to Florida. The court further concluded that visitation rights of the defendant in Florida and Wisconsin would not unduly burden the defendant either as to the time or expense involved.
As stated above, "the trial court's determination will not be upset in the absence of a clear abuse of discretion."[1]
The same trial judge heard the divorce action. He had the benefit of his recollections of the conduct of the parties toward each other insofar as it might affect the children; he observed the parties and their witnesses and was charged with determining the credibility of the witnesses and the weight of the testimony. The trial court is in a superior *59 position to evaluate the conflicting interests of the parties and the children; the law, therefore, imposes on the trial court the responsibility of evaluating the factual proof and applying the law. This court cannot interfere unless there is an erroneous application of the law or a clear abuse of discretion in applying the facts to the law.
The plaintiff's proof is meager. It might well be possible that some members of the majority would join with our dissenting brothers if we would have heard the petition as an original matter. We cannot, however, conclude that the trial court abused its discretion when it determined that the plaintiff's desire to move was for a proper purpose and beneficial to her, that it was not detrimental to the children, and that under the circumstances removal to Florida would not constitute an undue burden upon the defendant in exercising his visitation rights. The order permitting removal must be affirmed.
The defendant contends that the court prejudicially abused its discretion in refusing to order a psychiatric examination of the minor children. There is no allegation nor proof to show that the minor children were not normal physically or emotionally, or that the move to Florida could have that effect. There is no showing of an abuse of discretion in this respect.[2]
Three additional problems in this appeal, while not necessary to the opinion, are worthy of note.
After the hearing on July 7th, but before the trial court's decision on August 17th, the plaintiff filed several affidavits tending to show conduct on the part of the defendant that was either detrimental to the children or disconcerting to the plaintiff. The defendant filed an affidavit of general denial. The trial judge advised the parties he would consider them insofar as they were material. The record does not reveal in what respect, if any, these affidavits were considered. We *60 assume they formed no part of the trial court's finding and this opinion disregards whatever impact they might have.
The plaintiff contends that these affidavits may be considered as a part of the proof by virtue of sec. 269.32 (2), Stats.[3]
While we do not say that an affidavit filed subsequent to a hearing in a custody matter cannot be considered under any circumstances, we do disapprove of materially disputed facts being presented in this manner. (In fairness to counsel we must report he did have his witnesses present and offered to produce them.)
The quotation that follows goes beyond a fair criticism of the record in this case, but illustrates the importance of sworn testimony as contrasted to affidavits in child-custody cases:
"The plaintiff further contends that the trial court, in determining this controversy, proceeded in an unwarranted manner, in that no hearing, such as ought to have been had in so important a matter, was in fact had. The whole hearing was conducted quite informally and without an opportunity to make a record or without a record in fact being made. We think the procedure adopted by the court in this important matter is justly subject to criticism. Judgments in divorce actions should not be so modified as to the custody of a child or children. In such a case where a contest exists and especially where a hearing is demanded, a hearing should be given. The witnesses should be sworn and an opportunity given to cross-examine them. The testimony should be taken by the reporter so that a record may be made in case either of the parties desires to appeal and have such order reviewed. We have not before us in this appeal any record of what was said by the attorneys, what informal conversations were had between the court and the witnesses, what testimony, if any, was given, and what in fact the court acted upon. In a matter *61 of such vital concern to the parties and to the child whose interests are of paramount importance, a record should be made to the end that a party may not be denied an effective appeal." Smith v. Smith (1932), 209 Wis. 605, 610, 245 N. W. 644.
The plaintiff's order to show cause to commence these proceedings demands that the defendant show cause "why an order should not be entered herein confirming the change of residence of the children of the parties. . . to the State of Florida."
It is the plaintiff's position that because the judgment awarding custody of the children to her did not restrain her from removing the children from the state she was at liberty to do so without permission of the court.
The family court, by virtue of sec. 247.25, Stats., is obligated to retain jurisdiction for custody purposes. The minor children are, in a sense, wards of the court. Even though the courts of our sister states accord "full faith and credit" to the judgments and orders of the courts of this state, the enforcement of those orders may become, as a practical matter, cumbersome and prohibitively expensive.
We subscribe to the statement in 2 Nelson, Divorce and Annulment (2d ed., 1961 rev.), p. 267, sec. 15.20:
"A party who has been awarded the custody of a minor child should procure leave of court, by an order properly entered in the cause in which the custody was awarded, before taking [the] child out of the state."
Our final comment deals with the order permitting the plaintiff to remove the children to Florida pending the appeal. The defendant, by order to show cause, asked that the order amending judgment permitting removal of the children be stayed pending this appeal. The court denied the motion to stay but ordered the plaintiff to post a bond in the amount of $1,500 as security to assure the return of the *62 children to Wisconsin in the event the order permitting removal was reversed. Pursuant to these orders the children were removed and have been in Florida since September, 1964.
Except in those instances where the trial court finds it would be contrary to the best interests of the children, or unduly restrictive or detrimental to the removing parent, we deem it advisable for the trial court to stay the execution of the order permitting the removal of the minor children pending the appeal from that order when an appropriate motion is made. This is because of the disrupting effect it may have upon the children if the order is reversed.
By the Court.Order affirmed.
HALLOWS, J. (dissenting).
In my opinion the trial court clearly abused its discretion in allowing Mrs. Whitman to remove the children to Florida for no better reason than that she wanted to be near her parents who contemplated moving from Wisconsin to Florida. When the divorce was granted and the custody of the children was awarded to the mother, she was given the home in Appleton where the children and their father could enjoy at least weekend association. The burden of proof to change this arrangement rests upon Mrs. Whitman to show the well-being of the children will be better served by the removal of the children to Florida. Greenlee v. Greenlee (1964), 23 Wis. (2d) 669, 127 N. W. (2d) 737; Anderson v. Anderson (1959), 8 Wis. (2d) 133, 98 N. W. (2d) 434; 27B C. J. S., Divorce, p. 483, sec. 313. This she has failed to do. The most the evidence shows is that in respect to economic and educational matters the interests of the children were not affected, but we think more is required to justify a modification of the divorce judgment respecting the children.
The proof should show that the interests of the children are better served and promoted by the change, not merely *63 that their interests are not adversely affected. In Peterson v. Peterson (1961), 13 Wis. (2d) 26, 108 N. W. (2d) 126, we allowed a mother to remove a child to Minnesota but it was pointed out that such removal was for the best interests of the child. Likewise, in Anderson v. Anderson (1959), 8 Wis. (2d) 133, 98 N. W. (2d) 434, this court required children to be brought back to Wisconsin from Mexico because the health requirements for their being in Mexico no longer existed and their future would be better assured by their return to Wisconsin. In Bennett v. Bennett (1938), 228 Wis. 401, 280 N. W. 363, we allowed the father who had custody of the children to remove them to New York where he had secured a better job with greater opportunities, but this was on the ground that such reasons relating primarily to the parent who had custody indirectly were for the best interests of the children and would result in a benefit to them. To the same effect are Baer v. Baer (Mo. App., 1932), 51 S. W. (2d) 873; King v. King (1931), 61 N. D. 422, 237 N. W. 854; see 15 A. L. R. (2d) 432, Anno. Custody of ChildRight of Nonresident.
No such case is presented here; the only reason advanced is that an adult woman wants to follow her parents' removal from Wisconsin. She claims she has a right to live her own life in a place conducive to her happiness and welfare. This reason illustrates one of the tragedies of all divorcesan egocentric attitude and an unwillingness to sacrifice for others. It has been rightly said the real tragedy of a divorce falls upon the helpless children of the ill-starred marriage; they are the ones who can no longer look forward to the love and security of a normal homelife and the guidance and association of both parents. Because of this fact, the law is ever zealous of their rights and requires that the dominant and paramount reason for any change in their custody be their best interests. Greenlee v. Greenlee, supra; Block v. Block (1961), 15 Wis. (2d) 291, 112 N. W. (2d) 923; Bliffert *64 v. Bliffert (1961), 14 Wis. (2d) 316, 111 N. W. (2d) 188; Subrt v. Subrt (1957), 275 Wis. 628, 83 N. W. (2d) 122; Dodge v. Dodge (1955), 268 Wis. 441, 67 N. W. (2d) 878.
The majority opinion pays little heed to the right of the children to emotional stability, to their rights to the association of both parents. While divorce has severed the marriage, it has not dissolved any bonds of parenthood. True, the law has not yet developed to the point where the rights of the children of divorces are recognized independently from those of the parents. We still determine children's rights in our adversary system through the enforcement of some right of a warring parent, but such an approach emphasizes too much the form in which the determination is made and tends to treat all children of a divorce as chattel. The majority opinion does not consider the effect on the children of being denied their right to the association and the companionship of their father. It is no answer to say the father is wealthy and can afford to go to Florida and his job is not so time-consuming as to make the trip a hardship. This is viewing the problem solely from the standpoint of the father. Living in Florida is not as convenient or conducive to a normal relationship between the father and his children from the children's standpoint as living in the same city.
I am authorized to state that Mr. Chief Justice CURRIE joins in this dissent.
NOTES
[1] Belisle v. Belisle, supra.
[2] Peterson v. Peterson, supra.
[3] ". . . The moving party may be allowed to present upon the hearing, records, affidavits or other papers, not served with the motion papers, but only upon condition that opposing counsel be given reasonable time in which to meet such additional proofs, should request therefor be made." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578942/ | 267 Wis.2d 386 (2003)
2003 WI App 215
671 N.W.2d 325
STATE of Wisconsin, Plaintiff-Respondent,
v.
Scott Michael HARWOOD, Defendant-Appellant.
No. 03-0049-CR.
Court of Appeals of Wisconsin.
Submitted on briefs June 24, 2003.
Decided September 17, 2003.
*388 On behalf of the defendant-appellant, the cause was submitted on the briefs of Patrick J. Schott, and Margaret G Zickuhr, of Schott, Bublitz & Engel, S.C. of Brookfield.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and David H. Perlman, assistant attorney general.
Before Anderson, P.J., Brown and Nettesheim, JJ.
¶ 1. NETTESHEIM, J.
Scott Michael Harwood appeals from a judgment of conviction for maintaining a place to store controlled substances contrary to Wis. *389 STAT. § 961.42(1) and (2) (2001-02).[1] Harwood contends that the trial court erred in denying his motion to suppress evidence stemming from a warrantless police entry into his apartment. We uphold the trial court's ruling that exigent circumstances allowed the police to enter Harwood's apartment without a search warrant. We therefore affirm the judgment of conviction.
FACTS
¶ 2. The facts underlying the police entry into Harwood's apartment are not disputed. Sergeant Michael Glider of the City of New Berlin Police Department testified at the suppression hearing that shortly after noon on May 19, 2002, he received a dispatch call of a burglary in progress at Apartment 206 of the Coachlight Apartments. The dispatcher reported that the tenant in Apartment 106 had observed two white males, "one boosting the other up to the window." The tenant believed the patio door to the apartment was being opened and the apartment was being entered illegally.
¶ 3. Glider was the first officer to respond to the call. Upon his arrival, he assigned other responding officers to perimeter positions around the building. While attempting to locate Apartments 206 and 106, Glider came upon two white males exiting Apartment 108. The two men closed the door quickly as if they "might be concealing something in 108." The men asked Glider why all of the officers were present and Glider replied that the tenant in 106 had seen another person boosting someone up onto the balcony of 206. The men responded that they were the two individuals the police *390 were looking for. One of the men, later identified as Harwood, indicated that he lived in 206, had locked himself out, and had enlisted the help of the other man, his neighbor Jeremy Van Hoorbeck, "to boost him up to the balcony to enter the balcony so he could get his keys."
¶ 4. When asked for identification, Van Hoorbeck produced a driver's license that did not have his Coachlight address. However, he was able to produce mail from his apartment bearing his name and his Coachlight address. Harwood was unable to provide identification but did provide his full name and date of birth. Van Hoorbeck informed Glider that Harwood occupied Apartment 206.
¶ 5. When Glider asked Harwood where his keys were, Harwood stated that he did not have them and they were still in his apartment. Glider noted that Harwood seemed very nervous and was sweating. In Glider's opinion, "things didn't seem to be adding up." A female occupant of Apartment 108 then came out to the hallway, produced a key ring and said the keys belonged to Harwood, but Glider also noted that the name on the buzzer next to Apartment 206 was "Virjonna," not Harwood. Therefore, based on Harwood's "nervousness, his sweatiness, [that he] said he didn't have the keys, then had them, the name at apartment 206 didn't match his name, [he] didn't have any identification, him only being 17," Glider doubted that Harwood actually lived in Apartment 206 and believed that a burglary may have occurred or may still be occurring.
¶ 6. Glider sent Officer Mark Herbst to check out Apartment 206. Herbst entered the apartment using the keys provided by the female from Apartment 108. During his visual inspection of the apartment, Herbst observed material that he believed to be controlled *391 substances and drug paraphernalia. After making sure that the apartment was clear, the police escorted Harwood into the apartment and asked him to produce verification that he lived there, including any mail with name and address. Harwood was unable to do so. The officers then attempted to contact the apartment manager.
¶ 7. Another officer, Richard A. Helm Jr., testified at the suppression hearing regarding his contact with Harwood. According to Helm, he tried to corroborate Harwood's verbal identification by having Harwood produce evidence of his address, building number, and social security number. Harwood was unable to provide any of this information.
¶ 8. Based on the totality of their investigation, the police obtained a search warrant for Harwood's apartment. The ensuing search revealed the drug-related evidence that resulted in the charge of maintaining a place used for manufacturing, keeping or delivering controlled substances contrary to Wis. STAT. § 961.42(1) and (2).[2] Harwood filed a motion to suppress the evidence, contending that the police illegally searched his apartment without a search warrant. The trial court denied the motion, ruling that the officers' warrantless entry was justified under the circumstances.
¶ 9. Harwood subsequently pled guilty to maintaining a place used for manufacturing, keeping or delivering controlled substances. The trial court withheld sentence and placed Harwood on probation for five *392 years with ten months' confinement as a condition of probation. Harwood appeals, challenging the circuit court's denial of his motion to suppress.
DISCUSSION
[1]
¶ 10. Appellate review of an order granting or denying a motion to suppress evidence presents a question of constitutional fact, which we review under two different standards. State v. Hughes, 2000 WI 24, ¶ 15, 233 Wis. 2d 280, 607 N.W.2d 621. We will uphold the circuit court's findings of fact unless they are clearly erroneous; however, our application of the law to those facts presents a question of law, which we review de novo. Id.
¶ 11. Although a police officer's warrantless entry into a private residence is presumptively prohibited by the Fourth Amendment to the United States Constitution, and article I, section 11, of the Wisconsin Constitution, the courts have recognized exceptions to the warrant requirement where the government can show both probable cause and exigent circumstances that overcome the individual's right to be free from government interference. Hughes, 233 Wis. 2d 280, ¶ 17. In this case, Harwood contends that there was neither probable cause nor exigent circumstances at the time of the search.
Probable Cause
[2]
¶ 12. In the search context, the quantum of evidence required to establish probable cause is a "fair probability" that contraband or evidence of a crime will *393 be found in a particular place. Id., ¶ 21 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Harwood argues that the police did not have probable cause to believe that a crime was in progress when they entered his apartment or that evidence of a crime would be found in his apartment.
¶ 13. Harwood relies on our decision in State v. Paterson, 220 Wis. 2d 526, 583 N.W.2d 190 (Ct. App. 1998), in support of his argument. We first observe that Paterson was a community caretaker case. Id. at 529. The State made no claim that the police had probable cause to enter the residence, id. at 537, nor would the facts have supported a finding of probable cause. Therefore, we question the application of Paterson on this threshold basis.
¶ 14. Nonetheless, we address Paterson. There, the officers entered the residence based upon a dispatch report that a neighbor had called to report "suspicious activity at the residence and a possible burglary in progress." Id. at 529. The neighbor had reported "that there [were] lights going on and off in the upper level of the residence characteristic with somebody moving about from room to room . . . turning on lights momentarily, turning them off and proceeding to another room." Id. The neighbor had telephoned the Paterson residence and had received no response. Id. When the officers arrived at the residence they observed that the garage door was open and a pickup truck parked in the garage. Id. There was no sign of forced entry. Id. at 530. After attempting to contact the residence by telephone and announcing themselves at the residence with no response, the police entered the home to "see if there was something amiss." Id. In the course of inspecting the residence, the officers observed marijuana plants. *394 Id. We held that these circumstances did not authorize the police entry under the law of community caretaker. Id. at 538.
¶ 15. Unlike the officers in Paterson who knew only that the lights in the residence had been turned on and off and nobody was answering the phone, the officers in this case had decidedly more suspicious information. Here, a resident of the apartment complex had reported a burglary in progress based upon his observation of one man boosting another onto the patio of an upper level apartment. The reporting resident did not identify either man as a resident of the apartment complex. When the police encountered Harwood and Van Hoorbeck in the building, Harwood appeared to be nervous and possibly concealing something in Van Hoorbeck's apartment. Although claiming to live in the apartment in question, Harwood could not recall the address of the apartment, could not recall his social security number, could not produce the keys to the apartment that he had just entered to retrieve, and his name did not match the name observed by the officers on the buzzer to the apartment. While a female occupant of Van Hoorbeck's apartment later produced keys and indicated they belonged to Harwood, the officers did not know the female occupant or her relationship to Harwood. Moreover, the female's production of Harwood's keys conflicted with Harwood's statement to the officers that his keys were in his apartment. We conclude that the totality of these observations established a "fair probability" that evidence of a crime would be found in Harwood's apartment. See Hughes, 233 Wis. 2d 280, ¶ 17 (citing Gates, 462 U.S. at 238).
¶ 16. Harwood also contends that once the officers had him in custody, any probable cause that a crime was being committed or that a burglary was in progress *395 was eliminated. This argument, in part, is related to the exigent circumstances issue that we will address later. However, insofar as the argument bears on probable cause, it assumes that the police believed that any burglary involved only Harwood. But Glider's testimony is to the contrary. Based on Harwood's "nervousness, his sweatiness, [that he] said he didn't have the keys, then had them, the name at apartment 206 didn't match his name, [he] didn't have any identification, him only being 17," Glider doubted that Harwood lived in the apartment and "believed that a burglary may have occurred or may still be occurring up in 206." (Emphasis added.) Based on these suspicions, Glider concluded that it was necessary to "make sure that . . . there was nobody else in the apartment still burglarizing it."
[3]
¶ 17. In deciding whether an officer's actions are permissible under the Fourth Amendment, we need only determine that the law enforcement action was reasonable under the circumstances. Hughes, 233 Wis. 2d 280, ¶ 23. Here, the officers testified that there was very little that occurred during their conversation with Harwood that gave them reason to believe his version of the events. Although Harwood makes much of the fact that the officers eventually entered the apartment with keys provided by him, it remains that, absent any identifying information, the officers had no way of knowing whether the keys were rightfully in his possession. Nor did the production of Harwood's keys by the female eliminate the reasonable possibility that a burglary was ongoing.
¶ 18. Harwood also argues that the officers should have attempted to contact his apartment manager or check the license plate registration on his vehicle prior to entering the apartment. In support, Harwood again *396 relies on Paterson, a community caretaker case. One of the factors to be considered in assessing community caretaker activity is the availability and effectiveness of alternatives to intrusion. Paterson, 220 Wis. 2d at 533-34. However, Paterson did not involve a claim of probable cause, which requires a wholly different inquirywhether there is a "fair probability" that contraband or evidence of a crime will be found in a particular place. Hughes, 233 Wis. 2d 280, ¶ 17 (citing Gates, 462 U.S. at 238). Here both Glider and Herbst testified that they were concerned with the possibility that a crime could be ongoing in Apartment 206. As discussed above, the facts within the officers' knowledge at the time of the entry supported that determination.
[4]
¶ 19. Given the circumstances in this case, we conclude that the officers' actions were reasonable and supported by probable cause. We therefore turn to whether the State demonstrated that exigent circumstances existed to justify the warrantless entry into Harwood's apartment. Hughes, 233 Wis. 2d 280, ¶ 24 (once probable cause to search has been established, the State must also demonstrate exigent circumstances).
Exigent Circumstances
[5, 6]
¶ 20. The existence of exigent circumstances is measured under an objective test. Id. This test inquires "whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of the suspect's escape." Id. Wisconsin courts recognize the following four circumstances which, *397 when measured against the time needed to obtain a warrant, constitute the exigent circumstances justifying a warrantless entry: (1) an arrest made in "hot pursuit," (2) a threat to the safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) likelihood that the suspect will flee. Id., ¶ 25 (citing State v. Smith, 131 Wis. 2d 220, 229, 388 N.W. 2d 601 (1986)).
¶ 21. The State contends that the resident's report of a possible burglary in progress, and the observations made by the police, coupled with Harwood's responses to the police inquiries, created a sufficient exigency of possible escape or harm to others to justify a warrantless entry into Harwood's apartment. Harwood responds that there is no evidence of grave danger, risk of destruction of evidence, or escape because he was in handcuffs and being held by the officers. However, Harwood's argument again overlooks that the officers did not know at the time whether Harwood was involved in a burglary and, if so, whether he was acting alone.
¶ 22. Glider testified that after making contact with Harwood, he believed Harwood may have been a "co-conspirator." He sent officers to the apartment to "make sure there were no accomplices up there or somebody still burglarizing the apartment," and to check the patio doors for signs of forced entry because the officers could not see from the ground whether the door had been pried open. Herbst, the officer who first entered the apartment, stated that he entered to "make sure there was nobody else inside and to determine if there was a burglary in progress at that apartment." He made a visual "sweep" of the apartment during which he *398 checked those places where a person might conceal himself or herself. He did not open any cabinets, closets or drawers.
¶ 23. The State cites to the supreme court's decision in State v. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, in support of its position that the officers in this case were faced with exigent circumstances. There, the court held that exigent circumstances justified a warrantless entry where an officer received a dispatch call which led him to believe that a burglary may be in progress; his response to the scene of the crime was immediate; he rapidly collected information regarding the whereabouts of the suspect; and his pursuit of the suspect was immediate and continuous upon his arrival on the scene. Id., ¶¶ 36, 38.
¶ 24. The facts confronting the police and the police reaction are similar to those of the officers in Richter. Glider received a dispatch to a possible burglary in progress. He arrived at Coachlight Apartments and organized police efforts to secure the building. He immediately entered the building in search of Apartment 206 and the suspect. Although Glider encountered Harwood while attempting to collect information about the suspect, as the State points out, this encounter did nothing to assuage Glider's concerns but rather exacerbated them.
[7]
¶ 25. Harwood argues that the officers could have done more to ascertain his identity prior to entering the apartment. However, this argument overlooks that, at the time, the officers believed that a burglary was possibly in progress and therefore time was of the essence. By definition, exigent circumstances require a prompt response by officers. "[W]e do not apply hindsight to the exigency analysis; we consider only the *399 circumstances known to the officer at the time he [or she] made the entry and evaluate the reasonableness of the officer's action in light of those circumstances." Id., ¶ 43. That Glider later discovered that Harwood did reside in Apartment 208 does not negate the exigency prior to ascertaining that information.
CONCLUSION
¶ 26. We conclude that the officers' entry into Harwood's apartment was justified by both probable cause and exigent circumstances. We therefore uphold the trial court's order denying Harwood's motion to suppress and affirm the judgment of conviction.
By the Court.Judgment affirmed.
NOTES
[1] All references to the Wisconsin Statutes are to the 2001-02 version.
[2] Harwood was also charged with possession of marijuana pursuant to Wis. STAT. § 961.41(3g)(e), and possession of drug paraphernalia pursuant to Wis. STAT. § 961.573(1). These charges were dismissed pursuant to a plea agreement following the denial of Harwood's motion to suppress. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918285/ | 764 A.2d 1076 (2000)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Daniel FOSTER, Appellant.
Commonwealth of Pennsylvania, Appellee,
v.
Anne Marie Foster, Appellant.
Superior Court of Pennsylvania.
Argued September 12, 2000.
Filed November 16, 2000.
*1077 Arthur Jarrett, Philadelphia, for appellants.
*1078 Michael Gehrig, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before DEL SOLE, HUDOCK and STEVENS, JJ.
HUDOCK, J.:
¶ 1 Daniel and Anne Marie Foster appeal from the judgment of sentence imposed after a jury convicted them of endangering the welfare of a child and criminal conspiracy.[1] We affirm.
¶ 2 The trial court summarized the pertinent facts as follows:
Michael Bonetti, an Intake Social Worker with the Department of Human Services who investigates allegations of abuse and neglect, received an anonymous telephone call regarding Daniel and Anne Marie Foster on May 7, 1997. During this telephone call, Mr. Bonetti was informed that the [Fosters'] son, Patrick, had a lump protruding from his stomach, was not eating and was not feeling well. As a result of this information, Mr. Bonetti proceeded to the Foster residence, located at 6033 Frankford Avenue, in Philadelphia. Upon his arrival, Mr. Foster brought two-year old Patrick downstairs for the social worker to see. Patrick appeared lethargic, was wincing, and appeared to be in pain.
Mr. Bonetti then inquired of the Fosters whether or not the child had received any medical attention. Bonetti testified that the [Fosters] had indicated to him that they were not going to seek any medical care for the child because of their religious beliefs. Bonetti then advised the [Fosters] to seek immediate medical treatment for Patrick, at which time the Fosters reiterated that they would not secure medical care because of their religious beliefs. The social worker spent the remainder of that day in consultation with his supervisors for the purpose of acquiring and serving a restraining order upon the Fosters so as to obtain the medical care and treatment for Patrick, which appeared to be required. The next day, May 8, 1997, Mr. Bonetti, along with others, returned to the Foster home only to be told that the parents were going to rely on God to heal their son, Patrick.
Ms. Elaine Tennesen, a Department of Human Services Child Protective Social Worker, accompanied Mr. Bonetti to the Foster residence and, on May 8, 1997, assisted him in serving the restraining order upon [the Fosters] and taking Patrick to seek required medical treatment. Ms. Tennesen testified that, when she first saw Patrick, the child was dressed in pajamas, with a blanket over him. He had cloth diapers underneath his head and was lying on his left side with his eyes opened a little bit. The boy did not look well; he was moaning and wincing. When Ms. Tennesen picked him up, mucous was coming out of his mouth, Patrick had a visible rash along his left cheek, his eye was swollen shut, his left hand was swollen and his hair was matted to the side of his head.
At this point, Ms. Tennesen agreed with Mr. Bonetti to take Patrick immediately to the hospital. Along with two police officers who accompanied the social workers to the Foster residence, Patrick was escorted to St. Christopher's Hospital, in Philadelphia, a ten-minute ride. Although the child whimpered en route, Patrick did not say anything.
Police Officer Pelszynski, Badge No. 1783, Northeast Detective Division, testified that, when she entered the Foster residence with the social workers, she saw a child on the couch and touched him to see if he was breathing. Officer Pelszynski turned, looked at the DHS workers and said "let's go." Immediately thereafter, she escorted the social workers along with the child to St. Christopher's Hospital. Upon observing Patrick, Officer Pelszynski noted the *1079 child to be unresponsive, gray, showing no movement, with a black and blue eye and a fresh bruise. Upon arrival at the hospital, Officer Pelszynski called the Sex Crimes Unit because she believed that there was criminal activity or some kind of abuse involved. However, no arrests were made by Officer Pelszynski on May 8, 1997.
Dr. Edwin Crews Douglas, the Director of the Oncology Department at St. Christopher's Hospital for Children, an expert in pediatric oncology, specifically kidney cancer in children, testified that upon admission to the hospital, Patrick had a stage 4 Wilm's tumor, a type of kidney cancer usually found in children, and that the cancer had spread from the kidney and was growing into other parts of Patrick's body, specifically the lungs and liver but, most importantly, the tumor had grown up onto the child's heart. Dr. Douglas' observations caused him to opine that "Patrick had the most extensive Wilm's tumor of any child I have ever seen, in terms of the size of the original tumor and also the extent of its growth up into the heart."
Dr. Douglas treated Patrick from his admission to St. Christopher's Hospital in May, 1997, through the child's hospitalization until Patrick's eventual release from the hospital in October, 1997. Dr. Douglas first saw Patrick in the Emergency Room on May 8, 1997, at which time the child presented as very lethargic, arousable, but really didn't move or respond normally, Patrick just laid there, uncomfortably, possibly in pain. He was not moving much, was grimacing, but didn't look comfortable.
Physical examination showed that Patrick had a very large tumor mass in the belly, which protruded red, inflamed and scaly. He had a rash on his arm and face, like a diaper rash or a dermatitis. When admitted, Patrick was in critical condition, approaching death.
Patrick was afterward admitted into the Intensive Care Unit and spent the next month there receiving chemotherapy to shrink the tumor. After another three weeks to a month in the general hospital population, Patrick was finally discharged, but still receiving chemotherapy on a regular basis during that time period.
Later, in October, 1997, Patrick would undergo surgery to remove the tumor from in and around the area of the heart. A long recuperative period ensued after the surgery. Patrick was hospitalized during the recuperation for approximately two months. During this recuperative period, Patrick also received radiation therapy as part of the standard treatment for the Wilm's tumor.
Dr. Douglas went on to testify that presently Patrick is doing well, with follow-up care consisting of x-rays every few months because of the chance that the tumor could return. The doctor recommended continued routine follow-up for Patrick and that the boy should receive normal medical care any child may require. However, Dr. Douglas noted a twenty percent (20%) chance of possible relapse within the first two years for Patrick.
Additionally, the doctor testified that he consulted the Fosters throughout Patrick's hospitalization(s) and course of treatment, requesting parental permission for the various procedures administered throughout the course of treatment. Dr. Douglas related that [the Fosters] always said no when specifically asked whether they would give their consent to treat their son. To the best of Dr. Douglas' knowledge, [the Fosters] did not consent to any medical treatment, and all tests performed and treatment administered were pursuant to a Court Order. Finally, the doctor opined that he did not believe that Patrick would have lived longer than another twenty-four (24) hours had not the boy received the treatment he did on May 8, 1997.
*1080 Police Officer Cheryl Monzo, Badge No. 2552, of the Sex Crimes Unit, testified next. When she asked Mr. Foster about his son Patrick's medical condition, [Mr. Foster] replied "[I can tell you] `very little. We trust in God for all our healings. Apparently, I don't know anything as far as what he has.'" Mr. Foster stated that he was against Patrick getting medical treatment "`because it's not in God's plan.'" He knew his son was ill, but he didn't believe his son would die. Mr. Foster believed God would raise Patrick up and restore him to perfect health.
Mrs. Foster, when interviewed by Officer Monzo, stated as to her knowledge of Patrick's medical condition" `All I know is that he has a lump protruding from his side. He's real thin. I don't know what else to say.'" When asked if Patrick had ever been examined by a doctor, Mrs. Foster's response was "`Patrick's never been examined by a doctor because parents don't believe in medical treatment, but rather believe in Divine healing. The Lord will heal us.'" Neither Mr. or Mrs. Foster wavered in their convictions as they related them to Officer Monzo during the early hours and days of their son's hospitalization. Again, no arrests were made of [the Fosters] immediately upon completion of Officer Monzo's interviews of [them] as Officer Monzo simply was "unsure that a crime had been committed."
Finally, Police Officer Crystal Williams, Badge No. 9417, of the Sex Crimes Special Investigations Unit, testified that she obtained two arrest warrants after consultation with her supervisors and authorities in the District Attorney's Office. Officer Williams was assigned the Foster case shortly after May 8, 1997 and she obtained arrest warrants for [the Fosters] by May 19, 199[7]. Upon notification of the outstanding warrants, the Fosters, along with their lawyers, surrendered themselves to the police.
Trial Court Opinion, 1/18/00, at 2-7 (references to notes of testimony omitted).
¶ 3 In their defense, the Fosters called William Wisdom, who testified as an expert witness regarding the religious practices of the church to which they belonged, the Faith Tabernacle Church. He explained that members of the church follow the Bible literally and that, following a passage in the Bible, church members do not seek medical care for illnesses but, rather, pray over and anoint the sick. Kenneth Yeager, pastor at the Fosters' church, testified that, in March of 1997, Daniel Foster called him and told him that Patrick was ill, and asked Pastor Yeager to pray for him, and also asked the pastor to request that the congregation pray for Patrick. He stated that, in the last week of April, Daniel Foster asked him to anoint Patrick, and that he did so.
¶ 4 Daniel Foster took the stand and admitted that he knew that he had a legal obligation to provide medical care for a dying child. He also admitted that, during the two weeks prior to Patrick's being rushed to the hospital, Patrick's appetite "diminished greatly" and "it was obvious, he was sick, very sick." N.T., 5/8/98, at 122-23. Daniel Foster also admitted that, if Patrick developed the same life-threatening condition again, his "stand would be the same," that is, that he would not seek medical treatment for him, but would "trust in God for his healing, any healing." Id. at 130-31.[2]
¶ 5 After hearing the above evidence, the jury convicted Mr. and Mrs. Foster of both charges. On September 24, 1998, Mr. and Mrs. Foster each were sentenced to seven years probation. This appeal followed.
*1081 ¶ 6 The Fosters now raise the following issues on appeal:
1. Did the Lower Court err in denying [their] motion to dismiss on grounds that the appropriate statutory scheme for addressing issues when parents choose prayer over medical intervention due to their legitimately held religious beliefs is the Child Protective Services Act, Title 23 Pa. C.S.A. § 6303, et seq [sic] over Title 18 Pa.C.S.A. § 4304?
2. Was the verdict based on insufficient evidence of Endangering the Welfare of Children where there was no testimony that [the Fosters'] intended the resulting harm?
3. Was the verdict of the jury against the weight of the evidence presented at trial?
4. Did the Lower Court err in instructing the jury on issues of Constitutional propriety of the actions taken by [the Fosters], thereby clouding the issues necessary for conviction of the charges before them, by directing them away from the requirement of intent?
The Fosters' Briefs at 9. We will address the issues in the order presented.
¶ 7 The Fosters first claim that that portion of the Child Protection Services Law, which exempts from the definition of "child abuse" situations where medical services are withheld to a child due to a caregiver's seriously held religious beliefs, precludes their convictions under the criminal statutes. See 23 Pa.C.S.A. § 6303. A similar argument has been recently rejected by this Court in Commonwealth v. Nixon, 718 A.2d 311 (Pa.Super.1998), allowance of appeal granted, 560 Pa. 723, 745 A.2d 1220 (1999).
¶ 8 In Nixon, the Nixons were also members of the Faith Tabernacle Church. Their daughter Shannon, described as a "mature minor", began to feel ill in June 1997 and was taken by her parents to be anointed at the church. Prayers were offered for her recovery. Although she initially felt better, Shannon later fell into a coma and died, hours later, from the onset of diabetes. Shannon's parents were convicted of involuntary manslaughter and endangering the welfare of a child. They were sentenced to an aggregate term of two and one-half to five years incarceration. In rejecting a similar argument put forth by the Nixons, this Court stated:
We find that [Child Protective Services Law] and the involuntary manslaughter statutes are not in conflict in their plain meaning, as well as under a constitutional analysis. A plain reading of the statutes shows that an act which does not qualify as child abuse may still be done in a manner which causes death and thus qualifies as involuntary manslaughter. This precise situation occurred in this case. While the Nixons were not considered child abusers for treating their children through spiritual healing, when their otherwise lawful course of conduct led to a child's death, they were guilty of involuntary manslaughter.
Nixon, 718 A.2d at 314. In short, while the Child Protection Services Law exempts spiritual healing from being called "child abuse", the statute provides no consequences for a caregiver that, for whatever or no reason, fails to provide medical care for his or her dying child. Rather, the penal statutes of this Commonwealth treat the consequences of that failure to act. Thus, as in Nixon, when the Fosters' "course of conduct" led to the near death of Patrick, they were guilty of endangering his welfare. See also Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985) (upholding voluntary manslaughter and endangering the welfare of a child convictions where two-year-old son of Faith Tabernacle Church members died from complications of a Wilm's tumor).
¶ 9 The Fosters next challenge the sufficiency of the evidence supporting their convictions for endangering the welfare of a child. That penal statute provides, in pertinent part:
*1082 (a) Offense defined.A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection, or support.
18 Pa.C.S.A. § 4304(a). When reviewing a challenge to the sufficiency of the evidence, we must determine "whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth [as verdict-winner], the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988). "Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence." Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). The facts and circumstances established by the Commonwealth "need not be absolutely incompatible with [a] defendant's innocence, but the question of any doubt is for the [trier of fact] unless the evidence `be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.'" Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977) (quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943)).
¶ 10 The Fosters claim that the Commonwealth did not prove that they acted with the specific intent required under the endangering the welfare of a child statute. We cannot agree. Endangering the welfare of a child is a specific intent offense enacted in broad terms so as to safeguard the welfare and security of children. Commonwealth v. Fewell, 439 Pa.Super. 541, 556-58, 654 A.2d 1109, 1117 (1995). To be convicted under this statute, the Commonwealth must prove a "knowing violation of a duty of care." Id. (quoting Commonwealth v. Cardwell, 357 Pa. Super. 38, 41-43, 515 A.2d 311, 313 (1986)). This Court has held that the evidence is sufficient to prove the intent element of the offense when the accused: (1) is aware of his or her duty to protect the child; (2) is aware that the child is in circumstances that threaten the child's physical or psychological welfare; and (3) has either failed to act or has taken actions so lame and meager that such actions cannot reasonably be expected to be effective to protect the child's physical or psychological welfare. Cardwell, 515 A.2d at 315.
¶ 11 The Fosters conceded awareness of their duty to protect Patrick and that Patrick was in circumstances that threatened his physical welfare. Their sole argument with regard to the sufficiency of the evidence is that the Commonwealth failed to prove that they either failed to act or acted in such a "lame and meager" manner that their actions could not have been expected to protect Patrick's physical welfare. Stated differently, the Fosters contend that they did indeed act, in that they prayed for their son and had him anointed, and that these acts cannot be labeled "lame and meager." As the Commonwealth correctly notes, regardless of the label attached to the Fosters' course of conduct, their failure to seek medical care constituted a breach of their duties as parents. The law imposes an affirmative duty on parents to seek medical help when the life of a child is threatened, regardless, and in fact despite, their religious beliefs. As this Court stated in Barnhart, 497 A.2d at 621, every parent in this Commonwealth has a duty of care to their child, at the very least, "to avert the child's untimely *1083 death." So too in Nixon, 718 A.2d at 313, this Court held that the parents had "a duty to their minor child ... to override her own religious beliefs and obtain medical treatment for her when her condition became life-threatening." Thus, we conclude the record supports the conclusion that sufficient evidence of intent was produced by the Commonwealth to support the Fosters' endangering the welfare of a child convictions.
¶ 12 The Fosters next claim that their convictions are against the weight of the evidence presented. The Pennsylvania Supreme Court has recently set forth the proper considerations for considering a challenge to the weight of the evidence.
A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, [sic] concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence[,] do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.
Commonwealth v. Widmer, 560 Pa. 308, 319-20, 744 A.2d 745, 751-52 (2000) (citations, quotation marks, and footnote omitted). Stated another way, a court may award a new trial because the verdict is against the weight of the evidence only when the verdict rendered is so contrary to the evidence received as to shock one's sense of justice such that right must be given another opportunity to prevail. Commonwealth v. Goodwine, 692 A.2d 233, 236 (Pa.Super.1997). Moreover, appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence. Widmer, 560 Pa. at 321, 744 A.2d at 753. When reviewing the trial court's determination, we give the gravest deference to the findings of the court below. We review the court's actions for an abuse of discretion. Id.
¶ 13 In addressing this claim the trial court concluded that:
The evidence clearly showed that the Fosters knew that Patrick was ill and that they were aware of their duty to protect the child. Patrick's parents were aware that he was experiencing circumstances that threatened the child's physical and psychological welfare. Finally, it is clear from the testimony of the social workers, the police and medical personnel involved that the Fosters' failure to act or actions taken were "so lame or meager that such actions cannot reasonably be expected to be effective to protect the child's physical or psychological welfare." The evidence showed beyond a reasonable doubt that [the Fosters] together knowingly endangered the welfare of their child, Patrick, by violating a duty of care, protection or support.
Trial Court Opinion, 1/18/00, at 14 (citations omitted). We can discern no abuse of discretion. Although the Fosters once again argue that the Commonwealth failed to prove that they did not sincerely hold their religious beliefs, the sincerity of those beliefs simply was not relevant to the conclusion that their failure to seek medical attention for Patrick under the circumstances presented to them constituted a breach of their parental duty of care.
*1084 Barnhart, supra, Nixon, supra. See also Commonwealth v. Cottam, 420 Pa.Super. 311, 335-37, 616 A.2d 988, 1000 (1992) (holding that "[t]he validity and sincerity of the religious beliefs of [the parents] were not relevant to the issues presented.... [T]hey had no choice but to seek help, despite their religious beliefs, when they were faced with a condition which threatened their child's life.")
¶ 14 In their final issue, the Fosters assert that:
The trial court erred when it charged the jury, at the completion of the evidence, because the trial judge discussed issues concerning religious freedom and balance between constitutional rights and child protection. The court went further, in a step-by-step analysis, as to why religion could never negate a parent's responsibility to obtain medical care for a child. Finally, the court expressed a sincere opinion that the laws of the State and country prohibited the very conduct of [them] and likened their behavior to child abuse. The court negated any explanation, or reason for the behavior by the [Fosters], as meaningless in a society that will not tolerate child abuse. In making these statements, which were entirely unrelated to the jury instructions for the substantive crimes charged and were unrelated to the weight/sufficiency of the evidence, the trial court gave the impression that the statements, themselves, had the full force and effect of law.
The Fosters' Brief at 46. The trial court found this claim by the Fosters to be "patently absurd." Trial Court Opinion, 1/18/00, at 14. The court wrote:
The jury's focus on specific intent necessary to convict the [Fosters] was not affected. Analysis of First Amendment Constitutional principles was not tantamount to a directed verdict of guilty, nor will this Court insult the intelligence of the jury and say that the charge in any way confused them. The [Fosters] were not prejudiced nor were any fundamental legal principles misstated, including those concepts of establishment and exercise embodied in the First Amendment's Constitutional protection of religion... Much care, thought and time was spent in crafting this charge, which states the law of this Commonwealth as it exists today. Even had the Court dismantled the [Fosters'] theory of religious defense, which it in no way attempted to do, that fact alone does not invalidate the charge as given. Barnhart, [497 A.2d at 627].
Trial Court Opinion, 1/18/00, at 14-15.
¶ 15 Initially, we note that no objection was taken to this portion of the court's jury instructions. Thus, the claim is waived. See generally, Commonwealth v. Betz, 444 Pa.Super. 607, 664 A.2d 600 (1995). Nevertheless, we agree that this claim is meritless. When reviewing a trial court's instructions, error will not be found based upon isolated excerpts; rather, a reviewing court must consider the instructions as a whole in order to determine whether the charge accurately and clearly conveyed the applicable law to the jury. Commonwealth v. Soto, 693 A.2d 226, 230 (Pa.Super.1997). A trial court has discretion in phrasing its instructions to the jury; there are no "magic, talismanic words which must be uttered in order for a charge to pass muster." Id. When reviewed in its entirety, we find no error in the jury charge. The comments to which the Fosters object regarding the interplay between the religious freedom and the protection of the child are similar to the "strongly worded" instructions found proper in Barnhart. Barnhart, 497 A.2d at 626 n. 10. Thus, we reject the Fosters' final claim of error.[3]
¶ 16 Judgments of sentence affirmed.
NOTES
[1] 18 Pa.C.S.A. §§ 4304 and 903, respectively.
[2] By stipulation of the parties, the court identified members of the Faith Tabernacle Church in the courtroom and asked them to stand. The court then informed the jury that if called to the witness stand, each person would testify as to the Fosters' reputation in the community.
[3] The Fosters refer to two affidavits attached to their briefs and purportedly signed by jurors from their trial, which "shed some light on the confusion jurors had on the role of intent of the defendant in a specific intent crime." The Fosters' Brief at 52. As these affidavits are not part of the certified record, they cannot be considered. Commonwealth v. Nixon, 311 Pa.Super. 450, 454-56, 457 A.2d 972, 975 (1983). At any rate, these affidavits do not profess any confusion caused by the trial court's charge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918289/ | 764 A.2d 64 (2000)
J.H., A Minor, by Robert HOFFMAN and Margaret Hoffman, His Parents, and Robert Hoffman and Margaret Hoffman in their own right, Appellants,
v.
Shirley PELLAK, Appellee,
v.
Peter Pellak and J.P., A Minor.
Superior Court of Pennsylvania.
Argued July 26, 2000.
Filed December 6, 2000.
Christopher E. Ezold, Bala Cynwyd, for appellants.
Daniel G. Ronca, Horsham, for Shirley Pellak.
Before JOYCE, LALLY-GREEN, and BECK, JJ.
*65 LALLY-GREEN, J.
¶ 1 Appellants, J.H., a minor, by Robert Hoffman and Margaret Hoffman, his parents, and Robert Hoffman and Margaret Hoffman in their own right, appeal an order of the Court of Common Pleas of Montgomery County granting summary judgment in favor of Appellee, Shirley Pellak (Mother). We affirm.
¶ 2 The factual and procedural history, as found by the trial court, is as follows.
On March 24, 1997, J.H., a minor, by and through his parents, Robert Hoffman and Margaret Hoffman, and Robert Hoffman and Margaret Hoffman in their own right, initiated this action by filing a Writ of Summons to recover for injuries allegedly sustained by J.H. in an incident that occurred on March 26, 1995, in which the boy, then age eleven (11), was struck in the head by a pellet, reportedly discharged from an air pistol in the possession of J.P., then age twelve (12). Plaintiffs subsequently filed a Complaint on August 22, 1997, against Shirley Pellak, and J.P.'s grandmother, Elsie Heller, seeking damages arising out of the incident.
Defendants, Shirley Pellak and Elsie Heller, filed Preliminary Objections to Plaintiffs' Complaint on September 29, 1997. On November 20, 1997, this Court approved a Stipulation of Dismissal of Counts II and IV against Defendant, Elsie Heller, dismissing her from this action with prejudice. Following argument, on December 9, 1997, the Court overruled Defendant, Shirley Pellak's Preliminary Objections in the nature of demurrers to the cause of action alleging Ms. Pellak's negligence, as set forth in Counts I and III of Plaintiff's Complaint. On January 26, 1998, Shirley Pellak filed a Joinder Complaint, naming Peter Pellak, J.P.'s father, and J.P. as Additional Defendants, whose own Preliminary Objections were subsequently resolved on April 13, 1999. Thereafter, Defendant, Shirley Pellak, filed a Motion for Summary Judgment which was briefed and argued before the undersigned who, on September 23, 1999, granted Summary Judgment in favor of Defendant, Shirley Pellak. From this Order, the Plaintiffs have taken the instant appeal.
Trial Court Opinion, 4/11/00, at 1-2. (Minors names abbreviated).
¶ 3 Appellants raise two issues on appeal:
1) Whether the lower Court erred in ruling that as a matter of law, Appellee could not have a duty to exercise reasonable care over her minor son while he was in the physical custody of his father.
2) Whether a genuine issue of material fact exists regarding whether Defendant Appellee had the knowledge of the necessity to control her child, and the ability and opportunity to control her child.
Appellants' Brief at 4.
¶ 4 Our standard of review of the grant of a motion for summary judgment is plenary, and is as follows:
It is well settled that when reviewing the propriety of a trial court's order granting summary judgment, we must view the record in the light most favorable to the non-moving party and determine whether the moving party has established that there exists no genuine issue of material fact and that it is therefore entitled to judgment as a matter of law. Skipworth v. Lead Industries Assoc., 547 Pa. 224, 230, 690 A.2d 169, 171 (1997). The non-moving party is entitled to all reasonable inferences. Any doubts as to the existence of a factual dispute must be resolved in the non-moving party's favor and summary judgment is appropriate only in the clearest of cases. Kingston Coal Co. v. Felton Mining Co., Inc., 456 Pa.Super. 270, 690 A.2d 284, 287 (1997).
Roman Mosaic & Tile Co. v. Aetna Casualty & Surety Co., 704 A.2d 665, 668 *66 (Pa.Super.1997). Summary judgment is granted:
[W]hen the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact. The moving party has the burden of proving the non-existence of any genuine issue of fact. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. The trial court must resolve all doubts against the moving party and examine the record in the light most favorable to the non-moving party. Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law.
Merriweather v. Philadelphia Newspapers, Inc., 453 Pa.Super. 464, 684 A.2d 137, 140 (1996), appeal denied, 548 Pa. 628, 693 A.2d 967 (1997) (citations omitted).
¶ 5 We address Appellants' second argument first. Appellants argue that a genuine issue of material fact exists regarding whether Mother had the knowledge of the necessity to control her child, and the ability and opportunity to control her child. Appellants specifically rely upon Frey by & Through Frey v. Smith by & Through Smith, 454 Pa.Super. 242, 685 A.2d 169 (1996), appeal denied, 549 Pa. 701, 700 A.2d 441 (1997). They assert that Mother's "liability arises out of her knowing failure to prevent her child's illegal, unsupervised use of the weapon.... [Mother's] failure to take any action whatsoever permitted her son's unsupervised, careless use of the illegal deadly weapon and allowed the shooting to take place." Appellants' Brief at 25. Appellants contend that the trial court erred in factually determining that Mother neither knew nor had reason to know that she had either the ability or the necessity or opportunity to control her son to prevent him from injuring J.H. Trial Court Opinion, 4/11/00, at 4.
¶ 6 We first address what duty a parent has for the torts of a child. The mere relation of parent and child imposes no liability upon the parent for the torts of the child. Condel v. Savo, 350 Pa. 350, 39 A.2d 51, 52 (1944); Maxwell v. Keas, 433 Pa.Super. 70, 639 A.2d 1215, 1216 (1994). Parents may be liable, however, where negligence on the part of the parents makes the injury possible. Frey by & Through Frey v. Smith by & Through Smith, 685 A.2d at 174. If the injury ought to have been foreseen by the parents, their negligence is the proximate cause of the injury. Maxwell, 639 A.2d at 1215. Parental duty to supervise a child has been characterized as a duty to "exercise the control which they [the parents] have over their child, when they know, or in the exercise of due care should know, that injury to another is a natural and probable consequence." Condel, 39 A.2d at 53.
¶ 7 We next address the scope of the supervising responsibilities of a parent. This Commonwealth has adopted the Restatement of Torts (2d), Section 316. Section 316 sets forth standards applicable to the supervisory responsibilities of a parent toward a child. Johnson v. Johnson, 410 Pa.Super. 631, 600 A.2d 965, 967 (1991); Erie Insurance Exchange v. Transamerica Insurance Company, 352 Pa.Super. 78, 507 A.2d 389, 394-95 (1986). Section 316 provides:
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.
¶ 8 The issue of what constitutes parental negligence for the acts of a minor child in custodial situations where the parent *67 lacks direct control of the child appears to be one of first impression in Pennsylvania. Other jurisdictions, however, have considered this issue. The Arizona Court of Appeals ruled that a non-custodial father could not be held liable on a theory of negligent supervision for damages caused by his son's sexual assault. Pfaff v. Ilstrup, 155 Ariz. 373, 746 P.2d 1303 (Ct.App. 1987). The court explained:
Control requires present ability to affect the conduct of another. Potential ability is insufficient. Given the often tendentious relationships between divorced parents, we believe that the imposition of a duty to exert control over a child the legal custody of whom has been given to another would invite disastrous consequences.
Id., 746 P.2d at 1303. For the same reasons, the Court determined that no claim was stated under Section 316. Id., 746 P.2d at 1304.
¶ 9 Similarly, the Supreme Court of North Carolina ruled that a mother, who did not have custody of her minor son when he raped the plaintiff, was properly dismissed from the matter pursuant to a motion for summary judgment. Moore v. Crumpton, 306 N.C. 618, 295 S.E.2d 436, 438 (1982). Moreover, the court ruled that the father, who did have legal custody of the child, was also properly dismissed because he had no information that his son might assault another and the assault occurred at a time and place at which the father could not readily control his son's conduct. Id., 295 S.E.2d at 443. The court ruled that a parent can be liable for failing to take reasonable steps to exercise control over a child's behavior only if the parent has the ability to control the child, and knows or should know of the need to control the child. Id., 295 S.E.2d at 440.
¶ 10 Other states have construed Section 316, although not in the context of joint or partial custody situations. In Illinois, the court ruled that the parents of a child who shot a police officer with a stolen handgun were not liable under a theory of negligent parental supervision even though they were aware that the child had been involved in a prior shooting incident. Barth v. Massa, 201 Ill.App.3d 19, 27, 146 Ill.Dec. 565, 558 N.E.2d 528, 534-535 (1990). The Court relied upon Section 316 in its analysis and stated:
[E]ven if we were to deem that the [parents] had sufficient notice of [the son's] potential to misuse guns, there is simply no evidence of the opportunity to prevent the shooting.... The duty of a parent is only to exercise such ability to control his child as he in fact has at the time when he has the opportunity to exercise it and knows the necessity of so doing. ... Section 316 does not, after all, purport to make parents vicariously liable for raising careless or delinquent children, but instead imposes a duty on parents to exercise that control which they "in fact [have] at the time." No parental liability exists without notice of a specific type of harmful conduct and an opportunity to interfere with it.
Id., 146 Ill.Dec. 565, 558 N.E.2d at 534-535 (citations and quotations omitted).
¶ 11 More recently, the Supreme Court of Maine affirmed summary judgment in favor of parents sued for negligently furnishing their daughter with a jet ski and failing to supervise and train her in its use. Bedard v. Bateman, 665 A.2d 214, 215 (Me.1995). The court considered Section 316 and determined that the plaintiff failed to establish that the defendant parents knew or should have known of the necessity to control their daughter's use of the jet ski. Id., 665 A.2d at 214-215.
¶ 12 In light of the above, we hold that a parent has a duty to exercise reasonable care to control his or her minor child under Section 316 when the parent knows or should know of the necessity to exercise control, and has the ability and the opportunity to exercise parental control at the relevant time. Condel; Moore v. Crumpton; Barth v. Massa; Bedard v. Bateman. *68 ¶ 13 Here, the record fails to support Appellant's claim that Mother, a non-custodial parent, knew or should have known about the air pistol and had the ability and the opportunity to exercise parental control at the relevant time. The record reveals that on March 12, 1995, fourteen days before the incident, Father had purchased a Crossman .177 caliber model 1377 American Classic air pistol for J.P. Trial Court Opinion, 4/11/00, at 6. See also, Deposition of Peter Pellak at 28. Mother did not know of the existence of the air pistol involved in the incident. Trial Court Opinion, 4/11/00, at 4. Two guns were kept, used and maintained solely at Father's house: a previously purchased air rifle, and the air pistol involved in the March 26, 1995 incident.[1]See, Deposition of Peter Pellak, at 35. J.P. used the air pistol with the permission of his Father on the date of the incident in question. Id. at 74. J.H. was shot while J.P. was at Father's house. See, Deposition of J.P., at 135.
¶ 14 Here, Mother did not know about the air pistol and was unaware of the need to supervise the use of the air pistol. Also, since Mother was in a non-custodial situation at the time of the incident, Mother was not in a position to exercise control at the time of the incident. Upon review of the record and the applicable case law, Appellants have failed to demonstrate merit to their claim.
¶ 15 Frey does not control this case. The parents in Frey had the opportunity to intervene but permitted the unsupervised use of the air gun by their son, thereby creating a reasonably foreseeable risk that another minor would misuse the air gun. In the instant case, Mother neither knew about the existence of the air pistol nor was in a position to control or supervise the actions of her child at the time of the incident. Appellants' second claim fails.
¶ 16 Appellants' first contention is that Mother has a duty as a matter of law, and as required by public policy, to exercise reasonable care over her minor son while he is in the physical custody of his Father.[2] Appellants rely on principles of domestic relations law and argue that, in joint or shared custody situations, both parents are responsible "for decisions and care of the child." Appellants' Brief at 13.
¶ 17 We determined above that a parent is responsible for the actions of a minor child only when the parent knows or should know of the need to exercise control and has the ability and the opportunity to exercise said control at the time of the incident. Appellants fail to point to any law or to any public policy served by imposing strict liability on a non-custodial parent who neither knows (or should know) of the risk nor has the ability or opportunity to exercise control in the situation. Appellants' claim fails.
¶ 18 In conclusion, we make clear that the duty to exercise reasonable care to control a child must be limited. It arises when a parent at the relevant time knows or should know of the need to exercise parental control and has the ability and opportunity to do so. Neither shared physical custody nor shared legal custody for a child changes that standard.
¶ 19 Appellants argue that although Father had physical custody of the child at the time of the accident, the parents had shared legal custody. They assert that, as a matter of law, Mother had shared responsibility for Father's decision to entrust the loaded air rifle to their unsupervised *69 child. Appellants misapprehend the import of shared legal custody.
¶ 20 Legal custody is defined by statute as "the legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions." 23 Pa. C.S. § 5302. Shared legal custody is specifically designed to invite input from both parents on such major decisions. In re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243, 1247, n. 8 (1982). Shared legal custody was never intended to govern the myriad of daily domestic decisions that a parent with physical custody makes. Nor was it intended to be the basis for imputing negligence to a parent who did not know of the need to exercise control and did not have the ability or opportunity to do so.
¶ 21 Accordingly, on the basis of the foregoing, we affirm the trial court's grant of summary judgment in favor of Mother.
¶ 22 Order affirmed.
NOTES
[1] Mother was aware that Father had purchased an air rifle for J.P. for Christmas in 1994.
[2] Appellants' public policy argument is as follows: "[h]olding that a non-custodial parent has no authority or ability to control their child while at a custodial parent's home encourages non-custodial parents to neglect their duties to communicate with the other parent and be knowledgeable about their children's activities." Appellants' Brief at 13. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918253/ | 764 A.2d 1156 (2000)
State
v.
Lisa A. DiStefano.
No. 99-119-C.A.
Supreme Court of Rhode Island.
December 20, 2000.
*1157 Present WEISBERGER, C.J., LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Lauren Sandler Zurier, Aaron L. Weisman, Providence, for plaintiff.
Randy Olen, Providence, John F. Cicilline, Bristol, for defendant.
OPINION
GOLDBERG, Justice.
This case came before the Court pursuant to three questions certified from the Superior Court in accordance with G.L. 1956 § 9-24-27. The Superior Court asks us to consider for the first time whether G.L. 1956 § 31-27-2(c) should be interpreted to preclude, for violations of § 31-27-2.2 (driving under the influence, death resulting), the admission at trial of the results of breath, blood or urine tests when the samples were seized without the defendant's consent, but pursuant to a search warrant issued by a justice of the Superior Court.
FACTS AND PROCEDURAL HISTORY
The essential facts of this case are undisputed. The defendant, Lisa A. DiStefano (defendant), was charged by information with one count of driving under the influence of liquor or drugs (DUI), death resulting, in violation of § 31-27-2.2, and various counts of possession of a controlled substance, as the result of a tragic accident on June 15, 1997. At about eight o'clock that night, defendant drove from the Shell Gas station onto Post Road in Warwick, and her motor vehicle collided with a motorcycle drivenby David Smith, who died as a result of the injuries he suffered in the accident. An on-scene investigation ensued; defendant was arrested for suspicion of operating a motor vehicle while under the influence of drugs or alcohol.
Subsequently, defendant was taken to the Warwick police station, where she submitted to a breath test, the results of which indicated a blood alcohol content (BAC) of .026. Sergeant Peter Johnson, a drug evaluation expert, performed a drug influence evaluation on defendant and concluded *1158 that she was under the influence of a central nervous system stimulant. Sergeant Johnson asked defendant to submit to a blood test to determine the presence or absence of controlled substances. The defendant refused. The Warwick police then obtained a search warrant from a justice of the Superior Court to extract samples of defendant's blood and urine. The blood test, taken from a sample obtained at Kent County Hospital, revealed the presence of marijuana and cocaine.
Before trial, defendant filed a motion to suppress the introduction of the test results on the ground that her blood was drawn without her consent, in violation of § 31-27-2(c), and therefore, the test results were inadmissible, even though the police had obtained a judicially authorized search warrant. The Superior Court stayed further proceedings and propounded the following questions of law to this Court:
1. "In view of State v. Timms, 505 A.2d 1132 (R.I.1986), should R.I. Gen. Laws § 31-27-2(c) be interpreted to preclude, in a case involving an alleged violation of R.I. Gen. Laws § 31-27-2.2 (driving under the influence, death resulting), the admission at trial of the results of breathalyzer, blood or urine tests at trial, when the breath, blood or urine samples were seized without defendant's consent and pursuant to a judicially authorized search warrant?"
2. "Does the statutory language of R.I. Gen. Laws § 31-27-2.1, the Breathalyzer Refusal Statute, preclude members of law enforcementfrom obtaining a judicially authorized search warrant to seize a defendant's blood for alcohol or drug testing?"
3. "If R.I. Gen. Laws § 31-27-2.1 does preclude law enforcement from obtaining a search warrant, is this an unconstitutional limitation on the judicial authority to issue search warrants as provided in Article 5 of the Rhode Island Constitution and R.I. Gen. Laws § 12-5-1?"
RHODE ISLAND'S DRUNK-DRIVING LAWS BACKGROUND
Although drunk-driving statutes have existed for some time, the collective awareness of the people of the State of Rhode Island led to an overhaul of the state's drunk-driving laws in the early 1980s. In 1982, the offense of driving under the influence of intoxicating liquor (DUI) was upgraded to a misdemeanor, and the necessity of producing competent evidence of intoxication in addition to proof of a defendant's blood alcohol level was eliminated.[1] A year later, the DUI statute, § 31-27-2, was further amended by the addition of subsection (b), which provided that any person charged with DUI, "whose blood alcohol concentration is one-tenth of 1% or more by weight as shown by a chemical analysis of a blood, breath or urine sample shall be guilty" of DUI.[2] In 1983, all statutory presumptions against a finding of intoxication were deleted from § 31-27-2.1, in an amendment entitled "Revocation of license upon refusal to submit to chemical test."[3] This amendment relieved the state of the necessity of producing expert testimony that demonstrated the effects of a given blood alcohol concentration on the accused. See State v. Lussier, 511 A.2d 958, 960 (R.I.1986). Further, the General Assembly enacted two additional felony offenses at that time, § 31-27-1.1, entitled "Driving so as to endanger, resulting in personal injury," and § 31-27-2.2, entitled "Driving under the influence of liquor or drugs, resulting in death."
RHODE ISLAND'S DRUNK-DRIVING LAWS PRESENT DAY
In the case at bar, defendant was charged under the current version of *1159 § 31-27-2.2,[4] driving under the influence of liquor or drugs, death resulting, a felony. Although this statute defines the crime of DUI, death resulting, and prescribes the punishment for that offense, it does not set forth the methods of proof to be used in determining whether the crime was committed. Rather, § 31-27-2(c)[5] provides that evidence of the amount of intoxicating liquor or drugs, as shown by chemical analysis of the defendant's blood, breath, or urine, is inadmissible unless the defendant has consented to the test. However, this subsection specifically references § 31-27-2(a), misdemeanor DUI, and makes no reference to felonyDUI offenses. Therefore, the dispositive question for this Court is whether the Legislature intended to exclude nonconsensual test results in DUI felony cases by explicitly including the consent requirement for misdemeanor prosecutions and implicitly including the requirement in felony prosecutions. For the reasons that follow, the Chief Justice and I conclude that this Court's decisions in State v. Timms, 505 A.2d 1132 (R.I.1986), and State v. DiCicco, 707 A.2d 251 (R.I.1998), compel us to answer this question in the affirmative.
Our holding in Timms, in which we espoused the well-known canon of statutory construction in pari materia (statutes relating to the same subject matter should be construed together for consistency and to effectuate the policy of the law), would seem to indicate that consent would be necessary to make blood tests admissible, even in cases of DUI, death resulting. Timms, 505 A.2d at 1135. Although the issue before us in Timms involved a different public safety statute, namely § 31-27-1, entitled "Driving so as to endanger, resulting in death," our analysis of the two comparable statutes applies just as forcibly in this case. In Timms, we considered whether the actual consent requirement in § 31-27-2 would apply, or whether a written consent form, in accordance with the Confidentiality of Health Care Information Act, was required for hospital personnel to obtain defendant's blood. Timms, 505 A.2d at 1134-35. We stated:
"Although § 31-27-1 * * * does not explicitly require that the defendant consent to the taking of a blood test before that test may be introduced as evidence in a criminal prosecution, the Legislature must have intended it to include the consent safeguards explicitly provided in § 31-27-2. Both statutes concern the same subject matter, namely driving in a manner so as to threaten public safety. Furthermore, in addition to the already-enacted *1160 §§ 31-27-1 and 31-27-2, the Legislature subsequently created § 31-27-2.2, `Driving under the influence of liquor or drugs, resulting in death.' The consent safeguards in § 31-27-2.2 are also not explicitly in its text, yet the Legislature would not have enacted two separate driving-under-the-influencesections, intending that the consent safeguards apply only to one. `It follows that if a mechanical application of a statutory definition produces an absurd result or defeats legislative intent, this court will look beyond mere semantics and give effect to the purpose of the act.' * * * Thus ascertaining the intent of the Legislature, we are duty bound to give effect to that intent." Timms, 505 A.2d at 1135-36. (Emphasis added.)
Moreover, in DiCicco, a DUI death resulting case, we declared that, "[t]he wrong proscribed by § 31-27-2 is identical to that in § 31-27-2.2, namely, operating a motor vehicle while `under the influence of any intoxicating liquor, toluene, or any controlled substance as defined [by law],'" and accordingly, we held that, "the well-known canon of statutory construction in pari materia dictates that similar statutes should be interpreted similarly." DiCicco, 707 A.2d at 253-54. Further, in State v. St. Jean, 554 A.2d 206, 211 (R.I.1989), a case of DUI, death resulting, we unequivocally declared that consent was a condition precedent to admissibility.
This Court has stated in scores of cases that when a statute is clear and unambiguous, there is no room for statutory interpretation and the language of the statute must be given its plain and literal meaning. See, e.g., RIH Medical Foundation, Inc. v. Nolan, 723 A.2d 1123, 1126 (R.I.1999); State v. Peterson, 722 A.2d 259, 264 (R.I.1998); Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996). One of the earlier cases that set forth this proposition in colorful language was Kastal v. Hickory House, Inc., 95 R.I. 366, 187 A.2d 262 (1963), in which the Court commented:
"Only when the legislature sounds an uncertain trumpet may the court move in to clarify the call. But when the call is clear and certain as it is here we may not consider whether the statute as written comports with our ideas of justice, expediency or sound public policy. In such circumstances that is not the court's business." Id. at 369, 187 A.2d at 264-65 (citing Blais v. Franklin, 31 R.I. 95, 77 A. 172 (1910)).
Moreover, we are cognizant that in the fourteen years since our decision in Timms, the General Assembly has amended § 31-27-2 on nineteen occasions[6] and amended § 31-27-2.1 four times,[7] but has never revisited the issue of consent as a precondition to admissibility.
It is interesting to note that in the same year it enacted § 31-27-2.2, the General Assembly also enacted a new subsection, § 31-27-2.3, entitled "Revocation of license upon refusal to submit to preliminary breath test." This section, which is positioned beside § 31-27-2.2, provides that when a law enforcement officer has reason to believe that a person is driving or has actual physical control of any motor vehicle in this state while under the influence of alcohol, the officer may require such person to submit to a preliminary breath analysis. If the results of the preliminary breath analysis are positive, then the officer may arrest the driver and proceed to take further tests pursuant to *1161 § 31-27-2.1. These further tests are subject to the safeguards recognized in Timms, as required by § 31-27-2. This statute further provides that if a person refuses to submit to this preliminary breath test, such person would be guilty of an infraction and subjected to the penalty specified in G.L. 1956 § 31-41-4, which provides for suspension of a driver's license and fines to be imposed in the Traffic Tribunal.[8]
One of the statutory aids to construction is a maxim entitled noscitur a sociis, the literal translation of which is "[i]t is known from its associates." Black's Law Dictionary 1060 (6th ed.1990).The definition goes on to state that, "[u]nder the doctrine of `noscitur a sociis,' the meaning of questionable or doubtful words or phrases in a statute may be ascertained by reference to the meaning of other words or phrases associated with it." Id. (Emphasis added.) Thus, an application of this doctrine might cause one to construe the juxtaposition of §§ 31-27-2.2 and 31-27-2.3 as statutes that are interacting. Certainly, the Timms court determined that the consent safeguards provided in § 31-27-2 were applicable to the felony charge set forth in § 31-27-1, driving so as to endanger, death resulting. It cannot be said that such a construction is unreasonable, or that it amounts to judicial amendment of clear and unambiguous legislative pronouncements. With this background in mind, we shall now respond to the certified questions.
DISCUSSION
I
Questions One and Two
Question one requires us to determine whether, in view of Timms, § 31-27-2(c) should be interpreted to preclude the admission of the results of breath, blood or urine tests in cases of DUI, death resulting, when the evidence has been seized without consent but with a judicially authorized search warrant. Question two asks us to determine whether the "none shall be given" language contained in the refusal statute, § 31-27-2.1, precludes members of law enforcement from obtaining a search warrant to seize blood for alcohol and drug testing. Inasmuch as the answer to question one is inextricably linked to the issue raised by question two, the issue respecting the admissibility of blood, breath or urine tests at any DUI trial, misdemeanor or felony, must begin with an examination of § 31-27-2.1.
A
Refusal to Submit to a Chemical Test
Section 31-27-2.1, entitled "Refusal to submit to chemical test," provides in subsection (a) that, "[i]f a person having been placed under arrest refuses upon the request of a law enforcement officer to submit to the tests, as provided in § 31-27-2, as amended, none shall be given * * *." (Emphasis added.) This statutory prohibition against a chemical test in the absence of actual consent has never been amended by the General Assembly, and applies, according to the statute, to "[a]ny person who operates a motor vehicle within this state * * *." Id. Although this Court has held that the implied consent required by § 31-27-2.1 only is applicable in license revocation proceedings and cannot be substituted for actual consent necessary to the admissibility of the test results, we never have held that the mandate that no test shall be given is inapplicable in DUI cases, felony or otherwise. In fact, we never have been called upon to decide the applicability of the mandate "none shall be given."
In its brief, the state pointed to State v. Berker, 120 R.I. 849, 391 A.2d 107 (1978), as support for its position that the prohibition against a nonconsensual test in § 31-27-2.1 *1162 has no bearing upon the questions before us today. We respectfully disagree. In Berker, after the defendant's arrest was declared illegal, the state sought to sustain the admissibility of his test results on the ground of actual consent, suggesting that the implied consent provisions of § 31-27-2.1 were a proper substitute for actual consent. We rejected this argument and declared that, "[it] is clear that the consent described in section 31-27-2.1 is applicable only in license revocation proceedings," and cannot serve to satisfy the actual consent necessary to admissibility in DUI cases. Berker, 120 R.I. at 857, 391 A.2d at 112. It is important to note that the defendant in Berker did not refuse to submit to a test, and this Court was not called upon to interpret that portion of the statute that provides that, upon a driver's refusal to submit toa test, "none shall be given." We have never held that this clear and unambiguous prohibition against compelling a driver to submit to a test is inapplicable in DUI cases, felony or misdemeanor. Indeed, were we to do so, such a holding would render that portion of the statute meaningless, in clear violation of our rules of statutory construction.
Although we often have stated that the DUI and the refusal statutes are two separate and distinct offenses for which there is no double-jeopardy bar, State v. Jenkins, 673 A.2d 1094, 1097 (R.I.1996), there is nonetheless an important temporal distinction between the two. The offense of refusal under § 31-27-2.1 can arise only after a driver had been arrested, informed of his or her rights, asked to submit to a chemical test, and refused, whereas DUI cases begin with an arrest based upon probable cause to believe that the driver had been driving while under the influence of alcohol or drugs, too often resulting in death or serious injury. An officer's request that a driver submit to a chemical test is one of the first steps in the investigation of a drunk-driving fatality. Although the offense of DUI, death resulting, already has been committed, unless and until the suspect actually refuses to submit to a test, he or she has not committed the additional offense of refusal, at which point the prohibition against compelling a test becomes operable.
The clear language of § 31-27-2.1(a) requires that, "[a]ny person who operates a motor vehicle within this state shall be deemed to have given his or her consent, to chemical tests of his or her breath, blood, and/or urine for the purpose of determining the chemical content of his or her body fluids or breath," and that, "[i]f a person having been placed under arrest refuses upon the request of a law enforcement officer to submit to the tests, as provided in § 31-27-2, as amended, none shall be given, but an administrative judge of the [traffic tribunal shall be notified]." (Emphasis added.) Thus, it is clear to us that the implied consent statute contained in § 31-27-2.1 applies to any person who operates amotor vehicle in this state, and applies to every arrest for DUI, whether it be felony or misdemeanor, and that upon refusal, no test shall be given. It is inconceivable that the Legislature would cloak a driver charged with the lesser offense of misdemeanor DUI with the protections afforded by § 31-27-2.1, and not afford those same protections to a motorist accused of the more serious felony offenses.
We note that in addition to the statutory penalties for refusal,[9] a driver may nonetheless be charged with DUI, felony or otherwise, and a conviction can rest on evidence other than BAC evidence, including the opinion of the experienced *1163 officer that the driver gave every appearance of intoxication. See DiCicco, 707 A.2d at 255. However, nothing in § 31-27-2.1 or in the case law of this state suggests in any way that a driver who has refused to submit to a test can be compelled to submit against his or her will, whether or not the officer is armed with a search warrant. The words "none shall be given" are plain and unambiguous, and evince the intent of the General Assembly of this state that consent to a test is the lynch pin to admissibility.
We reject the state's argument that the phrase "none shall be given" has no applicability beyond the issue of whether a driver may be charged with refusal under § 31-27-2.1. At oral argument, the state was unable to enunciate any police department or Attorney General policy respecting cases in which the defendant refuses to cooperate with the medical technician and forcibly resists the extraction of blood or urine. The state was unable to explain what the response of the police would be in cases of physical resistance by the suspect, nor was the state able to explain under what statutory authorityhospital personnel can be required to extract blood or urine from a driver who resists, or whether the police departments have agreed to indemnify the innocent medical technicians in the state's emergency rooms against subsequent claims of assault or medical malpractice for performing a medical procedure without the consent of the patient.
Further, the state was unable to indicate whether the Warwick police or the Attorney General have developed any policies and procedures relative to the amount of force and restraint that may be exerted upon an intoxicated individual who refuses to cooperate. Nor has there been any mention of the real danger a cocktail of blood, needles, and a resistant, intoxicated motorist presents to those who attempt to subdue the suspect in order to draw blood. Indeed, when asked these questions at oral argument, the attorney for the state acknowledged the need for greater consideration of these issues. The question we ask is, consideration by whom? Certainly not this Court, nor a member of the Executive Branch of state government, nor the local police departments. We are satisfied that this area is clearly within the province of the General Assembly.
Accordingly, a majority of the members of this Court conclude that the language "none shall be given" is plain and unambiguous and becomes operative after a suspect refuses a chemical test, and that, upon such a refusal, a test shall not be given, with or without a warrant, to "[a]ny person who operates a motor vehicle within this state," pursuant to § 31-27-2.1(a).
B
Forcible Seizure of a Suspect's Blood
We are equally satisfied that, in addition to the prohibition contained in § 31-27-2.1, there are sound public policy reasons behind the requirement that a defendant consent to a test before one may be undertaken. In State v. Locke, 418 A.2d 843 (R.I.1980), a DUI case, the defendant alleged that, notwithstanding his consent to a breath test, the police subjected him to an unreasonable search and seizure. In reliance on Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the justices of this Court concluded that the test was reasonable and we declared our belief that the Legislature created the consent requirement of § 31-27-2.1 "to prevent a violent confrontation between an arresting officer and a suspect unwilling to submit to a test of this sort." Locke, 418 A.2d at 849. These policy considerations obtain today. In this case, the state was unable to explain how medical personnel at Kent County Hospital came to agree to draw defendant's blood without her authorization and consent. Moreover, as will be discussed infra, there is no statutory authorization for the issuance of a search warrant for the seizure of bodily fluids, and the state's suggestion that *1164 there can be a valid "judicially authorized warrant " is without merit.
Importantly, in the majority of states that admit evidence of a defendant's BAC when the blood or urine was drawn without compliance with implied consent procedures, there exists a statute that either requires or permits the withdrawal of blood in felony DUI cases. In State v. Robarge, 35 Conn.Supp. 511, 391 A.2d 184 (1977), a case relied upon by the state in the case at bar, the Superior Court of Connecticut, Appellate Session, held that the State of Connecticut's failure to establish that the defendant-motorist consented to the taking of a blood sample that was seized at the direction of the state's medical examiner after the death of her passenger was irrelevant because consent applied only to prosecutions for DUI, not to those for vehicular homicide cases. However, Connecticut's implied consent statutedoes not prohibit the seizure of blood after a refusal, and in fact, it authorizes a test of a motorist's blood by or at the direction of the state's medical examiner after a fatal accident.[10]
In addition to Connecticut, several states have amended their respective implied consent statutes in response to judicial pronouncements that the prohibition against a test in the face of a refusal applies to felony, as well as misdemeanor, offenses. Indeed, many of these jurisdictions faced issues similar to those facing us today. In State v. Bellino, 390 A.2d 1014, 1020 (Me.1978), the Supreme Judicial Court of Maine, citing the "great concern over the right of the State to take blood or breath samples of the motoring public," interpreted Maine's then-existing implied consent statute, and concluded that an arrest and the actual consent of the offending motorist were conditions precedent to the admissibility in both misdemeanor and felony cases, and suppressed the results of a blood test in a DUI, death resulting, case in which the blood was drawn by a nurse at the direction of a police officer. Maine's implied consent statute has since been amended, and carves out an exception for those who drink, drive, and kill. Maine's present statute[11] not only requires the withdrawal of blood from a DUI suspectinvolved in an accident resulting in death, it provides immunity for any medical technician who performs the test.[12] Likewise, Vermont's current implied consent law specifically authorizes a law enforcement officer, upon the refusal of a motorist to submit to a test, to secure a search warrant to obtain a blood sample in any DUI case resulting in serious bodily injury or death.[13]
Moreover, the history of the State of New Hampshire concerning the applicability of that state's implied consent law to *1165 DUI death cases also is instructive. In State v. Berry, 121 N.H. 324, 428 A.2d 1250, 1251 (1981), the Supreme Court of New Hampshire held that the provision in that state's implied consent statute providing that, "`if a person under arrest refuses * * * to submit to a chemical test * * * none shall be given,'" was applicable in DUI cases and in cases of negligent homicide, and found there to be nothing in "the legislative history of the implied consent statute, to indicate that the words `none shall be given' were intended by the legislature to mean other than that no chemical test shall be administered without the accused's consent." The New Hampshire legislature amended the statute with the specific intent "to eliminate the prohibition against the taking of a chemical test to determine intoxication where a person is under arrest for any offense other than a violation or misdemeanor * * *." State v. Wong, 125 N.H. 610, 486 A.2d 262, 273 (1984) (quoting N.H.Rev.Stat.Ann. § 563:3 (1981)). New Hampshire now has a statute requiring the testing for evidence of alcohol or drug consumption for all persons involved in a collision that results in death or serious bodily injury to any person, including all deceased vehicle occupants and any pedestrian involved in the collision, but in the case of a living driver, the officer must have probable cause to believe that the driver caused the collision.[14]
Additionally, the State of Maryland's experience is almost identical to the case at bar. Prior to 1982, Maryland's implied consent statute required that certain procedural steps be taken before a chemical test was administered. In Loscomb v. State, 45 Md.App. 598, 416 A.2d 1276 (1980), the Court of Special Appeals declared the implied consent statute applicable to all DUI death offenses, including the prohibition against a compulsory test. Thereafter, the Legislature amended Maryland's implied consent statute to require a driver to submit to a chemical test in all accident cases resulting in death or serious injury to another person. It also provided immunity from liability to any medical personnel who perform the test.[15]
Similarly, a survey of many other jurisdictions throughout the United States with statutes that provide that "none shall be given" when a driver refuses to consent to a test demonstrates that statutory authorization of some kind is necessary for the compulsory withdrawal of blood upon a refusal. Included in this survey is the State of New Mexico, where that state's Court of Appeals found that, "[t]he act of obtaining a search warrant to circumvent the statutory prohibition [against the giving of a test upon a refusal] * * * is unavailing," and held that the implied consent statute under consideration contained no exception for a search for a driver's blood alcohol content. State v. Steele, 93 N.M. 470, 601 P.2d 440, 441 (Ct.App.1979). The court invited the Legislature to write an exception into the law and refused "to encroach upon the legislative prerogatives by judicial fiat or, even, by applying constitutional exceptions to statutes specifically denying such exceptions." Id. The Legislature reacted. New Mexico's present refusal statute contains a specific exception for the issuance of a search warrantauthorizing chemical tests upon a finding of probable cause that a person was driving under the influence and caused the death or great bodily injury of another.[16]
Although this Court believes it unnecessary to continue to canvass the remaining states, we find the experience of the State of Tennessee particularly relevant. That state's implied consent statute prohibits the admission of test results taken after a refusal, but contains a specific exception for the admissibility of evidence in criminal *1166 prosecutions for aggravated assault or homicide by the use of a motor vehicle for blood drawn by "any means lawful,"[17] including the warrantless seizure of blood based upon probable cause. Moreover, the states of Alaska,[18] Arizona,[19] Iowa,[20] Florida,[21] Indiana,[22] Michigan,[23] and Texas[24] all have statutes specifically authorizing the forcible seizure of blood in DUI cases. Further, in three states, these statutes specifically were revised in response to judicial decisions barring the forcible seizure of blood. See Pena v. State, 684 P.2d 864 (Alaska 1984); Collins v. Superior Court, 158 Ariz. 145, 761 P.2d 1049 (1988); State v. Hitchens, 294 N.W.2d 686 (Iowa 1980).
Accordingly, a majority of this Court holds that under the existing statutory framework, consent is a condition precedent to admissibility. Further, the Chief Justice and I conclude that our holding in Timms furnishes direct authority for the requirement that a defendant give his or her consent in DUI, death resulting, cases before the results of blood tests may be admitted. The Chief Justice and I are not persuaded that we should revisit this holding to sustain the admissibility of blood evidence drawn pursuant to a search warrant.
We are of the opinion that any changes to this mandate must emanate from the General Assembly. Further, we answer question two in the affirmative, and hold that in cases in which a motorist has refused consent, members of law enforcement are precluded from obtaining a search warrant to seize blood for alcohol or drug testing.
II
Question Three
Question three requires this Court to decide whether a determination that § 31-27-2.1 precludes law enforcement personnel from obtaining a search warrant for the seizure of blood amounts to an unconstitutional limitation of the judicial authority to issue search warrants as provided in article 5 of the Rhode Island Constitution and G.L. 1956 § 12-5-1.
To properly answer this question, we must construe still another portion of the General Laws, namely §§ 12-5-1 and 12-5-2, which deal with the issuance of search warrants. Section 12-5-1 provides that a search warrant may be issued by any judge of the District Court and that "[n]othing contained in this chapter shall be so construed as to restrain the power of the justices of the supreme or superior courts by virtue of § 8-3-6 to issue a search warrant."[25] However, the authority *1167 for the issuance of a search warrant is found in § 12-5-2, which provides:
"Grounds for issuance. A warrant may be issued under this chapter to search for and seize any property:
(1) Stolen or embezzled, or obtained by any false pretense, or pretenses, with intent to cheat or defraud within this state, or elsewhere;
(2) Kept, suffered to be kept, concealed, deposited, or possessed in violation of law, or for the purpose of violating the law;
(3) Designed or intended for use, or which is or has been used, in violation of law, or as a means of committing a violation of law; or
(4) Which is evidence of the commission of a crime."
The only portion of § 12-5-2 that is remotely relevant to this case is subsection (4), which authorizes the issuance of a warrant for the seizure of any "property" that is "evidence of the commission of a crime." A survey of the remainder of our statutes discloses no authorization to issue a search warrant for the withdrawal and seizure of blood or other bodily fluids. The seizure of a suspect's blood involves the use of a needle and the location and puncture of a vein to extract the fluid. Although not as physically intrusive as the forcible extraction of a prisoner's stomach contents in search of evidence of a crime, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183, 190 (1952), a blood draw is nonetheless an intrusion beyond the body's surface that affects one's human dignity and privacy. Schmerber, 384 U.S. at 769-70, 86 S.Ct. at 1835, 16 L.Ed.2d at 919.[26] Further, although the alcohol content of a motorist's blood is relevant to the degree of intoxication in a DUI trial, we are not satisfied that one's bodily fluid is "property" or evidence of the commission of a crime. We note that it is not the blood itself that is the "evidence of the commission of a crime," but rather the test results that are relevant in a criminal trial. Thus, we are of the opinion that the General Assembly, by its enactment of § 31-27-2.1, as well as the limited power to issue search warrants that has been conferred upon the judiciary by § 12-5-2, has not specifically authorized the issuance of a search warrant for such a purpose. Moreover, we are ever mindful that the Rhode Island Constitution deals with search warrants only in the negative sense. Article 1, section 6, of the Rhode Island Constitution reads as follows:
"Search and seizure. The right of the people to be secure in their persons, papers and possessions, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but on complaint in writing, upon probable cause, supported by oath or affirmation, and describing as nearly as may be, the place to be searched and the persons or things to be seized."
This Court has long recognized that the Superior Court is statutory in origin and derives its powers from statutes *1168 duly enacted by the Legislature.[27] This power cannot be extended by judicial interpretation, Boss v. Sprague, 53 R.I. 1, 162 A. 710 (1932), nor by a policy adopted by the Executive Branch of state government. The scope of the Superior Court's warrant authority is delineated by the Legislature, in which all power not explicitly granted to another branch of governmentresides. Kass v. Retirement Board of the Employees Retirement System, 567 A.2d 358, 361 (R.I. 1989). The Superior Court has no inherent power to issue a search warrant, but instead exercises only those powers that are conferred by statute. Indeed, the General Assembly has not hesitated to extend the scope of the judicial power to issue search warrants by specific legislative action covering a wide range of subjects, including G.L. 1956 § 11-19-24, which authorizes search warrants for gambling apparatus and paraphernalia; G.L. 1956 § 11-34-4, authorizing the issuance of a warrant to search a house of prostitution; G.L. 1956 § 19-26-13, authorizing the issuance of a search warrant to search the premises of a pawnbroker for stolen property; G.L. 1956 § 30-9-11, authorizing the adjutant general of the national guard to obtain a warrant for the search and seizure of arms, ammunition, uniforms, or other military equipment belonging to the military; G.L. 1956 § 3-12-4, authorizing the issuance of a search warrant for the search and seizure of any impure or adulterated liquors; G.L. 1956 § 4-1-19, authorizing the issuance of a search warrant to search any place believed to be connected to the cruelty of animals; and finally, G.L. 1956 §§ 12-5.1-4 and 12-5.2-2, authorizing the interception of wire communications and the issuance of an order for the use of a pen register or telephone trap. Moreover, the General Assembly has authorized the seizure of a host of material by the state's law enforcement officers, including fighting birds or animals, obscene material, hazardous waste, firearms, explosives, commercial fertilizer and seed, forgery and counterfeiting devices, property held out for sale by an itinerant vendor, shellfish taken in polluted waters, and driver's licenses found to be in the possession of any person other than the licensee. Thus far, the Legislature has not acted to authorize the search and seizure of a person's bodily fluids.
Finally, it should be noted that law enforcement officers generally have been allowed by both federal and state decisional law to search a suspect incident to a lawful arrest. Indeed, in Schmerber,the Supreme Court of the United States, in an opinion by Justice Brennan, held that an officer who had probable cause to believe that the defendant was operating an automobile while under the influence of alcohol could constitutionally require him to submit to the withdrawal of blood by a physician in a hospital, even though the defendant objected to the procedure. Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836, 16 L.Ed.2d at 920. The Court held that the warrant requirement was precluded by the emergent necessity to conduct the tests before the BAC was reduced by the passage of time to the point where it would constitute the destruction of evidence. Id. Therefore, the Court concluded "that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest." Id. From the point of view of the Fourth Amendment and the Fourteenth *1169 Amendment, such an intrusion even over the objection of the defendant was not constitutionally forbidden. The Court did not discuss or consider whether a warrant would have been available under California law.
However, here we are confronted with the question of whether an officer, in reliance upon a warrant that was not specifically authorized by statute, may, under Rhode Island law, obtain a blood sample after the suspect has refused to consent to a chemical test. Assuming that Schmerber still represents the constitutional law of the United States, the warrant in this case would have been surplusage under federal requirements if, indeed, the officer had probable cause to believe that defendant was operating under the influence of a controlled substance.
However, the Chief Justice and I are of the opinion that the absence of a statute authorizing the issuance of a search warrant to obtain a blood sample or a sample of other bodily fluids places the question of our overturning Timms in a totally different light. Our Legislature has chosen to construct an elaborate requirement of consent, buttressed with an equally elaborate set of admonitions around theprocedure for obtaining a chemical test. These requirements, in addition to the absence of a statute specifically authorizing the issuance of a warrant to obtain such samples, leads us to conclude that Timms struck the appropriate balance with respect to Rhode Island law. Accordingly, we are convinced that to overrule Timms, as well as St. Jean, we would impermissibly involve ourselves in the enterprise of legislation. We would first be required to legislate the issuance of a warrant for a purpose not authorized by statute. In addition, we would be required to hold that this judicially authorized warrant would trump the various provisions set forth by the General Assembly requiring the consent of any suspect who may be subjected to a chemical test for breath, blood, or urine. Moreover, if such a test may be authorized by an officer without a warrant, is that officer also empowered to force a physician, nurse, or medical assistant to withdraw the sample against their will, in light of the fact that medical personnel are restricted by the statutes relating to a patient's confidential health care information from disclosing information without a person's consent. See § 5-37.3-4. Medical personnel who ignore this requirement and draw blood from an unconsenting subject at the direction of a police officer may face a civil action and, pursuant to § 5-37.3-4, possible fine and imprisonment.
Accordingly, we decline to accept the state's invitation to venture into the realm of piecemeal legislation. We are mindful that this Court previously has held that the consent requirement was designed to avoid confrontation between a suspect and an officer who might wish to require him or her to submit to a chemical test. State v. Locke, 418 A.2d 843 (R.I.1980). Consequently, even though the Federal Constitution may not require a warrant to authorize an officer to compel a suspect to submit to a blood test as long as the officer has probable cause to believe that the suspect was driving while impaired, a byproduct of leaving enforcement of this decision to an officer unaided by a warrant would be to create many dangerous and unintended consequences that should be dealt with and prevented bylegislative enactment, not by judicial fiat. In Schmerber, the United States Supreme Court merely decided the lengths a state might go without violating the Federal Constitution. Therefore, the wisdom and framework for requiring tests and implementing testing procedures should properly be left to the Legislature, which as set forth in Timms has indicated its choice.
Accordingly, we conclude that § 31-27-2.1 precludes law enforcement officials from obtaining a warrant to seize blood, and further, that this prohibition in no way unconstitutionally limits the authority of the judiciary to issue warrants. *1170 The authority to issue warrants emanates from the General Assembly, and the General Assembly has not seen fit to vest the Superior Court with that power.
CONCLUSION
For the reasons stated herein, we answer the certified questions as follows:
1. The Chief Justice and I would answer question one in the affirmative.
2. We answer question two in the affirmative and hold that § 31-27-2.1 does preclude members of law enforcement from obtaining a judicially authorized search warrant to seize blood from a defendant who has refused to consent to such test.
3. We answer question three in the negative, because the judicial power to issue warrants is derived from the General Assembly, and the General Assembly has not vested the District Court or Superior Court with the power to issue a search warrant for the seizure of blood.
Justice Flanders concurs in our answer in question two and question three which set forth the judgment of the Court.
WEISBERGER, Chief Justice concurring.
I concur completely in the opinion written by Justice Goldberg, not only in respect to her conclusions, but also in respect to the rationale of that opinion.
I write separately only to indicate that our dissenting justices have expended more than twenty pages of enunciation of policy that could have been implemented by less than a paragraph of legislation had the General Assembly been inclined so to provide.
I do not disagree that sound policy would support legislation that would enable a police officer to obtain a warrant for the production of a blood sample in the event that he or she had probable cause to believe that a suspect committed a felony by taking the life or seriously injuring a human being while under the influence of alcohol or a controlled substance. The sad fact is that G. L. 1956 § 12-5-2 simply does not authorize the issuance of such a warrant.
The dissenters eloquently argue that common sense should dictate that the consent of one who has committed the crime of driving under the influence of drugs or a controlled substance resulting in death should not be required as a condition precedent to obtaining a blood sample by a physician or qualified medical technician for the purpose of testing the content of that blood. I would agree that common sense would support such an outcome. However, the incontrovertible truth is that our felony statutes, G.L. 1956 §§ 31-27-1 and 31-27-2.2, do not contain such a statement. Further, the provisions of G.L. 1956 § 5-37.3-4 specifically prohibit the release of such medical health care information in the absence of written consent of the patient or his or her authorized representative. A close reading of the exceptions provided under § 5-37.3-4(b) discloses no provision for release of the results of a blood test obtained pursuant to a judicial warrant.
I sincerely wish that our statutory provisions in chapter 27 of title 31 and in chapter 37.3 of title 5 would authorize the obtaining of a blood sample or other chemical tests of breath and body fluids when probable cause exists to believe that a suspect has committed vehicular homicide. The plain fact is that our statutes make no such provision. All of the oratory in the dissent cannot amend these statutes to achieve the desired purpose. Only the General Assembly has this power.
I believe that the statements of policy and reason set forth in the dissent have considerable merit. However, these statements should be addressed to the Legislature and not to this Court. An examination of the relevant statutes indicates that there is a significant tension evidenced by our statutory structure between the objective *1171 of protecting the confidentiality of persons accused of a crime (particularly matters relating to the disclosure of health care information or requiring such person to submit to chemical tests of breath and bodily fluids), and the desire to prosecute for serious criminal offenses. The result is, as we stated fourteen years ago in State v. Timms, 505 A.2d 1132, 1135-36 (R.I.1986), that no person accused of driving so as to endanger resulting in death, wherein the alcoholic content of the person's blood would be a relevant factor in determining his or her ability to drive safely could be subjected to a blood test without that person's consent. I agree that the feeble civil remedy provided for refusing the chemical test is an insufficient disincentive for such refusal when one is accused of vehicular homicide. See § 31-27-2.1. I would urge the General Assembly to amend the law so that it might read as the dissenters would have it read.
However, I do not believe that the members of this Court have the power to torture the language of these various relevant statutes in order to bring about the desired result. I would, therefore, respectfully ask the members of the General Assembly to review these statutes in the light of State v. DiCicco, 707 A.2d 251 (R.I.1998); State v. Timms, supra; and State v. St. Jean, 554 A.2d 206 (R.I.1989), as well as the various opinions in this case, and enact into law the suggestions contained in the dissenting opinion. I would certainly applaud such action, but do not have the power by decisional legerdemain to amend the existing statutes so as to achieve the dissenters' objective.
Flanders, J., concurring in part and dissenting in part.
I concur with that portion of Justice Goldberg's opinion that concludes that G.L. 1956 § 31-27-2.1 bars police officers from obtaining a search warrant that would force a person suspected of driving under the influence, death resulting, to submit to a blood test for the presence of alcohol after that person has refused to consent to such testing upon the request of a law enforcement officer to do so. Section 31-27-2.1(a) provides, in pertinent part, that in these circumstances no blood test shall be given to a suspect unless he or she consents thereto ("none shall be given"). I do not believe that this restriction on police-initiated blood testing of motorists, in the absence of consent, pertains solely to situations involving mere misdemeanor charges of driving under the influence. Rather, I conclude that the Legislature meant what it said and did not intend to permit the police to circumvent the various procedural and other safeguards for such testing that are set forth in § 31-27-2 by allowing the police to obtain a search warrant authorizing such testing despite the suspect's refusal to consent to the officer's request that he or she voluntarily submit to such testing. Moreover, for the reasons indicated in Justice Goldberg's opinion, I do not believe that this legislative limitation on the ability of the police to obtain search warrants violates any applicable separation-of-powers principles.
I also agree, however, with Justice Bourcier's analysis of the scope of § 31-27-2(a). But for the Legislature's enactment of § 31-27-2.1 and this Court's decision in State v. Timms, 505 A.2d 1132(R.I.1986) and its progeny, I would be inclined to agree that the consent and testing provisions of § 31-27-2 are, by their terms, applicable only in misdemeanor prosecutions for driving under the influence, and have no application whatsoever to felony prosecutions for driving under the influence, death resulting. But, in my judgment, this issue becomes a moot point because I also agree that § 31-27-2.1(a)'s "none shall be given" language is not so limited, on its face, to license-revocation proceedings or to misdemeanor prosecutions. Rather, according to State v. Berker, 120 R.I. 849, 391 A.2d 107 (1978), it is § 31-27-2.1(a)'s implied-consent provisions that are limited to license-revocation proceedings; but the statute's mandate of no *1172 blood testing without consent ("none shall be given") applies whenever a motorist has refused to submit to the § 31-27-2 tests regardless of whether the police ultimately prefer any charges or initiate any proceedings against the motorist who has refused to submit to the requested testing. Thus, § 31-27-2.1(a) indicates that no blood testing shall occur if consent is not obtained from "[a]ny person who operates a motor vehicle within this state [who] * * * having been placed under arrest refuses upon the request of a law enforcement officer to submit to the tests, as provided in § 31-27-2." In that case, "none shall be given" irrespective of whatever particular misdemeanor or felony charge(s) may or may not eventuate in any given case.[28] Because § 31-27-2.1 is more specific than G.L. 1956 §§ 12-5-1 and 12-5-2 (the general statutes authorizing the issuance of search warrants), I construe § 31-27-2.1(a)'s "none shall be given" directive asconstituting an exception to the more general search-warrant statutes assuming, without deciding, that a warrant authorizing the seizure of a person's blood to test for the alcohol content therein would even fall within the scope of that statute, given its apparent property-seizure limitations. Although this issue is not before us and has not been properly presented for our decision, it is one that, as Justice Goldberg's opinion elucidates, raises very difficult and troubling questions about the propriety of issuing search warrants at all to seize a person's blood.
Moreover, there is a further reason why the use of a search warrant to compel a suspect to submit to a blood test against his or her will may be problematic under our state Constitution. Under the Fifth Amendment to the United States Constitution, "[n]o person * * * shall be compelled in any criminal case to be a witness against himself * * *." The comparable provision in our state Constitution, however, contains different and potentially more expansive wording: article 1, section 13, of the Rhode Island Constitution entitled "Self-crimination," provides that "No person in a court of common law shall be compelled to give self-criminating evidence." Thus, while the Fifth Amendment is limited to a prohibition against compelling persons in any criminal case to be a witness against themselves, the bar against compulsory self-incrimination in Rhode Island's Declaration of Rights arguably provides broader protection by precluding the government not just from compelling people to be witnesses against themselves but also from compelling them "to give self-criminating evidence." R.I. Const. art. 1, sec. 13. Cf. Commonwealth v. Mavredakis, 430 Mass. 848, 725 N.E.2d 169, 178 (2000) (comparing the textual differences between Massachusetts Declaration of Rights, art. 12, which states "No subject shall * * * be compelled to accuse, or furnish evidence against himself," and the Fifth Amendment, and noting that "[t]he text of art. 12, as it relates to self-incrimination, is broader than the Fifth Amendment," citing Opinion of the Justices, 412 Mass. 1201, 591 N.E.2d 1073 (1992), in which the Supreme Judicial Court advisedthe Massachusetts Senate that admitting evidence of a defendant's refusal to consent to a breathalyzer test at a criminal trial would violate art. 12, in contradiction to the United States Supreme Court's decision in South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 923, 74 L.Ed.2d 748, 759 (1983)).
Although previous Rhode Island judicial decisions have refused to differentiate between *1173 the standard to be applied under article 1, section 13, and the one that applies under the Fifth Amendment to the Federal Constitution, see, e.g., State v. Bertram, 591 A.2d 14, 21-22 (R.I.1991) (refusing to deviate from the Fifth Amendment test when analyzing the validity of compelled handwriting exemplars under article 1, section 13, of the Rhode Island Constitution), no Rhode Island Supreme Court decision yet has examined the potentially critical difference in the wording of these two constitutional provisions and its arguable significance in cases in which the government requires a suspect "to give self-criminating evidence" that is not in itself of a communicative or a testimonial nature. R.I. Const. art. 1, sec. 13.
In other words, unlike the Federal Constitution, the Rhode Island Constitution does not seem to incorporate, by its terms, an express testimonial or a communicative limitation on the compelled giving of evidence by a person. Thus, the possibility exists that the framers drafted article 1, section 13, in such a manner as to provide for a broader ban on the government's compelling of self-incriminatory acts than the Fifth Amendment analogue to the United States Constitution (at least as that clause has been construed most recently by a majority of the United States Supreme Court). For example, such acts as forcing suspects and witnesses to give their blood, handwriting exemplars, DNA samples, fingerprints, or documents, or otherwise to assist the prosecution "in a court of common law" by the compulsory giving of evidence of a "self-criminating" nature may fall within the literal terms of article 1, section 13,regardless of whether the compelled giving of such evidence is "testimonial" in nature. See, e.g., Doe v. United States, 487 U.S. 201, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988).
Moreover, in a recent concurring opinion authored by Justice Thomas (joined by Justice Scalia), in the United States Supreme Court case of United States v. Hubbell, 530 U.S. 27, ___, 120 S.Ct. 2037, 2050-54, 147 L.Ed.2d 24, 43-48 (2000), Justice Thomas noted that, historically, "substantial support [exists] for the view that the term `witness' [in the Fifth Amendment] meant a person who gives or furnishes evidence, a broader meaning than that which our case law currently ascribes to the term." Id. at ___, 120 S.Ct. at 2050, 147 L.Ed.2d at 44. Justice Thomas specifically observed that during the debate over the ratification of the Federal Constitution Rhode Island was one of four states that proposed a bill of rights that would grant citizens a right against any governmental compulsion "to give evidence" regardless of whether, in doing so, the person would "be a witness" against himself or herself. Id. at ___, 120 S.Ct. at 2052, 147 L.Ed.2d at 46 (citing the Rhode Island Proposal of May 29, 1790). Compare Boyd v. United States, 116 U.S. 616, 634-35, 6 S.Ct. 524, 534-35, 29 L.Ed. 746, 752 (1886) (holding that the Fifth Amendment protected a suspect against the compelled production of books and papers), with Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39, 54 (1976) (permitting the government to force a person to furnish incriminating documentary evidence and protecting only the "testimonial" aspects of that transfer); but see Hubbell, 530 U.S. at ___, 120 S.Ct. at 2048, 147 L.Ed.2d at 41-42 (barring government from indicting an immunized witness based upon the documents produced by the witness in response to a subpoena duces tecum).
In any event, in a case properly preserving this issue, I would remain open to the argument that the Rhode Island Constitution (article 1, section 13) should be construed more broadly than the FederalConstitution in this respect because of the Rhode Island framers' failure to adopt the Federal Constitution's "witness against himself" language. U.S. Const. Amend. V. Arguably, the broader terminology of the Rhode Island Constitution precluding a person from being compelled "to give self-criminating evidence" means that no *1174 "testimonial" or "communicative" limitation exists whenever the government attempts to compel a person to provide it with "self-criminating evidence," for use "in a court of common law." R.I. Const. art. 1, sec. 13. Under this interpretation, the government could be barred from compelling suspects to give handwriting exemplars, blood, fingerprints, DNA samples, or other such "self-criminating" evidence if they objected to doing so. But because this issue is not now before us, I would leave this question for this Court to address in another case that raises it. Suffice it to say for now that, in cases like this one, construing § 31-27-2.1 to preclude nonconsensual seizures of a person's blood for drug-testing purposes avoids the necessity for us to decide the difficult constitutional issues described above as well as the other legal and pragmatic problems alluded to in Justice Goldberg's opinion if the police were entitled to compel a person to give them a blood sample after the person has refused a police officer's request to submit to such testing voluntarily and after the police have sought and obtained a search warrant for that purpose.
For these reasons, I would answer question one in the negative, question two in the affirmative, and question three in the negative.
BOURCIER, Justice, with whom Justice Lederberg joins, dissenting.
I would respond in the negative to questions one and two and need not answer the third question that has been certified to us from the Superior Court for the reasons hereinafter set out.
I
Certified Question 1
"In view of State v. Timms, 505 A.2d 1132 (R.I.1986), should R.I. Gen. Laws § 31-27-2(c) be interpreted to preclude, in a case involving an alleged violation of R.I. Gen. Laws § 31-27-2.2 (driving under the influence, death resulting), the admission at trial of the results of breathalyzer, blood or urine tests at trial, when the breath, blood or urine samples were seized without the defendant's consent and pursuant to a judicially authorized search warrant?"
In a felony prosecution for driving under the influence of liquor or drugs, death resulting, pursuant to G.L. 1956 § 31-27-2.2, I would not bar the admission of test results derived from the chemical analysis of a defendant's breath, blood or urine when such samples were seized without a defendant's consent but had been taken pursuant to a judicially authorized search warrant. I would not bar admission of that evidence based on the questionable dicta found in State v. Timms, 505 A.2d 1132 (R.I.1986), dicta that was later unceremoniously canonized in State v. St. Jean, 554 A.2d 206, 211 (R.I.1989), without any mention whatsoever of Timms, and without the benefit of any meaningful judicial analysis. I read the plain language of § 31-27-2(c) as only barring the admission of nonconsensual chemical test results in misdemeanor prosecutions under subsection (a) in that particular statute.
First, the Timms case. That case, simply put, created bad law out of mere dicta. Timms, it should be noted, had been charged only with two counts of driving so as to endanger, death resulting, in violation of § 31-27-1. Id. at 1133. Nothing in that particular statutory offense required any proof that Timms had operated her vehicle while under-the-influence of any intoxicating liquor or drugs. Section 31-27-1 requires proof only that an operator has operated his or her vehicle in reckless disregard forthe safety of others. See State v. Bettencourt, 723 A.2d 1101, 1106 (R.I.1999). Following her Superior Court jury trial and conviction, Timms challenged that conviction in her appeal to this Court.
In her appeal, she questioned only a single evidentiary trial ruling made by the trial justice. That evidentiary challenge concerned only whether the two police department *1175 consent forms that she earlier had signed, consenting to the taking of a sample of her blood for chemical analysis, sufficiently complied with the particular consent form prescribed in G.L. 1956, § 5-37.3-4 of the Confidentiality of Health Care Information Act. Timms, 505 A.2d at 1135. Thus, her sole challenge to her conviction concerned only the admissibility of her medical record in light of the requirements of the Confidentiality of Health Care Information Act. Therefore, nothing in Timms's appeal called for the Court in that case to undertake its hypothetical analysis concerning the issue of consent as it applied to the taking and subsequent testing of her blood. There was neither logical reason nor relevant purpose for this Court in that appeal to have indulged in speculation about whether, if Timms had been prosecuted for violation of either § 31-27-2 or § 31-27-2.2 instead of § 31-27-1, that her prior consent to the taking of a sample of her blood in either of those particular prosecutions would have been required. It is important to note that a defendant's required prior consent to the chemical analysis of a sample of his or her blood, breath or urine is provided for only in § 31-27-2. That statute, by its very wording, applies only to misdemeanor prosecutions for violation of § 31-27-2(a) and was never intended by the Legislature to be impliedly applicable also in felony prosecutions pursuant to § 31-27-1 (driving so as to endanger), or § 31-27-2.2 (driving under the influence, death resulting). Thus, consideration of those statutes was not relevant to the single appellate issue that had been raised by Timms in her appeal and was not in any way necessary to the determination of that issue in her appeal.
As I read Timms, it becomes obvious that its dicta misadventure was prompted by the Court's obvious failure to comprehend why the Legislature specifically provided for a suspected driver's prior consent to the chemical testing of his or her breath, blood or urine only in a misdemeanor § 31-27-2 prosecution, and did not provide for that same prior consent and testing in a felony § 31-27-1 prosecution for reckless driving, serious injury resulting, or in a § 31-27-2.2 driving under the influence, death resulting prosecution. That perplexity is evident from the following excerpt from Timms:
"Both statutes concern the same subject matter, namely driving in a manner so as to threaten public safety. Furthermore, in addition to the already-enacted §§ 31-27-1 and 31-27-2, the Legislature subsequently created § 31-27-2.2, `Driving under the influence of liquor or drugs, resulting in death.' The consent safeguards in § 31-27-2.2 are also not explicitly in its text, yet the Legislature would not have enacted two separate driving-under-the-influence sections, intending that the consent safeguards apply only to one." Timms, 505 A.2d at 1136.
That comment, I believe, exposes the Timms Court's failure to appreciate that the chemical testing of a suspected operator's breath, blood or urine was "designed deliberately to facilitate [a defendant's] conviction, [and] not to shield him" from prosecution and conviction. White v. Maryland, 89 Md.App. 590, 598 A.2d 1208, 1211 (1991) (quoting Brice v. State, 71 Md.App. 563, 526 A.2d 647, 649 (1987)). Indeed, the Timms Court actually and repeatedly refers to the "consent safeguards" as being intended to protect the suspected drunk driver. Such references reflect, I believe, that the Timms Court misapprehended for whom the alleged statutory "consent safeguards" were intended, a misapprehension that today only two justices of this Court continue to espouse.
I believe that this Court should no longer regard Timms as valid judicial precedent, and that Timms should be reversed. Justices Lederberg and Flanders join with me in that regard, and thus, on this matter, as we constitute a majority of this Court, State v. Timms is reversed. The *1176 reversal of Timms does not, however, signal the end of this Court's response to the first certified question posed to us. There remains for consideration, the ancillary inquiry posed to us in that question concerning whether, in a driving under the influence, death resulting prosecution, pursuant to G.L. § 31-27-2.2, the test results of a defendant's breath, blood, or urine sample taken without a defendant's prior consent, but taken pursuant to a judicially authorized search warrant, later are admissible as evidence in that defendant's trial.
With regard to this Court's response to that portion of the inquiry posed to us in Certified Question One, Justice Lederberg and I would respond that chemical test results, derived from a sample of a non-consenting suspected operator's breath, blood or urine, taken pursuant to a judicially authorized search warrant, would be admissible as evidence in a felony prosecution for driving under the influence, death resulting, pursuant to § 31-27-2.2. In that regard, Justice Goldberg and the Chief Justice conclude that, in view of Timms, § 31-27-2(c) does not permit, in a case alleging a violation of § 37-27-2.2 (driving under the influence, death resulting) the admission at trial of the results of breathalyzer, blood or urine tests, when the breath, blood, or urine samples were seized without the defendant's consent pursuant to a judicially authorized search warrant. Justice Flanders concludes that § 31-27-2(c) applies only to misdemeanor prosecutions; therefore, he concurs with Justice Lederberg and myself that Timms does not bar the admission at trial of the results of breathalyzer, blood, or urine tests that were seized without the defendant's consent via a search warrant. However, he believes that § 31-27-2.1 does bar any such testing or seizure of the defendant's blood, breath or urine without a defendant's prior consent.
I believe, as was said in State v. Bruskie, 536 A.2d 522, 524 (R.I.1988), that the "goal of legislation against drunken driving * * * is to reduce the carnage occurring on our highways attributableto persons who imbibe alcohol and then drive [,]" and the objective of those statutes is "to remove from the highway drivers who by drinking become a menace to themselves and to the public."
This Court has often proclaimed that when interpreting legislative enactments, it does so with a view towards carrying out the intent and purpose of the particular legislation, and in doing so, gives the legislation "what appears to be the meaning that is most consistent with its * * * obvious purpose." Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 290 (R.I.1993) (quoting Zannelli v. Di Sandro, 84 R.I. 76, 81, 121 A.2d 652, 655 (1956)). See also State ex rel. Town of Middletown v. Anthony, 713 A.2d 207, 210 (R.I.1998).
I believe that the majority's response today, barring the chemical test results of a sample of a non-consenting suspected alcohol- or drug- impaired drivers' breath, blood or urine in § 31-27-1 and § 31-27-2.2 felony prosecutions, serves to ignore and frustrate the Legislature's clearly expressed intent and mandate found in § 31-27-2. That statute, § 31-27-2, only requires a suspected operator's prior consent to chemical testing in misdemeanor no injury-fender-bender prosecutions, and not in felony prosecutions, pursuant to § 31-27-1 and § 31-27-2.2. Nothing can be clearer than the specific wording employed by the Legislature when enacting § 31-27-2(b)(1). That section says loud and clear that its prior consent to chemical testing requirement applies only to "[a]ny person charged under subsection (a)" of § 31-27-2, and subsection (a) specifically concerns only misdemeanor prosecutions.[29] It states: *1177 "31-27-2. Driving under influence of liquor or drugs. (a) Whoever operates or otherwise drives any vehicle in the state while under the influence of any intoxicating liquor, drugs, toluene, or any controlled substance as defined in chapter 28 of title 21, or any combination thereof, shall be guilty of a misdemeanor and shall be punished as provided in subsection (d) of this section.
(b)(1) Any person charged under subsection (a) of this section whose blood alcohol concentration is one-tenth of one percent (.1%) or more by weight as shown by a chemical analysis of a blood, breath, or urine sample shall be guilty of violating subsection (a) of this section. * * * (emphasis added)
(2) * * *
(c) In any criminal prosecution for a violation of subsection (a) of this section, evidence as to the amount of intoxicating liquor, toluene, or any controlled substance as defined in chapter 28 of title 21, or any combination thereof in the defendant's blood at the time alleged as shown by a chemical analysis of the defendant's breath, blood, or urine or other bodily substance shall be admissible and competent, provided that evidence is presented that the following conditions have been complied with:
(1) The defendant has consented to the taking of the test upon which the analysis is made. Evidence that the defendant had refused to submit to the test shall not be admissible unless the defendant elects to testify." (Emphasis added.)[30]
I am unable to join with the majority of this Court who opine that chemical test result evidence of a defendant driver's breath, blood or urine, taken following an incident in which that defendant's vehicle has killed or permanently crippled some innocent person on our public highways, should be inadmissible and barred as evidence of impairment in the trial of the death-causing driver. The majority's *1178 "bar-all-prohibit-all" position serves but one senseless purpose, namely, to shackle our state prosecutors in their attempt to prosecute and convict defendants charged with felony violations of § 31-27-1 and § 31-27-2.2. It also serves, sub silencio, actually to revive and reinstate the Timms dicta rule, that for the past fourteen years only has coddled and insulated alcohol- and drug-impaired drivers from felony prosecution and conviction. Pursuant to what the majority does in this proceeding, those alcohol- or drug-impaired drivers who kill and maim innocent people can continue to escape felony prosecution simply by refusing to consent to an officer's request to take a breath, blood or urine sample. In that event, the suspected felon then will be charged with failing to consent to give a breath, blood or urine sample for testing, a misdemeanor, the penalty for which will be a short license suspension and a small fine. That is a far cry from what the Legislature intended when it enacted stiff 10-year jail sentences for drivers convicted for violations of § 31-27-1 and for no less than 5 and up to 15 years for convictions under § 31-27-2.2.[31]
In his concurring opinion, the Chief Justice candidly acknowledges "that common sense should dictate that the consent of one who has committed the crime of driving under the influence of drugs or a controlled substance resulting in death should not be required as a condition precedent to obtaining a blood sample by a physician or qualified medical technician for the purpose of testing." However, he then retreats from that position by adding that the "incontrovertible truth is that our felony statutes, § 31-27-1 and § 31-27-2.2, do not contain such a statement." Indeed that is true, but is nothing more than a self-created truism. The undeniable truth is that within those very same statutes as enacted by the General Assembly there is absolutely no language providing for any condition precedent to obtaining a suspected blood sample and absolutely no language requiring a suspected driver's prior consent for the taking of a sample of his or her blood, breath or urine for chemical testing purposes. Instead, and in fact, it was this Court, acting on its own initiative in Timms, that chose to judicially write into those statutes the very consent requirements that now plague us. Thus, all that really is needed now to correct that problem is for this Court to carry out the effect of our reversal today of Timms, and to do away with the judicially-created prior consent requirements that this Court created in that case. No legislation actually is necessary. This Court can simply take out what it put in, and without any further quibbling,the law would then be exactly what the Chief Justice concedes that it should be. In short, this Court, having created the suspected driver's prior consent edict, now can and should rescind what it created.
Justice Goldberg's opinion, in which the Chief Justice joins, appears to ignore the troubling implications that will flow from the opinion in response to Certified Question One, and seeks to justify their prior consent viewpoint in all cases with the aid of the Latin phrase "noscitur a sociis,"[32] as well as by citing to what little remains of Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). They embellish their Rochin cite with misplaced compassionate concern for those alcohol- or drug-impaired drivers who kill innocent people on our highways and who cause the carnage that our Legislature so deplores. They stress in their concern that even the *1179 taking of a small sample of breath, blood, or urine from an alcohol- or drug-impaired driver would inflict a profound and lasting harm or would enhance the "real danger a cocktail of blood, needles and a resistant, intoxicated motorist presents to those who attempt to subdue the [alcohol or drug-laden] suspect in order to draw blood."
It is difficult for me to accept the opinion that Rochin labels the simple procedure utilized in the taking of a blood sample from a chemically-impaired driver as a sort of medieval torture concocted in some dark medieval dungeon, and which law enforcement officials should never be permitted to utilize in attempting to prosecute an alcohol- or drug-impaired driver. Rochin, in fact, was virtually emasculated by the United States Supreme Court less than five years after it was decided. See Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). What Justice Goldberg and the Chief Justice inthis case today view as constituting a "cocktail of blood and needles," the United States Supreme Court in Breithaupt views differently:
"Modern community living requires modern scientific methods of crime detection lest the public go unprotected. The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield. The States, through safety measures, modern scientific methods, and strict enforcement of traffic laws, are using all reasonable means to make automobile driving less dangerous.
"As against the right of an individual that his person be held inviolable, even against so slight an intrusion as is involved in applying a blood test of the kind to which millions of Americans submit as a matter of course nearly every day, must be set the interests of society in the scientific determination of intoxication, one of the great causes of the mortal hazards of the road. And the more so since the test likewise may establish innocence, thus affording protection against the treachery of judgment based on one or more of the senses. Furthermore, since our criminal law is to no small extent justified by the assumption of deterrence, the individual's right to immunity from such invasion of the body as is involved in a properly safeguarded blood test is far outweighed by the value of its deterrent effect due to public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of the confusion of conflicting contentions." Id. at 439-40, 77 S.Ct. at 412, 1 L.Ed.2d at 452-53.
The Supreme Court additionally noted that:
"due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of `decency and fairness' that has been woven by common experience into the fabric of acceptable conduct. It is on this bedrock that this Court has established the concept of due process. The blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors. Likewise, we note that a majority of our States have either enacted statutes in some form authorizing tests of this nature or permit findings so obtained to be admitted in evidence. We therefore conclude that ablood test taken by a skilled technician is not such `conduct that shocks the conscience,' Rochin, supra, at 172[, 72 S.Ct. 205], nor such a method of obtaining evidence that it offends a `sense of justice,' Brown v. Mississippi, 1936, 297 U.S. 278, 285-286, 56 S.Ct. 461, 464-465, 80 L.Ed. 682." Breithaupt, *1180 352 U.S. at 436-37, 77 S.Ct. at 410-11, 1 L.Ed.2d at 451-52.
I also question the misplaced emphasis in Justice Goldberg's opinion upon the inability of the state's appellate counsel to respond in detail to a hypothetical question posed at oral argument regarding the manner in which a suspected alcohol- or drug-impaired driver's blood sample would be taken. Appellate counsel's response, whatever it might have been, would have been of no consequence. The Legislature has long ago, proscribed the procedure to be employed in the taking of a suspected driver's blood sample. In misdemeanor prosecutions under § 31-27-2, there is a clearly established procedure set out for the chemical analysis of a suspected driver's breath, blood or urine. That procedure requires such testing to be undertaken only with equipment approved by the director of the state Department of Health, and administered "by an authorized individual." In addition, the driver who is suspected of being under the influence of alcohol or drugs must be afforded the opportunity to have an additional chemical test performed by a doctor or professional of his or her own choosing, and the officer arresting or so charging the person must notify the suspected driver of that right and afford him or her a reasonable opportunity to exercise that right. Refusal to permit that additional chemical test within a reasonable time would render inadmissible any evidence derived from the original test report.
In sum, I believe that such statutory safeguards as described above effectively answer the concerns of Justice Goldberg and the Chief Justice. They eliminate any potential risks associated with the administering of those chemical tests and further provide the suspected alcohol- or drug-impaired driver with a sufficient opportunity to take additional chemical tests in an environment and a mannersubstantially of his or her own choosing. While Justice Goldberg's opinion expresses remarkable and compassionate, but certainly misplaced, concern for the rights of alcohol and drug-laden drivers on our public highways, I cannot help but observe that the rights of the general public to travel those same roads with some modicum of safety is almost completely ignored in their calculus.
Also ignored in that calculus is the unfortunate effect their response to question one will have on all future felony prosecutions of persons charged with driving under the influence resulting in death or in severe personal injuries to some unfortunate person or persons.
In light of what a majority of this Court today opines, the Legislature's recently enacted, and much heralded, lowering of the statutory under the influence presumption from one tenth of one percent to one eighth of one percent effectively has been neutralized and essentially becomes useless. See P.L. 2000, ch. 264. The Legislature's good intention in hopes of assisting state prosecutors to rid our highways of alcohol- and drug-impaired drivers causing the carnage on our public highways has been scuttled. All that a driver who is suspected of being impaired and who has caused a highway fatality need do to avoid conviction and imprisonment is to say "no" to an arresting officer's request that he or she consent to the giving of a sample of his or her breath, blood or urine for purposes of the chemical testing. In that event, in the absence of an available eyewitness willing to testify at trial as to the manner of the defendant's driving, the suspected alcohol- or drug-impaired driver, whose vehicle has just killed or maimed some innocent person or persons on a public highway, will avoid conviction and jail. His or her only punishment simply then will be a civil "tap on the wrist" for refusing to consent to the chemical testing procedure. That "tap on the wrist" could be but a short suspension of his or her license to operate and a small fine.
Justice Lederberg joins with me in concluding that breath, blood and urine chemical testing laws never were intended to *1181 protect alcohol- or drug-impaired drivers whose impairment brings about and causes fatal highway collisions. We believe that such laws were intended instead to protect the public by enhancing the ability of state prosecutors to deal effectively with and to convict those particular drivers (White, 598 A.2d at 1211), and "to rid our highways of the drunk driving menace." Brice, 526 A.2d at 649.
II
Certified Question 2
"Does the statutory language of RIGL 31-27-2.1, the Breathalyzer Refusal Statute, preclude members of law enforcement from obtaining a judicially authorized search warrant to seize a defendant's blood for alcohol or drug testing?"
We are asked in this certified question to decide whether, in a prosecution for driving under the influence, death resulting, pursuant to § 31-27-2.2, law enforcement officers are precluded by § 31-27-2.1 from obtaining samples of a defendant's breath, blood or urine pursuant to a judicially authorized search warrant, procured pursuant to G.L. § 12-5-2, following a defendant's refusal to consent to the taking thereof.
I would respond to that question in the negative. My reason for so doing, I believe, is dictated by our long-standing rule of statutory interpretation that posits when the language of a statute is clear and unambiguous this Court should not search beyond the statute for a different meaning because "[i]n such a case the statute declares itself." Bouchard v. Price, 694 A.2d 670, 680 (R.I.1997) (Flanders, J., concurring). "[A] `court is not at liberty to indulge in a presumption that the Legislature intended something more than what it actually wrote in the law.'" In the Matter of the Civil Commitment of J.G., 322 N.J.Super. 309, 730 A.2d 922, 929-30 (Ct.App.Div.1999) (quoting Graham v. City of Asbury Park, 64 N.J.Super, 385, 165 A.2d 864 (Ct.Law.Div.1960), rev'd on other grounds, 69 N.J.Super. 256, 174 A.2d 244 (Ct.App.Div.1961), aff'd, 37 N.J. 166, 179 A.2d 520 (1962)). Additionally, I respond to the certified question in the negative because I believe that the legislative purpose and intent that prompted the enactment of § 31-27-2.1 becomes readily apparent from its legislative origin and history, a genesis that is entirely separate and distinct from that of § 31-27-2.2.
The concept of requiring consent first was conceived in 1959 when the Legislature amended § 31-27-2. See P.L. 1959, ch. 101, § 1. That amendment, as noted by the late Justice Kelleher in State v. Lussier, 511 A.2d 958, 959 (R.I.1986), allowed for the admission of evidence gained from the chemical analysis of a defendant's breath, blood or urine sample in a § 31-27-2 misdemeanor prosecution for driving under the influence. Admissibility of that evidence, however, was conditioned upon the defendant's prior consent to the chemical testing procedure, and upon additional competent evidence being presented at trial "bearing on the issue of whether the defendant was in fact under the influence of intoxicating liquor." Id.
The Legislature had envisioned its 1959 amendment to § 31-27-2 as a valuable means of assisting city, town and state law enforcement officials to more expeditiously dispose of the great numbers of driving-under-the-influence cases coming into the various District Courts. That legislative aim, however, fell far short of accomplishing its intended goal, which was to encourage the entry of pleas by defendants in § 31-27-2 misdemeanor prosecutions and thus avoid the necessity for a trial in those cases. However, the amendment provided no incentive for a defendant's plea because it failed to provide any penalty for refusing to consent.
Seven years later, the Legislature once again took aim at curbing the escalating carnage on our public highways caused by drivers being under the influence of alcohol or drugs. In 1966, the Legislature *1182 amended chapter 27 of title 31 by adding § 31-27-2.1. See P.L. 1966, ch. 215, § 1. That statute introduced for the first time in Rhode Island, a so-called driver's "implied consent" law, declaring that any person operating a motor vehicle within the state is deemed to have given consent to the chemical testing of his or her breath, blood or urine.
Incorporated as part of that new implied consent law were statutory presumptions that presumed a defendant to have been operating under the influence if the chemical test performed indicated the presence of .10 percent or more, by weight, of alcohol in the defendant's blood. Thus, for the first time in a prosecution for driving under the influence, that presumption alone could support a defendant's conviction pursuant to § 31-27-2. That implied consent law, and its testing procedure providing for the chemical analysis of a motorist's breath, blood or urine, only could have been enacted and intended to aid and assist in the prosecution of misdemeanor violations for driving under the influence, pursuant to § 31-27-2, because in 1966 there was no other then-existing statute that prohibited anyone from operating a motor vehicle in this state while under the influence of alcohol or drugs.
Thus, the Legislature, it must be noted, had a dual purpose for enacting § 31-27-2.1 in 1966. The first and primary purpose, as discussed supra, was to assist city, town and state police departments in more effectively and expeditiously prosecuting and disposing of misdemeanor driving under the influence cases.[33] Scores of such driving-under-the-influence cases had been constantly clogging thevarious District Court trial calendars, primarily because prior to the enactment of § 31-27-2.1, expert medical opinion was required to be presented in the trial of such cases to prove the "under-the-influence" element in that misdemeanor offense and it was difficult to schedule and arrange for the presentation of that expert evidence from medical doctors. See, e.g., State v. Poole, 97 R.I. 215, 197 A.2d 163 (1964). By virtue of § 31-27-2.1, however, the chemical test result of a defendant's breath, blood, or urine sample was made admissible as evidence of the amount of alcohol in a defendant's blood, and if it revealed an alcohol concentration equal to or exceeding one-tenth of 1 percent, that evidence could lead to a conviction if coupled with other competent evidence of the relationship of that percentage of alcohol upon the defendant's ability to safely operate his or her vehicle.
Secondly, the Legislature anticipated that by making chemical test results admissible as proof of culpability, a defendant, after being tested and found to have the presumptive amount of alcohol in his or her blood, breath or urine, then would realize the futility and risk of insisting upon trial and incurring the attendant legal expenses and, instead, would readily opt to enter a plea. However, that legislative expectation never materialized. The Legislature in its 1966 enactment, although providing for chemical testing, made that testing procedure again subject to the defendant's prior consent to be tested and neglected to provide for any criminal or financial penalty for those suspected drivers who refused to give their consent. Thus, with little incentive to consent, few defendants did consent. From 1966 onward, all will acknowledge that driving-under-the-influence cases escalated in numbers and simply languished in the District Courts.
In 1982, the Legislature, in hopes of "beefing up" the evidentiary effect of chemical testing result evidence in § 31-27-2 misdemeanor prosecutions, and hoping to avoid unnecessary and time-consuming *1183 trials in those misdemeanor cases, amended § 31-27-2. See P.L. 1982, ch. 176, § 1. That amendment deleted from § 31-27-2 its previous requirement for additional competent evidence of intoxication in addition to the chemical test results in prosecutions pursuant to that statute, but again did little to assist in unclogging the logjam of misdemeanor driving-under-the-influence cases then pending in the District Courts.
In May 1983, the Legislature, obviously aware of, and now more alarmed by the escalating numbers of highway deaths and serious injuries being caused by alcohol- and drug-impaired drivers on our state highways, enacted two consecutive statutory amendments aimed at finally curbing that carnage. First, P.L. 1983, ch. 227, was enacted to amend section 1(b) of § 31-27-2. That amendment provided for a definitive finding of intoxication and guilt if chemical test result evidence indicated a one-tenth of 1 percent or more blood alcohol concentration in a defendant's blood. The language of the amendment provided:
"Any person charged under subsection (a) of this section whose blood alcohol concentration is one-tenth of 1% or more by weight as shown by a chemical analysis of a blood, breath or urine sample shall be guilty of violating subsection (a) of this section. This provision shall not preclude a conviction based on other admissible evidence." P.L. 1983, ch. 227.
As a result of P.L. 1983, ch. 227, the necessity for prosecution expert testimony to establish and relate the effect of that percentage of alcohol to a defendant's ability to safely operate his or her vehicle waseliminated. The second amendment enacted in May 1983, amended § 31-27-2.1. See P.L. 1983, ch. 228. What divides this Court today in responding to Certified Question Two is the wording employed by the Legislature in one particular sentence in that amendment. That sentence reads:
"If such a person having been placed under arrest refuses upon the request of a law enforcement officer to submit to a test, as provided in section 31-27-2, as amended, none shall be given, but an administrative judge of the division of administrative adjudication, upon receipt of a report of a law enforcement officer that he [or she] had reasonable grounds to believe the arrested person had been driving a motor vehicle within this state under the influence of intoxicating liquor, toluene, or any controlled substance as defined in chapter 21-28 of the general laws, or any combination thereof, that the person had been informed of his or her rights in accordance with Section 31-27-3, that the person had been informed of the penalties incurred as a result of noncompliance with this section, and that the person had refused to submit to the test upon the request of a law enforcement officer, shall promptly order that the person's operator's license or privilege to operate a motor vehicle in this state be immediately suspended and that the person's license be surrendered within five (5) days of notice of suspension." P.L. 1983, ch. 228, § 1.
It is clear to me that the Legislature intended the implied consent law originally enacted in 1966 for use only in misdemeanor prosecutions for driving under the influence, pursuant to § 31-27-2. As noted supra, in 1966 there was no other statute that made driving while under the influence a criminal offense. So, out of necessity and plain common sense, the implied consent to chemical testing procedure enacted by the Legislature had nowhere else to go but into § 31-27-2, particularly because the Legislature in 1982, by way of P.L. 1982, ch. 176, already had provided for the chemical testing procedure in misdemeanor prosecutions, pursuant to § 31-27-2.
In 1983, the Legislature enacted P.L. 1983, ch. 228, and provided for the imposition of a financial penalty upon a defendant who refused to consent to chemical testing. In doing so, I believe that the Legislature envisioned that a suspected driver more *1184 readily would opt to consent to a chemical test rather than incur the financial penalty that would result from his or her refusal to consent. Of course, any chemical testing still would have to be performed in accordance with the testing procedure provided for in § 31-27-2.
Common sense mandates that the minor penalty that is required to be imposed upon a non-consenting defendant pursuant to § 31-27-2.1 fits only into the misdemeanor offense that is proscribed in § 31-27-2 and certainly does not fit into the felony offense proscribed in § 31-27-2.2. I am hard-pressed to believe that the majority actually can believe that a small fine and short license suspension is a fitting penalty for a defendant's refusal to consent in a driving under the influence, death resulting, felony prosecution, pursuant to § 31-27-2.2, knowing that a refusal could deprive the state of its ability to prove the defendant's guilt, and would allow that defendant to walk free and avoid a possible fifteen-year jail sentence.
I would also point out that the Uniform Vehicle Code and Model Traffic Ordinance, prepared by the National Committee on Uniform Traffic Laws and Ordinances, specifically excludes any requirement for a defendant's prior consent to chemical testing in felony driving-under-the-influence cases in which death or serious injuries are involved. The Uniform Vehicle Code provides that a driver, when arrested in those felony cases, can be "compelled by a police officer to submit to a test or tests of driver's blood, breath or urine to determine the alcohol concentration or the presence of other drugs." Uniform Vehicle Code § 6-210 "Chemical test of drivers in serious personal injury or fatal crashes" (1992).[34]
*1185 I conclude from the legislative history surrounding § 31-27-1 (driving so as to endanger, death resulting); § 31-27-2 (driving under the influence misdemeanor); § 31-27-2.1 (refusal to submit to chemical test); § 31-27-2.2 (driving under the influence of liquor or drugs resulting in death); and § 31-27-2.6 (driving under the influence of liquor or drugs, resulting in serious bodily injury), that the Legislature intended to treat the alcohol- or drug-impaired driver who had just killed and/or permanently maimed some innocent person on a public highway quite differently than a misdemeanor driving-under-the-influence defendant, charged simply with erratic driving or who had been involved in a minor fender-bender collision involving no death or injuries.
In the usual run-of-the-mill misdemeanor case, pursuant to § 31-27-2(a), the Legislature never intended to subject those hundreds of suspected drivers, who annually are charged, to costly and time consuming chemical testing without first giving their consent. The wording employed in § 31-27-2.1, that "none shall be given," was only intended to preclude any such chemical testing in those misdemeanor prosecutions, even if attempted pursuant to a judicially authorized search warrant. Like the Uniform Vehicle Code, I believe, however, that § 31-27-2.1 has no application to felony prosecutions for driving-under-the-influence in which death or serious injuries have been inflicted. Had the Legislature ever intended for § 31-27-2.1 to be applicable in those felony statutes, it certainly knew how to do so when enacting those felony statutes, yet it did not do so. This Court should not read into or judicially legislate into those statutes what the Legislature never intended. See Lopes v. Phillips, 680 A.2d 65, 69 (R.I.1996); Universal Winding Co. v. Parks, 88 R.I. 384, 391, 148 A.2d 755, 759 (1959).
As Justice Sutherland in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404, 57 S.Ct. 578, 587, 81 L.Ed. 703, 715 (1937), aptly noted, "[t]he judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation." Justice Flanders, writing along similar lines some time ago in his dissent in Kaya v. Partington, 681 A.2d 256 (R.I.1996), observed what I believe bears repetition in this case. He said:
"[T]he reality is, when, as here, a statute is silent on the subject at issue, we judges have absolutely no clue about what result the Legislature would have intended had it ever considered the question presented, especially when we depart from the text of a statute and attempt to find some hidden legislative design or intent that answers a problem not resolved by what the Legislature actually said." Id. at 264. He further explained:
"`For purposes of judicial enforcement, the `policy' of a statute should be drawn out of its terms, as nourished by their proper environment, and not, like nitrogen, out of the air.' * * * Our goal is to construe the statute as it is written and *1186 not to divine sound public policy out of legislative silence, references to imagined legislative intentions, or our own predilections. As Justice Frankfurter once warned, `The search for significance in the silence of [the Legislature] is too often the pursuit of a mirage. We must be wary against interpolating our notions of policy in the interstices of legislative provisions.'
"The reason to be on guard is that when legislative silence is confronted, the temptation is omnipresent for * * * the court to intrude its own preferred policies into the law under the euphemistic banner of `filling in a legislative gap' or `interstitial' lawmaking." Kaya, 681 A.2d at 267-68.
Here, it is beyond dispute that § 31-27-1 and § 31-27-2.2 are "legislatively silent" about whether a defendant in a felony prosecution pursuant to those statutes may refuse to consent to a chemical testing request or in the case of a refusal whether that test can be compelled by a judicially authorized search warrant. Accordingly, in the absence of any such prohibiting language in § 31-27-1and § 31-27-2.2, I believe that, pursuant to a judicially authorized search warrant, the state should be permitted to take a breath, blood or urine sample for purposes of chemical testing when a defendant, who is charged with a violation of either of those felony statutes, refuses to comply with a request for the taking and testing thereof.
Justice Lederberg concurs with me in the above and we would respond in the negative to Certified Question Two.
III
Certified Question 3
"If R.I.G.L. § 31-27-2.1 does preclude law enforcement from obtaining a search warrant, is this an unconstitutional limitation on the judicial authority to issue search warrants as provided in Article 5 of the Rhode Island Constitution and Rhode Island General Laws 12-5-1?"
In light of my responses proffered to Certified Questions One and Two, any response to question three becomes unnecessary. However, because of the response proffered by the majority concerning G.L. 1956 §§ 12-5-1 and 12-5-2, I would simply point out that until the United States Supreme Court reverses its holding in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1286, 16 L.Ed.2d 908 (1966), and until this Court reverses its holding in State v. Locke, 418 A.2d 843 (R.I. 1980), a search warrant to seize a sample of a defendant's breath, blood or urine still is lawfully permitted pursuant to § 12-5-2, where probable cause exists. Section 12-5-2 permits the seizure of any property that is used "in violation of law, or as a means of committing a violation of law; or * * * [w]hich is evidence of the commission of a crime." Section 12-5-2(3)(4).
I do not agree with the majority's general statement that blood itself is not property and thus not evidence of the commission of a crime. Blood itself can, in many instances, be evidence of thecommission of a crime. In the real world, which certainly includes the State of Rhode Island, a bottle of liquor is property. It is property that can be the subject of larceny or embezzlement and is even taxed as property. Likewise, a cache of cocaine in someone's pocket, car, or dwelling also is considered to be property. The fact that the liquor or drugs are ingested and used by someone in violation of law does not transform that property into non-property.
The majority, however, advances the problematic contention that because they are "not satisfied that one's bodily fluid is property" or "evidence of the commission of a crime" it cannot be seized pursuant to § 12-5-2. What that contention ignores, however, is that it is not the blood that is the evidence being sought by the search warrant, but instead the amount of alcohol or cocaine that is contained in, and is foreign property in the blood. That alcohol and that cocaine was "property" when it went into the defendant's blood stream, and it is still property when later detected, *1187 isolated and identified by chemical analysis. The bodily fluid or blood is not the evidence sought by the search warrant, it is instead the alcohol and illegal cocaine that is contained in the blood and which constitutes evidence of a defendant's commission of the crime of driving-under-the-influence. Accordingly, § 12-5-2 permits it to be seized from wherever that incriminating evidence reasonably can be found.
IV
Conclusion
For the reasons above set out, Justice Lederberg and I would respond to Certified Questions One and Two in the negative. Because of the nature of our response to those questions, we need not respond to Certified Question Three, but our response to that question reasonably might be indicated from our brief discussion relating to that question.
NOTES
[1] P.L. 1982, ch. 176, § 1.
[2] P.L. 1983, ch. 227, § 1.
[3] P.L. 1983, ch. 228, § 1.
[4] General Laws 1956 § 31-27-2.2 provides, in pertinent part, that:
"(a) When the death of any person other than the operator ensues as a proximate result of an injury received by the operation of any vehicle, the operator of which is under the influence of any intoxicating liquor, toluene, or any controlled substance * * * the person so operating the vehicle shall be guilty of `driving under the influence of liquor or drugs, resulting in death.'
"(b) Any person charged with the commission of the offense set forth in subsection (a) shall, upon conviction, be punished as follows:
(1) Every person convicted of a first violation shall be punished by imprisonment in the state prison for not less than five (5) years * * *."
[5] Section 31-27-2(c) provides, in pertinent part, that:
"In any criminal prosecution for a violation of subsection (a) of this section, evidence as to the amount of intoxicating liquor, toluene, or any controlled substance * * * in the defendant's blood at the time alleged as shown by a chemical analysis of the defendant's breath, blood, or urine or other bodily substance shall be admissible and competent, provided that evidence is presented that the following conditions have been complied with:
(1) The defendant has consented to the taking of the test upon which the analysis is made."
Section 31-27-2(a) provides that:
"Whoever operates or otherwise drives any vehicle in the state while under the influence of any intoxicating liquor, drugs, toluene, or any controlled substance as defined in chapter 28 of title 21, or any combination thereof, shall be guilty of a misdemeanor and shall be punished as provided in subsection (d) of this section."
[6] P.L. 1986, ch. 275, § 1; P.L. 1986, ch. 433, § 1; P.L. 1986, ch. 494, § 2; P.L. 1986, ch. 508, § 1; P.L. 1989, ch. 149, § 1; P.L. 1990, ch. 329, § 1; P.L. 1990, ch. 496, § 1; P.L. 1991, ch. 65, § 1; P.L. 1992, ch. 133, art. 37; § 6; P.L. 1992, ch. 133, art. 94, § 1; P.L. 1992, ch. 405, § 1; P.L. 1992, ch. 418, § 5; P.L. 1993, ch. 138, art. 26, § 3; P.L. 1994, ch. 70, art. 35, § 7; P.L. 1995, ch. 370, art. 14, § 7; P.L. 1996, ch. 224, § 1; P.L. 1996, ch. 263, § 1; P.L. 1998, ch. 91, art. 1, § 3; P.L. 1999, ch. 360, § 1.
[7] P.L. 1986, ch. 433, § 1; P.L. 1986, ch. 508, § 1; P.L. 1990, ch. 329, § 1; P.L. 1994, ch. 70, art. 35, § 7.
[8] General Laws 1956 chapter 41 of title 31 was repealed by P.L. 1999, ch. 218, art. 2, § 1. See G.L. 1956 § 31-41.1-4, entitled "Schedule of violations."
[9] Section 31-27-2.1(a) provides that if a person refuses to submit to a test, "an administrative judge of the [traffic tribunal] * * * shall promptly order that the person's operator's license or privilege to operate a motor vehicle in this state be immediately suspended and that the person's license be surrendered within five (5) days of notice of suspension," and a fine and license suspension will follow, the amount and length of which is determinate upon whether the driver had previously violated this statute.
[10] General Statutes of Connecticut § 14-227c (West 1999), entitled "Blood and breath samples following fatal accidents," provides in part that:
"To the extent provided by law, a blood or breath sample may also be obtained from any surviving operator whose motor vehicle is involved in such [a fatal] accident. The test shall be performed by or at the direction of a police officer according to methods and with equipment approved by the Department of Public Safety and shall be performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the Commissioner of Public Safety. The equipment used for such test shall be checked for accuracy by a person certified by the Department of Public Safety immediately before and after such test is performed. If a blood test is performed, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, an emergency medical technician II, a registered nurse or a phlebotomist, as defined in subsection (m) of section 14-227b. The blood samples obtained from the surviving operator shall be examined for the presence and concentration of alcohol by the Division of Scientific Services within the Department of Public Safety."
[11] Me.Rev.Stat.Ann. subchapter IV of tit. 29-A (West 1996).
[12] Me.Rev.Stat.Ann. tit. 29-A, § 2528 (West 1996).
[13] Vt.Stat.Ann.tit. 23, § 1202(f) (1999).
[14] N.H.Rev.Stat.Ann.tit. 21, § 265:93 (1993).
[15] Md.Code Ann., Transportation § 16-205.1(c) (Michie 1999), "Circumstances under which chemical tests required; administration; liability."
[16] N.M.Stat.Ann. § 66-8-111 (Michie 1998).
[17] Tenn.Code Ann. § 55-10-406(e) (1998).
[18] Alaska Stat. § 28.35.035 (1998), "Administration of chemical tests without consent."
[19] Ariz.Rev.Stat.Ann. § 28-1321D.1. (West 1998).
[20] Iowa Code Ann. § 321J.10 (West 1997).
[21] Fla.Stat.Ann. § 316.1933(1) (West 1990); see State v. Slaney, 653 So.2d 422 (Fla.Dist.Ct. App. 1995).
[22] Ind.Code § 9-30-6-6(g) (1999).
[23] Mich.Comp.Laws Ann. § 257.625a(6)(b)(iv) (West 2000 Supp.), "a test shall not be given without a court order, but the peace officer may seek to obtain [such] a court order."
[24] Tex.Transp.Code Ann. § 724.012(b)(2) (West 1999) provides that a peace officer shall require the taking of a person's breath or blood specimen if "the person was the operator of a motor vehicle * * * involved in an accident that the officer reasonably believes occurred as a result of the offense [of DUI]."
[25] General Laws 1956 § 8-3-6, entitled "Justices as conservators of peace Powers in criminal cases," provides that "[t]he justices of the supreme and superior court shall, by virtue of their office, be severally conservators of the peace throughout the state, and shall severally have the same power in criminal cases throughout the state that district courts have in their respective districts."
[26] Our dissenting colleagues have taken us to task because we have recognized that forcible seizure of blood from a prisoner by untrained law enforcement personnel gives rise to concerns about privacy, human dignity and the safety of the officer as well as the prisoner. The dissent has accused us of demonstrating an "apparent compassionate concern" for these "chemically-impaired drivers" who may be forced to suffer the "profound and lasting horror" of a nonconsensual blood draw. We respectfully disagree. It is the duty of this Court to decide cases based upon constitutional, statutory, and decisional law, rather than coddle those who drink and drive. We recognize that this task may be unpleasant and unpopular and may result in the exclusion of relevant evidence based upon perceived technicalities. However distasteful the result, it is not the province of this Court to invade the domain of the Legislature in order to create a more palatable result at the expense of individual liberty and privacy interests. Further, although it has excoriated the majority for concluding that blood may not be drawn without the prisoner's consent, the dissenting opinion contains no suggestion or guidance relative to how, by whom, and under what circumstances a prisoner's blood may be forcibly seized.
[27] Article 10, section 2, of the Rhode Island Constitution sets forth the powers of the judicial branch of state government and provides, in relevant part:
"Jurisdiction of supreme and inferior courts Quorum of supreme court. The supreme court shall have final revisory and appellate jurisdiction upon all questions of law and equity. It shall have power to issue prerogative writs, and shall also have such other jurisdiction as may, from time to time, be prescribed by law. A majority of its judges shall always be necessary to constitute a quorum. The inferior courts shall have such jurisdiction as may, from time to time, be prescribed by law." (Emphasis added.)
[28] But note that G.L. 1956 § 31-27-2.1(a)'s "none shall be given" mandate is only triggered if three factual preconditions are satisfied: (1) the motorist is placed under arrest; (2) the law enforcement officer requests the motorist to submit to any of the § 31-27-2 tests; and (3) the motorist refuses to do so. In this case, all of these factual circumstances are present. Thus, we have no occasion to opine on whether, for example, a nonconsensual seizure of blood incident to a lawful arrest would be valid under Rhode Island law if the law enforcement officer did not first request the motorist to consent to the § 31-27-2 tests but simply arranged for a sample of the motorist's blood to be drawn for testing purposes with or without the motorist's cooperation.
[29] In July, 2000, the Legislature amended § 31-27-2. Subsection (b)(1) now reads:
"Any person charged under subsection (a) of this section whose blood alcohol concentration is eight one-hundreths of one percent (.08%) or more by weight as shown by a chemical analysis of a blood, breath, or urine sample shall be guilty of violating subsection (a) of this section." P.L 2000, ch. 264.
[30] In State v. Robarge, 35 Conn.Supp. 511, 391 A.2d 184, 185 (App.Ct.1977), the Connecticut Appellate Court was confronted with the same prior consent issue under statutes almost identical to ours. The court there, correctly in my opinion, concluded that the failure to meet the statutory conditions for consent necessary for the admissibility of test samples in prosecutions under Connecticut General Statutes Sec. 14-227a(b) (operation of a motor vehicle while under the influence of intoxicating liquor or drugs) did not bar admission of blood sample test results in a prosecution under Sec. 53a-58a (negligent homicide with a motor vehicle). The court reasoned that to conclude otherwise would be wholly unsound in view of the clear language in Sec. 14-227a(b), applying the consent requirement only to violations of Sec. 14-227a(a), the general driving-under-the-influence statute. Id. The court there said:
"The claim of the defendant that the failure to meet the requirements of § 14-227a(b) rendered the blood test results inadmissible is wholly unsound in view of the introductory clause, which reads `[i]n any criminal prosecution for a violation of subsection (a) of this section * * *.' It is as clear as words can make it that the requirements of subsection (b) pertain only to prosecutions for the operation of a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a(a). The defendant's elaborate argument that the law should be otherwise should more appropriately be addressed to the legislature." Robarge, 391 A.2d at 185.
Later that year, the Connecticut Supreme Court rejected the argument of a defendant charged with misconduct with a motor vehicle where he asserted that his blood sample should have been excluded because the taking and testing of the sample did not meet the consent requirements outlined in § 14-227a(b). State v. Singleton, 174 Conn. 112, 384 A.2d 334, 336 (1977), cert. denied, 440 U.S. 947, 99 S.Ct. 1425, 59 L.Ed.2d 635 (1979). That court squarely held that "[b]y its express terms, the procedural [consent] requirements of [§ 14-227a(b)] apply to any criminal prosecution for a violation of § 14-227a(a) the offense of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both" and not to other vehicular violations such as the one with which defendant was charged. Id.
[31] Indeed, the New Hampshire Supreme Court has held that a three-year license suspension could not be considered "punishment" sufficient to invoke a double jeopardy application. State v. Liakos, 709 A.2d 187, 191 (N.H. 1998).
[32] Noscitur a sociis is defined as "[a] canon of construction holding that the meaning of an unclear word or phrase should be determined by the words immediately surrounding it." Blacks Law Dictionary 1084 (7th ed.1999). Its use is somewhat paradoxical because they contend there is nothing unclear in § 31-27-2.2.
[33] "As chemical testing has evolved into a much relied on prosecution tool, `implied consent' laws have likewise evolved to defeat the drunk driver's inclination to refuse to consent to such testing. Implied consent laws encourage submission to chemical testing by making automatic license suspension the cost of refusing to be tested." 1 Essen-Erwin, Defense of Drunk Driving Cases, § 4.01 at 4-5 (1998).
[34] The majority, in support of their responses to the certified questions in this proceeding, have cited to several case holdings from other jurisdictions. Those case holdings interpret only a particular statute in a particular state providing for implied consent chemical testing procedures. The statutes that were interpreted in those cases, however, are totally inapposite to G.L. 1956 § 31-27-2 and § 31-27-2.1, our Rhode Island implied consent statutes.
For example, in State v. Bellino, 390 A.2d 1014 (Me.1978), cited in the majority opinion, the implied consent statute at issue in Maine provided for its provisions to be applicable in all criminal prosecutions for "violation of any of the provisions" in that state's motor vehicle code. Id. at 1023. The New Hampshire statute construed in State v. Berry, 121 N.H. 324, 428 A.2d 1250 (1981), also cited by the majority, specifically provided for its implied consent provisions to be applicable in "any offense arising out of acts alleged to have been committed while * * * driving a motor vehicle while intoxicated." Id. at 1251. (Emphasis added.) Those particular implied consent statutory provisions, like the statutes at issue in each of the other cases cited in the majority opinion, are totally different from each other and also completely different and distinguishable from our Rhode Island statute. The plain language of § 31-27-2 specifically: makes chemical testing procedures applicable only in "any criminal prosecution for a violation of subsection (a)" (see § 31-27-2(c)); pertains only to misdemeanor driving-under-the-influence violations (see § 31-27-2(b)(2)); provides that the chemical testing procedure set out in § 31-27-2 pertains only to "any person charged under subsection (a)" (see § 31-27-2(b)(1)).
To realize the uniqueness of our Rhode Island statute, one need only to review the comprehensive analysis of the various implied consent statutes from each of the fifty states that is provided in the statutory appendix section in Volume 4 of the treatise by Essen-Erwin, Defense of Drunk Driving Cases (2000). That statutory review discloses that some states, such as Arizona, have implied consent statutes that are made applicable in any offense arising out of acts alleged to be in violation of the Motor Vehicle Code. In those states, if a defendant refuses to consent to chemical testing, no tests can be undertaken except pursuant to a search warrant. That statutory review also discloses that in some other states, implied consent provisions are by specific statutory mandate made applicable in all motor vehicle code violation prosecutions in which liquor or drugs are alleged to be involved. In yet others states, the implied consent statutes are restricted to misdemeanor prosecutions only, but again, one must be careful to note that in Maryland, for example (cited by the majority), the crimes of "manslaughter by motor vehicle" and "homicide by motor vehicle" are deemed misdemeanors. See Loscomb v. State, 45 Md.App. 598, 416 A.2d 1276 (1980). Further, it should be noted that many states, following the Uniform Vehicle Code, have statutes providing that their implied consent provisions are not applicable in under the influence felony death and serious injury prosecutions, and in those instances, chemical testing procedures can be compelled by the arresting officials. See, e.g., Vermont Statutes Ann. title 23, ch. 13, §§ 1201(c) and 1202(f) (1999).
The conclusion that one must inevitably draw after reviewing the various implied consent statutes enacted by each of the fifty states is that generalizations are virtually impossible to arrive at because each state statute has its own unique virtues and faults. See generally Annotation, Vitauts M. Gulbis, Admissibility in Criminal Case of Blood-Alcohol Test Where Blood was Taken Despite Defendant's Objection or Refusal to Submit to Test, 14 A.L.R. 4th 690 (1982). Our Rhode Island statute therefore must be interpreted as written, and applied as intended by the Legislature, namely to assist in the prosecution of alcohol- and drug-impaired motor vehicle operators, and not as a statutory shield to protect them from prosecution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918261/ | 730 So.2d 229 (1998)
Barbara McCLENDON
v.
Gustava L. HOLLIS.
2970712.
Court of Civil Appeals of Alabama.
July 31, 1998.
Rehearing Denied September 25, 1998.
Certiorari Denied February 19, 1999.
G. Edward Coey, Hanceville, for appellant.
Donna Shirley and Douglas Corretti of Corretti, Newsom & Hawkins, Birmingham, for appellee.
Alabama Supreme Court 1980009.
HOLMES, Retired Appellate Judge.
Barbara McClendon appeals a summary judgment entered in favor of Gustava L. Hollis. This case is before this court pursuant to Ala.Code 1975, § 12-2-7(6).
Our review of the record reveals the following: Hollis and McClendon are adjoining property owners, who share a common east and west boundary. The property owned by Hollis was formerly owned by the Lamars and was, at that time, landlocked. Hence, in 1992 McClendon deeded a portion of her land to the Lamars for purposes of ingress and egress.
In 1994 the Lamars conveyed their property, including the easement, to Hollis. Hollis, thereafter, acquired from the Halls, her neighbors on the north, two additional strips of property, which are contiguous, and parallel, to the easement. Hollis purchased the additional property in order to expand the ingress and egress to her property. At some point, McClendon erected metal fence posts along the boundary of the easement, thereby blocking Hollis's use of the easement.
In May 1996 Hollis sued McClendon, requesting that the trial court enjoin McClendon from obstructing Hollis's access to the easement. Thereafter, both parties filed summary judgment motions, pursuant to Rule 56(c), Ala. R. Civ. P.
In November 1997 the trial court entered a summary judgment in favor of Hollis, finding that she was entitled to a judgment as a matter of law. The trial court further ordered McClendon to remove any obstructions from the easement. The trial court subsequently amended its order to enjoin McClendon from using that portion of land that Hollis had acquired from the Halls. McClendon filed a post-judgment motion, which the trial court denied.
McClendon appeals.
The dispositive issue is whether the trial court erred in determining that Hollis was entitled to a judgment as a matter of *230 law. On appeal, an appellate court must decide whether a genuine issue of a material fact exists. If the appellate court determines that no genuine issue of a material fact exists, then the court must determine whether the moving party was entitled to a judgment as a matter of law. McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957 (Ala.1992).
In the instant case, McClendon contends that the easement was originally granted for ingress and egress and that the purpose of the easement ceased to exist when Hollis purchased the additional strips of property, which provided her with an alternate route of ingress and egress. Specifically, McClendon contends that there was an understanding between her and the Lamars that, once the Lamars constructed a driveway on the easement, McClendon would place a fence along the boundary of the easement to denote the boundary line between the McClendon property and the Hall property.
McClendon points this court to the general rule that, "an easement which is given for a specific purpose terminates as soon as such purpose ceases to exist, is abandoned, or is rendered impossible of accomplishment." Sasser v. Spartan Foods Systems, Inc., 452 So.2d 475, 478 (Ala.1984).
In Lawley v. Abbott, 642 So.2d 707, 708 (Ala.1994), however, our supreme court noted the following:
"When the easement is one of express grant, however, this Court must determine the scope of the easement according to the written language of the deed. If this language is unambiguous, the Court may not consider parol evidence to determine to what extent the grantor intended to grant the easement."
(Citations omitted.)
In the instant case, the 1992 deed from McClendon unambiguously granted the Lamars "[a]n ingress-egress road easement 12 feet by 200 feet." The deed is unambiguous, contains no conditions, and makes no reference to a specific purpose. Accordingly, Hollis "held ... a property right that cannot be diminished merely because there now exists an alternative means of ingress and egress." Lawley, 642 So.2d at 708.
McClendon also contends that the trial court erred in determining that the easement was exclusive and in enjoining her from using the easement. As noted previously, the trial court amended its order to add that McClendon "is further enjoined and restrained from using [Hollis's] ingress and egress easement as such easement is an exclusive easement as to that part acquired by [Hollis] from [the Halls] for the benefit of [Hollis] and not a mutual easement."
We interpret the foregoing to mean that McClendon is enjoined from using the additional strips of property that Hollis purchased from the Halls, i.e., additional easements, and not the original easement over and across McClendon's land.
Based on the foregoing, the trial court correctly entered a summary judgment in favor of Hollis, finding that she was entitled to a judgment as a matter of law. Consequently, the judgment is due to be affirmed.
The foregoing opinion was prepared by Retired Appellate Judge Richard L. Holmes while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.
AFFIRMED.
All the judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918307/ | 730 So. 2d 378 (1999)
David M. DINES, Appellant,
v.
FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
Nos. 97-431, 97-3548.
District Court of Appeal of Florida, Third District.
March 31, 1999.
David M. Dines, in proper person.
John D. Maher, Tallahassee, for Unemployment Appeals Commission.
Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
*379 SCHWARTZ, Chief Judge.
The appellant left his previous employment on July 14, 1996, and made a claim for unemployment compensation benefits on July 18, 1996. Although his application was originally denied by the claims adjudicator on August 12, 1996, he appealed and, on September 27, 1996, the appeals referee reinstated the claim and ordered an award of benefits. In the order now under review, however, the unemployment appeals commission affirmed another appeals referee decision that he was not entitled to benefits for the period between August 12, 1996 and September 27, 1996, when he was erroneously deemed in eligible. The sole basis for the ruling was that, during this period, he did not continue to file claims (as he did before and after) under section 443.091(1)(b), Florida Statutes (1997).[1] We reverse.
We now hold, as we said in dictum in Savage v. Macy's East, Inc., 719 So. 2d 1208, 1209-10 (Fla. 3d DCA 1998), review denied, (Fla. Feb. 11, 1999), that the denial of benefits on this ground is entirely erroneous
[b]oth because ordering continuing claims to a tribunal which has already rejected the claimant's eligibility amounts to the prohibited requirement of performing a series of useless acts, C.U. Assocs. v. R.B. Grove, Inc., 472 So. 2d 1177 (Fla.1985); Haimovitz v. Robb, 130 Fla. 844, 178 So. 827 (1937); Hoshaw v. State, 533 So. 2d 886 (Fla. 3d DCA 1988), and because the failure formally to make the claims was an entirely harmless technicality in light of the indisputable evidence of Ms. Savage's eligibility for those benefits. See Griffin v. Workman, 73 So. 2d 844 (Fla.1954); Lumbermens Mut. Cas. Co. v. Martin, 399 So. 2d 536, 537 (Fla. 3d DCA 1981), review denied, 408 So. 2d 1094 (Fla.1981).
Savage, 719 So.2d at 1209-10.
Because
no rights are at stake, Reid v. Southern Development Co., 52 Fla. 595, 42 So. 206 (1906), and only a non-essential mode of proceeding is prescribed, Fraser v. Willey, 2 Fla. 116 (1848),
Allied Fidelity Ins. Co. v. State, 415 So. 2d 109, 111 (Fla. 3d DCA 1982), it is apparent that, in this context, the statutory requirement for the filing of weekly reports must be deemed to be advisory or directory only. Allied, 415 So.2d at 111. In the admitted absence of any prejudice to the Commission or the employer, therefore, the failure to make them cannot result in the forfeiture of benefits to which the unemployed applicant is otherwise entitled by law. See Department of Bus. Regulation, Div. of Pari-Mutuel Wagering v. Hyman, 417 So. 2d 671 (Fla.1982)(applying principle of administrative harmless error); Ewing v. Kaplan, 474 So. 2d 302 (Fla. 3d DCA 1985), and cases cited, review denied, 486 So. 2d 595 (Fla. 1986).
For those reasons, the order of the Unemployment Commission is reversed and the cause remanded with directions to afford Dines unemployment compensation benefits for August 12, 1996, through September 27, 1996.
Reversed.
NOTES
[1] The statute provides:
443.091 Benefit eligibility conditions.
(1) An unemployed individual shall be eligible to receive benefits with respect to any week only if the division finds that:
(b) She or he has registered for work at, and thereafter continued to report at, the division, which shall be responsible for notification of the Florida State Employment Service in accordance with such rules as the division may prescribe; except that the division may, by rule not inconsistent with the purposes of this law, waive or alter either or both of the requirements of this subsection as to individuals attached to regular jobs; but no such rule shall conflict with s. 443.111(1).
The rules of the Division of Unemployment Compensation prescribed under this statute provide that claims are made in person or by mail biweekly as instructed. Fla. Admin. Code. R. 38B-3.015(1). With respect to the timeliness of reports, the Division's rules state:
(3) Time Limit for Filing Continued Claims.
(a) Scheduled Reports. The Division shall accept a continued claim providing it is filed within 14 days following the scheduled report date.
(b) Late Reports. If a report is not made within 14 days following the scheduled report date, as designated by the Division, the claim shall be reopened effective the first day of the week in which the report is made. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575540/ | 17 So. 3d 1229 (2009)
GOODWIN
v.
STATE.
No. 2D09-3103.
District Court of Appeal of Florida, Second District.
August 27, 2009.
Decision without published opinion. Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575536/ | 17 So. 3d 475 (2009)
SUCCESSION of Neva L. FURLOW.
No. 44,473-CA.
Court of Appeal of Louisiana, Second Circuit.
August 12, 2009.
*476 James M. Johnson, Minden, for Appellant, Buck D. Furlow and Vernell Furlow Jobe.
James H. Colvin, Cole B. Smith, Shreveport, for Appellee, George Daniel Furlow, Sr.
Before WILLIAMS, STEWART and GASKINS, JJ.
WILLIAMS, J.
The plaintiffs, Buck Furlow and Vernell Furlow Jobe, appeal a judgment in favor of the defendant, G. Daniel Furlow, executor of the decedent's estate. The trial court found that the plaintiffs failed to prove that the decedent lacked testamentary capacity at the time she executed her will in February 2003. For the following reasons, we affirm.
FACTS
In April 1996, Neva Furlow executed a will leaving all of her property in equal shares to her four children, Carl Furlow, Buck Furlow, Vernell Jobe and George Daniel Furlow ("Daniel"), who was named as executor. In April and May 1997, Dr. Joe Hooker and Dr. Woodfin Wilson signed affidavits stating their opinion that Neva Furlow was an incompetent adult who was unable to handle her personal and financial affairs and needed someone to manage those matters for her. Dr. Wilson last saw Neva in January 1997 and Dr. Hooker did not treat her after April 1997. During 1998, Neva traveled from Texas to Homer, Louisiana, where she stayed a brief time with Daniel before moving into Claiborne Manor Nursing Home. Dr. Mark Haynes began treating Neva at that time and saw her several times each month while doing patient rounds at the nursing home.
On February 11, 2003, Neva Furlow executed a last will and testament before a notary and two witnesses. In contrast to her prior will, Neva left all of her property to her son, Daniel, and named him as executor. In April 2005, Buck Furlow sought to have his mother interdicted. In May 2005, the court-appointed curator of the putative interdict, attorney Henry Paul Garner, spoke with Neva at the nursing home. After that meeting, Garner wrote a letter to the parties' attorneys stating that Neva had engaged in appropriate and coherent conversation and would oppose interdiction.
In June 2007, the decedent, Neva Furlow, died. Subsequently, Daniel filed a petition to probate the decedent's February 2003 will and the court designated him as executor of the estate. In January *477 2008, the plaintiffs, Buck Furlow and Vernell Furlow Jobe, filed a petition seeking to have the February 2003 will declared invalid on the grounds that the decedent lacked the mental capacity to execute the will. After a trial, the court found that the plaintiffs failed to prove by clear and convincing evidence that decedent lacked capacity at the time she executed the will on February 11, 2003. The trial court rendered judgment denying the plaintiffs' request to nullify the decedent's 2003 will. The plaintiffs appeal the judgment.
DISCUSSION
The plaintiffs contend the trial court erred in finding that they failed to meet their burden of proving that the decedent lacked testamentary capacity. Plaintiffs argue that the physician testimony stating that decedent was incompetent to handle her affairs constituted clear and convincing evidence that she lacked capacity to execute the February 2003 will.
All persons have capacity to make and receive donations inter vivos and mortis causa, except as expressly provided by law. LSA-C.C. art. 1470. Capacity to donate mortis causa must exist at the time the testator executes the testament. LSA-C.C. art. 1471. There is a presumption in favor of testamentary capacity. Cupples v. Pruitt, 32,786 (La.App. 2d Cir.3/1/00), 754 So. 2d 328. Testamentary capacity means the donor must be able to comprehend generally the nature and consequences of the disposition that he is making. LSA-C.C. art. 1477; Cupples, supra.
A person who challenges the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time he executed the testament. LSA-C.C. art. 1482; Cupples, supra. The issue of capacity is factual in nature; the ultimate finding that the testator either possessed or lacked capacity cannot be disturbed unless clearly wrong or manifestly erroneous. Cupples, supra; Succession of Dodson, 27,969 (La.App. 2d Cir.2/28/96), 669 So. 2d 642. The court may consider medical evidence, other expert testimony and lay witness testimony. As such, there is no "litmus paper" test to apply in the evaluation of mental capacity. LSA-C.C. art. 1477, Revision comment (f); Cupples, supra.
In the present case, the plaintiffs introduced into evidence the affidavits of Drs. Joe Hooker and J. Woodfin Wilson, Jr., who used identical language to state in pertinent part:
I am the attending physician for Neva L. Furlow of Shelbyville, Texas. I am qualified to make this statement and am doing so at the request of Vernell F. Jobe. Mrs. Neva L. Furlow is an incompetent adult unable to handle day to day affairs and to do those things necessary to protect and preserve her property and person. It is my opinion that Mrs. Neva Furlow will remain in this condition for an extended period of time. . . .
In addition, each physician testified by deposition. Dr. Wilson testified that he first recognized mental changes in the decedent in 1992 and that her condition became worse from that time until her last visit in January 1997. Dr. Wilson stated that he had diagnosed decedent with cerebral arteriosclerosis, a progressive condition. Dr. Wilson acknowledged that there could be some temporary fluctuation in a patient's condition and that a person with such a diagnosis could experience intervals of lucidity. Dr. Wilson testified it was possible that during a period of lucidity a person could understand the nature of his actions. He stated that medication could exacerbate one's mental incompetence and that altering the medicine *478 could improve a person's mental outlook. Dr. Wilson testified that with respect to the decedent's subsequent mental capacity, he would defer to the opinion of the physician who treated her after January 1997.
Dr. Hooker stated that he did not recall how long he had treated the decedent and that he could not find her patient records. Dr. Hooker testified that his opinion of decedent's incapacity was based on her increasing senile dementia and her inability to take medicine as directed. Dr. Hooker explained that in his affidavit, use of the term extended period of time meant many years or "even the rest of her life." Dr. Hooker stated that he did not treat decedent after she moved to Louisiana. Dr. Hooker testified that it was possible, but not likely, that a person with dementia could improve at times and that a person could possibly recover her competency if she stopped taking a medication that was impairing her mental function.
Dr. William Mark Haynes testified that as deputy coroner, part of his job involved assessing the mental competence of persons. Dr. Haynes stated that he began treating the decedent after she moved to Louisiana in 1998 and saw her approximately 2 to 3 times each month while making his rounds at the nursing home. Dr. Haynes testified that during these visits, he found decedent to be very alert, oriented to person, place and situation and that she was "a lively person who interacted with the other people at the nursing home." Dr. Haynes stated that in February 2003, decedent experienced significant arthritis pain, but she sometimes played the piano, she was capable of making decisions for herself and actively participated in her daily care. Dr. Haynes opined that decedent was mentally competent during that period of treatment until the last two months of her life.
Attorney James Hatch, who drafted decedent's will and notarized the document, testified that on February 11, 2003, he went to the nursing home and presented the prepared will to the decedent. Hatch stated that he asked decedent to read the will and called in two witnesses from the nursing home. Hatch testified that he then asked decedent if she had read the will and if that was what she wanted to do and she replied yes. Hatch stated he did not recall any particular discussions with decedent about the will provisions and he had not seen her prior to the signing date. Hatch could not remember if he had previously spoken on the telephone with the decedent about her will, but said he had talked with Dan Furlow. Hatch testified that based on his observation, the decedent understood what she was doing in signing the will. Hatch stated that he would not have proceeded with execution of the will if he had believed decedent was not competent. Hatch did not recall if he was aware, before preparing the will in 2003, that Drs. Wilson and Hooker had opined that decedent lacked the capacity to manage her financial affairs. Hatch stated that if he had known that information, he probably would have been more concerned about decedent's state of mind.
Vernell Jobe testified that since 1997, the decedent had been a very confused person who was unable to make logical decisions. Jobe stated that based on her training and experience as a nursing home administrator, she was able to determine whether a person was mentally incompetent and that her mother did not understand the meaning of her actions when she signed the will in 2003. However, Jobe acknowledged that the decedent's condition "fluctuated" while she lived in the nursing home. Jobe explained that at times, decedent seemed fine and she played the piano, but more often she did not recognize her own adult children and *479 was incompetent. Jobe stated that she was not present when the decedent signed the will on February 11, 2003, and did not specifically know her capacity on that date.
Buck Furlow testified that after the decedent moved into the nursing home, he and Jobe visited their mother approximately once every 3 to 6 weeks. Buck stated that although most of the time decedent did not know what was going on, there were times when decedent recognized faces and could follow the conversation. Buck testified that he did not believe the decedent was competent to sign any will and that he was not present when she executed the will in February 2003.
Daniel Furlow testified that he visited decedent daily and that she was always able to manage her own affairs. Daniel stated that he was present in the room when decedent signed the will on February 11, 2003. He testified that at the time of signing, the decedent was oriented as to time and place and that she exercised her own free will in executing the testament.
The trial court heard the conflicting medical and lay testimony regarding decedent's mental capacity and weighed the credibility of the witnesses. The plaintiffs relied on the opinions of two doctors that the decedent was incompetent. However, those doctors had not treated decedent since 1997 and one of them, Dr. Wilson, testified that he would defer to decedent's subsequent treating physician in assessing her capacity after that time. Dr. Haynes, who visited decedent on a regular basis at the nursing home, opined that decedent was lucid and competent in 2003.
In addition, as noted by the trial court, attorney Hatch met with decedent on February 11, 2003, asked her to read the will and watched her sign the testament. Although Hatch apparently did not meet or speak with decedent before preparing the will, the plaintiffs did not present evidence to contradict his testimony that decedent indicated the will provisions reflected her wishes and that she was able to understand the consequences of her act at the time she signed the testament.
Based upon this record, we cannot say the trial court was clearly wrong in finding that the plaintiffs failed to satisfy their burden of proving by clear and convincing evidence that the decedent lacked the mental capacity to execute the February 2003 will. The assigned error lacks merit.
CONCLUSION
For the foregoing reasons, the trial court's judgment is affirmed. The costs of this appeal are assessed to the appellants, Buck Furlow and Vernell Furlow Jobe.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575581/ | 612 F. Supp. 1137 (1985)
Lester BUSTLE and Ruby Bustle, Plaintiffs,
v.
QUINT, LTD., d/b/a Windy City South Truck Stop and Home Insurance Co., Defendants.
No. 85 C 1882.
United States District Court, N.D. Illinois, E.D.
July 9, 1985.
*1138 Raymond C. Fay, Alan M. Serwer, Elizabeth H. Cameron, Haley, Bader & Potts, Chicago, Ill., for plaintiffs.
Andrew Kopon, Jr., McKenna, Storer, Rowe, White & Farrug, Chicago, Ill., for the Windy City South Truck Stop.
MEMORANDUM ORDER
BUA, District Judge.
Plaintiffs Lester and Ruby Bustle bring this action against defendants Quint, Ltd., doing business as Windy City South Truck Stop ("Windy City") and Home Insurance Company. Plaintiffs' "first cause of action" is in negligence directed against Windy City. Defendant Home Insurance Company was voluntarily dismissed on May 8, 1985. Before the Court is a motion to dismiss the amended complaint by Windy City pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, defendant's motion to dismiss is denied.
I. FACTS
Plaintiff Lester Bustle contracted with Windy City South Truck Stop to change the oil and service the KT-450 diesel engine in his semitractor. "Shortly thereafter, the oil drain plug exited the engine, draining the oil, destroying the engine." Amended Complaint, p. 2. Plaintiffs contend that Windy City was negligent in failing to replace the oil drain plug properly, or alternatively, in its failure to warn plaintiff of a defective oil drain plug. Plaintiffs seek to recover the following damages: (a) $28,000 to replace the destroyed diesel engine; (b) continuing lost wages at $1,500 per week; (c) $1,300 in expenses incurred for alternate transport of the goods; and (d) incidental expenses, attorneys' fees and costs.
II. DISCUSSION
The standard for granting a motion to dismiss is well established. Under Fed.R. Civ.P. 12(b)(6) a complaint should be dismissed for failure to state a claim only if it appears beyond doubt that a plaintiff can prove no set of facts which would entitle him to the relief requested. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
In this case plaintiffs seek recovery in tort for economic losses allegedly resulting from Windy City's negligence in replacing an oil drain plug during the course of changing the oil in the plaintiffs' truck. Windy City argues that plaintiffs' tort claim should be dismissed and their recovery limited to contractual damages.
While it is true that Illinois law generally precludes recovery in tort for solely economic losses, an exception exists for property damages caused by a sudden and dangerous occurrence that is tortious in nature. Bi-Petro Refining Co. Hartness Painting, 120 Ill.App.3d 556, 76 Ill. Dec. 70, 458 N.E.2d 209 (4th Dist.1983). The leading Illinois case in this area of characterization of damages reasons:
The demarcation between physical harm or property damage on the one hand and economic loss on the other usually depends on the nature of the defect and the manner in which the damage occurred.
Moorman Mfg. Co. v. National Tank Co., 91 Ill. 2d 69, 82-83, 61 Ill. Dec. 746, 435 N.E.2d 443 (1982). Quoting Pennsylvania Glass Sand v. Caterpillar Tractor Co., 652 F.2d 1165, 1173 (3d Cir.1981), the Moorman court explained:
In cases such as the present one where only the defective product is damaged, the majority approach is to identify whether a particular injury amounts to *1139 economic loss or physical damage. In drawing this distinction, the items for which damages are sought such as repair costs, are not determinative. Rather, the line between tort and contract must be drawn by analyzing interrelated factors such as the nature of the defect, the type of risk and the manner in which the injury arose. These factors bear directly on whether the safety-insurance policy of tort law or the expectation-bargain protection policy of warranty law is most applicable to a particular claim.
Moorman, 91 Ill. 2d 69, 83-84, 61 Ill. Dec. 746, 435 N.E.2d 443. Accordingly, under Moorman, economic loss is recoverable in tort where public policy considerations warrant the imposition of a social duty.
In this case, plaintiffs state that they contracted Windy City to change the oil and service the engine on their semitractor. "Shortly thereafter, the oil drain plug exited the engine, draining the oil, destroying the engine." Amended Complaint, p. 2. Although through this language plaintiffs have not specifically alleged a "sudden and dangerous occurrence," such an allegation may reasonably be inferred under the more liberal federal notice pleading requirements. Failing to properly replace an oil drain plug on a semitractor constitutes a safety hazard that poses a serious risk of harm to people and property. Combined with plaintiffs' allegation that their semitractor engine was destroyed, it appears that plaintiffs may be able to prove some "set of facts which would entitle [them] to the relief requested." See Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
Defendant relies principally on Moorman. In that case, however, the damages occurred over a period of several months stemming from a crack in a grain storage tank. This case is more factually analogous to Bi-Petro, supra, 120 Ill.App.3d 556, where the plaintiff entered into an oral contract with the defendant for the repair of plaintiff's 50 thousand barrel oil tank. Subsequently, the oil tank suddenly ruptured and damaged other property as well as the repaired tank. The case at bar involves the destruction of a diesel engine shortly after an oil change. It is conceivable that plaintiff may be able to prove facts which would fit within the Bi-Petro reasoning.
III. CONCLUSION
Defendant's motion to dismiss is denied.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575623/ | 612 F. Supp. 1060 (1985)
Tallulah MORGAN et al., Plaintiffs,
v.
John A. NUCCI et al., Defendants.
Civ. A. No. 72-911-G.
United States District Court, D. Massachusetts.
July 5, 1985.
*1061 Larry Johnson, Robert Pressman, Cambridge, Mass., Laurence S. Fordham, Foley, Hoag & Eliot, Boston, Mass., for plaintiffs.
Caroline Playter, Kehoe, Doyle, Playter, Novick & Strimaitis, Boston, Mass., Kenneth Kimerling, Puerto Rican Legal Defense & Education Fund, Inc., New York City, for El Comite.
Robert Blumenthal, State Bd. of Educ., Quincy, Mass., Robert H. Bohn, Jr., Sp. Asst. Atty. Gen., Gitlin, Emmer, Kaplan & Bohn, Boston, Mass., for State Bd. of Educ.
Steven P. Perlmutter, Asst. Corp. Counsel, Boston, Mass., for Mayor, City of Boston.
James T. Grady, Grady, Dumont and Dwyer, Boston, Mass., for BTU-Boston Teachers Union.
Richard W. Coleman, Segal, Roitman & Coleman, Boston, Mass., for BASAS-Boston Ass'n of School Administrators and Supervisors.
Robert Pressman, Martin A. Walsh, Boston, Mass., for Community Relations Service.
Lucille Koch, Evalena Higginbottom, Acting co-Executive Directors, Citywide Parents Council, Boston, Mass., for Transition Counsel.
Marshall Simonds, Henry C. Dinger, Goodwin, Procter & Hoar, Michael Betcher, Maura McGroarty, Boston School Committee, Dept. of Implementation, Boston, Mass., for Sp. Counsel Boston School Committee and Boston School Dept.
Nancy Gertner, Silvergate, Gertner, Baker & Fine, Boston, Mass., Herbert Henderson, N.A.A.C.P. Sp. Contribution Fund, Brooklyn, N.Y., for Concerned Black Educators of Boston.
Thomas I. Atkins, Brooklyn, N.Y., Henry Dinger, Goodwin, Procter & Hoar, Boston, Mass., for school defendants.
MEMORANDUM AND ORDER ADOPTING SCHOOL DEFENDANTS' PROPOSAL REGARDING OTHER MINORITY ADMINISTRATORS
GARRITY, District Judge.
On October 11, 1984 the school defendants filed a motion to modify the administrator rating and screening procedures first established by the court in orders issued February 24, 1976. One aspect of the proposed modifications concerned affirmative action in the hiring of other minority administrators and set a goal of attaining an administrative staff of ten percent other minority by January 1986, and provided that, in order to achieve the ten percent goal, at least one out of three administrative appointments would be other minorities. These modifications and several others not relevant here, were adopted by the court without objection.
However, the Boston Teachers Union ("BTU") and the Boston Association of School Administrators and Supervisors ("BASAS") objected to a further provision which stated that "[i]f there is a reduction in force or layoffs, the percentage [of other minority administrators] attained will be maintained." The parties agreed that the provision was not urgent since there were no layoffs of administrator imminent or contemplated, and the court therefore withheld decision on the matter until the BTU and BASAS could present an offer of proof and arguments supporting their objection. After considering the filings of the BTU and BASAS and the responses from plaintiff-intervenors El Comite and the school defendants, the court approves and adopts the disputed provision as an order of the court.
The sole issue in this matter is whether the court has the authority to order remedies on behalf of other minority students and their parents.[1] In this instance the *1062 court's authority derives from its original findings on liability and previous orders regarding layoff procedures which constitute the law of this case, and the continuing underrepresentation of other minorities in administrative positions.[2]
At the time the liability findings were entered in 1974 black parents and their children were the only plaintiffs in this case. The court therefore emphasized and made explicit its findings regarding their treatment by the school defendants. However, the findings are also replete with references to the discriminatory treatment of "non-white" children in general and "other minority" children in particular. Morgan v. Hennigan, D.Mass.1974, 379 F. Supp. 410, aff'd 1 Cir.1974, 509 F.2d 580, cert. denied 1975, 421 U.S. 963, 95 S. Ct. 1950, 44 L. Ed. 2d 449. The court set forth evidence showing that school defendant actions designed to produce and maintain segregation affected other minority children in a manner which paralleled that experience by black students in such areas as the maintenance of overcrowded and underutilized schools, id. at 426; the construction and acquisition of new facilities, id. at 428-9; districting and redistricting of schools, id. at 443-5; and the enrollment at the exam schools, id. at 467. The court summarized its findings by noting the ratio of white, black and other minority students in the public schools and stating that "[t]his overall ratio ... is far out of line with the ratios in most of the system's schools." Id. at 424.
The court granted the motion of El Comite de Padres Pro Defensa de la Educacion Bilingue ("El Comite") to intervene on January 23, 1975. El Comite was charged with representing the interests of non-English speaking students, or as they have become known in the parlance of this case, "other minorities". Other-minority students were immediately incorporated into every aspect of the remedial process of this case. Most importantly, the court's remedial orders of June 1975 established student assignment procedures which required the desegregation of other minority students as well as black and white students, stating, "[t]he plan's assignment guidelines aim, first, to make sure that schools are not identifiably one-race, and secondly, to assure that no racial or ethnic group black, white or other minority is disproportionately isolated in any school...." Morgan v. Kerrigan, D.Mass.1975, 401 F. Supp. 216, 240, aff'd 1 Cir.1976, 530 F.2d 401, cert. denied 1976, 426 U.S. 935, 96 S. Ct. 2648, 49 L. Ed. 2d 386.
Remedial orders concerning faculty and administrative staff desegregation have been issued on several occasions. The orders of February 24, 1976 required the school defendants to proceed with the appointment of other minority administrators "on an accelerated basis." The court noted that "[t]he record does not support the establishment of a specific goal for the appointment of other minority administrators. However, this finding is without prejudice to the submission of further evidence by El Comite on behalf of other minority students, who are a growing component of the student body."
After a series of hearings on the issue of faculty recruiting and hiring the court explicitly found, during a hearing on June 16, 1978, that it had the "jurisdiction to enter orders with respect to the employment of Hispanic and other minority faculty no less than its jurisdiction to enter orders regarding employment of black faculty." The court's decision at that time was based on "the separate treatment of the other minority students in the school system ... and the subsequent affirmances on appeal ... of the [student assignment] plan [which] gave the other minority group no less in *1063 the way of rights to remedy than the black or white groups." The order of July 5, 1978 which required the school defendants to "use their best efforts to continue to increase the percentage of other minority administrators ..." was later withdrawn pursuant to a comprehensive remedial agreement, based upon Lau v. Nichols, 1974, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1, between El Comite and the school defendants reached during the pendency of an appeal of the July 5 order. However the basis of the court's finding regarding the extent of its authority remains valid and it is now reaffirmed.
The court made use of this authority in 1981 when the school defendants sought to lay off teachers. After another extensive investigation into the extent of faculty desegregation, it ordered on June 2, 1981 that "the systemwide percentage of other minority teachers will remain at its current level."[3] The June 2, 1981 order was appealed and affirmed. Morgan v. O'Bryant, 1 Cir.1982, 671 F.2d 23, cert. denied, 1982, 459 U.S. 827, 103 S. Ct. 62, 74 L. Ed. 2d 64.
The current status of other minority administrator hiring justifies the extension of this remedial protection as agreed upon by the school defendants and El Comite. Other minorities constitute approximately ten percent of the population of Boston and 24 percent of the public school student population, yet the school system's administrative staff has never been more than six percent other minority. As of August, 1984, other minorities constituted 5.56 percent of the total number of administrators. Most of these other minority administrators have been hired only recently and have relatively little seniority. They would therefore be disproportionately affected by layoffs if not granted protection. The protection afforded other minority administrators by the school committee's proposal is not absolute, but merely guarantees that the slow and fitful progress in other minority hiring made thus far be preserved. Thus other minority administrators could be laid off, but only in proportion to their numbers.
Accordingly, the objections of BRU and BASAS are overruled and the provision of the school defendants' proposed modification of the administrator screening and rating process which states that "[i]f there is a reduction in force or layoffs, the percentage [of other minority administrators] attained will be maintained," is adopted as an order of the court.
MEMORANDUM, DRAFT FINAL JUDGMENT AND NOTICE OF HEARING
In its Memorandum and Orders of Disengagement issued December 23, 1982 the court provided the parties with a transitional mechanism for bringing the court's involvement in the remedial process of this case to an end. Those orders were the first step, after the court's efforts to promote a consent decree had failed, toward closing the case and returning to the community in general and to the school committee and department in particular the responsibility for protecting the rights of black and other minority parents and schoolchildren within the Boston public school system. Since then the court has terminated its jurisdiction in several areas in which remedial orders were entered and has approved many modifications of the student desegregation plan advanced by the defendants. It is now time to take the final steps to close this case. Seeking as broad an agreement as possible regarding the terms of the court's withdrawal, the court herewith issues a draft form of its final judgment, for comment and discussion by the parties.
The fact that the procedural mechanism created by the December 1982 Orders for the resolution of disputes between the parties was so little used is evidence that the parties have developed a common understanding *1064 of their respective rights and responsibilities under the remedial plan and have become familiar with its operation. The new thirteen-member school committee has gained important experience in overseeing the remedial phase of this case and it has demonstrated its willingness and ability to implement it. Mayor Raymond L. Flynn has made a strong public commitment to the continuing vitality of the Boston public school system and to desegregation. Joseph M. McDonough, who demonstrated his fidelity to the principles of desegregation in serving as the first temporary receiver of South Boston High School and in several other administrative positions within the school department, has been named acting superintendent. Pupil attendance percentage during the 1984-85 school year was 88.5 percent, the highest since the 1970-71 school year. The five reports published by the State Board of Education pursuant to the December 1982 orders provide a clear assessment of what has been and what remains to be accomplished.
On December 20, 1984, the deadline set by the court for proposing modifications for the 1985-86 school year, the school defendants presented to the court eleven proposed modifications, such as: a new assignment procedure in districts 3 and 4; consolidating the community school districts for administrative efficiency; allowing kindergartners to attend their geocoded elementary school; consolidating Madison Park and the Occupational Resource Center; transforming the Umana School into a district 8 middle school; adding grade six to the exam schools; permitting some schools to compete for a certain number of students without regard to geocode; and allowing schools in integrated neighborhoods to compete for the neighborhood students without regard to geocode. Amplification of the proposals in open court and negotiations among the parties resulted in eight of the eleven proposed modifications being adopted by the court with the full concurrence of the parties. This experience demonstrated the potential for continuing progress through future negotiations within a frame of reference fashioned by decisions of the Supreme Court of the United States.
The draft final judgment attached hereto is designed to establish basic principles which must survive the court's departure and to transfer to the school defendants, without judicial oversight, the responsibility for changes that do not conflict with these basic principles. Toward this end the draft establishes two categories of orders. First are permanent orders on six essential aspects of the desegregation remedy. Next is a permanent order requiring the school defendants to carry out the specific orders constituting the present amended remedial plan, unless modified by the school defendants after structured negotiations. These permanent orders would be enforceable by any party to this case through a petition to the court alleging that the defendants were violating the final judgment.[1] An explanation of each order follows.
(1) Unified Facilities Plan This permanent order requires that the school, city and state defendants, the so-called joint planners, carry out the Unified Facilities Plan pursuant to an order to be issued in the near future. The court already, on May 9, 1985, adopted and ordered into effect facilities improvements as submitted by the joint planners for 1985-86, the first year covered by the '85 UFP. The UFP order will for the most part adopt the `85 UFP filed by the parties, but will for purposes of desegregation rearrange the priorities accorded to renovations during the 1986-87 school year and thereafter at particular schools. The UFP will not be as comprehensive or refined as it might be, but will call for as much as can be achieved consistently with the financial condition of *1065 the city. A decade of procrastination by the joint planners must end.
(2) Permanent Injunction This order repeats the injunction prohibiting discrimination and segregation on the basis of race which was initially issued in 1974 as a partial judgment following the court's finding of liability. Morgan v. Hennigan, D.Mass.1974, 379 F. Supp. 410, 484. It is a broad, partial statement of the plaintiffs' rights in the remedial stage of a desegregation case; partial because plaintiffs are also entitled to specific affirmative relief from the continuing effects of past discrimination. Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 437-438, 88 S. Ct. 1689, 1693-1694, 20 L. Ed. 2d 716.
(3) Student Assignments The preservation of desegregation in student assignments is required by this order. "The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation." Swann v. Charlotte-Mecklenberg Board of Education, 1971, 402 U.S. 1, 26, 91 S. Ct. 1267, 1281, 28 L. Ed. 2d 554. Changing circumstances such as the racial/ethnic distribution of the population, construction or closing of facilities or new programs may require changes in assignment methods or guidelines. However, the acceptable levels of desegregation under the current circumstances, including the new assignment process in districts 3 and 4, have been clearly developed in the form of flexible self-adjusting ranges which may be applied to many situations without the need for modifications.
Under this paragraph the method of assigning students or the racial ethnic guidelines may be changed by the school defendants after public notice and negotiations, provided that they make every effort to assure that the resulting enrollments reflect the public school population of the district to the greatest degree practicable A point made by the State Board in its annual report on desegregation in Massachusetts dated February, 1984, bears repeating:
Monitoring of the [court-ordered] assignment system over the past year confirms its complexity and impartiality, and suggests that changes should be made only with great care and a good understanding of their possible unanticipated consequences.... A system which has achieved extensive desegregation with a high proportion of students receiving their schools of choice should not be abandoned lightly.
The term "assignment district" is used in the order to distinguish the districts as recently consolidated for administrative purposes and the eight community districts which serve as the assignment areas and have not been consolidated. The vote of the school committee on June 25, 1985 appointing five acting district superintendents did not make the distinction between assignment districts and administrative districts which was clearly stated by their attorney in the motion presented to and approved by the court. The distinction is important because desegregation within each school is premised on racially and ethnically representative assignment districts. District lines were drawn with great care and after much consultation by the four masters in 1975 and, although demographic changes have occurred, they remain a workable foundation for desegregation and should not be changed except with equal care.
(4) Parent Councils As stated in the court's order of October 4, 1974, the purposes of these councils were and remain "to insure adequate and impartial investigation and responsible recommendations on racially and ethnically oriented problems arising at the school; to create a means of communication between parents, students, teachers and administrators regarding the solution of such problems; and to promote an environment of understanding and common purpose among the various elements of the community so that the best available education may be offered to all children."
In the course of restructuring the Citywide Parents Council ("CPC") and the School Parent Councils ("SPCs") in 1982, *1066 the parents and the Boston School Committee negotiated and signed an agreement dated November 8, 1982, and filed with the court on November 17, 1982. This agreement was called "an historic step forward for the Boston Public Schools" and was "intended to strengthen the parent role in facilitating the desegregation of the Boston Public Schools and improving the quality of education provided to all children in the Boston Public Schools."
However, the court-ordered parent organizations have never been completely accepted by the school defendants and the full promise of their participation in the public school community has yet to be realized. For example, the first section of the 1982 agreement provided that the school defendants' central administration would disseminate to each principal and SPC monthly data reports which would serve as an agenda item for meetings between them. The third section provided that, "[w]here new planning or program initiatives are proposed on the district or school level, the appropriate School Parent Council or District Parent Council shall appoint parent members to these task forces/committees. Parent members of these task forces/committees should regularly report on committee activities to the School Parent Council or the District Parent Council." Nevertheless, despite exemplary service by CPC members on staff screening committees, the court-ordered councils are excluded from the process whereby parents are selected for membership in School Based Management and School Improvement Programs. Are parents who have been duly elected to SPCs being reorganized out of their agreed roles?
The CPC and SPCs were not established to be simply school booster organizations or symbolic representatives. The school defendants must live up to their agreement and do everything they reasonably can to help the duly elected parent councils deliver the unique assistance for which they were created. Accordingly the draft order provides that the CPC and SPCs would become self-governing bodies and be adequately funded, thereby securing a stable future in which they may for the first time have a real opportunity to establish their effectiveness.
(5) Faculty and Staff The January 28, 1975 and February 24, 1976 orders concerning faculty and staff desegregation respectively, required that the school defendants maintain black faculty and both central and school-based administrators at no less than 20% of the total of each group, and set an affirmative action goal of 25%[2] later adopted and reaffirmed by the school committee. The 20% figure was chosen because it represented the approximate percentage of black residents in Boston at that time. Since that time the percentage of residents of Boston who are black has risen to approximately 23% and can be expected to continue to change in the future. Currently, the number of black administrators is 24% of the total in both category I (school-based), and category II (central and district), but black faculty are still below 21% of the total. Paragraph 5 of the permanent orders preserves the workability of these orders by providing a self-adjusting minimum of faculty and staff desegregation tied to the percentage of black residents in the City of Boston.[3]
(6) Department of Implementation Paragraph 6 of the permanent orders preserves an organization whose continuing presence will be essential to the future progress of the remedial process. The Department of Implementation ("DI") has provided a centralized unit within the School Department with a staff of approximately *1067 44 professionals which is experienced in the implementation of the remedial plan and can be held accountable. As described in the court's memorandum and orders of May 6, 1977, which established the DI in its current form, the DI staff's responsibilities include:
supervising student assignments, transfers, data processing, and programmatic concerns ... assur[ing that] students are assigned to schools in accordance with court-ordered procedures ... initiat[ing] investigations and corrective actions ... investigating problems related to the availability of appropriate facilities, equipment and materials, and recommending corrective actions ... initiating and carrying out curriculum and staff development activities to assure that individual schools have suitable programs to meet the complete range of student needs resulting from the implementation of court-ordered desegregation ... assign[ing] new students in the system in accordance with court-ordered guidelines ... receiv[ing] and check[ing] applications for student assignments ... the collation and categorizing of Applications for Assignment ... the reassigning of students who have moved to new geocodes and assignments to the Examination Schools, the Magnet Schools, to Vocational Programs and to Bilingual and Special Education programs.
The December 1982 Orders charged the DI with acting as the internal monitor of the school defendants' compliance with court orders and as a source of information to the parties and the CPC and the State Board.
Diffusing these extensive and complex responsibilities would impair the school department's ability to administer the plan in a stable and predictable manner and to develop and coordinate appropriate modifications of the existing plan when needed. Moreover, any dismantling or significant reduction in the size of the DI would diminish the effectiveness of the State Board, parents and others who must rely on information provided by the DI in evaluating the performance of the school defendants.
(7) Previous Orders Paragraph 7 applies to orders apart from the basic principles embodied in the preceding paragraphs. Specific court orders previously issued in areas in which the court has not terminated its jurisdiction shall continue to govern the remedial process in this case, but may be modified without, however, lessening the school defendants' obligation to carry them out as modified. After years of experience and adjustment, the current remedial plan has proven to be workable and equitable.
(8) Modification Procedure The role of the court in suggesting and approving modifications is eliminated. The State Board's detailed monitoring of the desegregation process, ordered by the court in December 1982, shall cease. Responsibility for proposing necessary modifications and ultimately deciding upon them will be lodged exclusively with the School Committee; but the procedural mechanisms provided will require that proposed modifications be subjected to the scrutiny and appraisals of responsible state and city officials and parent groups.
The procedural mechanism for modifying previous court orders requires the participation of an organization such as the Boston Chapter of the NAACP, which has long-standing and stable ties to the plaintiff class of black parents. The various entities which provided legal representation for the plaintiffs during these proceedings seem not as well suited to representing the black community in long-term negotiations as a permanent, local organization.
Notice of Hearing
Comments and legal memoranda regarding the draft final judgment may be filed on or before July 26, 1985 and replies by August 5, 1985. A hearing as to the entry of final judgment in the form of the attached draft or in another form is hereby scheduled for August 7, 1985 at 2:00 p.m.
[DRAFT] FINAL JUDGMENT
After hearing and consideration of the parties' comments and positions on the *1068 draft final judgment issued on July 5, 1985, and on the basis of all orders and memoranda of decisions previously entered in these proceedings, it is ORDERED and ADJUDGED that the school defendants, viz., members of the Boston school committee, Superintendent of Schools, their officers, agents, servants employees, attorneys, and all other persons in active concert or participation with them who have actual notice of this judgment:
Unified Facilities Plan
(1) shall take all steps reasonably necessary, jointly with the city and state defendants, to whom this paragraph also applies, to implement the Unified Facilities Plan as approved and modified by orders entered last month;
Permanent Injunction
(2) be permanently enjoined from discriminating on the basis of race in the operation of the public schools of the City of Boston and from creating, promoting or maintaining racial segregation in any school or other facility in the Boston public school system;
Student Assignments
(3) shall assign students so that to the greatest degree practicable the racial/ethnic composition of each community district school reflects the public school student population residing in the assignment district in which the school is located, and of each citywide magnet school, the citywide public school population exclusive of district 8;
Parent Councils
(4) shall maintain the Citywide Parents Council and School Parent Councils as adequately funded, self-governing organizations capable of meeting their court-ordered responsibilities;
Faculty and Staff
(5) shall maintain a proportion of black faculty and administrative staff at least commensurate with the proportion of black residents in the City of Boston as measured in each quintennial federal census;
Department of Implementation
(6) shall maintain the Department of Implementation as a distinct unit, adequately staffed and with full access to computer facilities, capable of meeting its court-ordered responsibilities;
Previous Orders
(7) shall carry out all existing orders previously entered in areas in which the court has not terminated its jurisdiction and, if modified as hereinafter provided, such modified orders;
Modification Procedure
(8) The school defendants may modify any order previously entered in these proceedings provided (a) that such modification is specific and does not violate the permanent orders stated in the seven preceding paragraphs and (b) that notice and opportunity to be heard is given, as follows: they shall issue a public notice identifying the order to be modified and the proposed modification; and shall mail copies to (a) the State Board of Education, (b) the Attorney General for the Commonwealth, (c) the Mayor, (d) the Citywide Parent Council and (e) the Boston chapter of the NAACP, to all of whom the Department of Implementation shall promptly make available all relevant data reasonably requested. The Board of Education shall within three weeks initiate and moderate negotiations concerning the proposed modification. After agreement has been reached or the Board has determined that further negotiations would not result in agreement, or more than three months have passed since the public notice was given, whichever is earliest, the School Committee may adopt or reject the proposed modification either as initially proposed or amended during negotiations, provided that it is specific and does not violate the permanent orders.
NOTES
[1] The unions no longer strongly argue that Fire-fighters Local # 1784 v. Stotts, 1984, ___ U.S. ___, 104 S. Ct. 2576, 81 L. Ed. 2d 483, is relevant to this matter. That case involved the balancing affirmative action in layoffs with seniority where no judicial determination of liability had been made and no proof of discrimination against those individuals who would benefit from the affirmative action had been found. Here a finding of constitutional violations has been made. The Supreme Court's analysis of individual proof of discrimination is inapplicable in the present situation, where the remedy is sought on behalf of third parties: the public schoolchildren of Boston.
[2] The court's remedial orders concerning faculty and staff desegregation are based on the remedial requirements of the plaintiffs and plaintiff-intervenors, not on any independent rights of black and other minority educators themselves.
[3] When a similar order regarding black administrators was issued at the hearing of July 9, 1981, an order regarding other minority administrators was deemed unnecessary because of the school defendants' plans to retain the only two other minority principals employed at that time.
[1] The court does not anticipate that such petitions will be necessary for the same reasons that it finds that the time is ripe for ending its involvement in the case. However, the plaintiffs are entitled to court enforcement in the event that the school defendants violate permanent orders.
[2] The January 28, 1975 order is published at Morgan v. Kerrigan, 388 F. Supp. 581, and affirmed by the First Circuit, 1 Cir.1976, 530 F.2d 431, cert. denied, Doherty v. Morgan, 1976, 426 U.S. 935, 96 S. Ct. 2649, 49 L. Ed. 2d 386. The February 24, 1976 order was never published, nor appealed.
[3] The recruitment and hiring of other minority faculty and staff is governed by a so-called Lau Agreement (after Lau v. Nichols, 1974, 414 U.S. 563, 94 S. Ct. 786, 39 L. Ed. 2d 1) between the school defendants and El Comite approved by the court on November 26, 1984. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575642/ | 612 F. Supp. 2d 1125 (2009)
Jackson BROWNE,
v.
John McCAIN, et al.
Case No. CV 08-05334-RGK (Ex).
United States District Court, C.D. California.
February 20, 2009.
*1127 Gregory S. Gabriel, Jonathan P. Steinsapir, Lawrence Y. Iser, Kinsella Weitzman Iser Kump and Aldisert, Santa Monica, CA, for Plaintiff.
Lincoln D. Bandlow, Lathrop & Gage LLP, Los Angeles, CA, Howard J. Klein, Sang N. Dang, Klein, O'Neill & Singh, LLP, Irvine, CA, for Defendants.
Proceedings: (IN CHAMBERS) Order Re Republican National Committee's Motion to Dismiss for Failure to State a Claim (DE 27)
R. GARY KLAUSNER, District Judge.
I. INTRODUCTION
A few months before the 2008 Presidential election, Jackson Browne ("Browne" or "Plaintiff") sued Republican Presidential candidate, Senator John McCain ("Senator McCain"), along with the Republican National Committee ("RNC"), and the Ohio Republican Party ("ORP") (collectively "Defendants") for copyright infringement, and other related claims. Browne's claims arise out of Defendants' alleged improper use of his song Running on Empty in a campaign commercial for Senator McCain.
Presently before the Court is RNC's Motion to Dismiss for Failure to State a Claim. For the following reasons, the Court DENIES RNC's Motion.
II. FACTUAL BACKGROUND
Plaintiff alleges the following facts:
Browne is a singer and songwriter who is closely associated with liberal causes and Democratic political candidates. (Compl. ¶ 1.) Browne's public support for the Democratic Party and President Barack Obama is well-known. (Compl. ¶ 15.) In fact, Browne has performed at political rallies for Democratic Party candidates. Id.
Senator McCain is a citizen of Arizona and ran as the Republican Presidential candidate in the 2008 Presidential election. (Compl. ¶¶ 1, 5.) RNC is a non-profit political organization based in the District of Columbia (Compl. ¶ 6.) ORP is a non-profit political organization based in Ohio. (Compl. ¶ 7.)
A. The Composition
In 1977, Browne released an album entitled Running on Empty (the "Album"), *1128 which contained a composition of the same name (the "Composition"). (Compl. ¶ 13.) The Album reached platinum status (i.e., sales of one million or more) seven times over. Id. The Album and Composition are both famously associated with Browne, who owns a federally registered copyright in the Composition. (Compl. ¶¶ 13-14.) It is that Composition that Browne alleges Defendants improperly used in a campaign commercial for Senator McCain. (Compl. ¶¶ 2, 13.)
The Composition is approximately four minutes and fifty-six seconds.[1] (Decl. McClelland Ex. 2.) It begins with an approximately twenty-two second instrumental introduction featuring a robust backbeat and piano ("Instrumental Introduction"). Id. The chorus repeats three times over the course of the Composition and consists of the following lyrics "Running onrunning on empty, Running onrunning blind, Running onrunning into the sun, But I'm running behind" ("Chorus"). Id.
B. The Commercial
In anticipation of then-Democratic Presidential candidate Barack Obama's visit to Ohio the week of August 4, 2008, ORP, acting as an agent for the RNC and Senator McCain, created a web video to criticize and comment on Barack Obama's energy policy and his suggestion that the country could conserve gasoline by keeping their automobile tires inflated to the proper pressure (the "Commercial"). (Compl. ¶ 2.) During the Commercial, a sound recording of Browne performing the Composition, Running on Empty, plays in the background. Id.
The Commercial is approximately one minute and twenty seconds. (Decl. McClelland Ex. 1.) It begins by displaying the words "Pain at the Pump" in large white and black letters, with bluish-pink graphics, followed by a twenty-five second montage of Ohio news broadcasts regarding the high price of gas. Id. The montage features reporters from Channels 5, 6, and 10, who state: (1) "we don't have to say it, we are all certainly sick of the pain at the pump"; (2) "now the price at the pump is going up once again"; (3) "$3.64 for a gallon"; (4) "gallon of regular going for $3.69"; (5) "gas prices are thirty-eight percent higher now than they were this time last year"; and (6) "for most of us, fill-up can be a budget buster." Id. The montage concludes with a Channel 5 reporter asking "so how do you bring down the price of gas here in northeast Ohio and across the U.S.A.?" Id.
The Commercial then cuts to a CNN broadcast of then-Democratic candidate Barack Obama at a rally saying "making sure your tires are properly inflated." Id. The sound of a needle dragged across a record is heard as the screen flashes the word "What!?" Id. Next, an image of Senator McCain appears, along with the words "Senator McCain has [illegible]." Id. The Commercial then cuts to information on Senator McCain's energy plan, including the words: "Expand Domestic Oil and Natural Gas Production; Reform Transportation Sector; Invest in Clean, Alternative Sources of Energy; Address Climate Change; Promote Energy Efficiency." Id.
*1129 At approximately thirty-seven seconds, the Commercial cuts to Senator McCain at a rally saying "my friends this is a national security issue and who is paying the most today, who is bearing the burden? Lowincome Americans who are driving the oldest automobiles. We owe it to them and we owe it to all Americans." Id.
At approximately fifty seconds, the Instrumental Introduction of the Composition begins playing as the screen displays the words "What's that Obama plan again?" Id. At approximately fifty-seven seconds, the volume on the Composition is lowered, but is still audible, and the Commercial cuts back to the CNN broadcast of Obama at a rally saying "making sure your tires are properly inflated, simple thing, but we could save all the oil that they are talking about getting off drilling if everybody was just inflating their tires?" Id. At approximately one minute eight seconds, the volume of the Composition increases as the Commercial cuts to a CNN broadcast of former Presidential candidate Senator Hillary Clinton saying "shame on you Barack Obama." Id.
At approximately one minute ten seconds, the Commercial cuts to a photo of Barack Obama with the words "Barack Obama: No Solutions," which changes to "Baraek Obama: Not Ready to Lead" as Browne is heard singing the Chorus of the Composition. Id.
The Commercial then concludes with a black screen containing small print at the bottom that reads "Paid for by the Ohio Republican Party. www.ohiogop.org. Not authorized by any candidate or candidate committee." Id.
Neither Senator McCain, ORP, nor RNC received a license nor Browne's permission to use the Composition in the Commercial. (Compl. ¶¶ 2, 18.)
ORP posted the Commercial on You-Tube.com ("YouTube"). (Compl. ¶ 16.) The Commercial also aired on television and cable networks in Ohio and Pennsylvania, as well as other websites such as the Huffingtonpost.com. Id. The Commercial was also aired on and discussed by the national news media, including MSNBC. Id.
Since the Commercial first appeared on television and the Internet, Browne has received numerous inquiries expressing concern about Defendants' use of the Composition and Browne's performance. (Compl. ¶ 17.)
Browne contends that the Commercial falsely suggests that he sponsors, endorses, or is associated with Senator McCain and the Republican Party, "when nothing could be further from the truth." (Compl. ¶ 2.)
As a result, Browne sued Defendants on August 14, 2008, asserting claims for (1) Copyright Infringement, (2) Vicarious Copyright Infringement, (3) Violation of the Lanham Act (False Association or Endorsement), and (4) Violation of California Common Law Right of Publicity.
III. JUDICIAL STANDARD
A party may move to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). In deciding a Rule 12(b)(6) motion, the court must assume allegations in the challenged complaint are true, and construe the complaint in the light most favorable to the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). The court shall not consider facts outside the complaint. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.2001). The court may not dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. *1130 1980). However, a court need not accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations. See W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Dismissal is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.2008).
IV. DISCUSSION
A. Copyright Infringement Claim
RNC contends that the fair use doctrine bars, as a matter of law, Plaintiffs Copyright claim. For the following reasons, the Court disagrees.
Congress codified the common-law doctrine of fair use in the Copyright Act of 1976, which provides that the "fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means ... for purposes such as criticism, comment, news reporting, teaching, ... scholarship, or research, is not an infringement of copyright." 17 U.S.C. § 107. When determining whether a use constitutes a "fair use," courts consider several factors, including (1) purpose and character of the use, including whether the use is commercial or for non-profit educational purposes, (2) nature of the copyrighted work, (3) amount and substantiality of the portion of the work used in relation to the work as a whole, and (4) effect of the use on the potential market for or value of the work. Id.
Courts analyze fair use as a mixed question of law and fact. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 105 S. Ct. 2218, 85 L. Ed. 2d 588 (1985). As a consequence, in order to undertake the fair use analysis, a court usually must make factual findings, or rely on undisputed or admitted material facts. See Harper & Row Publishers, Inc., 471 U.S. at 560, 105 S. Ct. 2218.
Generally, when analyzing a Rule 12(b)(6) motion, a court's analysis of the plaintiffs claims is limited to its allegations in the complaint. See Arpin, 261 F.3d at 925. At this stage, a court does not make factual findings, nor deem material facts undisputed or admitted. Thus, in light of a court's narrow inquiry at this stage and limited access to all potentially relevant and material facts needed to undertake the analysis, courts rarely analyze fair use on a 12(b)(6) motion. See Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136, 1148 (S.D.Cal.2005); see also Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir.1997).
Here, the Court declines to analyze fair use on RNC's 12(b)(6) motion. The facts, as alleged in the complaint, are simply insufficient to conduct a thorough analysis of fair use at this time. The parties have not had a full opportunity to conduct discovery. As a result, Plaintiff is not yet aware of all relevant and material facts supporting his claim and potentially refuting RNC's fair use defense.
Moreover, RNC has not established that Plaintiffs claim is barred, as a matter of law, under the fair use doctrine. The mere fact that Plaintiffs claim is based on Defendants' use of his copyrighted work in a political campaign does not bar Plaintiff's claim as a matter of law.[2]
*1131 Thus, given the early stage of this case, undeveloped factual record, limited factual allegations in the Complaint, existence of potentially disputed material facts, and nature of the Court's inquiry on a 12(b)(6) motion, the Court declines RNC's invitation to undertake the fair use analysis at this time.
Therefore, the Court DENIES RNC's Motion to Dismiss Plaintiffs Copyright Infringement claim.
B. Vicarious Copyright Infringement Claim
The Court DENIES RNC's Motion to Dismiss Plaintiffs Vicarious Copyright Infringement claim for the same reasons as stated in Section IV.A. above.
C. Lanham Act Claim
RNC contends that the Court should dismiss Plaintiffs Lanham Act claim because (1) the Lanham Act applies only to commercial speech, (2) the First Amendment and artistic relevance test bar the claim, and (3) Plaintiff cannot, as a matter of law, establish likelihood of confusion. For the following reasons, the Court disagrees.
1. Application of the Lanham Act to Political Speech
RNC contends that Plaintiff cannot state a claim for false association or endorsement under 15 U.S.C. § 1125(a)(1)(A) of the Lanham Act ("Section 43(a)(1)(A)") because the Lanham Act applies only to commercial speech and does not apply to political speech. For the following reasons, the Court disagrees.
RNC appears to collapse several distinct arguments into one general contention that the Lanham Act does not apply to political speech. Each distinct argument is addressed separately below.
First, contrary to RNC's assertions, courts have recognized that the Lanham Act applies to noncommercial (i.e., political) and commercial speech. See, e.g., United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86, 92-3 (2d Cir.1997); MGM-Pathe Commns. Co. v. Pink Panther Patrol, 774 F. Supp. 869, 876 (S.D.N.Y. 1991). Indeed, the Act's purpose of reducing consumer confusion supports application of the Act to political speech, where the consequences of widespread confusion as to the source of such speech could be dire. See United We Stand America, Inc., 128 F.3d at 91-93. Thus, to the extent RNC's Motion is based on its theory that the Lanham Act applies only to commercial speech, that theory is rejected.
Second, to the extent that RNC argues that Plaintiffs Lanham Act claim must yield to important First Amendment concerns over protecting political speech, such concerns are addressed in the Court's discussion of the First Amendment and artistic relevance test in Section IV.2. below.
Third, the mere fact that a defendant is engaged in political speech, alone, does not bar a plaintiffs Lanham Act claim. See MGM-Pathe Commns. Co., 774 F.Supp. at 877. Thus, to the extent RNC's Motion is based on its theory that the mere fact that Browne's Lanham Act claim is based on political speech bars his claim as a matter of law, that theory is rejected.
Fourth, contrary to the implications of RNC's arguments, the Lanham Act's reference to use "in commerce" does not require a plaintiff who asserts a claim under Section 43(a)(1)(A) to show that the defendant actually used the mark in commerce. United We Stand America, Inc., 128 F.3d at 92. Rather, the Act's reference *1132 to use "in commerce" actually "reflects Congress's intent to legislate to the limits of its authority under the Commerce Clause" to regulate interstate commerce. Id. The interstate commerce jurisdictional predicate for the Lanham Act merely requires a party to show that the defendant's conduct affects interstate commerce, such as through diminishing the plaintiffs ability to control use of the mark, thereby affecting the mark and its relationship to interstate commerce. See Stauffer v. Exley, 184 F.2d 962, 964-67 (9th Cir.1950); see, e.g., Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 120 (9th Cir.1968); F.E.L. Publications, Ltd. v. National Conference of Catholic Bishops, 466 F. Supp. 1034, 1044 (D.C.Ill.1978). As such, the "scope of `in commerce' as a jurisdictional predicate of the Lanham Act is broad and has a sweeping reach." Planned Parenthood Federation of America, Inc. v. Bucci, 1997 WL 133313 (S.D.N.Y.) (citing Steele v. Bulova Watch Co., 344 U.S. 280, 73 S. Ct. 252, 97 L. Ed. 319 (1952)).
Thus, to the extent. RNC's Motion is based on its theory that Browne cannot state a claim under the Lanham Act because he has not shown actual use in commerce, that theory is rejected. Moreover, since RNC has not actually argued that Plaintiffs claim fails to satisfy the interstate commerce requirement, the Court will not address that issue at this time.
2. The First Amendment and Artistic Relevance Test
RNC also contends that Plaintiff cannot state a claim under the Lanham Act because the Commercial is an expressive work and thus the claim is barred under the First Amendment and artistic relevance test. For the following reasons, the Court disagrees.
In the Ninth Circuit, a Lanham Act claim based on use of a mark in an artistic work is analyzed under the Second Circuit's Rogers artistic relevance test, which was developed to address the competing interests of the First Amendment's protection of artistic works and trademark protection. See Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir.2002). Under this test, "[a]n artistic work's use of a trademark that otherwise would violate the Lanham Act is not actionable [1] `unless the use of the mark has no artistic relevance to the underlying work whatsoever, or, [2] if it has some artistic relevance, unless it explicitly misleads as to the source or content of the work.'" E.S.S. Entm't 2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1099 (9th Cir.2008) (citing MCA Records, Inc., 296 F.3d at 902).
Here, the Court finds that RNC has not established that the First Amendment and artistic relevance test bar Plaintiffs Lanham Act claim at this time. First, RNC has not established that the Commercial is an artistic work, requiring application of the artistic relevance test. Second, RNC has not shown that the First Amendment and artistic relevance test bar Browne's claim merely because the Commercial is noncommercial, political speech. In fact, courts that have applied the Lanham Act to noncommercial and political speech have implicitly rejected the theory that claims based on such speech are barred, as a matter of law, based on the First Amendment and artistic relevance test. See, e.g., MGM-Pathe Commns. Co., 774 F.Supp. at 874-76; see generally United We Stand America, Inc., 128 F.3d at 92. Finally, it appears that, in light of the Court's limited inquiry on a 12(b)(6) motion, the Court would have difficulty applying the artistic relevance test at this time.
Thus, the Court finds that RNC has not established that Plaintiff's Lanham Act claim is barred by the First Amendment and artistic relevance test at this time and *1133 rejects RNC's contention that the Court should dismiss this claim on that basis.
3. Likelihood of Confusion
RNC also contends that Plaintiff cannot state a claim under the Lanham Act because the Commercial clearly identifies its source as ORP, so there is no likelihood of confusion as to its origin. For the following reasons, the Court disagrees.
The Ninth Circuit considers the following factors, known as Sleekcraft factors, in determining whether likelihood of confusion exists (1) strength of the mark, (2) proximity or relatedness of the goods, (3) similarity of the marks, (4) evidence of actual confusion, (5) marketing channels used, (6) degree of care customers are likely to exercise in purchasing the goods, (7) defendant's intent in selecting the mark, and (8) likelihood of expansion into other markets. KP Permanent MakeUp, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 608 (9th Cir.2005).
Here, the Court finds that RNC has not established, at this time, that Plaintiff cannot show likelihood of confusion. RNC's contention that the Commercial clearly identifies its source as ORP, alone, does not show that a consumer could not possibly be confused as to whether Browne endorsed Senator McCain, RNC, or ORP. Moreover, RNC has failed to address all of the Sleekcraft factors and whether they weigh against likelihood of confusion. Without the parties' arguments as to these factors, the Court is unable to thoroughly analyze likelihood of confusion at this time.
Thus, the Court finds that RNC has not established that Plaintiff cannot show likelihood of confusion at this time and rejects RNC's contention that the Court should dismiss this claim on that basis.
The Court accordingly DENIES RNC's Motion to Dismiss Plaintiffs Lanham Act claim.
D. Right of Publicity Claim
RNC relies on its arguments in its Special Motion to Strike as grounds for dismissal of this claim. Thus, the Court addresses those arguments in its Order Re RNC's Special Motion to Strike.
V. CONCLUSION
In light of the foregoing, the Court DENIES RNC's Motion to Dismiss Plaintiff's claims for Copyright Infringement, Vicarious Copyright Infringement, and Violation of the Lanham Act. The Court addresses RNC's grounds for dismissal of Plaintiffs California Common Law Right of Publicity claim in its Order Re RNC's Special Motion to Strike.
IT IS SO ORDERED.
NOTES
[1] When analyzing a 12(b)(6) motion, a court may properly consider a document that is not attached to the complaint if (1) its contents are alleged in the complaint, and (2) no party has questioned its authenticity. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002). Here, Plaintiff did not attach a copy of the Commercial nor Composition to the Complaint, but the Court may properly consider those exhibits, when analyzing Defendants' 12(b)(6) Motion because (1) their contents are alleged in the Complaint, and (2) no party has questioned their authenticity. (Joint Req. Jud. Not. 2-3.)
[2] Quite the contrary. It appears that copyright claims based on use of a copyrighted work in a political campaign are not barred, as a matter of law, under the fair use doctrine. See, e.g., Long v. Ballantine, 1998 WL 35156025 (E.D.N.C.1998) (addressing plaintiff's motion for attorneys' fees as to copyright claim based on defendant's use of plaintiff's copyrighted work in a political campaign and discussing court's rejection of the fair use defense for that claim). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575666/ | 612 F. Supp. 2d 743 (2009)
Joe Ann HAMILTON, et al., Plaintiffs,
v.
FIRST AMERICAN TITLE COMPANY, Defendant.
Civil Action No. 3:07-CV-1442-G.
United States District Court, N.D. Texas, Dallas Division.
April 21, 2009.
*744 Eric G. Calhoun, Richard J Pradarits, Jr., Travis & Calhoun, Dallas, TX, Edward W. Ciolko, Joseph H. Meltzer, Joseph A. Weeden, Katherine B. Bornstein, Nick S. Williams, Peter A. Muhic, Barroway Topaz Kessler Meltzer & Check LLP, Radnor, PA, for Plaintiffs.
Kenneth Chaim Broodo, Gardere Wynne Sewell, Dallas, TX, Charles A. Newman, Elizabeth T. Ferrick, Sonnenschein, Nath & Rosenthal LLP, Darci F. Madden, Douglas W. King, James M. Weiss, Bryan Cave LLP, St. Louis, MO, for Defendant.
MEMORANDUM OPINION AND ORDER
A. JOE FISH, Senior District Judge.
Before the court is the motion of the defendant, First American Insurance Title Company ("First American" or "the defendant"), to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the motion is denied.
I. BACKGROUND
This is the second motion to dismiss the defendant has filed. In its order ruling on the first motion to dismiss, see Memorandum Opinion and Order dated February 25, 2008, the court recited the following facts:
In Texas, mortgage lenders require borrowers to purchase title insurance policies as a condition of making a residential mortgage loan. See Plaintiffs Original Complaint ("Complaint") ¶ 6. Title insurance policies protect lenders by insuring the lenders against certain defects in title to property. Id. The policies remain in effect until the loan is repaid. Id. Lenders also require borrowers to purchase title insurance policies when the homeowners refinance their homes. See Complaint ¶ 7. These policies are usually referred to as "reissue policies" because when a home is refinanced, the title to the property remains with the existing owner. Id.
Pursuant to the Texas Insurance Code, the Texas Department of Insurance ("TDI") fixes the premium rates to be charged by title insurance companies for policies issued in Texas. See Complaint ¶ 8. The rates required for an original issue title insurance policy are called "Basic Rates." See Complaint ¶ 9. TDI has also adopted mandatory rates for reissue lender title policies, which are calculated by using the Basic Rate less the "reissue discount." See Complaint ¶ 10. "Reissue premium charges are significantly lower than full basic title insurance rates, because the title to the property does not change hands when there is a refinancing." Id. The "reissue discount" rate decreases as time elapses from the date of the policy *745 insuring the original mortgage, ranging from 40% to 15%. See Complaint ¶ 11.
Two of the plaintiffs, Joe Ann and Earnest Hamilton ("the Hamiltons"), obtained a mortgage loan with the required lender title insurance policy in April of 2004, and subsequently refinanced the loan on May 22, 2006. See Complaint ¶¶ 13-14. At the closing of the refinanced loan, the Hamiltons were required to purchase a lender title policy issued by the defendant, First American. See Complaint ¶ 14. According to the Texas Title Manual ("TTM"), Section III, R-8, the Hamiltons' policy should have been reduced by 35% of the premium calculated at the Basic Rate, since the reissue mortgage policy occurred more than two but less than three years from the date of the mortgagee policy insuring the old mortgage. See Complaint ¶ 15; see also TTM, Section III, R-8, available at www.tdi.state.tx.us/title/titlem 3a.html# R-1. However, the Hamiltons were not given this discount, and specifically allege they were overcharged $304.85. See Complaint ¶ 15.
Jacqueline Wilson ("Wilson") obtained a mortgage loan in August of 1999, and later refinanced the loan on June 5, 2005. See Complaint ¶¶ 16-17. Again, at the closing of this refinanced loan, Wilson was required to purchase a lender title insurance policy issued by First American. See Complaint ¶ 17. According to the TTM, Section III, R-8, Wilson's policy should have been reduced by 15% of the premium calculated at the Basic Rate, since the reissue mortgage policy occurred less than seven years from the date of the mortgagee policy insuring the old mortgage. Wilson, like the Hamiltons, did not receive this discount, and specifically alleges she was overcharged $101.10. See Complaint ¶ 18.
The plaintiffs filed their original complaint on August 22, 2007, claiming that First American failed to give them the mandatory reissue discount as required by TDI in Section III, R-8 of the TTM. See Complaint ¶ 12. Plaintiffs further claim that First American thereafter split the resulting unearned amounts with First American's title agents, in violation of section 8(b) of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2607(b). See Complaint ¶¶ 46-49.
In First American's first motion to dismiss, it argued that the plaintiffs had failed to state a claim upon which relief could be granted because the defendants had not violated RESPA. See Brief in Support of Defendant's Motion to Dismiss ("Motion to Dismiss") at 1. The court did not reach that issue because it held that the RESPA claims were barred by the statute of limitations. Since the court's ruling on the first motion to dismiss, three individuals have filed a motion to intervene, which the court granted. One of these individuals, Kimberly Williams-Thompson ("Williams-Thompson"), asserts a RESPA claim which the court has already ruled is not time-barred. See Memorandum Opinion and Order dated August 15, 2008 at 2, 2008 WL 3876038. Thus, there is still one RESPA claim remaining. In this second motion to dismiss, First American seeks dismissal of this remaining RESPA claim and also seeks confirmation from the court that all other RESPA claims are time barred.
II. ANALYSIS
As a preliminary matter, the court reiterates its prior holding that all the RESPA claims in this lawsuit are barred by the one year statute of limitations, except for the claim brought by Williams-Thompson. First American points out that the plaintiffs' amended complaint, filed on August 20, 2008, does not expressly limit the REPA claim to Williams-Thompson. Motion to Dismiss at 2. It is unclear whether the *746 plaintiffs intended to assert the RESPA claim on behalf of any plaintiff other than Williams-Thompson. To the extent they have tried to do so, however, the court will not allow it. As the court has already held, the other plaintiffs are time-barred from asserting a RESPA claim. The court has not yet decided, however, whether Williams-Thompson's RESPA claim (the only one remaining) should be dismissed under Rule 12(b)(6).
A. The Rule 12(b)(6) Standard
"To survive a Rule 12(b)(6) motion, the plaintiff must plead `enough facts to state a claim to relief that is plausible on its face.'" In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.2007) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)), cert. denied, ___ U.S. ___, 128 S. Ct. 1230, 170 L. Ed. 2d 63 (2008). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 127 S.Ct. at 1964-65 (citations, quotations marks, and brackets omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Katrina Canal, 495 F.3d at 205 (quoting Twombly, 127 S.Ct. at 1965). "The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Id (internal quotation marks omitted) (quoting Martin K. Eby Construction Company v. Dallas Area Rapid Transit, 369 F.3d 464 (5th Cir.2004)).
B. RESPA § 8(b)
First American argues that even if all the facts the plaintiffs assert are true, they are not entitled to relief. The defendant contends that the plaintiffs are seeking relief for an overcharge but that overcharges are not actionable under RESPA § 8(b). Motion to Dismiss at 5 (citing Friedman v. Market Street Mortgage Corporation, 520 F.3d 1289, 1296 (11th Cir. 2008); Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 388 (3rd Cir. 2005); Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49, 56 (2nd Cir.2004); Haug v. Bank of America, 317 F.3d 832, 837 (8th Cir.2003); Krzalic v. Republic Title Company, 314 F.3d 875, 881-82 (7th Cir.2002), cert. denied, 539 U.S. 958, 123 S. Ct. 2641, 156 L. Ed. 2d 656 (2003); Boulware v. Crossland Mortgage Corporation, 291 F.3d 261, 265 (4th Cir.2002)). These cases hold that § 8(b) of RESPA "is not a price control provision." Friedman, 520 F.3d at 1296. They conclude, as a result, that § 8(b) provides no relief to plaintiffs who claim that their title company charged too much for the services rendered. These courts have reached this conclusion based on the language of § 8(b), which states, "No person shall give and no person shall accept ... any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed." 12 U.S.C. § 2607(b) (emphasis added). These courts all agree that plaintiffs such as Williams-Thompson cannot recover for an overcharge of services actually performed. Although the Fifth Circuit has not yet addressed this issue, the court finds the cases cited above persuasive and agrees that RESPA § 8(b) was not intended to be a price control provision.
Here, however, the plaintiffs have pled that the defendant charged a fee it did not earn, and then split that fee with the title agent, who had performed no *747 services in connection with that fee. Plaintiffs' Original Complaint at 6. According to a recent decision in the Northern District of Texas, RESPA § 8(b) provides relief in such a situation. Mims v. Stewart Title Guaranty Company, 521 F. Supp. 2d 568, 572 (N.D.Tex.2007). In Mims, the court was faced with facts nearly identical to those at issue here. The plaintiffs in Mims filed suit against their title insurance company after discovering that the insurer had failed to give them the mandatory reissue discount and split the resulting profits with the title agents. Id. at 570. The defendant filed a motion to dismiss, arguing that RESPA did not provide relief for such a claim. Id. at 571-72. The court disagreed. It conceded that "excessive premiums, standing alone, do not violate section 8(b)." Id. at 572. It also held that merely because the insurance company "paid a portion of the excessive premiums to title agents does not transform the overcharges into violations." Id. Nevertheless, if the portion accepted by the title agents was "other than `for services actually performed,' such that the portion would be in the nature of a kickback or referral fee," § 8(b) does provide relief. Id. In other words, so long as the court can determine that the title agent was receiving the money as a kickback or referral and not as compensation for any services actually performed, RESPA applies.
When the holding of Mims is applied to this case, if the defendant automatically gave a portion of an unearned fee to the title agent, who had performed no services in connection with that fee, the plaintiffs have stated a claim upon which relief can be granted. The plaintiffs have pled exactly these facts. Plaintiffs' Brief in Opposition to Defendant's Motion to Dismiss ("Response") at 4. Nevertheless, the defendant argues that Mims' holding does not apply to this case for three reasons.
1. Defendant's First Argument: Texas Law Requires a Split of Fees between Title Insurance Companies and Title Agents
First, the defendant argues that the court in Mims did not take into account "the fact that state law requires First American (and other underwriters) to split title premiums with its agents." Motion to Dismiss at 14. It is true that Texas does require a split of premiums between title insurance companies and their agents. Texas Title Insurance 2d Appendix 1A, Section IV P-23. The plaintiffs correctly point out, however, that requiring a split of the premiums does not equate to requiring the split of an unearned charge. Response at 22. As the plaintiffs put it, the defendant has cited no authority "to support its assertion that the Texas Legislature or Texas Department of Insurance intendedmuch less mandatedthe split of a fee that is itself expressly prohibited by Federal and Texas law." Id. (emphasis in original). The court agrees. Texas's rule that title insurance companies must split premiums with their agents cannot protect the defendant from liability for splitting a fee he received in violation of Texas and federal law. REPA specifically forbids splitting "any charge made or received for the rendering of a real estate settlement service ... other than for services actually performed." 12 U.S.C. § 2607(c). "One basic principle of statutory construction is that where two statutes appear to conflict, the statute addressing the relevant matter in more specific terms governs." Goswami v. American Collections Enterprise, Inc., 395 F.3d 225, 227 n. 4 (5th Cir.2004), cert. denied, 546 U.S. 811, 126 S. Ct. 331, 163 L. Ed. 2d 44 (2005). In light of this principle, the Texas law requiring Texas title insurance companies to split premiums with their agents does not protect defendants *748 who engage in the behavior prohibited by § 8(b).
2. Defendant's Second Argument: The Application of RESPA § 8(c)
Next, the defendant argues that the court should not follow the reasoning in Mims because the court in Mims incorrectly applied § 8(c) of RESPA. Motion to Dismiss at 14. Section 8(c) states that "Nothing in this section shall be construed as prohibiting (1) the payment of a fee ... by a title company to its duly appointed agent for services actually performed in the issuance of a policy of title insurance." The defendant argues that this language amounts to an "exemption for splits between a title company and its agents." Motion to Dismiss at 12. Section 8(c), however, includes the same language included in § 8(b): "for services actually performed." Section 8(b) expressly forbids a title insurance company from splitting a fee with its agent if the agent has performed no services in connection with that fee. Section 8(c) merely reiterates that, so long as the title agent actually performs services, the title insurance company is free to split its fees with the title agent. The defendant's argument otherwise is unavailing.
3. Defendant's Third Argument: The Definition of "Services Actually Performed"
Finally, the defendant argues that Mims incorrectly defines the phrase "services actually performed." Motion to Dismiss at 14. In Mims, the court addressed § 8(c) by looking at the Fifth Circuit's interpretation of "services actually performed." Mims, 521 F.Supp.2d at 573. According to the test laid out by the Fifth Circuit, a payment is for services actually performed if the title agents "provided goods or services in connection with the particular transaction ... and compensation is reasonably related to the value of those goods or services." O'Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 741 (5th Cir.2003). The court in Mims reasoned that, if the title agents were, as the plaintiffs alleged, being paid portions of excess premiums, "it is certainly plausible that the portions were not reasonably related to the value of the agents' issuing services." Mims, 521 F.Supp.2d at 573.
The defendant argues that this conclusion is erroneous because the fee paid by a consumer such as Williams-Thompson must be reasonably related to the value of the agents' services. It reasons that consumers pay the basic rate for a lender's policy of title insurance, which is fixed by the TDI. Motion to Dismiss at 15. Any rate fixed by the TDI, the defendant argues, "must, by definition, be reasonably related to the value of a lender's policy of title insurance, or the TDI would not have approved that rate." Id. The court disagrees. Although Williams-Thompson does allege she paid the basic rate as fixed by the TDI, she also alleges that she did not receive the reissue discount mandated by the TDI. Thus, the rate she paid is not per se reasonably related to the value of the agents' services.
In short, the court is persuaded by the reasoning in Mims and finds the defendant's attempt to distinguish it unconvincing. The plaintiffs have pled that the defendant split a fee with its agent that was not reasonably related to any services it performs. This court agrees with the holding in Mims that if the fees the title agents received were in violation of TDI's mandated reissue discounts, "it is certainly plausible" that the fees were not reasonably related to any services performed. Mims, 521 F.Supp.2d at 573.
In addition, Mims is not alone. Two other district courts in the Northern District of Texas have addressed almost the *749 exact fact pattern at issue here. Patino v. Lawyers Title Insurance Corporation, 2007 WL 4687748 (N.D. Tex. Jan. 11, 2007); Hancock v. Chicago Title Insurance Company, 2008 WL 4344620 (N.D.Tex. Sept. 23, 2008). In both Patino and Hancock, the plaintiffs asserted claims against title insurance companies, contending that those companies failed to give the plaintiffs the reissue discount to which they were entitled, and had passed on a portion of the unearned fee to the title agent. Patino, 2007 WL 4687748, at *1-2; Hancock, 2008 U.S. Dist. LEXIS 8621, at *1-4. The defendants in each case brought motions to dismiss, arguing that the plaintiffs had failed to state a claim upon which relief could be granted. Both courts addressed the numerous cases discussing that RESPA does not allow plaintiffs to recover for "overcharges." Patino, 2007 WL 4687748, at *3-5, Hancock, 2008 U.S. Dist. LEXIS 8621, at *9-17. Ultimately, both courts denied the motions to dismiss. Patino, 2007 WL 4687748, at *7, Hancock, 2008 U.S. Dist. LEXIS 8621, at *17.
There is only one final issue for the court to address: recently, the Eleventh Circuit issued three cases disagreeing with Mims, Hancock, and Patino. Motion to Dismiss at 5. The defendant argues the court should follow these cases and dismiss the plaintiffs' claim. On July 3, 2008, the Eleventh Circuit issued three per curiam opinions. Morrisette v. Novastar Home Mortgage, Inc., 2008 WL 2610550 (11th Cir. July 3, 2008); Williams v. Countrywide Home Loans, Inc., 2008 WL 2609339 (11th Cir. July 3, 2008); Moody v. Commonwealth Land Title Insurance Company, 284 Fed.Appx. 735 (11th Cir.2008). All three of these cases hold that, because RESPA § 8(b) is not a price control provision, plaintiffs who plead that their title insurance company violated § 8(b) by charging more than Alabama law allowed, do not state a claim upon which relief can be granted. Id.
These opinions do appear to contradict Mims, Hancock, and Patino. All of them rely, however, on reasoning that the Fifth Circuit has explicitly disagreed with. All three Eleventh Circuit cases rely on Friedman, which holds that a plaintiff cannot recover under § 8(b) from a title insurance company who charges a fee that is "excessive in relation to services or goods actually rendered." Friedman, 520 F.3d at 1296. This holding stems from the court's conclusion that § 8(b) "is not, a price control provision." Id. The Fifth Circuit has not yet weighed in on whether § 8(b) is a price control provision. Even if it does someday hold that § 8(b) was not designed to control prices, such a holding will not necessarily lead that court to conclude that § 8(b) is inapplicable merely because the defendant has performed some service. Indeed, the Fifth Circuit has already held that it does not adhere to that principle. Instead, it uses the reasonable relationship test. O'Sullivan, 319 F.3d at 740-41. According to this test, if the services rendered by a title insurance company are not "reasonably related to the undisputed services" provided, the defendant may be liable under § 8(b). Id. at 741.
Thus, the recent Eleventh Circuit opinions the defendant relies on are not only not controlling, they directly contradict Fifth Circuit law. In applying the reasonable relationship test, the court concludes that if, as Williams-Thompson pleads, the defendant charged a fee in violation of state law, it is "certainly plausible" that such a fee was not reasonably related to the services provided. Mims, 521 F.Supp.2d at 573. As the plaintiffs put it, Texas law required the defendant and its agent to charge Williams-Thompson a specific amount of money for its services. *750 Response at 4. Any money received in excess of that amount cannot possibly be reasonably related to services actually rendered. Id. In other words, the court finds that the reasonable relationship test is easily passed here. The Eleventh Circuit cases the defendant refers to are neither controlling, nor convincing, and do not affect the court's holding.
III. CONCLUSION
For the reasons discussed above, the defendant's motion to, dismiss pursuant to Rule 12(b)(6) is DENIED.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575707/ | 743 N.W.2d 865 (2007)
In the Interest of A.S., Minor Child,
D.S., Father, Appellant.
No. 07-1710.
Court of Appeals of Iowa.
December 12, 2007.
*866 Jesse A. Macro, Jr., Des Moines, for appellant father.
Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John P. Sarcone, County Attorney, and Michelle Chenoweth, Assistant County Attorney, for appellee State.
Cathleen Siebrecht, Des Moines, for appellee mother.
Rathael Seymour, Juvenile Public Defender, Des Moines, guardian ad litem for minor child.
Considered by VOGEL, P.J., and MAHAN and ZIMMER, JJ.
VOGEL, P.J.
A father appeals from the order terminating his parental rights to a son. We affirm.
*867 I. Background Facts and Proceedings.
David and Gail are the parents of A.S., who was born in December of 2006. In the months preceding A.S.'s birth, the parents had their parental rights with respect to five other children terminated.[1] These terminations were brought on by the parents' mental health issues, resulting in sexual abuse, and extreme physical abuse of the children. Thus, the Iowa Department of Human Services (DHS) was involved immediately when A.S. was born. An order of temporary removal was filed on January 16, 2007, and A.S. was placed in foster care. A petition alleging A.S. to be a child in need of assistance (CINA) was filed the following day, and on February 7, 2007, A.S. was adjudicated as CINA under Iowa Code sections 232.2(6)(b) and (c)(2) (2007). After the parents failed to make sufficient progress to safely parent A.S., the State filed a petition seeking to terminate David's and Gail's parental rights. Following an August 2007 hearing, the court granted the State's request. It terminated David's rights under sections 232.116(1)(d), (g), and (h). Gail consented to the termination of her rights. Only David has appealed from this order.
II. Scope and Standards of Review.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). While the district court terminated the parental rights on more than one statutory ground, we will affirm if at least one ground has been proved by clear and convincing evidence. In re R.R.K, 544 N.W.2d 274, 276 (Iowa Ct.App.1995). Our primary concern in termination proceedings is the best interests of the child. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981).
III. Claims. on Appeal.
David first contends that the district court erred in determining the State established the grounds for termination under any of the sections alleged in the termination petition. Second, he asserts the termination was not in A.S.'s best interests. Third, he argues the court erroneously admitted certain evidence. Finally, he contends the State did not make reasonable efforts geared toward reunification, in particular, increased visitation.
A. Grounds for Termination.
Upon our de novo review of the record, we concur in the district court's determination that David's parental rights should be terminated under section 232.116(1)(d), which requires proof that the child has been adjudicated CINA, the court previously adjudicated another child in the same family, the parent has been offered services to correct the situation leading to the adjudication, and the circumstances continue in spite of those services. The primary danger presented to A.S. was David's ongoing contact with Gail, who has historically physically, sexually, and emotionally abused her children. However, David is not without fault as he participated in some of this abuse, and stood by while Gail perpetrated other acts of abuse.
While David claims to be leading a life apart from Gail, the evidence did not bear this out. A DHS worker reported David and Gail considered their separation as a "divorce of convenience" to pave the way for David to regain custody of A.S. As the juvenile court aptly noted, "David's argument [against termination] hinges on the necessity that he convince me his plan to protect A.S. from his mother by divorcing *868 herds real." The transparency of the couples' separation was noted by the court in its conclusion "that David has no intention of really separating from Gail." Like the juvenile court, we believe the evidence is clear David is having and will continue to have substantial contact with Gail. If A.S. were in David's care, any contact at all with Gail in the future would have a high likelihood of placing A.S. in physical danger. David's testimony as to his claimed separation from Gail was found to be highly suspect and simply incredible by the juvenile court. We defer to this quite specific and strong adverse credibility finding. In re L.L., 459 N.W.2d 489, 493 (Iowa 1990).
B. Best Interests.
We also find the termination of David's parental rights is in A.S.'s best interests. David is not able to separate himself from the woman who contributed to the termination of his parental rights to" other children, and who seriously abused her own children. Despite years of services, it is apparent David is unable to place the interests of his child above his interest in continuing his relationship with Gail. Moreover, A.S. is in need of a safe and nurturing home. It appears that his foster home, where he has lived since removal, is providing him just that.
C. Admissibility of Phone Records.
At trial, David testified generally as to his very limited contact with Gail following their purported separation. The guardian ad litem later presented impeachment evidence of David's cell phone records, which reflected his contact with Gail was much greater than David had claimed earlier in his testimony. David asserts that because notice of the subpoenaed phone records was not served on him, the records should have been excluded from trial. Iowa Rule of Civil Procedure 1.1701(6) provides in part:
Prior notice of any commanded production of documents shall be served on each party . . . in a manner reasonably calculated to give all parties an opportunity to object before the commanded production or inspection is to occur.
Our Iowa Rules of Civil Procedure do not automatically apply to juvenile proceedings. In re A.G., 558 N.W.2d 400, 402 (Iowa 1997) (citing In re J.R., 315 N.W.2d 750, 752 (Iowa 1982)). Under Iowa Code chapter 232, Division IV, pertaining to termination of parental rights (sections 232.104 through 232.120), there is no mention of evidentiary rules to be followed. However, our case law has long held that juvenile proceedings should be conducted in an informal manner. In Henderson, which involved a combined dependency and delinquency proceeding under the 1972 Code, the court noted that juvenile proceedings are to be conducted so as "to provide an informal, efficient hearing with regard to the allegations of the petition." In re Henderson, 199 N.W.2d 111, 116, 120 (Iowa 1972); see also, In re Hewitt, 272 N.W.2d 852, 859 (Iowa 1978) (holding that a rule relating to special appearances for purposes of challenging jurisdiction is inapplicable to such proceeding);compare In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (holding same rule applies to CINA proceedings) and In re A.R., 316 N.W.2d 887, 889 (Iowa 1982) (holding former rule 179(b), now 1.904(2), applies to juvenile court termination proceedings).
Under 232.99(2) relating to dispositional hearings, "all relevant and material evidence shall be admitted." Permanency hearings under 232.104(1)(c) are to be similarly conducted. Iowa's court rules also appear to express this sentiment for informality. Iowa Court rule 8.1 expresses a *869 desire for "full and free" discovery in juvenile proceedings in order to protect the rights of all parties and effectuate the goals of the juvenile justice system. Rule 8.3 additionally states a preference for "in formal discovery methods."
However, set against that backdrop of informality, wise policy still suggests that certain rules of procedure and evidence should be adhered to for the orderly and fair administration of CINA and termination proceedings. Iowa Code section 232.96(3), the CINA adjudicatory section, provides that "[o]nly evidence which is admissible under the rules of evidence applicable to the trial of civil cases shall be admitted, except as otherwise provided by this section." In addition, rule 8.3 provides that Iowa Rules of Civil Procedure, divisions V (Discovery and Inspection) and VII (Depositions and Perpetuating Testimony), "shall apply" to CINA and termination proceedings. Rule 1.1701(6), regarding subpoenas, resides in division XVII of the Iowa Rules of Civil Procedure, and thus is not expressly made applicable to juvenile proceedings by Iowa Court Rule 8.3. Nonetheless, subpoena power under rule 1.1701, as an instrument of discovery, should be followed in CINA and termination proceedings. Rule 1.1701 gives the parties not only the power to obtain information but also remedies, should the request be unreasonable or burdensome. Rule 1.1701(2). Fundamental fairness as well as the orderly and fair administration of justice dictates that noncompliance should result in the inadmissibility of the evidence obtained thereby.
However, even the erroneous admission of this evidence will not result in reversal unless it is prejudicial. Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 183 (Iowa 2004). Surveillance of David's home provided the district court with essentially the same information as the cell phone records. The district court found:
Surveillance arranged for by the child's guardian ad litem establishes unequivocally that David's testimony about the, amount of time he and Gail spent together after separating their households was false. . . . [E]ven if I do not consider the cell phone records I reach the same result. By the end of his direct and cross examination the quality of David's testimony convinced me that he was not credible. . . . It was so inconsistent with itself that it did not deserve serious consideration.
Given that substantial other evidence of David and Gail's apparent continuing relationship was already in the record, we find David did not suffer any prejudice from the erroneously admitted cell phone records. See, e.g., State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (holding no prejudice would be found due to erroneously admitted hearsay where it was merely cumulative).
D. Adequacy of Services.
Finally, we reject David's contention he was not offered, reasonable services when he was denied the opportunity to have increased visitation with A.S. DHS rejected David's requests due to his ongoing contact with Gail, and their concern for A.S.'s safety. Any further unsupervised visitation may well have led to contact between A.S. and Gail, thus setting the stage for more abuse. This concern, fully justified by the past conduct of Gail as well as David, reasonably informed DHS's decision in not granting David increased visitation. As the district court concluded, David was offered a plethora of services in order to "grow into [his] responsibilities," yet he failed to do so. We affirm the termination of David's parental rights.
AFFIRMED.
NOTES
[1] These five children included three of Gail's daughters from previous relationships, David's son from a previous marriage, and a son born to the couple. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576116/ | 743 N.W.2d 273 (2007)
Raymond L. SEMLER, Appellant,
v.
Erick KLANG, Crow Wing County Sheriff, Respondent,
Rick Koop, Chief Investigator for Crosby Police Department, et al., Respondents.
No. A06-1852.
Court of Appeals of Minnesota.
December 18, 2007.
*275 Raymond L. Semler, Moose Lake, MN, pro se.
Kristy A. Saum, James R. Andreen, Erstad & Riemer, P.A., Minneapolis, MN, for respondent Erick Klang.
Jon K. Iverson, Jason M. Hiveley, Iverson Reuvers, LLC, Bloomington, MN, for respondents Rick Koop, John A. Bolduc, and Kyle Huber.
Considered and decided by TOUSSAINT, Chief Judge; LANSING, Judge; and HUSPENI, Judge.
OPINION
HUSPENI, Judge.[*]
Respondents Kyle Huber (the Staples police chief), Rick Koop (the Crosby police department chief investigator), John Bolduc (the Brainerd police chief), and Erick Klang (the Crow Wing county sheriff), acting under Minn.Stat. § 244.052 (2000) and Minn.Stat. § 244.052 (2002), notified communities about the presence of appellant Raymond Semler, a risk level II sex offender. Appellant brought this action against them, alleging that the community notifications violated his rights and constituted slander and defamation. The claims against Huber, Koop, and Bolduc were dismissed on the ground of official immunity, and the claims against Klang were dismissed on the grounds of improper service and expiration of the statute of limitations. Appellant challenges the dismissals.
FACTS
Appellant Raymond Semler was born in January 1976. In 1989, he assaulted a 14-year-old girl, but no conviction resulted. In 1993, he assaulted and raped a 17-year-old girl, but again, no conviction resulted. In 1997, he was convicted of criminal sexual conduct in the fourth degree and of kidnapping after assaulting an adult woman. He was placed on probation. In July 2000, his probation was revoked and he was confined to the correctional facility at Moose Lake.
Prior to appellant's release, the end-of-confinement review committee (ECRC) categorized him as a risk level II sex offender. Appellant's risk assessment report said he "has a definite pattern of harassing females" and that "the juvenile *276 investigations occurred but there were no charges or convictions."
Appellant was released on December 31, 2001. In January 2002, the Deerwood Police Department notified the public of appellant's release. The notice stated that appellant "has a history of forced sexual contact with females (ranging in age from 14 to adult). The contact includes fondling and penetration. The offender uses physical force to gain compliance. The offender was unknown to the victims." The Deerwood police department again provided this notice to the public in December 2002, when appellant was released after having been incarcerated following the August 2002 revocation of his probation. The Crow Wing county sheriff's department provided the same notice to the public in June 2003, when appellant was released after having been incarcerated in February 2003, following another probation revocation. The Brainerd police department provided the notice to the public when appellant changed his address in July 2003, and the Staples police department provided it when he again changed his address in August 2003.[1]
In November 2005, acting pro se, appellant brought this action against respondents, alleging that the community notification violated his rights and constituted slander and defamation.
The district court dismissed appellant's claims against Huber, Koop, and Bolduc after determining that they "erred in disclosing information `inconsistent with offender's conviction history'" under Minn. Stat. § 244.052 subd. 7(c) (2006), but that they were entitled to official immunity because they "did not engage in willful or malicious disclosures to injure [appellant's] reputation," and "disclosed that information, which in their discretion, allowed them to protect the public." The district court subsequently dismissed appellant's claims against Klang after determining that appellant had failed to serve Klang, and that the statute of limitations had run on all claims made by appellant against Klang. Appellant now challenges dismissal of all claims.
ISSUES
1. Does Minn.Stat. § 244.052, subd. 7(c) (2006), preclude official immunity for officers who disclose information about a sex offender that is not "consistent with the offender's conviction history?"
2. Does Minn.Stat. § 541.06 (2006) apply to police officers?
3. Does unacknowledged service by mail confer jurisdiction?
4. Does Minn.Stat. § 541.06 preclude an action against a sheriff if more than three years have passed since the act complained of?
ANALYSIS
1. Official immunity of respondents Huber, Koop, and Bolduc
The application of official immunity is a question of law, which we review de novo. Thompson v. City of Minneapolis, 707 N.W.2d 669, 673 (Minn.2006).
Appellant was a risk level II sex offender. He alleges that Koop's offense occurred prior to December 31, 2001, and that Bolduc's and Huber's offenses occurred *277 in July 2003 and August 2003, respectively. At these times, disclosure to the public of information on sex offenders of various risk levels was governed by Minn.Stat. § 244.052 (2000) and Minn.Stat. § 244.052 (2002).[2] Understanding the relevant subdivisions in their context requires a comprehensive review of the statute.
Subdivision 1(2) defines "law enforcement agency" as "the law enforcement agency having primary jurisdiction over the location where the offender expects to reside upon release." Subdivision 2 directs the commissioner of corrections to "develop a risk assessment scale" that "specifies the risk level to which offenders with various risk assessment scores shall be assigned."
Subdivision 3(a) provides for the establishment of an "end-of-confinement review committee" at each state correctional facility. Subdivision 3(c) provides that the committee shall have access to an offender's private medical data, private and confidential court services data, private and confidential corrections data, and private criminal history data, and also that data collected and maintained by the committee may not be disclosed outside the committee. Subdivision 3(e) provides that a sex offenders whose risk assessment score indicates a low risk of reoffense shall be assigned to level I; those whose score indicates a moderate risk shall be assigned to level II, and those whose score indicates a high risk shall be assigned to level III. Subdivision 3(f) provides that, before an offender's release, the committee "shall prepare a risk assessment report[3] which specifies the risk level to which the offender has been assigned and the reasons underlying the committee's risk assessment decision" and "shall give the report to the offender and to the law enforcement agency at least 60 days before an offender is released from confinement."
Subdivision 4 provides in relevant part:
(a) The law enforcement agency in the area where the sex offender resides, expects to reside, is employed, or is regularly found, shall disclose to the public any information regarding the offender contained in [the risk assessment] report . . . that is relevant and necessary to protect the public and to counteract the offender's dangerousness, consistent with the guidelines in paragraph (b). The extent of the information disclosed and the community to whom disclosure is made must relate to the level of danger posed by the offender, to the offender's pattern of offending behavior, and to the need of community members for information to enhance their individual and collective safety.
(b) The law enforcement agency shall employ the following guidelines in determining the scope of disclosure made under this subdivision:
(1) if the offender is assigned to risk level I, the agency may maintain information regarding the offender within the agency and may disclose it to other law enforcement agencies. . . . ;
(2) if the offender is assigned to risk level II, the agency also may disclose the information to agencies and groups that the offender is likely to encounter for the purpose of securing those institutions *278 and protecting individuals in their care while they are on or near the premises of the institution. . . . The agency also may disclose the information to individuals the agency believes are likely to be victimized by the offender. The agency's belief shall be based on the offender's pattern of offending or victim preference as documented in the information provided by the department of corrections or human services;
(3) if the offender is assigned to risk level III, the agency shall disclose the information to the persons and entities described in clauses (1) and (2) and to other members of the community whom the offender is likely to encounter, unless the law enforcement agency determines that public safety would be compromised by the disclosure or that a more limited disclosure is necessary to protect the identity of the victim.
Subdivision 4(c) defines those an offender is "likely to encounter" as those in, or in close proximity to, a location where the offender lives or is employed or which the offender is likely to visit on a regular basis. Subdivision 4(d) provides that a law enforcement agency or official who discloses information "shall make a good faith effort to make the notification within 14 days of receipt of a confirmed address." Subdivision 5 provides that the law enforcement agency where an offender plans to reside is to be given all relevant information concerning the offender, including information on risk factors in the offender's history and the risk level to which the offender was assigned, by the appropriate department (corrections or human services) within five days of the department's receipt of the offender's approved release plan.
Finally, subdivision 7 provides that no criminal liability will attach for either disclosing or failing to disclose information as permitted by this section, that no civil liability will attach for failing to disclose such information, and that no civil liability will attach for disclosing "information that is consistent with the offender's conviction history." Subdivision 7 also provides that this immunity does not extend to disclosure of information relating to conduct for which the offender was not convicted.
The district court found that Huber, Koop, and Bolduc had disclosed information relating to conduct for which appellant was not convicted, and we agree that the statutory immunity provided by subdivision 7 is not available to these respondents. But we also agree with the district court that official immunity is available to them.
"A public official is not protected by [official] immunity in the performance of his duties when he fails to perform a ministerial act, or when his performance of a discretionary act is willful or malicious." Thompson, 707 N.W.2d at 673. Thus, the first question before us is whether the conduct of Huber, Koop, and Bolduc was ministerial or discretionary. If it was discretionary, the second question becomes whether they acted willfully or maliciously.
A discretionary act requires the exercise of individual judgment in carrying out duties, while a ministerial act involves merely the execution of a specific duty arising from fixed and designated facts. Id. The language of Minn.Stat. § 244.052 both presupposes and requires that law enforcement officials use their individual judgment. Subdivision 4(b) provides "guidelines" to assist law enforcement officials "in determining the scope of disclosure." Subdivision 4(b)(1) and (2) provide that an agency "may" disclose information about risk level I and risk level II offenders, while subdivision 4(b)(3) provides that the agency "shall" disclose information *279 "unless [it] determines that public safety would be compromised" by the disclosure. In construing statutes, "may" is permissive and "shall" is mandatory. Minn.Stat. § 645.44, subds. 15, 16 (2006). At no point does Minn.Stat. § 244.052 either mandate or forbid disclosure without reference to the disclosers' judgment as to what to disclose and to whom to disclose it. Thus, disclosure of information under Minn.Stat. § 244.052 is a discretionary act.
The subdivision 7 provision of immunity from civil liability for all failures to disclose but only for disclosures of information consistent with an offender's conviction history is consistent with the requirement that even discretionary acts must be performed without malice for official immunity to attach. See Thompson, 707 N.W.2d at 673 (public official not protected by official immunity when performance of discretionary act is willful or malicious). While a public official's decision to disclose information other than what is consistent with an offender's conviction history could be willful or malicious, and would therefore not be entitled to official immunity, clearly such is not demonstrated here.
Mere allegations of malice are not sufficient to support a finding of malice, as such a finding must be based on "specific facts evidencing bad faith." Reuter v. City of New Hope, 449 N.W.2d 745, 751 (Minn. App.1990), review denied (Minn. Feb. 28, 1990). Nothing in the record indicates that the motive of Huber, Koop, and Bolduc were the bad-faith deprecation of appellant rather than their attempt to follow statutory mandates and guidelines and to protect individuals in the areas where appellant was residing. The notice about appellant referred to forced sexual conduct with females "ranging in age from 14 to adult" and appellant's only conviction resulted from an incident with an adult. But appellant's risk-assessment report said he "has a definite pattern of harassing females" and that "the juvenile investigations occurred but there were no charges or convictions." Minn.Stat. § 244.052, subd 4(a), provides for disclosure of information in the risk-assessment report. Minn.Stat. § 244.052, subd. 4(b)(2), provides that, for risk level II offenders, "[t]he agency also may disclose the information to individuals the agency believes are likely to be victimized by the offender. The agency's belief shall be based on the offender's pattern of offending or victim preference as documented in the information provided by the department of corrections or human services."
Although the disclosures of Huber, Koop, and Bolduc may have deprived them of the protections of subdivision 7, the district court properly continued its analysis by considering the application of official immunity to the challenged actions. We conclude, as did the district court, that Huber, Koop, and Bolduc acted in a manner intended to comply with the statute, and that they were entitled to official immunity.[4]
2. Statute of limitations for Huber, Koop, and Bolduc[5]
In November 2005, appellant filed his complaint alleging that Koop committed slander and defamation prior to *280 December 31, 2001, that Bolduc did so in July 2003, and that Huber did so in August 2003. Minn.Stat. § 541.07(1) (2004) provides that actions for these torts shall be commenced within two years. Appellant relies on Minn.Stat. § 541.06 (2004), which provides that actions against "a sheriff, coroner, or constable for any act done in an official capacity" shall be commenced within three years. But Minn.Stat. § 541.06 does not mention "police officer," and "this court cannot add language that is not present in the statute or supply what the legislature purposely omits or inadvertently overlooks." Roer v. Dunham, 682 N.W.2d 179, 181 (Minn.App.2004).
Appellant argues that "constable" means "police officer" but offers no support for this argument. Moreover, the legislature's practice has been to use both terms. See, e.g., Minn.Stat. § 169A.03, subd. 18 (2004) (defining "peace officer" to include both "a constable" and a "police officer of any municipality"); Minn.Stat. § 631.04 (2004) ("A police officer, constable, sheriff, or other officer in charge of a court. . . ."). Thus, the terms are not synonymous. The three-year limitation of Minn.Stat. § 541.06 (2004) does not apply to police officers and appellant's claims are barred by the two-year limitation of Minn.Stat. § 541.07(1).[6]
3. Service on Klang
This court reviews, de novo whether service of process was proper. Amdahl v. Stonewall Ins. Co., 484 N.W.2d 811, 814 (Minn.App.1992), review denied (Minn. July 16, 1992). Appellant chose to serve Klang by mail, which is governed by Minn. R. Civ. P. 4.05:
In any action service may be made by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgement conforming substantially to Form 22 and a return envelope, postage prepaid, addressed to the sender. If acknowledgment of service under this rule is not received by the sender within the time defendant is required by these rules to serve an answer, service shall be ineffectual.
It is undisputed that appellant mailed Klang a copy of the complaint and other documents twiceonce on October 13, 2005 and once on June 15, 2006and that Klang never acknowledged service. Service, therefore, was ineffective, and the district court properly dismissed the claims against Klang because it had no jurisdiction over him. See Mercer v. Andersen, 715 N.W.2d 114, 118 (Minn.App. 2006) ("Ineffective service of a defendant results in a lack of personal jurisdiction.").
4. Statute of limitations for Klang
The construction and application of a statute of limitations are questions of law, which this court reviews de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).
Minn.Stat. § 541.06 provides that an action against a sheriff for an act performed in an official capacity must be brought within three years. Appellant claimed that the sheriff's actions of which he complained occurred on January 7, 2002, and June 23, 2003. The district court determined on September 22, 2006, that neither of appellant's attempts to serve Klang had been effective. Because *281 more than three years had elapsed since the acts complained of occurred, the district court did not err in dismissing with prejudice the claims against Klang on the ground that the statute of limitations had run.
DECISION
Because Huber, Koop, and Bolduc were entitled to official immunity for their good-faith notification of communities about appellant, and because the relevant statute of limitations had run when appellant brought his claims against them, we affirm the dismissal of those claims. Because Klang was never properly served and the relevant statute of limitations had run, we affirm the dismissal of the claims against him.
Affirmed.
NOTES
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[1] Appellant has since been indeterminately committed as a sexually dangerous person (SDP). See In re Civil Commitment of Semler, No. A06-2213, 2007 WL 969081, at *3 (Minn. App. Apr.3, 2007) (concluding that appellant "engaged in a course of harmful sexual conduct" and upholding his commitment as SDP), review denied (Minn. May 30, 2007). We note that appellant's motion to strike references to Semler from the record was denied in this court's order dated June 8, 2007.
[2] These statutes are identical in all parts relevant to this matter.
[3] After describing the offense for which appellant was found guilty, the risk assessment report also describes several incidents that did not result in conviction, including one in which appellant "was investigated for grabbing a 14-year old female and dragging her across a road toward a house." Appellant does not claim that the committee included any improper data in the risk assessment report.
[4] Because we conclude that Huber, Koop, and Bolduc were entitled to official immunity, we do not address their argument that they are entitled to absolute immunity.
[5] This issue was presented to, but not addressed by the district court, which dismissed the claims against Huber, Koop, and Bolduc on the ground of official immunity. We address it in the interest of completeness. See Minn. R. Civ.App. P. 103.04.
[6] Minn.Stat. § 541.06 (2006) has been revised to impose the three-year limitation on actions "against a sheriff or coroner." References to constables have been deleted from Minnesota statutes. See 2005 Minn. Laws ch. 10, art. 2, § 4, subd. 2, at 137 (directing revisor to eliminate references to the term "constable"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576120/ | 743 N.W.2d 730 (2007)
2007 WI App 265
Joe TYNAN, Plaintiff-Appellant
v.
JBVBB, LLC, a Wisconsin limited liability company, ABFM Corporation, a Wisconsin corporation, and ABQC Corporation, a Wisconsin corporation, Defendants-Respondents.
No. 2006AP2891.
Court of Appeals of Wisconsin.
Submitted on Briefs September 4, 2007.
Opinion Filed November 6, 2007.
*732 On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Lawrence Bensky and Amie B. Trupke of Stafford Rosenbaum, LLP, of Madison.
On behalf of the defendants-respondents, the cause was submitted on the brief of Joshua L. Gimbel and Amy Schmidt Jones of Michael Best & Friedrich, LLP, of Milwaukee.
Before CURLEY, P.J., WEDEMEYER and FINE, JJ.
¶ 1 WEDEMEYER, J.
Joe Tynan appeals from a judgment entered on his promissory estoppel claim in favor of defendants JBVBB, LLC, ABFM Corporation and ABQC Corporation. Tynan claims: (1) there was insufficient evidence to support the trial court's finding that regardless of whether the plaintiff had held out for a long-term employment contract, no contract would have come to fruition; (2) the trial court erred in precluding expectation damages in favor of reliance damages on the promissory estoppel claim; and (3) this court can determine his severance damages and remand for a determination of bonus damages and prejudgment interest. Because the trial court's finding that the parties would not have entered a formal contract regardless of whether Tynan had held out for one is not clearly erroneous, and because the trial court did not err in ruling that Tynan failed to prove he suffered any reliance damages for his promissory estoppel claim, we affirm the judgment.[1]
BACKGROUND
¶ 2 This case involves a dispute between the plaintiff, Tynan, and defendant JBVBB, LLC and its two subsidiaries, defendants ABFM Corporation and ABQC Corporation (collectively "the Company"). JBVBB provided oversight services to ABFM and ABQC, and was owned by Joel S. Lee, William R. Nimtz and Michael Wacker. In 1998 and 1999, ABFM, a sheet metal fabricating business, and ABQC, a metal plating and finishing business, were operating at substantial losses. Lee and Nimtz sought a business executive to turn the two subsidiaries around. Meanwhile, in the Spring of 1999, Tynan had terminated his employment with Lincoln Plating Company and had begun a job search that involved mailing out approximately 12,000 resumes. One such resume landed on the desk of one of the owners of JBVBB, and in late July 1999, Tynan began working as a consultant for the Company. Tynan was paid a consulting fee of $1500 per day, and worked on an average of nine days per month for the Company.
¶ 3 By October 1999, Tynan and the Company were negotiating a full-time employment contract. On October 7, 1999, Lee, who had the authority to make a binding contract on behalf of JBVBB, gave Tynan an initial written proposal. During that month, Lee and Tynan negotiated the terms of employment, both orally and via written correspondence. The parties could not agree on the terms of a long-term contract and continued to negotiate those terms.
¶ 4 While negotiation continued, Tynan started working full-time for JBVBB in November 1999, as the Group Vice President *733 for Affiliates without a long-term contract. Under the terms of an interim agreement, Tynan was being paid in excess of $200,000 per year, plus some, but not all of the benefits he was seeking in his long-term contract. Tynan and Lee had substantial differences as to the terms of certain bonuses that Tynan was seeking from JBVBB. The trial court determined that Tynan's and JBVBB's differences over the terms of the employment contract sought by Tynan were so substantial that no matter the timing of further negotiations, and regardless of whether Tynan had held out for a long-term employment contract before he came to work for the Company, no contract would have come to fruition.
¶ 5 JBVBB became dissatisfied with Tynan's performance in late January or early February of 2000, and by the summer of 2000, Tynan was working mainly on special projects for Lee and provided few services for the Company. Lee notified Tynan that he should leave the plant office and move to Lee's office downtown, where he could work on special projects and look for a new job. Lee indicated that Tynan would continue to be paid for ninety days under this arrangement. Tynan abided by Lee's instruction, moved offices, and continued working for JBVBB until October 31, 2000. On that date, Tynan received his last paycheck. After leaving JBVBB, Tynan took a position at Gates City Steel despite a significantly lower salary because the job was available immediately and it was located in his hometown. Furthermore, Tynan did not want to go through the stress of another job hunt, nor did he want to return to consulting.
¶ 6 On November 22, 2000, Tynan filed this lawsuit alleging breach of contract, breach of duty of good faith, promissory estoppel and misrepresentation. Subsequently, defendants JBVBB, ABFM Corporation and ABQC Corporation filed a motion to dismiss. The trial court denied the motion to dismiss the breach of contract, breach of duty of good faith and promissory estoppel claims, but dismissed the misrepresentation claim. On October 31, 2002, the trial court granted summary judgment to the defendants on the three remaining claims. Tynan appealed, and this court, in an unpublished opinion, reversed the judgment and remanded the cause for further proceedings, and affirmed the trial court's order dismissing the misrepresentation claim.
¶ 7 In a special verdict dated June 10, 2005, the jury did not find a contract existed, but did find that Tynan relied upon binding promises made by Lee about salary and health insurance benefit continuation, incentive bonuses and equity growth bonuses. The jury found that in late October 1999, Lee promised Tynan that if he came to work for JBVBB full time, he would be paid an incentive bonus and an equity growth bonus and that if his employment was terminated, he would be entitled to the continuation of his salary and benefits for a period following termination. The jury also found that in reliance upon Lee's promise, Tynan decided to go to work for JBVBB and move his family from Lincoln, Nebraska to Milwaukee. The defendants then moved for judgment notwithstanding the verdict and to change the jury's answers, which the trial court denied.
¶ 8 Approximately one month after the verdict was entered, the trial judge held a hearing to determine damages. At the hearing, Tynan alleged that if he had not relied upon Lee's promises, he would have pursued one of three other alternatives which would have paid him more money over time: (1) he might have held out for a long-term contract with JBVBB that would have included certain severance and health *734 benefit continuation provisions; or (2) he might have continued consulting for JBVBB and then looked for consulting work or employment elsewhere; or (3) he might have consulted for another company, MI Industries, until obtaining full-time employment there. On September 25, 2006, the trial court held that Tynan did not prove reliance damages under any of the above three scenarios, and ordered that judgment be entered in favor of the defendants. Tynan now appeals from this judgment.
DISCUSSION
¶ 9 This case arises from a judgment on a promissory estoppel claim in favor of the defendants. When reviewing a factual determination of a trial judge, an appellate court will not reverse unless the finding is clearly erroneous. WIS. STAT. § 805.17(2) (2005-06).[2] A discretionary act of the trial court will be upheld if it considered the facts of record under the proper legal standard and reasoned its way to a rational conclusion. See Mills v. Vilas County Bd. of Adjustments, 2003 WI App 66, ¶ 19, 261 Wis. 2d 598, 660 N.W.2d 705; Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). However, the application of case law to a set of facts presents questions of law, which we review de novo. Brown v. State, 230 Wis. 2d 355, 363-64, 602 N.W.2d 79 (Ct.App.1999).
A. Insufficient Evidence.
¶ 10 The first issue Tynan raises is whether there was sufficient evidence to support the trial court's finding that regardless of whether the plaintiff had held out for a long-term employment contract, no contract would have come to fruition.
¶ 11 The circuit court's findings of fact shall not be set aside unless clearly erroneous. WIS. STAT. § 805.17(2). In this case, the plaintiff admits that the circuit court's findings are not contrary to the facts of the case. Rather, Tynan is urging this court to adopt his own inference from the facts that the parties had mutually strong incentives in November 1999, to enter into a formal employment contract and would have entered into such a contract if Tynan had held out for one. The plaintiff cites several facts from the record to support this inference, but again the plaintiff admits that the circuit court's factual findings do not reject the proof of mutually strong incentives. As our supreme court has stated, "[w]hen more than one reasonable inference can be drawn from the credible evidence, the reviewing court must accept the inference drawn by the trier of fact." Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647 (1979). There is credible evidence in the record to support the inferences made by the trial court. Tynan strongly believed he had a right to expect a growth equity bonus, whether JBVBB was willing to confer it or not. The parties exchanged numerous terms sheets and contract drafts before, and after Tynan began full-time employment at JBVBB. Tynan even acknowledged to JBVBB in his parting correspondence on November 1, 2000, that the amount of the equity growth bonus was still in dispute. Therefore, under our standard of review, we are bound to the trial court's inference because it is reasonable. Accordingly, we affirm this portion of the judgment.
B. Promissory Estoppel.
¶ 12 Tynan's second contention is that the trial court erred in precluding expectation damages in favor of reliance damages on the promissory estoppel claim. Tynan argued his damages should be measured *735 by his expectation of what he would gain, i.e., the value of the benefits that were promised to him, whereas JBVBB argued that his damages should be measured by the detriment he suffered, if any, by relying on the promises. The trial court ruled that the damages awarded "should be only such as in the opinion of the court are necessary to prevent injustice." It then proceeded to analyze whether justice in this case required expectation or reliance damages, concluding that reliance damages, if any, was the appropriate remedy. We agree with the trial court's determination.
¶ 13 In order to prevail on a promissory estoppel claim, the claimant must satisfy three elements: "Was the promise one which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee? Did the promise induce such action or forbearance? Can injustice be avoided only by enforcement of the promise?" Hoffman v. Red Owl Stores, Inc., 26 Wis. 2d 683, 698, 133 N.W.2d 267 (1965). While the first two elements present issues of fact which will ordinarily be resolved by a jury, the third elementthat the remedy can only be invoked where necessary to avoid injustice is one that involves a policy decision by the court. Id. In this case, the jury found the first two elements of promissory estoppel were satisfied. According to the jury, Lee's promises about an incentive bonus, equity growth bonus, and continued salary and health benefits were ones which Lee reasonably should have expected to induce, and which did induce, Tynan to come to work for JBVBB as an employee instead of remaining as a consultant. Thus, the third element of promissory estoppel, "Can injustice be avoided only by enforcement of a promise?" was all that was left for the court to decide in this case. Id. In response to this policy question, the trial court ruled that because Tynan did not demonstrate a sufficient likelihood that he would have been better off either consulting or working for another company, his reliance was not detrimental to him; and in the absence of detrimental reliance, there is no injustice to be avoided. Although the injustice element of promissory estoppel necessarily embraces an element of discretion, U.S. Oil Co. v. Midwest Auto Care Servs., Inc., 150 Wis. 2d 80, 89, 440 N.W.2d 825 (Ct.App.1989), in light of this court's recent decision in Skebba v. Kasch, 2006 WI App 232, 297 Wis. 2d 401, 724 N.W.2d 408, we review this case de novo and conclude that the trial court did not err in limiting the promissory estoppel claim to reliance damages.
¶ 14 Skebba, which was decided a month after this case, clarified Hoffman's use of reliance as a measurement of damages for promissory estoppel. Hoffman was the first case in Wisconsin to adopt promissory estoppel. In considering damages for promissory estoppel, the Hoffman court held that "[e]nforcement of a promise does not necessarily mean Specific Performance. It does not necessarily mean Damages for breach. . . . In determining what justice requires, the court must remember all of its powers, derived from equity, law merchant, and other sources, as well as the common law." Id., 26 Wis.2d at 701-02, 133 N.W.2d 267 (citations, emphasis and quotations omitted). Skebba correctly interpreted the language in Hoffman to mean that "specific performance is neither precluded nor disfavored as a remedy for promissory estoppel; preventing injustice is the objective." Skebba, 297 Wis. 2d 401, ¶ 14, 724 N.W.2d 408. In order to "prevent injustice a court must be able to fashion a remedy that restores the promisee to where he or she would be if the promisor had fulfilled the promise." Id., ¶ 12. In Skebba, the plaintiff (Skebba) *736 turned down another job offer and stayed on as an employee of the defendant's (Kasch) financially troubled company, in reliance upon a promise that the defendant would pay him $250,000 if one of "three conditions occurred: (1) the company was sold; (2) Skebba was lawfully terminated; or (3) Skebba retired." Id., at ¶ 3. Upon the sale of the business, Kasch refused to pay the $250,000 he promised to Skebba and denied ever having made such an agreement. Id., ¶ 4. For six years Kasch was able to enjoy the fruits of Skebba's reliance, see id., ¶¶ 4, 12, but the trial court concluded that "because Skebba did not prove what he would have earned had he taken the job with the other company, he [can]not establish what he had lost by relying on Kasch's promise and, therefore, [has] not [proven] his damages." Id., ¶ 5. On appeal, this court concluded that the record compelled specific performance of the promise because otherwise the promisor would enjoy all the benefits of induced reliance while the promisee will be deprived of that which he was promised, with no other remedies available. Id., ¶ 13. "Skebba's loss has nothing to do with what he might have earned on another job. Income from the rejected job was never part of the calculus of the promise made and relied upon." Id., ¶ 14.
¶ 15 Tynan contends that the facts in his case are the same as those in Skebba, that Skebba controls the outcome of this case, and that the trial court erred in concluding that reliance damages, rather than expectation damages were appropriate in this case. We reject Tynan's contention. The facts in this case are distinguishable from the facts in Skebba. The trial court here expressly recognized that it could award either expectation damages (specific performance) or reliance damages, and that it had the discretion to determine "which method best fits the equities of a given case." In so doing, the trial court explained:
Coming to this understanding of the duality of the law of promissory estoppel damages has shifted my thinking about damages in this case. My initial reaction to Mr. Tynan's claim before I studied the cases was that he should be restricted to his reliance damages.
My belief at the time was that for systemic reasons allowing a plaintiff in a promissory estoppel action to claim expectation damages would erode the integrity of the contracting process. My feeling was that routinely permitting parties to enforce promises that did not ripen into a contract would weaken the discipline the law tries to impose on markets where contracts are negotiated.
In other words, if courts teach parties that they can get contract damages without touching all the contract bases, parties might grow more lax about making sure that they have touched all the right bases. As I mentioned above, the disputes that are bound to arise out of markets that are not well-disciplined by contract law are messier, they're harder on the parties, they are resource-consuming for the courts, and they introduce uncertainty rather than predictability in the markets and render them less efficient.
But having reviewed Hoffman and its progeny I have learned that discretion is conferred on me to consider both measures of damage and to consider which of the measures is more equitable in the circumstances of this dispute. To not consider one or the other for blanket philosophy reasons like those that occurred to me initially would constitute I believe an abuse of discretion.
The trial court went on to address the factors to consider in determining whether to award reliance or expectation damages:
*737 One factor that I consider is how clear the promises were. The clearer the promise, the fairer it seems to me it is to hold the promissor to the promise and enforce the expectations of the promisee.
As Mr. Tynan himself recognizes, the expectation measure of damages is not appropriate for quasi-contract claims that lack definiteness.
¶ 16 Here, the substantial promises Tynan seeks to enforce were not clear. These parties were unable to reach agreement as to substantial terms of a long-term contract. As a result, Tynan agreed to an interim contract, which did not include the expectation damages he sought at trial. The negotiations back and forth between the parties continued for months and as noted above, the trial court found the parties would never have reached an agreement on the long-term contract. The incentive bonus Tynan seeks is not clear and based on contingencies that were not satisfiedsuch as whether Tynan was still working for the Company at the end of the year. Further, to allow six months severance for less than a year of work on top of the benefit provided of three months pay while looking for another job appears unreasonable.
¶ 17 Another factor considered by the trial court was how long Tynan worked for the Company. The trial court noted that the length of time was murky, but found that by the end of Summer 2000, Tynan had been moved out of his original office, was no longer actively working in the position he took in November of 1999, and therefore was in effect terminated at the end of August 2000. The trial court reasoned: "Further, it seems to me that the longer an employee works for a company the more his or her expectations take root and vice versa."
¶ 18 In Skebba, the expectations were clear. If Skebba stayed with the company he would receive $250,000 when a triggering event occurred. In addition, Skebba worked for the company for six more years after negotiating the $250,000 bonus. Such is not the case here. The expectations were never specifically agreed upon and Tynan worked for the Company for less than one year. Moreover, as noted later in this opinion, Tynan's reliance was not detrimental.
¶ 19 The trial court also considered whether Lee and the Company engaged in any bad faith or other tortious activity, which would cause a reliance rather than expectation award to be unjust. There was no evidence of bad faith or otherwise tortious conduct by Lee or the Company. Although the trial court found Lee could have been more frank with Tynan, such was mitigated by Lee's "good will" of allowing Tynan an office to work out of with three months pay while looking for a new job.
¶ 20 After considering all the pertinent factors, the trial court concluded that reliance damages, rather than expectation damages, would be appropriate in this case. The trial court conducted an evidentiary hearing to afford Tynan an opportunity to prove any reliance damages he suffered. As noted, at the hearing, Tynan failed to prove he suffered any reliance damages. As the trial court stated in its order following the damage hearing:
If Mr. Tynan could show to a reasonable degree of certainty that he would have pursued some particular other employment and have been better for it, then JBVBB should pay him the difference, as a consequence of having made the promises on which Mr. Tynan relied. However, if a superior alternative did not exist, or if the superiority of the alternative cannot be proven with reasonable *738 certainty, then it cannot be said that Mr. Tynan suffered for choosing the path that led to JBVBB.
. . . Despite considerable reflection, I cannot discern with certainty from the evidence before me what path Mr. Tynan would have chosen, or whether he would have been better off. Long have I stood, so to speak, looking as far as I could down the alternative paths that Mr. Tynan suggests were available to him, but they are either dead-ends or they bend into the undergrowth before it can be clear to anyone whether they would have led to riches beyond what Mr. Tynan earned for his efforts at JBVBB. In short, Mr. Tynan's proof fails to persuade me that he could have done better than he did at JBVBB.
¶ 21 The trial court went on to make the following findings of fact: (1) In late July 1999, JBVBB hired Tynan as a consultant, paying him $1500 per day and Tynan worked approximately nine days a month; (2) Tynan agreed to come work for JBVBB as a full-time employee and based on promises Lee made, Tynan moved his family to Milwaukee; (3) Tynan began working full-time for JBVBB in November 1999 without a long-term contract; he was being paid under an interim arrangement, receiving $200,000 per year plus some but not all benefits he was trying to negotiate; (4) this opportunity came at the right time for Tynan as he was tired of the consulting work and wanted to work for a single employer; (5) substantial differences prevented Tynan and Lee from ever agreeing to an employment contract; (6) in early 2000, JBVBB became dissatisfied with Tynan's work and by summer of 2000, it should have been clear to Tynan that his services were no longer wanted; and (7) after leaving JBVBB, Tynan took a position at Gates City Steel in his home town at an income significantly lower than what he was paid at JBVBB because he did not want the stress of another job hunt.
¶ 22 The trial court went on to address the three potential alternatives that Tynan presented he could have chosen instead of staying at JBVBB based on the promises Lee made. There were three: (1) Tynan might have held out for a long term contract with JBVBB that would have included certain severance and health benefit continuation provisions; or (2) he might have continued consulting for JBVBB and then looked for consulting work elsewhere, for example, at Union Bank or MI Industries; or (3) he might have consulted for and then taken full-time employment at MI Industries. The trial court concluded, and we agree, that none of these alternatives provided sufficient certainty. Each was speculative and not a sure thing. The first alternative, as noted by the trial court, would never have occurred: "The differences between the parties were substantial and I do not find any evidence from which I can infer that either party was willing to compromise."
¶ 23 The second alternative was not a likely probability for two reasons. First, Tynan was trying to get out of the consulting business. Second, even if Tynan did elect a consulting job, there is no evidence demonstrating that he would have made as much money as he did at JBVBB. The trial court found Tynan's suggestion that he could have made $30,000 a month consulting instead of the $18,000 a month he was paid by JBVBB to be incredible. First, there is no evidence that either of the companies referred to needed a consultant for twenty days a month even JBVBB used Tynan only nine days a month when he consulted for them. Second, the evidence submitted by Tynan from MI Industries was not sufficiently detailed.
*739 ¶ 24 Finally, with respect to the third alternative, the trial court found the evidence inconsistent and insufficient. MI Industries was not able to provide any specific evidence as to the timing in which it hired other consultants other than saying it was between 1999 and 2000. In addition, the principal of MI Industries was a friend of Tynan, as Tynan and his brothers are investors in MI Industries. Thus, the principal of MI Industries was not impartial.
¶ 25 Based on the foregoing, we agree with the trial court that Tynan failed to identify a competing opportunity that was clearly made available to him, but deliberately was spurned in reliance on the defendant's promise. Moreover Tynan failed to demonstrate that a reasonably likely alternative could have been pursued or that there is a sufficient likelihood that he could have done better by consulting or working for MI Industries. Accordingly, Tynan failed to satisfy his burden of proving that he suffered detrimental reliance based on the promises made.
¶ 26 We conclude that the trial court did not err in determining that the facts and circumstances of this case resulted in a conclusion that reliance damages were the appropriate remedy. Reliance damages would be the remedy that was just in this case. However, we further conclude that the trial court did not err in determining that Tynan failed to prove that he suffered any reliance damages. Accordingly, we affirm the judgment of the trial court.
Judgment affirmed.
¶ 27 FINE, J. (dissenting).
In my view, this case is governed by Skebba v. Kasch, 2006 WI App 232, 297 Wis. 2d 401, 724 N.W.2d 408, which was decided after the trial court entered the judgment from which Joe Tynan appeals. The trial court's analysis, which the Majority seems to adopt in toto, was, therefore not guided by Skebba. Although the Majority cites Skebba, it ignores its teaching. Accordingly, I respectfully dissent.
¶ 28 The crux of this case is the jury's verdict. As the Majority recognizes:
The jury found that in late October 1999, Lee promised Tynan that if he came to work for JBVBB full time, he would be paid an incentive bonus and an equity growth bonus and that if his employment was terminated, he would be entitled to the continuation of his salary and benefits for a period following termination. The jury also found that in reliance upon Lee's promise, Tynan decided to go to work for JBVBB and move his family from Lincoln, Nebraska to Milwaukee.
Majority, ¶ 7. Thus, the jury found that Tynan did things (agreed to work for JBVBB full time, which required him to move to Milwaukee from Nebraska) because he was promised three things: (1) an incentive bonus; (2) an equity-growth bonus; and (3) if he was fired, his salary and health benefits for, as phrased by the verdict, "a period of time." Significantly, in light of Skebba, none of these promises, upon which the jury found Tynan relied, were tied to any other element of Tynan's income, his ability to find other work, or anything elsethe promises were the quid pro quo for Tynan's move to Milwaukee and agreement to work for JBVBB.
¶ 29 Just as in Skebba, where the employer, Jeffrey C. Kasch, d/b/a M.W. Kasch Co., "enjoyed the fruits of Skebba's reliance," 2006 WI App 232, ¶¶ 12, 14, 297 Wis.2d at 411, 413, 724 N.W.2d at 412, 413, JBVBB enjoyed the fruits of Tynan's reliance. He is, as was Skebba, entitled to receive JBVBB's "specific performance promised"his incentive bonus, his equity-growth bonus, and his salary and health *740 benefitsall neither defeated nor reduced by the considerations applied by the trial court. See ibid. ("[T]o prevent injustice, the equitable remedy for Skebba to receive is Kasch's specific performance promisedpayment of the $250,000" unreduced by anything else because "Skebba's loss has nothing to do with what he might have earned on another job. Income from the rejected job was never a part of the calculus of the promise made and relied upon.").
¶ 30 I would remand to the trial court to determine the dollar value of the three things JBVBB promised Tynan but never gave him.
NOTES
[1] Because we have rejected Tynan's second claim, it is not necessary for us to address his third issue as to the amount of any expectation damages for salary continuation and health insurance premiums.
[2] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918264/ | 764 A.2d 779 (2001)
Ann CARTER-OBAYUWANA, Appellant,
v.
HOWARD UNIVERSITY, Appellee.
No. 99-CV-909.
District of Columbia Court of Appeals.
Argued November 1, 2000.
Decided January 4, 2001.
*781 Richard A. Salzman, with whom Douglas B. Huron, Washington, DC, was on the brief, for appellant.
Christopher Schwartz, with whom Jennifer M. Smith, Washington, DC, was on the brief, for appellee.
Before STEADMAN and SCHWELB, Associate Judges, and FERREN, Senior Judge.
SCHWELB, Associate Judge:
This case arises from allegations by the plaintiff-appellant, Dr. Ann Carter-Obayuwana, that Howard University and one of its professors, Dr. Frederick D. Harper, who supervised the plaintiff, retaliated against her for engaging in activity protected both by Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994 & Supp. IV 1998), and by the District of Columbia Human Rights Act (DCHRA), D.C.Code §§ 1-2501 et seq. (1999 & Supp.2000). The plaintiff claims that, in reprisal for her complaints regarding Dr. Harper's allegedly discriminatory conduct, the University reduced her salary for a semester, then continued to pay her the lower salary for an additional year, and subsequently denied her application for reappointment to the University's Graduate Faculty.
At the initial trial of this case before Judge Lee F. Satterfield, the jurors were unable to reach a verdict regarding the plaintiff's retaliation claim. At the second trial, before Judge Susan R. Winfield, the judge excluded all evidence of the initial reduction of the plaintiff's salary, and she granted the University's motion for a directed verdict with respect to the plaintiff's remaining retaliation claims. We conclude that the judge erred in excluding evidence of the initial salary reduction. Accordingly, we reverse.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The dispute.
The plaintiff is a tenured Associate Professor at Howard University. Since the *782 fall of 1974, she has been teaching graduate and post-graduate courses in the counseling and psychology program offered by the School of Education's Department of Psychoeducational Studies. During most of her time at Howard, her relationship with the University appears to have been satisfactory both to her and to the administration. Dr. Carter-Obayuwana received tenure after six years, and she served repeatedly as the Area Coordinator of the Counseling Area, i.e., in a leadership role in her department. In 1980, she was accepted without opposition to membership in the University's Graduate Faculty.[1]
In the early 1990s, however, the plaintiff began experiencing difficulties with her superiors and with the University's administration. In 1992, Dr. Frederick D. Harper was appointed Chairman of the University's Department of Psychoeducational Studies, and in that capacity, he became the plaintiff's supervisor. By all accounts, Dr. Harper and Dr. Carter-Obayuwana have a less than harmonious relationship, although the parties disagree on what exactly caused the relations between them to sour.[2] In any event, sour they did, and what began as a personal quarrel developed into the legal controversy that has now made its way to this court.
During the fall of 1992, Dr. Harper admonished the plaintiff for allegedly missing office hours and for other real or perceived failings. On December 15, 1992, the plaintiff responded angrily and in writing to what she apparently regarded as a baseless reproof. In her memorandum, the plaintiff complained, inter alia, that Dr. Harper had a "sexist mentality" towards her. She stated that she "will not hesitate to seek advice and/or redress outside the University if your [Dr. Harper's] sexism... do[es] not cease." The plaintiff sent copies of her memorandum to Dr. Mary E. Rhodes Hoover, who was then the Dean of the School of Education, and to Dr. Joyce A. Ladner, the University's Vice-President for Academic Affairs.
This initial exchange of memoranda was followed by unsuccessful attempts at mediation by the Dean of the School of Education, and the tense situation between the two protagonists continued for several more months.[3] Things finally came to a head in the fall of 1993, shortly before the beginning of the fall semester. At that time, the plaintiff had made plans to attend a conference in Toronto. On August 18, 1993, the very day that the plaintiff had arranged to leave for Canada, and shortly before her scheduled departure for the airport, Dr. Harper called the plaintiff into *783 a meeting with him and another university official. At that meeting, the plaintiff was informed that, in addition to the two courses previously assigned to her for the fall semester, she would be required to teach a third course (Vocational Theories). The academic year was scheduled to begin a few days later, which meant that the plaintiff would be expected to take over the new class prior to the date on which she had been intending to return to Washington from Toronto. Dr. Harper told the plaintiff that the additional assignment had been made because her courseload was too low while that of Dr. Alan Stills, the professor previously assigned to teach Vocational Theories, was too high.[4] It is undisputed that the plaintiff refused to agree, on such short notice, to teach the Vocational Theories course; she also protested that she could not adequately prepare for the assignment within the allotted time. Dr. Carter-Obayuwana apparently did offer to take over Dr. Stills' course in Multicultural Counseling. After a fruitless discussion in which neither side gave any ground, the plaintiff terminated the meeting and left for Toronto.
Upon her return to Washington on August 25, 1993, the plaintiff informed Dr. Kriner Cash, the Dean of the School of Education, of the events that had transpired immediately before her departure. She complained that she had been subjected to "ongoing harassment and unfair treatment" and that the "grievances enumerated in [her] December 15, 1992 letter remain[ed] unaddressed and unresolved." The plaintiff subsequently met with Dr. Cash, and she told him that she would not teach the Vocational Theories class because she did not have the requisite "moral and professional conscience" to do so. Meanwhile, Dr. Harper advised Dr. Portia H. Shields, the new Dean of the School of Education, that Dr. Carter-Obayuwana had refused to accept the assignment to teach the Vocational Theories class. He asserted that "Dr. Carter-Obayuwana was assigned this class more than a year ago," cf. note 4, supra, and he urged an "immediate investigation and subsequent appropriate action concerning this serious incident."[5]
On September 2, 1993, Dr. Shields formally directed the plaintiff to assume responsibility for the Vocational Theories course. She informed the plaintiff that failure to comply with this directive would result in the imposition of discipline for neglect of duty, in accordance with the University's Faculty Handbook.[6] The plaintiff apparently believed that the belated assignment was part of a retaliatory scheme against her, and she persisted in her refusal to teach the class.
On September 13, 1993, the plaintiff sent another letter to Dr. Ladner, the Vice President of Academic Affairs, as a follow-up to her earlier memorandum of December 15, 1992. The reader will recall that Dr. Ladner was one of the persons to whom a copy of the 1992 memorandum had been directed. In the September 13 letter, after referring to her earlier memorandum, the plaintiff wrote that she was "saddened to inform" Dr. Ladner that "the many issues of unfairness, harassment, and discriminatory behavior on the part of Dr. Harper, as protested in that letter, still *784 exist." She requested a meeting at which she could present documentation of the "harassment" to which she claimed to have been subjected. No meeting was arranged, however, and Dr. Ladner apparently did not respond to the plaintiff's letter of September 13, 1993.
On September 15, 1993, Dr. Shields informed the plaintiff that she intended to recommend, on the following day, that the plaintiff's salary for the 1993 fall semester be reduced by twenty percent because of the plaintiff's refusal to teach the Vocational Theories class. In October 1993, the President of the University ordered that the plaintiff's salary be reduced as proposed by Dr. Shields. Dr. Carter-Obayuwana did not formally appeal from this disciplinary action. While the salary reduction was supposed to be in effect only during the 1993 fall semester, the plaintiff's prior pay scale was not restored until April 1995.[7]
B. The complaint to the Office of Human Rights and its aftermath.
In the meantime, on August 17, 1994, the plaintiff took her first step towards securing legal redress. On that date, she filed a complaint with the District of Columbia's Office of Human Rights (OHR). In her complaint, she alleged that the University had engaged in employment discrimination against her on account of her sex and had retaliated against her for exercising her rights. The retaliation claim included, inter alia, an allegation that her salary had been reduced for the 1993 fall semester in reprisal for having engaged in protected activities. The OHR "cross-filed" the complaint with the federal Equal Employment Opportunity Commission. On February 12, 1996, following an investigation of the plaintiff's allegations, the OHR found "no probable cause to believe that a violation of the D.C. Human Rights Act" had occurred. (Emphasis omitted.)[8] The plaintiff did not seek judicial review of the OHR's determination.
In May 1995, nine months after she had filed her OHR complaint, the plaintiff applied for reappointment to Howard University's Graduate Faculty. In order to be eligible for reappointment, the plaintiff was required to show, inter alia, that she had conducted research on, and had published, at least one peer-reviewed article, book, or chapter since her last appointment to the Graduate Faculty.[9] The plaintiff presented four articles with her application, and she asserted that each one had received peer-review. The plaintiff did not, however, submit any documentation showing that that peer-review had taken place.
On February 6, 1996, the Departmental Committee on Appointments, Promotions, and Tenure (APT) advised the plaintiff that her application for reappointment had been denied on account of her failure to submit a peer-reviewed article. Both Dr. Stills and Dr. Moses, who were aware of the plaintiff's OHR complaint, participated in the APT Committee's initial discussions, but neither of them voted on the application.[10]*785 During the proceedings before the Committee, Dr. Stills expressed his belief that the plaintiff's articles had not been peer-reviewed. The record does not contain any evidence, however, that either Dr. Stills or Dr. Moses mentioned the plaintiff's OHR complaint to the members of the APT Committee or attempted in any other inappropriate way to induce them not to re-admit the plaintiff to membership.
After her application had been denied, the plaintiff belatedly secured letters from the publishers of her articles establishing that her writings had, in fact, been peer-reviewed. She did not, however, formally submit these materials to the APT Committee, nor did she appeal from the Committee's decision. As of the date of the second trial, Dr. Carter-Obayuwana had not been reappointed to the Graduate Faculty.
C. The Superior Court litigation and the first trial.
In July 1996, the plaintiff instituted suit in the Superior Court against Howard University and Dr. Harper pursuant to Title VII and the DCHRA. She alleged, inter alia, that she had been subjected to sex discrimination and that she had suffered retaliation for exercising her rights. The retaliation of which she complained was alleged to have included the reduction of her salary, the University's failure to restore the salary in timely fashion, the untimely assignment to her of the Vocational Theories course, and the denial of reappointment to the Graduate Faculty.[11]
Following the filing of the complaint, the attorneys conducted discovery, and each party subsequently filed a motion for summary judgment. Judge Satterfield granted the University's motion in part, holding that those claims under the DCHRA which the plaintiff had previously presented to the OHR could not proceed since the plaintiff had failed to seek judicial review after that agency had made a finding of no probable cause.[12]
The case went to trial in October 1997, and at the conclusion of the plaintiff's case, the judge granted a defense motion for a directed verdict with respect to Dr. Carter Obayuwana's sex discrimination claims under Title VII. The judge ruled, however, that the plaintiff had presented sufficient evidence to go to the jury on her claim of retaliation, which the parties understood at that time to be based both on the DCHRA and on Title VII.[13] Ultimately, the jurors were unable to agree upon a verdict, and the judge declared a mistrial.
In advance of the second trial, the plaintiff moved to supplement her complaint to allege additional acts of retaliation, which were said to have occurred after the first trial.[14] This motion was denied by Judge *786 Reggie B. Walton. The plaintiff then filed a second action in the Superior Court (No. 98-8611) based on the most recent alleged reprisals. The plaintiff subsequently moved to consolidate the two cases, but this motion was denied by Judge Winfield, who had been assigned to handle the case. Judge Winfield also ruled that the plaintiff would not be permitted to introduce at the second trial evidence regarding events that were alleged to have occurred after October 1997.
D. The second trial.
The case came to trial for the second time on June 7, 1999, more than one and one half years after the first trial had ended in a mistrial. Judge Winfield ruled, as a preliminary matter, that the plaintiff's retaliation claim, as articulated in the complaint, was based entirely on the DCHRA, and that the plaintiff had failed to allege retaliation in violation of Title VII. The judge therefore held that the initial reduction of the plaintiff's salary in 1993 was out of the case the claim was precluded under the DCHRA because the plaintiff had presented it to the OHR, and it could not be presented under Title VII because, as the judge read the complaint, no claim under that statute had been adequately alleged. The trial then proceeded solely with respect to those claims of retaliation that had not previously been presented to the OHR, namely, that the University had continued to pay the plaintiff a reduced salary and had denied her reappointment to the Graduate Faculty, all allegedly in reprisal for her complaint to the OHR in August 1994.[15] At the conclusion of the plaintiff's case, the judge ruled as a matter of law that the plaintiff had failed to establish the requisite causal nexus between the protected activity and the allegedly retaliatory acts. The judge therefore granted the University's motion for a directed verdict with respect to the plaintiff's remaining claims. This appeal followed.
II.
LEGAL ANALYSIS
The central issue presented by this appeal is whether the judge at the second trial erred by excluding evidence of the initial reduction of the plaintiff's salary. The plaintiff contends, contrary to the second trial judge's ruling,
1. that the complaint, fairly construed, alleges retaliatory conduct by the defendants in violation of Title VII (as well as in contravention of the DCHRA);[16] and
2. that the plaintiff engaged in protected activity prior to the reduction of her salary, so that the jury should have been permitted to determine whether that reduction was in fact retaliatory.
The plaintiff also asserts that the judge erred in denying Dr. Carter-Obayuwana's motion to consolidate her two complaints.
A. The plaintiff's invocation of Title VII as a basis for her retaliation claim.
The plaintiff first challenges Judge Winfield's ruling that the allegations of retaliation in the complaint were based solely on the DCHRA. This contention is critical to the plaintiff's case for, as we have noted previously, her claim that the initial salary reduction was retaliatory had been presented to the OHR, which had *787 found no probable cause. Having failed to seek judicial review of that finding, the plaintiff is barred by the doctrine of election of remedies from litigating the DCHRA retaliation claim in court. See Brown, supra note 12, 425 A.2d at 1311-12. Dr. Carter-Obayuwana's resort to an administrative complaint to the OHR does not, however, preclude her from pursuing the claim under civil rights law. This is so because Title VII confers upon the plaintiff the right to de novo judicial consideration of her allegations. Eg. Univ. of Tenn. v. Elliott, 478 U.S. 788, 795-96, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). "Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims." Id. at 796, 106 S.Ct. 3220.
The question whether Dr. Carter-Obayuwana's complaint alleges retaliation against her in violation of Title VII requires a careful examination of the entire pleading. Before focusing on the language of the complaint, however, we think it appropriate to consider, first, the applicable principles of construction and, second, the positions taken by the parties during the course of the litigation regarding the scope and meaning of the complaint. Each of these inquiries provides strong support for the plaintiff's position.
We begin with the principle that "liberal rules of pleading normally protect a plaintiff against dismissal of an ambiguous complaint when it can be said to state a claim if all reasonable inferences are drawn in the plaintiff's favor." Bible Way Church of Our Lord Jesus Christ v. Beards, 680 A.2d 419, 430 (D.C.1996). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Our rules "reject the approach that pleading is a game of skill in which one misstep... may be decisive to the outcome." Id. at 48, 78 S.Ct. 99; see also, e.g., Francis v. Recycling Solutions, Inc., 695 A.2d 63, 78 (D.C.1997). Rather, the rules "manifest a preference for resolution of disputes on the merits, not on technicalities of pleading." Keith v. Washington, 401 A.2d 468, 470 (D.C.1979). "[P]leadings shall be so construed as to do substantial justice." Super. Ct. Civ. R. 8(f). "[T]he purpose of pleading is to facilitate a proper decision on the merits." Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (citation omitted).
In construing the complaint, we must be particularly mindful of the fact that this is a civil rights case in which the defendants are alleged to have engaged in discrimination against the plaintiff based on sex and to have retaliated against her for exercising her rights under the civil rights statutes. "The right to equal opportunity without discrimination based on race or other such invidious ground[, including sex,] is protected by a policy to which both this nation and its capital city have accorded the highest priority." Harris v. District of Columbia Comm'n on Human Rights, 562 A.2d 625, 626 (D.C. 1989) (internal quotation marks omitted) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972)). "It is especially in civil rights disputes that we ought to be chary of disposing of [cases]" on the pleadings, for "courts do in fact have a predilection for allowing civil rights cases to proceed until a comprehensive record is available to either support or negate the facts alleged." Sisters of Providence v. City of Evanston, 335 F.Supp. 396, 399-400 (N.D.Ill.1971). Civil rights statutes are accorded a "generous construction" to ensure their "vitality." Trafficante, supra, 409 U.S. at 212, 93 S.Ct. 364; see also Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 889 (D.C.1998). Dr. Carter-Obayuwana's complaint, which is grounded in two of these statutes, should be liberally construed with the foregoing principles in mind, and we should read her pleading as asserting a *788 retaliation claim under Title VII unless such a construction is plainly unreasonable.
Moreover, it appears that, before the second trial judge ruled otherwise, all parties-not only the plaintiff and the first trial judge, but also, quite explicitly, the defendants-viewed the case as including a Title VII retaliation claim. In the parties' Joint Pretrial Statement, which was filed prior to the first trial, the "Nature of the Case Defendants' View" was described as follows: "Plaintiff Dr. Ann Carter-Obayuwana is suing Howard University and Dr. Frederick D. Harper for gender discrimination and retaliation under Title VII and the D.C. Human Rights Act." (Emphasis added.) In his order dismissing Counts I and II of the Complaint, Judge Satterfield specifically held that the plaintiff must be permitted to "proceed in Count Three under Title VII and the D.C. Human Rights Act." (Emphasis added.) The first trial on the retaliation count proceeded on that basis, without objection by the University.
The purpose of a pleading is to put the opposing party on notice of the nature of the pleader's claims. See, e.g., Scott v. District of Columbia, 493 A.2d 319, 323 (D.C.1985); Lee v. Foote, 481 A.2d 484, 487 n. 8 (D.C.1984) (per curiam). Given the parties' understanding, as reflected in the Joint Pretrial Statement, that the plaintiff had alleged retaliation in violation of Title VII, the University can assert no plausible claim of surprise or prejudice if the complaint is construed as including a claim under Title VII regarding the initial reduction in 1993 of the plaintiff's salary. Construction of the complaint as not including a retaliation claim under Title VII, on the other hand, would result in prejudice to the plaintiff, who had a right to rely on the University's understanding as reflected in the Joint Pretrial Statement. If the defendants had taken the position at the pretrial stage that they take now namely, that retaliation in violation of Title VII was not alleged then the plaintiff would have had the opportunity to seek leave to amend her complaint and to eliminate from the case the perceived defect in her pleading.
With these considerations in mind, we turn to the complaint itself. We have set forth in the footnote at the conclusion of this sentence all of those allegations in the plaintiff's pleading which bear on the issue under discussion, and we have italicized the language which, in our view, supports the plaintiff's reading of the complaint.[17] Although the complaint is not a *789 model of clarity with respect to the statutory bases for each allegation,[18] it can, at the very least, be reasonably read as invoking Title VII for the plaintiff's claims of retaliation.
The first paragraph of the pleading states that the complaint is filed pursuant to both the DCHRA and Title VII. Paragraph 1. The alleged wrongs of which the plaintiff complains specifically include the initial reduction of her salary. Paragraph 31. Count I, which alleges "unlawful discrimination," is explicitly brought both under Title VII and under the DCHRA. The plaintiff alleges in paragraph 39, which is part of Count I, that the reduction of her salary constituted "unlawful discrimination... and retaliation." (Emphasis added.) The retaliation claim is thus explicitly linked in the complaint to both statutory bases identified in the heading of Count I the DCHRA and Title VII.
Count III of the complaint is entitled "Reprisal and Retaliation." In the first paragraph of this Count, the plaintiff explicitly repeats and incorporates by reference the prior allegations of the complaint. Paragraph 44. The pleader has thus reiterated in Count III, under the heading of "Reprisal and Retaliation," the allegation in paragraph 39 that the initial reduction of Dr. Carter-Obayuwana's salary was retaliatory. Paragraph 39, as we have seen, is part of a claim that is expressly based, inter alia, on Title VII.
The University points out, correctly, that in Count III, the plaintiff has specifically cited the DCHRA, but not Title VII. A careful reading of Count III, however, does not support the University's argument that the citation of the DCHRA, to the exclusion of Title VII, was intended to apply to the allegations regarding the original reduction of the plaintiff's salary. In Paragraphs 46 and 48, the plaintiff has cited the DCHRA but not Title VII as the legal basis for complaining (1) of the University's refusal to provide her with a computer, Paragraph 46, and (2) of the denial of her application for reappointment to the Graduate Faculty, Paragraph 48. These are the only alleged reprisals specifically linked in the pleading solely to the DCHRA. The invocation exclusively of the DCHRA for these particular allegations might reasonably be construed as indicating that other claims of reprisal were not intended to be so restricted. Expressio unius est exclusio alterius. In any event, the pleader's implied disclaimer of Title VII in connection with a coveted computer, and in relation to a position with the Graduate Faculty, cannot logically be extended to the plaintiff's claim of a retaliatory reduction of her salary. Especially in light of the applicable principles of construction and the language of the Joint Pretrial Statement, we conclude that the complaint fairly invokes Title VII, as well as the DCHRA, as a statutory basis for the claim that the plaintiff's salary was reduced in 1993 in reprisal for her having engaged in protected activity.
B. The prima facie case of retaliation.
Dr. Carter-Obayuwana's retaliation claim arises under Title VII's so-called "opposition clause," which makes it an unlawful employment practice "to discriminate against any individual ... because he [or she] has opposed any practice made an unlawful employment practice by this title." 42 U.S.C. § 2000e-3 (a); see also Parker v. Baltimore & Ohio R.R. Co., 209 U.S.App.D.C. 215, 222, 652 F.2d 1012, 1019 (1981). It is an unlawful employment practice for an employer "to discriminate against any individual with respect to his *790 compensation, terms, conditions, or privileges of employment, because of such individual's... sex," 42 U.S.C. § 2000e-2 (a)(1), and the opposition clause thus makes it unlawful to retaliate against an employee for opposing sex discrimination in his or her workplace.
In order to make out a prima facie case of retaliation under Title VII's opposition clause, the plaintiff must demonstrate (1) that she was engaged in statutorily protected activity, (2) that her employer took an adverse employment action, and (3) a nexus between the two. McKenna v. Weinberger, 234 U.S.App.D.C. 297, 304, 729 F.2d 783, 790 (1984); cf. Arthur Young & Co. v. Sutherland, 631 A.2d 354, 361 n. 17 (D.C.1993) (relying on Title VII standard to establish requirements for prima facie showing of retaliation under DCHRA). "[T]he plaintiff does not have to prove that the conduct opposed was in fact a violation of Title VII." Goos v. Nat'l Ass'n of Realtors, 715 F.Supp. 2, 3 (D.D.C. 1989). "[T]he opposition activity is protected even when it is based on a mistaken good faith belief that Title VII has been violated." Id. (quoting Love v. Re/Max of America, Inc., 738 F.2d 383, 385 (10th Cir.1984) (internal alterations omitted)).[19] "[M]aking the protected nature of an employee's opposition to alleged discrimination depend on the ultimate resolution of [her] claim would be inconsistent with the remedial purposes of Title VII." Parker, supra, 209 U.S.App.D.C. at 222, 652 F.2d at 1019.
The dispositive issue in this case is whether the plaintiff engaged in protected activity prior to the employer's alleged acts of reprisal. More specifically, the relevant question is whether in writing her letter of December 15, 1992 the plaintiff was exercising rights secured by Title VII.
Both trial judges appear to have assumed that the plaintiff did not engage in protected activity until August 1994, when she filed her complaint with the OHR. At the first trial, Judge Satterfield allowed the retaliation count to go to the jury under Title VII, but he excluded from evidence testimony regarding any events that occurred prior to August 1994. At the second trial, Judge Winfield relied on Judge Satterfield's earlier ruling as the basis for her decision excluding any evidence concerning the University's reduction in 1993 of the plaintiff's salary. According to Judge Winfield, "[t]he protected activity was determined by Judge Satterfield to be the formal filing of a discrimination complaint before the EEOC in either August or September 1994."
Whether actions by an employee constitute protected activity is a question of law, and we therefore review the trial courts' conclusions de novo. See, e.g., Howard Univ. v. Green, 652 A.2d 41, 45-47 (D.C.1994).[20] The plaintiff engaged in protected activity, for purposes of Title VII's opposition clause, if she opposed conduct that she reasonably believed to violate Title VII. See, e.g., id. at 46; Parker, supra, 209 U.S.App.D.C. at 222, 652 F.2d at 1019. Protected activity need not take the form of a lawsuit or of a formal complaint to an enforcement agency such as the EEOC or the OHR. On the contrary, the protections of Title VII extend to an employee's informal complaints of discrimination to his or her superiors within the *791 organization. See, e.g., Parker, supra, 209 U.S.App.D.C. at 222, 652 F.2d at 1019. In fact, internal complaints have been held to constitute "clearly protected activity." McKenna, supra, 234 U.S.App.D.C. at 305, 729 F.2d at 791; see also Goos, supra, 715 F.Supp. at 4; cf. Green, supra, 652 A.2d at 46-47 (examining employees' complaints to their superiors at Howard University to determine whether these complaints were protected).
A plaintiff claiming retaliation must also demonstrate that he or she "voice[d the] complaint about ... the allegedly unlawful activity." Green, supra, 652 A.2d at 46. In other words, the plaintiff is required to "alert the employer [and make the employer aware of the fact] that [he or] she is lodging a complaint about allegedly discriminatory conduct." Id. The employee need not, however, employ any "magic words" such as "discrimination," for "the communication of a complaint of unlawful discrimination ... may be inferred or implied" from the surrounding facts. Id. at 47 (emphasis in original, citations omitted).
In this case, neither trial judge explicitly focused on the question when the plaintiff first "opposed" a discriminatory practice within the meaning of Title VII's opposition clause. Judge Satterfield's evidentiary rulings, however, presuppose that protected activity first occurred in August 1994, and not December 1992. Judge Winfield, apparently viewing herself as bound by "the law of the case," adopted Judge Satterfield's implicit ruling. To the extent that both trial judges appear to have assumed that the plaintiff was not engaged in activity protected by the opposition clause until she filed her complaint with the OHR, we cannot agree with that assumption. See, e.g., Parker, supra, 209 U.S.App.D.C. at 222, 652 F.2d at 1019.
The plaintiff's December 15, 1992 memorandum satisfied all of the prerequisites for protected activity. In that memorandum, the plaintiff communicated to Dr. Harper and to university management, including Dean Hoover and Vice President Ladner, her allegation that Dr. Harper was unlawfully discriminating against her on the basis of sex. She made specific reference to Dr. Harper's "sexist mentality," and she stated that she would "not hesitate to seek advice and/or redress outside the University if [Dr. Harper's] sexism... do[es] not cease." "[S]exism" is defined as "[d]iscrimination based on gender, especially discrimination against women." AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1654 (3d ed.1992). The plaintiff's references to "sexism" and a "sexist mentality," combined with her allusion to possible redress, would therefore put any reasonable employer on notice that she was complaining of or "opposing" discrimination in employment based on sex, that is, conduct which, if it occurred, constituted an unlawful employment practice under Title VII. 42 U.S.C. § 2000e-2 (a)(1).
It is true that the memorandum did not specifically refer to "discrimination" but, as we have noted, no such talismanic language was required. Green, supra, 652 A.2d at 47. Indeed, "[c]ourts have not imposed a rigorous requirement of specificity in determining whether an act constitutes `opposition' for purposes of [the opposition clause]." E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir.1983). Given this relatively lenient standard, the conclusion is inescapable that the plaintiff's December 1992 memorandum was a complaint about sexually discriminatory conduct. That Dr. Carter-Obayuwana considered that conduct unlawful can reasonably be inferred from her expressed intention, if necessary, to seek outside assistance or redress. Consequently, the plaintiff's memorandum constituted protected "opposition" on her part to alleged discriminatory practices. See Parker, supra, 209 U.S.App.D.C. at 222, 652 F.2d at 1019.
This case is unlike Green, supra, 652 A.2d 41, in which we held that the *792 plaintiff's internal complaints did not constitute protected activity. In Green, a suit alleging employment discrimination against heterosexuals, the plaintiff had "never complained to anyone at Howard University about the existence of sexual orientation discrimination until she filed her lawsuit." Id. at 46. Specifically, the plaintiff had never "expressly [told] ... any higher Howard University management official" of the allegedly discriminatory conduct to which she claimed to have been subjected. Id. (citation omitted). In this case, on the other hand, Dr. Carter-Obayuwana not only complained to Dr. Harper about his alleged "sexism," but also reported her complaint to "higher Howard University management official[s]." Id. The plaintiff's claim of sexually discriminatory conduct was made several months before the University's decision to reduce her salary, and she continued to complain to management about Dr. Harper's actions in subsequent communications to Dr. Cash and Dr. Ladner in August and September of 1993. In our view, this case is more analogous to McKenna, supra, in which the court held that a female employee's complaints to management regarding her co-workers' allegedly sexist treatment of her was held to be "clearly protected activity," 234 U.S.App. D.C. at 305, 729 F.2d at 791, than to Green.[21]See also Goos, supra, 715 F.Supp. at 4 (holding that an employee engaged in protected activity when she orally complained to her superiors that the termination of a non-white employee that she had been instructed to effectuate was "unethical" and seemingly "racially motivated").[22]
The other two elements that an employee must establish to present a prima facie case of retaliation, namely, adverse action and causation, McKenna, supra, 234 U.S.App.D.C. at 304, 729 F.2d at 790, need not detain us long. There can be no doubt that an improperly motivated reduction in salary was adverse to the plaintiff. See Schoffstall v. Henderson, 223 F.3d 818, 825 (8th Cir.2000). The existence vel non of a causal nexus between the plaintiff's protected activity and the reduction of her salary may well be a hotly contested issue at trial.[23] At this *793 stage of the case, however, we are satisfied that the plaintiff's evidence, which includes testimony that she repeatedly complained of retaliatory treatment (one of her complaints having been made only two days before the salary reduction was officially recommended), was sufficient to go to the jury. See Arthur Young, supra, 631 A.2d at 368 ("The causal connection may be established by showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity.") (alterations, quotation marks, and citation omitted). "This temporal proximity is enough to survive summary judgment," Goos, supra, 715 F.Supp. at 4, or, as in this case, to avert the direction of an unfavorable verdict. Moreover, the record, viewed in the light most favorable to the plaintiff, could fairly be construed as supporting the claim in her brief that "Frederick Harper's own words reflect a particularly thin skin towards plaintiff's protected complaints, deriding them as `disruptive and accusatory behaviors' and `libelous statements' and `threats' in memoranda to his colleagues."
Lest we be misunderstood, we emphasize that we are expressing no opinion as to whether the plaintiff will be able to establish, at trial, that the reduction of her salary was in fact retaliatory. Cases like this one present the opportunity for posturing by plaintiffs and defendants alike. A malcontent with no valid grievance can pose as a victim of invidious discrimination, and may sometimes trivialize, thwart, or even pervert the noble aims of our civil rights laws. By the same token, an unscrupulous employer who has engaged in discriminatory practices may sometimes falsely depict a person with a legitimate complaint as a meritless trouble-maker; the effects of the employer's wrongful conduct may then be compounded by the undeserved ad hominem condemnation of and calumny against a plaintiff who deserves better. However that may be, these issues can only be sorted out at trial. There, cross-examination and other tools of the search for truth should enable the court and jury to separate the wheat from the chaff and reach a just result. In this case, in our view, the plaintiff should have been permitted to present to the jury her claims regarding the 1993 reduction of her salary.
C. The motion to consolidate.
The plaintiff also contends that Judge Winfield erred in denying the plaintiff's motion to consolidate the present action with her second complaint No. 98-8611 which she filed in November 1998. The reader will recall that in the second complaint, the plaintiff alleged that she had been subjected to additional acts of retaliation which were said to have occurred after the first trial of the present case in 1997. We discern no error on Judge Winfield's part in denying the motion to consolidate. We note, however, that the judge's ruling has been overtaken by events, and that on remand the trial court will face a situation materially different from the one which confronted Judge Winfield when the original motion was filed and denied.
The plaintiff asked the court to consolidate her two suits on February 6, 1999. The motion was based on Rule 42(a) of the Superior Court's Rules of Civil Procedure, which provides in pertinent part:
When actions involving a common question of law or fact are pending before the Court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
*794 The two actions brought by Dr. Carter-Obayuwana potentially presented common questions of law and fact, and some or all of the evidence in each case may well have been admissible in the other. "A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario." Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir.1990). As the Supreme Court explained in Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 416 n. 6, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960) (quoting Axelson Mfg. Co., 88 N.L.R.B. 761, 766 (1950)),
[e]vents obscure, ambiguous, or even meaningless when viewed in isolation may, like the component parts of an equation, become clear, definitive, and informative when considered in relation to other action. Conduct, like language, takes its meaning from the circumstances in which it occurs.
Accord, Wallace, supra, 715 A.2d at 878 n. 4; Clark v. United States, 593 A.2d 186, 195 (D.C.1991). In discrimination cases, as in others, it is generally in the interests of justice that the trier of fact "consider the entire mosaic." Tyree v. Evans, 728 A.2d 101, 106 (D.C.1999) (citation omitted). The evidence in the second case might well shed light on the issues in the first, and vice versa.
But when the plaintiff moved to consolidate the two actions, discovery in the second case had not yet been completed. If the judge had granted the motion, she might well have been compelled either to postpone the trial in the first case or to force the University to proceed to trial without an adequate opportunity to conduct discovery or to prepare properly for barristerial combat. The judge could reasonably conclude that further delay, in a case which turned in part on events that had occurred more than six years earlier, was not justified,[24] and that forcing an unprepared defendant to trial would be unfair. The "question of consolidation is a decision in which the [trial] court has great latitude and ... its ruling thereon is not to be disturbed on appeal except for an abuse of discretion." Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284, 287-88 (D.C.1977). On these facts, we are not prepared to second-guess Judge Winfield's exercise of her broad discretion.
We have been advised, however, that the plaintiff's second suit was stayed pending the disposition of the present appeal, and that it is presently scheduled for trial in April 2001. The factors that informed the judge's exercise of discretion in 1999 may no longer exist in 2001. We therefore direct that on remand, the trial court give further consideration to the plaintiff's motion to consolidate in light of the changed circumstances and in conformity with the authorities cited in this opinion. See 791-93, supra. If, as seems probable, the evidence in the two cases would be reciprocally admissible, and if the two cases are at comparable stages of advancement, it may constitute "good judicial husbandry," Lawlor v. District of Columbia, 758 A.2d 964, 974 (D.C.2000) (citation and alteration omitted), to avoid duplication by holding a single trial rather than two.
III.
CONCLUSION
For the foregoing reasons, the judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.
So ordered.
NOTES
[1] Howard University's Graduate Faculty consists of professors who teach graduate and post-graduate students, but membership in the Graduate Faculty is not a prerequisite for such teaching assignments. In fact, although she is not a Graduate Faculty member, the plaintiff currently teaches graduate and postgraduate students. Appointment to the Graduate Faculty is for a three-year term, and candidates for membership must apply to a committee consisting exclusively of other Graduate Faculty members. Members of the Graduate Faculty do not receive additional remuneration. Rather, membership enhances a professor's standing in the University's academic community and his or her access to professional opportunities. Only Graduate Faculty members are eligible to chair dissertation committees, and the Graduate Faculty has separate meetings at which policies regarding graduate students are established and discussed. Graduate Faculty members also have access to additional sources of grants, and members are sought after by the most promising students.
[2] Dr. Harper and Dr. Carter-Obayuwana have been colleagues since the 1970s. Prior to 1992, they were peers. The plaintiff attributes her difficulties with Dr. Harper to her refusal to date him earlier in her career, and to Dr. Harper's allegedly negative reaction to this rebuff. Dr. Harper, on the other hand, claims that the problems have been caused by lack of professionalism on the plaintiff's part and by her "libelous statements, threats, and accusations" about and against him.
[3] Dr. Carter-Obayuwana testified that she repeatedly expressed her willingness to meet with University personnel to resolve the issues between her and Dr. Harper. Dr. Harper, however, declined to participate, apparently on the advice of counsel.
[4] The University contends that the plaintiff had really been expected to teach the Vocational Theories class from the outset, and that the assignment to Dr. Stills was simply a clerical error. According to Dr. Carter-Obayuwana, on the other hand, the Vocational Theories course was a completely new assignment of which she had been advised, for the first time, only five days before the beginning of the semester.
[5] The plaintiff ultimately taught neither Vocational Theories nor Multicultural Counseling during the fall semester, and her courseload was therefore below that normally required of a full-time tenured faculty member.
[6] According to the Faculty Handbook, "[d]isciplinary actions against faculty members may include ... temporary or indefinite reduction in pay and/or rank." One of the "grounds for disciplinary action" is "neglect of duty."
[7] The parties disagree over the circumstances under which Dr. Carter-Obayuwana's salary was belatedly restored. The plaintiff claims that the University intentionally maintained her at the lower rate of pay even after the expiration of the 1993 fall semester. According to the plaintiff, she repeatedly complained to Dr. Shields that she was still being paid only eighty percent of her salary, but that Dr. Shields "brushed [her] off." The University asserts, on the other hand, that the continued payment of the reduced salary after the end of the fall semester was "inadvertent" and an "administrative snafu." In any event, in February 1996, the plaintiff received a lump sum payment of $8,000 to compensate for the University's failure to restore her full salary in timely fashion. The plaintiff claims that the amount paid to her at that time was insufficient.
[8] The OHR took no testimony from any of the principals, and the Office thus made its "no probable cause" determination without being able to assess their credibility or demeanor.
[9] A peer-reviewed article is one that has been presented for comment, prior to publication, to editors and other scholars in the field.
[10] Drs. Moses and Stills were the only faculty members even arguably involved with Dr. Carter-Obayuwana's reapplication to the Graduate Faculty who were shown to have been aware that she had filed a complaint with the OHR.
[11] In her complaint, Dr. Carter-Obayuwana also asserted a common law claim of breach of contract. This claim was disposed of prior to the first trial and is no longer a part of the case.
[12] Under the DCHRA, an employee who has elected to have her claims resolved by the OHR, and who has failed to seek judicial review of an adverse finding by that Office, is precluded from instituting an independent lawsuit under the Act. D.C.Code § 1-2556(a); see also id. § 1-2554 (providing for judicial review of OHR determination); Brown v. Capitol Hill Club, 425 A.2d 1309, 1311-12 (D.C. 1981). In this appeal, the plaintiff does not challenge Judge Satterfield's disposition of this issue.
[13] Some of the plaintiff's retaliation claims under the DCHRA involved events that occurred after she filed her complaint with the OHR. Because the plaintiff had not brought these claims before the OHR, she was not precluded by the doctrine of election of remedies, see Brown, supra, note 12, 425 A.2d at 1311-12, from seeking judicial redress for those claims.
[14] According to the plaintiff, Dr. Harper and others had, inter alia, made and circulated false defamatory comments about her and had urged a new faculty member not to associate with her, all in reprisal for her allegations of sex discrimination and her complaint to the OHR.
[15] Judge Winfield apparently understood Judge Satterfield to have ruled that the plaintiff's memorandum of December 15, 1992 was not protected activity, and in a written order, she followed that ruling under the doctrine of "the law of the case." The judge concluded, in effect, that the reduction of Dr. Carter-Obayuwana's salary in 1993 preceded any protected activity, so that it could not form the foundation for a retaliation claim.
[16] State courts have concurrent jurisdiction with federal courts over civil actions brought pursuant to Title VII. See Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990).
[17] The relevant paragraphs of the complaint read as follows:
1. This is an action for declaratory judgment, compensatory damages, punitive damages, and reasonable attorney's fees and costs arising out of defendants' discrimination in violation of the District of Columbia Human Rights Act of 1977 as amended, D.C. Law 2-38, D.C.Code §§ 1-2501 et seq. (1992); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; and defendants' contractual and common law duties owed to plaintiff....
[Background Facts concerning] Retaliatory Conduct: Salary Reduction Without Due Process and Denial of Basic Resources
31. Howard University failed to give Dr. Carter-Obayuwana a hearing or a forum to air her grievance [against Dr. Harper]. Instead, Howard University retaliated by reducing Dr. Carter Obayuwana's salary ....
COUNT I
(UNLAWFUL DISCRIMINATION IN VIOLATION OF TITLE VII AND THE DISTRICT OF COLUMBIA HUMAN RIGHTS ACT)
...
39.... Defendants' actions in reducing the salary of Dr. Carter-Obayuwana constitute unlawful discrimination on the basis of gender and retaliation because defendants have not similarly reduced the salary of any male professors....
COUNT III
(REPRISAL AND RETALIATION)
44. Plaintiff repeats and incorporates by reference the allegations contained in paragraphs 1 through 43 above.
45. Defendants have taken numerous actions against Dr. Carter-Obayuwana, including, but not limited to refusal to return her salary to the proper level.
46.... Defendants' continuing refusal to provide Dr. Carter-Obayuwana with a new computer violates the D.C. Human Rights Act....
48.... Defendants denied Dr. Carter-Obayuwana reappointment to the Graduate Faculty for discriminatory reasons, because of her gender and to retaliate against her for exercising the right to be free from discrimination, as guaranteed to her by the District of Columbia Human Rights Act.
(Italics added, underlines in original, bolding omitted.)
[18] The complaint was prepared by prior counsel for the plaintiff.
[19] Where the claim of protected activity is based on a mistaken belief, however, "[t]he mistake must, of course, be a sincere one; and presumably it must be reasonable[.] ... [I]t seems unlikely that the framers of Title VII would have wanted to encourage the filing of utterly baseless charges by preventing employers from disciplining the employees who made them." Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir.1982) (citation omitted).
[20] Green arose under the DCHRA's prohibition against retaliatory employer conduct rather than under Title VII's opposition clause, but the same analysis is employed under the two statutes. E.g., Green, supra, 652 A.2d at 45 n. 3; Arthur Young, supra, 631 A.2d at 368.
[21] In McKenna, the Court of Appeals ruled that the plaintiff had made out a prima facie case of retaliation, but ultimately concluded that the trial court's finding of "no retaliation" was not clearly erroneous. McKenna, supra, 234 U.S.App.D.C. at 305, 729 F.2d at 791. Unlike the present case, McKenna did not involve a jury trial, and the judge was the trier of fact.
[22] Noting Judge Satterfield's implicit holding at the first trial that the plaintiff had not engaged in protected activity until she complained to the OHR in 1994, the University asks us to uphold, under the doctrine of the law of the case, Judge Winfield's holding to the same effect at the second trial. But regardless of whether or not Judge Winfield was required to follow Judge Satterfield's apparent disposition of the issue, we as an appellate court obviously are not bound by the Superior Court's action. On appeal, the proper inquiry is whether the second trial judge's ultimate disposition was correct, and not whether that ruling was consistent with the first trial judge's holding. See, e.g., Guilford Transp. Indus. v. Wilner, 760 A.2d 580, 593-94 (D.C.2000).
[23] The University claims that the reduction in the plaintiff's salary was not in retaliation for her complaints about sexually discriminatory treatment by Dr. Harper, but rather a legitimate response to her insubordination in refusing to teach the Vocational Theories class. We agree that the University has "articulate[d] a legitimate, nondiscriminatory reason" for the salary reduction, which, if true, would satisfy the required second step in the analysis of a retaliation claim. McKenna, supra, 234 U.S.App.D.C. at 304, 729 F.2d at 790. But under the McDonnell-Douglas standard, as applied to retaliation cases, the plaintiff is entitled to an opportunity, which she has not heretofore been afforded, to "prove by a preponderance of the evidence that the proffered reason was but a pretext for retaliation." McKenna, supra, 234 U.S.App.D.C. at 304, 729 F.2d at 790. In St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), the Supreme Court held that a "factfinder's disbelief of the reasons put forward by the defendant ... may, together with the elements of the prima facie case, suffice to show intentional discrimination."
In this case, the plaintiff claims that the order which she concededly disobeyed namely, that she teach the Vocational Theories course was itself issued suddenly and belatedly, at a time especially inconvenient to her, as a reprisal against her complaints of discriminatory treatment. The issue of pretext, and other related issues, must be resolved at trial.
[24] The University represents in its brief that by early 1999, it "had already lost the benefit of certain key witnesses due to resignations and retirements." Justice delayed may, indeed, be justice denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918267/ | 730 So.2d 568 (1998)
Daniel F. GOSS
v.
STATE of Mississippi.
No. 97-CP-00357-SCT
Supreme Court of Mississippi.
December 10, 1998.
Rehearing Denied February 25, 1999.
*569 Daniel F. Goss, Appellant, pro se.
Office of the Attorney General by Jeffrey A. Klingfuss, Attorney for Appellee.
Before PITTMAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.
SMITH, Justice, for the Court:
STATEMENT OF THE CASE
¶ 1. During the April 1995 term, the Grand Jury of Newton County, Mississippi, indicted Daniel F. Goss on the charges of Burglary as an Habitual Offender pursuant to Miss.Code Ann. §§ 97-17-19 and 99-19-83. Goss had previous felony convictions for the crimes of burglary, escape from imprisonment, and rape.
¶ 2. On April 13, 1995, Goss pled guilty to the charge of Burglary. Subsequently, he was adjudged to be an habitual offender as defined by Miss.Code Ann. § 99-19-81[1] and sentenced to a term of ten (10) years imprisonment, without the possibility of parole or early release.
¶ 3. Aggrieved by the trial court's decision, Goss appeals pro se, and raises the following issues:[2]
I. WHETHER THE STATE VIOLATED THE TERMS OF THE PLEA BARGAIN AGREEMENT.
*570 II. WHETHER GOSS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
III. WHETHER THE TRIAL COURT JUDGE IMPERMISSIBLY ENGAGED IN PLEA BARGAIN NEGOTIATIONS.
IV. WHETHER GOSS'S GUILTY PLEA WAS VOLUNTARY AND FREELY GIVEN.
LEGAL ANALYSIS
I. WHETHER THE STATE VIOLATED THE TERMS OF THE PLEA BARGAIN AGREEMENT.
¶ 4. Goss argues that a plea bargain agreement was reached between court-appointed defense counsel, Honorable Robert M. Logan, and District Attorney Ken Turner, whereby Goss would plead guilty to burglary. It was Goss's understanding that in exchange for his guilty plea, the habitual offender portion of the indictment would be dismissed. Accordingly, Goss believed that he would receive a ten (10) year sentence with parole eligibility and which would run concurrent with any other sentence(s) he may incur.
¶ 5. Goss alleges that this agreement was rescinded by the District Attorney's office, since neither Judge Gordon nor the victims of the burglary were willing to accept or consent to the terms of the agreement. Goss maintains that a new agreement was proposed whereby Goss would plead guilty to burglary and the State would pursue habitual offender status under Miss.Code Ann. § 99-19-81 (habitual offender without prior violent crime conviction), as opposed to Miss.Code Ann. § 99-19-83 (habitual offender with violent crime conviction) under which he was originally indicted. Pursuant to this agreement, it was Goss's understanding that the State would recommend a ten (10) year sentence without the possibility of parole, which is the mandatory sentence under § 99-19-81.
¶ 6. Goss pled guilty to the charge of burglary and the State recommended that the indictment be amended to reflect § 99-19-81 instead of § 99-19-83 and Circuit Court Judge Marcus D. Gordon sentenced Goss to the mandatory ten (10) year sentence without possibility of parole. Had Goss rejected the terms of the second agreement, his only other possible courses of action would have been to either (1) plead guilty to the original charges as alleged in the indictment, or (2) plead not guilty to the original charges as alleged in the indictment. Under either of these courses of action, Goss would have been subject to a mandatory life sentence without the possibility of parole.
¶ 7. Goss relies upon the United States Supreme Court's decision in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) as authority for the proposition that the prosecutor breached his agreement by proposing the second agreement which included different terms than that originally agreed to by Goss. However, this Court should find that Goss's reliance on Santobello is unfounded. There is a major distinction between the facts of the case at bar and those in Santobello. The defendant in Santobello had already pled guilty when the prosecution changed its recommendation for sentencing, whereas in the case at bar, Goss was advised of the second agreement and agreed to the second agreement before he pled guilty. Had Goss not been advised of the recission of the State's original agreement when he pled guilty, his reliance on Santobello would be understandable. However, Goss admits that he was aware of the State's recission of the original agreement as well as the offer of a new agreement with different terms before he pled guilty to the charge of burglary.
¶ 8. Simply because the State rescinded its original agreement in what Goss refers to as the "twelfth hour," this is not sufficient to show that he was "coerced" into pleading guilty under the revised agreement. At any time, Goss could have invoked his right to plead not guilty and proceed to trial. While Goss may feel aggrieved by the fact that the second agreement was not as favorable to him as the original agreement, the State is under no obligation to honor the demands of a criminal defendant. Nor is the trial judge required to honor the terms of any recommendation made as a result of a plea agreement.
*571 ¶ 9. It should also be noted that the record contains a statement made by Mr. Logan, Goss's court-appointed defense counsel. Mr. Logan's statement does not support Goss's allegations in that there is no mention of an original agreement that was changed at the last hour. This Court will not rely solely on assertions made in the briefs; it is the appellant's duty to establish any facts necessary to establish his claim of error. Ross v. State, 603 So.2d 857, 861 (Miss.1992). Goss has provided no support for his allegation that there was in fact an original agreement, let alone a "twelfth hour" recission of such agreement. Accordingly, the trial court's decision is affirmed.
II. WHETHER GOSS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
¶ 10. Goss argues that he was denied due process of law because his appointed defense counsel, Honorable Robert Logan, possessed a conflict of interest which prejudiced his ability to represent the defendant. Mr. Logan served as attorney for the Newton County Board of Supervisors. In this capacity, Mr. Logan was currently representing Newton County Sheriff, James Hanna, in three (3) civil matters in federal district court. Because Mr. Logan expected Deputy Sheriff Ron Davis to be a material witness in the case against Goss, Mr. Logan filed a Motion to Withdraw as Counsel on March 31, 1995. However, according to Mr. Logan's statement regarding this matter, this motion was never heard by the trial judge because Judge Gordon indicated that no plea bargaining would be allowed after commencement of motion hearings. Also according to Mr. Logan, at this time, Judge Gordon asked Goss if he wanted to plea bargain and after Goss indicated he did want to plea bargain the parties retired from chambers and worked out a plea arrangement, which was subsequently approved by the Court.
¶ 11. The standard for reviewing claims of ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mississippi adopted the Strickland standard in Stringer v. State, 454 So.2d 468, 476-78 (Miss.1984) and has consistently applied this standard in subsequent cases. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987) (citing Ferguson v. State, 507 So.2d 94, 95-97 (Miss. 1987); Waldrop v. State, 506 So.2d 273, 275-76 (Miss.1987); Alexander v. State, 503 So.2d 235, 240-41 (Miss.1987); King v. State, 503 So.2d 271, 273-76 (Miss.1987); Leatherwood v. State, 473 So.2d 964 (Miss.1985)).
¶ 12. Our inquiry under Strickland is twofold:
(1) Was defense counsel's performance deficient when measured by the objective standard of reasonable professional competence, and if so
(2) Was [the appellant] prejudiced by such failure to meet that standard?
Hansen v. State, 649 So.2d 1256, 1259 (Miss. 1994). Additionally, "[a]n ineffective assistance claim by its very nature refers to the totality of counsel's pre-trial and trial performance." Neal v. State, 525 So.2d 1279, 1281 (Miss.1987). "At the outset, defense counsel is presumed competent and the burden of proving otherwise rests on [the appellant]." Hansen, 649 So.2d at 1258.
¶ 13. Goss does not allege that Mr. Logan's performance was deficient. Instead Goss argues that he was prejudiced by having Mr. Logan as counsel, since he was forced to plead guilty or go to trial and be represented by someone with an apparent conflict of interest.[3] However, there is nothing in the record to support Goss's assertion that the only reason he pled guilty was to avoid being represented at trial by Mr. Logan. Conversely, court transcripts reveal that Goss understood the rights he waived by pleading guilty, that he did not wish to ask the trial judge any questions concerning this matter, and that he was not threatened or intimidated in any way into pleading guilty. Additionally, there is nothing in Mr. Logan's statement that supports Goss's allegations. In fact, Mr. Logan's statement indicates that *572 Goss advised the trial judge that he wanted to plea bargain before the arrangements were worked out. Once again, Goss has failed to provide any factual support of the allegations in his brief. See Ross v. State, 603 So.2d 857, 861 (Miss.1992).
¶ 14. Furthermore, Goss shows no prejudice. Had he not accepted the plea agreement, he would have been facing a mandatory life sentence upon conviction. Goss, of course, alleges that he was prejudiced by the State's recission of the original plea agreement wherein he would only receive a 10 year sentence with the possibility of parole. However, Goss has failed to provide any factual evidence showing that there was an original agreement. Moreover, even if there had been an original agreement, the parties were not bound by its terms since Goss had not yet entered his plea. Additionally, the trial judge is not bound by any plea agreement or any recommendations made by the parties. Accordingly, this Court finds that this issue is without merit.
III. WHETHER THE TRIAL COURT JUDGE IMPERMISSIBLY ENGAGED IN PLEA BARGAIN NEGOTIATIONS.
¶ 15. Goss alleges that Judge Gordon actively participated in plea bargain negotiations and thereby violated applicable rules of court, which ultimately coerced him into pleading guilty. Specifically, Goss argues that during a pretrial motion hearing, Judge Gordon stated to the defendant (1) that if pretrial motions are presented to the court, then the defendant will not be allowed to enter into any plea bargain agreement, (2) that the defendant may be required to proceed to trial on the merits of the case, and (3) that if convicted, the defendant would be sentenced to serve life imprisonment without parole. Goss relies upon United States v. Miles, 10 F.3d 1135 (5th Cir.1993), wherein the Fifth Circuit Court of Appeals ruled that federal district court judges are prohibited by Fed. R.Crim. Pro. 11(e)(1) from judicial involvement in plea-bargain negotiations.
¶ 16. This Court takes note that Mississippi judges are likewise prohibited from participating in plea discussions pursuant to URCCC 8.04(B)(4) which reads in pertinent part:
The trial judge shall not participate in any plea discussion. The court may designate a cut-off date for plea discussions and may refuse to consider the recommendation after that date.
¶ 17. However, URCCC 8.02(B)(2)(b) also provides that any "recommendation [made] to the trial court for a particular sentence ... will not be binding upon the court." Accordingly, the decision to accept or reject a plea agreement is purely within the trial judge's discretion. Furthermore, each of Judge Gordon's statements about which Goss complains was true. If Goss had not pled guilty, he would have proceeded to trial. If Goss had been convicted, upon proper proof of his habitual offender status, Goss would have been facing a mandatory life imprisonment without the possibility of parole. Therefore, not only was Judge Gordon not actively participating in plea negotiations, he was ensuring that Goss was fully informed of what he would be facing if he chose not to go forth with plea bargain negotiations.
¶ 18. Furthermore, Judge Gordon did not err in advising Goss and his counsel that once pretrial motions were presented to the court, Goss would not be allowed to enter into any plea bargain agreement. In accordance with URCCC 8.04(B)(4), "[t]he court may designate a cut-off date for plea discussions and may refuse to consider the recommendation after that date." By advising Goss that no plea agreement would be considered once pretrial motions were heard by the court, Judge Gordon was acting within his authority. This Court notes that this procedure promotes judicial efficiency in that the court does not spend time hearing pretrial motions that are automatically rendered moot in the event the defendant pleads guilty. Accordingly, there is no merit to this claim.
IV. WHETHER GOSS'S GUILTY PLEA WAS VOLUNTARILY AND FREELY GIVEN.
¶ 19. As previously mentioned, Goss argues that he was coerced into accepting the second plea bargain agreement. Among the reasons Goss asserts are Judge Gordon's refusal to rule on his pretrial motions, defense *573 counsel's alleged conflict of interest, and his impression that he had no choice but to plead guilty to or go to trial with an attorney who could not adequately represent him. However, as also previously noted, the court transcript does not support Goss's assertions regarding this matter.
¶ 20. When determining the validity of a guilty plea, this Court has held that a "guilty plea will only be binding if it is voluntarily and intelligently entered." Drennan v. State, 695 So.2d 581, 584 (Miss.1997) (quoting Banana v. State, 635 So.2d 851, 854 (Miss. 1994)). See, e.g., Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992); Myers v. State, 583 So.2d 174, 177 (Miss.1991); Wilson v. State, 577 So.2d 394, 397 (Miss.1991). "In order for a guilty plea to be voluntarily and intelligently entered, a defendant must be advised about the nature of the crime charged against him and the consequences of the guilty plea." Banana, 635 So.2d at 854. Specifically, Rule 8.04(A)(4) of the Uniform Rules of Circuit and County Court Practice, provides:
Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:
a. That the accused is competent to understand the nature of the charge;
b. That the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law;
c. That the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination; if the accused is not represented by an attorney, that (s)he is aware of his/her right to an attorney at every stage of the proceeding and that one will be appointed to represent him/her if (s)he is indigent.
URCCC 8.04(A)(4).
¶ 21. The court records indicate that Goss was advised of his constitutional rights before entering his guilty plea. Specifically, at Goss's guilty plea hearing, Goss was questioned by Judge Gordon regarding his understanding of his constitutional rights, the consequences of a guilty plea and his competency to enter a plea. The following court transcripts specifically demonstrate that Goss was in fact advised of each constitutional right he was waiving by pleading guilty.
¶ 22. In Smith v. State, 636 So.2d 1220 (Miss.1994), this Court stated "[w]hen we compare [Smith's] previous sworn testimony during his guilty plea with his current affidavit, the latter is practically rendered a `sham,' thus allowing summary dismissal of the petition to stand." Id. at 1224 (citation omitted). The case sub judice is similar to Smith in that Goss's pleadings are in direct conflict with the court transcript. The record clearly belies every allegation Goss makes in his Motion for Post-Conviction Relief. Therefore, there is no merit to Goss's claim that his guilty plea was not freely and voluntarily given.
CONCLUSION
¶ 23. It is the appellant's duty to provide factual support for his allegations. However, there is no support in the record for any of Goss's assertions contained in his brief. Conversely, the record provides direct evidence in contradiction of Goss's allegations. Accordingly, the trial court's decision is affirmed.
¶ 24. DENIAL OF POST-CONVICTION RELIEF AFFIRMED.
PRATHER, C.J., SULLIVAN and PITTMAN, P.JJ., and McRAE, JAMES L. ROBERTS, Jr., MILLS and WALLER, JJ., concur.
BANKS, J., concurs in result only.
NOTES
[1] In order for the court to be able to accept Goss's guilty plea and to accept the State's recommendation of ten (10) years imprisonment pursuant to a plea agreement, the District Attorney moved the court for permission to amend the indictment from showing Goss as an habitual offender under 99-19-83 to 99-19-81.
[2] Defendant Goss raised eight separate issues in his appeal brief. However, these issues were so interrelated they have been consolidated into four general issues.
[3] Goss relies upon Mississippi Bar Ethics Opinion # 224 which was rendered on April 10, 1995. However, by its own terms, this opinion was not effective until the first Monday in January 1996. Goss pled guilty on April 13, 1995, which was approximately eight months prior to enforcement of this rule. Accordingly, Goss's reliance on this opinion is without merit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918269/ | 764 A.2d 760 (2000)
In re Matilene S. BERRYMAN, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals.
No. 99-BG-1499.
District of Columbia Court of Appeals.
Argued December 1, 2000.
Decided December 28, 2000.
Matilene S. Berryman, respondent pro se.
*761 Wallace E. Shipp, Jr., Deputy Bar Counsel, with whom Joyce E. Peters, Bar Counsel, was on the brief, for the Office of Bar Counsel.
Before SCHWELB, FARRELL and REID, Associate Judges.
REID, Associate Judge:
Contrary to the views of its hearing committee, the Board on Professional Responsibility has recommended that Matilene Berryman, Esq. be disbarred for intentional misappropriation of client funds, dishonesty, and other violations of the District of Columbia Rules of Professional Conduct. In light of our decision in In re Addams, 579 A.2d 190 (D.C.1990) (en banc), and subsequent cases which recognize that although the sanction of disbarment is harsh, it is nonetheless necessary to ensure public confidence in the integrity of the Bar; we adopt the Board's recommendation and order that Ms. Berryman be disbarred.
FACTUAL SUMMARY
The record before us shows that Ms. Berryman was admitted to the District of Columbia Bar on January 10, 1975.[1] She practiced law part-time from 1975 to 1983, when she began practicing full-time as a solo practitioner. Her specialty was probate law, but she also handled some personal injury cases.
Bar Counsel's specification of charges against Ms. Berryman, signed on May 23, 1997, related to her handling of the affairs of Mary Patterson. Prior to rendering services to Ms. Patterson, Ms. Berryman was retained by Edward A. Patterson, the man with whom Mary Patterson resided and to whom Ms. Berryman believed she was lawfully married when Mr. Patterson died. Ms. Berryman handled the probate of Mr. Patterson's estate after his death. Subsequently, when Ms. Patterson suffered an arm injury during apparently negligent dialysis treatment, she prevailed upon Ms. Berryman to take legal action in her behalf, with respect to her injury, for a legal fee of $30,000. Ultimately, Ms. Berryman was successful in persuading the hospital to cancel Ms. Patterson's $499,000 debt to the hospital.
Instead of paying Ms. Berryman's $30,000 legal fee directly to her, Ms. Patterson asked Ms. Berryman to open a joint account with her at Citizens Bank and to permit her to personally use the $32,400, which she would deposit into the account. Ms. Berryman agreed because Ms. Patterson was experiencing cash flow difficulties at the time.[2] Since Ms. Patterson used some of the funds in the joint account for her personal use, the account eventually lacked funds sufficient to cover all of Ms. Berryman's $30,000 legal fee, and at the time of Ms. Patterson's death on May 31, 1993, Ms. Berryman estimated that she *762 was still owed approximately $6,000 of her legal fee.[3]
Bar Counsel's charges that Ms. Berryman violated Rules 1.15(a) and 1.15(c) of the District's Rules of Professional Conduct relate to money which Ms. Patterson still owed Ms. Berryman at the time of her death, and the manner in which Ms. Berryman sought to retrieve what was owed to her. Bar Counsel's specifications regarding these rules read as follows:
Rule 1.15(a), ... Respondent knowingly and/or recklessly (1) failed to hold property of a client and/or third persons in her possession in connection with a representation separate from her own property (commingling) and/or (2) intentionally and/or recklessly misappropriated funds belonging to a client and/or third persons;
Rule 1.15(c), ... [D]uring the course of the representation, Respondent came into possession of funds in which another person and she claimed an interest and failed to keep those funds separate from her own funds until the dispute was resolved[.]
The record before us is not crystal clear as to how the Citizens Bank joint account and Ms. Patterson's indebtedness to Ms. Berryman were handled during the period April 1993 to September 1993. In her testimony of May 1, 1998, before a hearing committee, Ms. Berryman stated that Ms. Patterson, who owned rental property, gave her an "April rent" check or money order and "wanted [Ms. Berryman] to take the May rent check." Subsequently, Ms. Patterson received two other checks, one from T. Rowe Price, and the other from Pennzoil. In addition, Ms. Berryman asserted that Ms. Patterson informed her that another check, in the amount of $7,000 would arrive in June, "and that she [Ms. Patterson] would use that to finalize the last payment that she owed to [Ms. Berryman]."
Ms. Patterson died before the rental money orders, and the T. Rowe Price and Pennzoil checks were deposited. Subsequent to Ms. Patterson's death, Ms. Berryman took a deposit slip, dated May 30, 1993, and four money orders and checks to the Citizens Bank for deposit. The deposit, which amounted to $939.84, consisted of the following:
Money Order # 1, dated June 14, 1992 $150.00
Money Order # 2, dated June 14, 1992 $500.00
T. Rowe Price Check $139.87
Pennzoil Check $149.97
Instead of May 30, 1993, a copy of the deposit slip revealed that the deposit was made on July 17, 1993. However, accounting records presented to the hearing committee showed a deposit date of September 3, 1993.
Ms. Berryman maintained that after she received the April rental money orders, Ms. Patterson retrieved them for her own use. Ms. Berryman attached to her amended reply brief in this case copies of money orders in the amount of (1) $150 with a handwritten notation of "April Rent 1993" and (2) $500, with the same notation. *763 The endorsement on the back of these money orders, executed on May 14, 1993, bears the signature, "Mary Patterson." Ms. Berryman said that she later received two money orders, one for $150, the other for $500, each bearing the handwritten notation, "May Rent 1993."[4] Initially, Ms. Berryman asserted that she used the deposit slip that she had filled out on May 30, 1993 to make the deposit, even though the actual deposit did not occur on May 30th. On cross-examination, Bar Counsel established that the April rent money orders were cashed by Ms. Patterson on May 14, 1993, and the May rent money orders were not purchased until June 14, 1993. Therefore, none of the April or May money orders were in Ms. Berryman's possession as of May 30, 1993.
Ms. Berryman testified that the difference in the July 1993 deposit date on the deposit slip, and the September deposit date reflected in the accounting records, was traceable to her action of freezing the Citizens Bank joint account after Ms. Patterson's death. Ms. Berryman indicated that some $9,000 remained in the account at the time it was frozen. Banking records for the Citizens Bank joint account show the following balances: (1) as of May 13, 1993, $14,084 .37; (2) June 11, 1993, $9,552.27; and (3) July 14, 1993, $9,275.02. On cross-examination by Bar Counsel during Ms. Berryman's May 1, 1998 testimony before the hearing committee, she stated that Ms. Patterson owed her approximately $6,000 at the time of her death, and that the balance in the Citizens Account was about $12,000 on the date of Ms. Patterson's death.
Other specification of rule violations against Ms. Berryman by Bar Counsel related to the drafting of Ms. Patterson's will by Ms. Berryman, and the appearance of Ms. Patterson's husband of record to claim his statutory share of her will:
Rule 1.8(b), ... Respondent prepared an instrument for a client that gave her a substantial testamentary gift;
Rule 8.4(c), ... Respondent engaged in conduct involving dishonesty, fraud, deceit, and/or misrepresentation;
Rule 8.4(d), ... Respondent engaged in conduct prejudicial to the administration of justice.
On March 27, 1992, Ms. Patterson signed a will drafted by Ms. Berryman, who was named personal representative. The will provided for the payment of "5% of all assets" to Ms. Berryman as an expense of administration of Ms. Patterson's estate. In addition, the will specified that if Ms. Patterson's parents should predecease her, "15%" of "any legacy to them" would be distributed to Ms. Berryman.
After Ms. Patterson died, a letter of June 14, 1993, was sent to Ms. Berryman from Bonnie J. Lawless, Esq., advising her she "[had] been retained by George Thorne, husband of the late Mary Lessie Thorne Patterson," and that he was "entitled to his statutory share as the parties never divorced." The record is silent as to whether a copy of Mr. Thorne's marriage license was enclosed with the letter. Ms. Lawless sent a second letter, on June 24, 1993, complaining that all furniture and possessions had been removed from Ms. Patterson's home, even though "Mr. Thorne has a valid claim to his statutory share of the estate, including tangible personal property."
In spite of the communications from Ms. Lawless, Ms. Berryman filed a petition for probate of Ms. Patterson's estate on June 29, 1993, without naming Mr. Thorne as an interested party. On August 27, 1993, Ms. Lawless sent a letter to the Register of Wills indicating that Mr. Thorne was Ms. Patterson's husband, and attaching a copy of his marriage license, as well as a certificate from the Family Division of the Superior Court that there was no record of any *764 divorce. Mr. Thorne's notice to the Probate Division, in which he claimed a statutory share of Ms. Patterson's will as her surviving husband, was docketed on September 2, 1993. Nonetheless, on October 22, 1993, Ms. Berryman filed an inventory of Ms. Patterson's estate, and again did not list Mr. Thorne as an heir or interested party. At a hearing in the Probate Division on November 23, 1993, Ms. Berryman asserted that she did not receive written documentation of Mr. Thorne's status as Ms. Patterson's husband until September 1993, and that because Mr. Thorne had deserted Ms. Patterson for thirty years prior to her death, he was not entitled to any of her estate under D.C.Code §§ 19-103 and 19-104. Counsel for Mr. Thorne insisted that Ms. Patterson left Mr. Thorne, and that he did not desert her. Later, in 1997, this court affirmed the trial court's order concluding that Mr. Thorne was Ms. Patterson's spouse, and that he was entitled to the statutory share of her estate. See Berryman v. Thorne, 700 A.2d 181 (D.C.1997).
The Hearing Committee found that, "by depositing the estate funds of $939.84 into the Citizens Account, [Ms. Berryman] commingled them with her own funds," in violation of Rule 1.15(a). Furthermore, "by drawing on the Citizens Account, she misappropriated the estate funds for her own use," also in violation of Rule 1.15(a). However, the Hearing Committee concluded that Ms. Berryman engaged in negligent rather than intentional misappropriation. The Hearing Committee also found that, independent of commingling and misappropriation, Ms. Berryman violated Rule 1.15(c), "by failing to keep these disputed funds separate from her own funds."
The Board decided that although the Probate Division determined that Ms. Berryman was "entitled to the Citizens Bank Account because of survivorship rights," after she listed the value of that account in the inventory of Ms. Berryman's estate assets, "she was not entitled ... to make disbursements for her own purposes." Rather, "[u]nder Rule 1.15(c), she was required to keep the Citizens Account separate until the rights to the account had been determined." Because the $939.84 sum "was subject to claims by heirs and creditors of the estate," Ms. Berryman also "violated Rule 1.15(c) when she deposited the ... $939.84 payable to [Ms.] Patterson in the Citizens Account and made no disclosure of that fact to the Court." Moreover, the Board also agreed that Ms. Patterson commingled and misappropriated funds, in violation of Rule 1.15(a). However, in contrast to the finding of the Hearing Committee, that Ms. Berryman's "decision to deposit the Patterson check into her own account was unintentional," and therefore negligent misappropriation, the Board found intentional misappropriation. As the Board stated, in part:
As an experienced probate attorney, [Ms. Berryman] was well aware that the checks [and money orders made out to Ms. Patterson] were assets of the estate, subject to claims by heirs and creditors, including herself. She was also aware of her duty to preserve estate assets. By appropriating the $939.84, she effectively placed her claim above all other heirs and creditors without authorization from the Court.
[Ms. Berryman's] explanations for her behavior also betray motives inconsistent with simple negligence. First, [she] backdated the deposit slip to make it appear that the deposit occurred prior to [Ms.] Patterson's death. This also confirms [Ms. Berryman's] understanding that, after [Ms.] Patterson's death, the checks became the property of the estate. Second, [Ms. Berryman] insisted that [Ms.] Patterson gave her the checks in May of 1993, shortly before [Ms. Patterson's] death. However, the record reveals that the [rental] money orders were not purchased until after [Ms.] Patterson's death, and that [Ms.] Berryman billed the estate for retrieving the Pennzoil and T. Rowe Price checks from [Ms.] Patterson's house on July 1, 1993. *765 Confronted with the many inconsistencies in her explanations, [Ms.] Berryman admitted that she converted the checks because [Ms.] Patterson owed her the money, and she believed she was entitled to keep it without reporting it to the Probate Court. In so doing, she eliminated any reasonable possibility of having her efforts perceived as unintentional.
With respect to the violation of Rule 8.4(c) for dishonest conduct, both the Hearing Committee and the Board found Ms. Berryman violated the rule by failing to list and notify Mr. Thorne as an interested party in the probate of Ms. Patterson's estate, because of his marriage to her. The Hearing Committee and Board disagree, however, as to whether Ms. Berryman was dishonest with regard to commingling and misappropriation. The Hearing Committee declared that the commingling and misappropriation "reflected a genuine but erroneous belief on the part of [Ms. Berryman] that she was entitled to the funds at issue." In contrast, the Board "conclud[ed] that [Ms. Berryman's] efforts to conceal her misappropriation of the deposit on July 1[7], 1993, also reflected dishonesty," because Ms. Berryman "backdated the deposit slip, prevaricated regarding her possession of the checks in May of 1993, and failed to disclose the conversion to the Probate Court."[5]
At the conclusion of its analysis, the Hearing Committee recommended a one year suspension, based on negligent misappropriation. Because of its finding of intentional misappropriation, the Board rejected the Hearing Committee's recommendation, and instead, recommended disbarment. In recommending disbarment, the Board concluded:
Under the prevailing case law, we are compelled to recommend that [Ms.] Berryman be disbarred. We do note, however, that [Ms. Berryman's] misconduct would not warrant disbarment but for the Addams rule and suggest, as did Associate Judges Schwelb and Ruiz [in] their concurring opinion in Pierson, 690 A.2d [941] at 951, that the Addams rule is "too inflexible" and that this case presents a situation where the objectives of the disciplinary system would be fully met by a lengthy suspension.
ANALYSIS
Ms. Berryman challenges the findings and conclusions of the Board regarding all of the specified violations of the Rules of Professional Conduct. In essence, she maintains that rulings of the Probate Division are res judicata and support her contention that she has not engaged in misconduct; that Ms. Patterson owed her the balance of a $30,000 legal fee, and thus, she neither commingled nor intentionally misappropriated the sum of $939.84; and that Mr. Thorne had no interest in the Citizens Bank account; and that she achieved a substantial benefit for Ms. Patterson's estate by representing her in a personal injury action against the hospital which negligently injured her arm during dialysis treatment. She also maintains that, under this court's case law, disbarment is not an appropriate sanction on this record. The Board, through Bar Counsel, argues that the disposition by the Probate Division is not a bar to disciplinary action against Ms. Berryman; that Ms. Berryman improperly designated herself as a beneficiary of Ms. Patterson's will; that she commingled and intentionally misappropriated funds from Ms. Patterson's estate; *766 that her conduct was dishonest during the probate of Ms. Patterson's will; and that by her behavior, she seriously interferred with the administration of justice. On this record, and in light of this court's precedents, Bar Counsel maintains that disbarment is appropriate.
Standard of Review
"[T]he scope of our review of the Board's Report and Recommendation is limited." In re Ray, 675 A.2d 1381, 1385 (D.C.1996). D.C. Bar R. XI, § 9(g) states in pertinent part:
In determining the appropriate order, the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.
See also In re Pierson, 690 A.2d 941, 946-47 (D.C.1997). Similarly, the Board is obliged to accept the hearing committee's factual findings if those findings are supported by substantial evidence in the record, viewed as a whole. In re Micheel, 610 A.2d 231, 234 (D.C.1992) (citing In re Thompson, 583 A.2d 1006, 1008 (D.C. 1990)). However, while the Board "must defer to the `subsidiary findings of basic facts,' which include such things as credibility determinations, made by the [Board's] fact-finding body (the hearing committee)[,] .... the Board owes no deference to the hearing committee's determination of `ultimate facts,' which are really conclusions of law." Id. (citing Washington Chapter of the Am. Inst. of Architects v. District of Columbia Dep't of Employment Servs., 594 A.2d 83, 87 (D.C.1991)). Thus, the Board owed no deference to the Hearing Committee's finding of negligent misappropriation. As we said in In re Micheel: "The `finding' of negligence had a clear `legal consequence': it directly affected the severity of the sanction to be imposed for concededly improper conduct. The Board therefore owed no deference to the hearing committee's conclusion that [the respondent] was merely negligent." Id. at 235 (footnote omitted). That we are faced with a legal question, which we review de novo, is clear from our decision in In re Utley: "[W]hether [the] underlying circumstances constitute misappropriation and whether any misappropriation resulted from more than simple negligence are questions of law concerning `ultimate facts.'" 698 A.2d 446, 449 (D.C.1997) (citing Micheel, supra, 610 A.2d at 234).
The Probate Division Ruling and Res Judicata
Ms. Berryman argues that rulings by the Probate Division of the trial court constituted res judicata because (1) even though there was an effort to remove her as Personal Representative, that effort failed; and (2) Judge Long found that the Citizens Bank Account belonged to her by right of survivorship, and that Ms. Patterson owed her $6,000 when she died. The record shows that while there was an initial effort by Mr. Thorne to remove Ms. Berryman as personal representative of Ms. Patterson's estate, he waived issues regarding her removal when Ms. Berryman recognized his status as surviving spouse.[6] Given the waiver, the Probate Division never considered the substance of Mr. Thorne's arguments. More important, however, is the fact that the Probate Division *767 and the Board were faced with different matters.
The Probate Division had to resolve legal issues pertaining to the probate of Ms. Patterson's will, while the Board considered questions pertaining to the conduct of an attorney in relation to client affairs. The difference is apparent from footnote 16 in Judge Long's August 2, 1995 memorandum opinion and order:
This Court has considered the rather quirky demands of the client of Ms. Berryman. It was risky, in retrospect, for [Ms.] Berryman to conduct business in the manner that she did because it so easily appears to be a self-serving explanation for why she paid herself the $6,000. However, based upon the totality of circumstances and this Court's observation of Ms. Berryman's credibility and demeanor, this Court is satisfied that she is not attempting to deceive anyone and that she is honestly reporting what occurred during the lawyer-client relationship. In retrospect, it would have been better practice to document this unique payment scheme concretely. The poor judgment in failing to do so, however, does not prove that Ms. Berryman is attempting to enrich herself for work that she never performed or that she is attempting to reserve for herself some asset that more properly belongs to the estate. The whole episode involving the bank account only looks suspicious because [Ms.] Berryman took on the role of Personal Representative, while still being a claimant. The law, however, does not preclude those dual roles.
Judge Long's footnote does not purport to address the serious issues of professional conduct that are the subject of the disciplinary action against Ms. Berryman. Moreover, Bar Counsel was not a party to the probate proceeding involving Ms. Patterson's will, and is entitled to be heard on the issue. In short, we see no res judicata bar to Bar Counsel's and the Board's action against Ms. Berryman. See In re Utley, 698 A.2d 446, 450 (D.C.1997) (an attorney who took unapproved payments representing conservator's fees and commissions, even though later ratified by the Probate Division, "used her client's funds without authorization" in violation of the rule against misappropriation).
Rules 1.15(a) and 1.15(c): Commingling and Misappropriation
Commingling is the less serious of the charged violations pertaining to Rules 1.15(a) and 1.15(c). It involves the failure to keep a client's funds separate from those of the attorney. As the Board stated: "Rule 1.15(a) requires a lawyer to `hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property...." As we said in In re Hessler, 549 A.2d 700, 702 (D.C.1988): "By mingling client funds with the attorney's own, the client's funds become more difficult to trace and are subject to the risk that they may be taken by creditors of the attorney." Furthermore, "the totally improper action of placing a client's funds in the attorney's own account.... alone puts the client's funds at risk, regardless of the adequacy of the balance." Id. at 701-02 (footnote omitted). Here, when Ms. Berryman placed the $939.84 that represented rental and royalty payments to Ms. Patterson in the Citizens Bank Account, she commingled her client's funds with her personal funds, and thus, violated Rule 1.15(a).
Sanctions for the single act of commingling generally have ranged from censure accompanied by a requirement for continuing legal education in professional responsibility, see In re Millstein, 667 A.2d 1355, 1356 (D.C.1995); In re Ingram, 584 A.2d 602, 603 (D.C.1991); to suspension, see In re Ross, 658 A.2d 209, 212 (D.C.1995) (thirty day suspension for commingling and failure to make prompt payment of settlement funds). In the case of commingling and inadvertent misappropriation or negligent misappropriation, we have imposed a *768 sanction of suspension. See Hessler, supra, 549 A.2d at 703 (six months suspension).
In Ms. Berryman's case, unlike Hessler, supra, we are faced with more serious charges of commingling and intentional misappropriation. Misappropriation is "`any unauthorized use of client's funds entrusted to [a lawyer], including not only stealing but also unauthorized temporary use for the lawyer's own purpose, whether or not [she] derives any personal gain or benefit therefrom.'" Pierson, supra, 690 A.2d at 947 (quoting In re Harrison, 461 A.2d 1034, 1036 (D.C.1983)) (other citations omitted). "Improper intent need not be shown." In re Ray, 675 A.2d 1381, 1386 (D.C.1996) (citing Harrison, supra). In this case, after Ms. Patterson's death, Ms. Berryman deposited $939.84 in the Citizens Bank Account, a joint account created by Ms. Patterson and Ms. Berryman, which as of the date of Ms. Patterson's death, belonged to Ms. Berryman because of her right of survivorship. The $939.84 consisted of money orders and checks made payable to Ms. Patterson, and thus, clearly belonged to her estate. Although Ms. Berryman claimed that the money belonged to her as part of Ms. Patterson's outstanding $6,000 indebtedness to her, Ms. Berryman received no authorization to take the funds and place them in her account. Hence, she misappropriated the funds even though the Probate Division later declared that she was entitled to the Citizens Bank Account because of the right of survivorship; and despite the fact that Ms. Patterson owed her $6,000 at the time of her death. See Utley, supra.
The question remains whether the misappropriation was intentional or negligent, and whether disbarment or suspension is the appropriate sanction. Our misappropriation rule "does not require scienter; rather, it is essentially a per se offense." Harrison, supra, 461 A.2d at 1036. In this case, the Hearing Committee and the Board disagreed as to whether Ms. Berryman engaged in negligent or intentional appropriation. The Hearing Committee concluded that Ms. Berryman "negligently backdated the deposit slip for the $939.84, making it appear that the deposit had been made prior to [Ms.] Patterson's death," and that her "actions are similar to the negligent misappropriation which occurred in In re Chang, D.N. 389-92 (BPR July 29, 1996); In re Choroszej, 624 A.2d 434 (D.C.1992); In re Reed, 679 A.2d 506 (D.C.1996)." The Board, which was not required to give deference to the Hearing Committee's finding of "ultimate facts," see Micheel, supra; disagreed, concluding that Ms. Berryman's actions fell within the ambit of Addams, supra; In re Godfrey, 583 A.2d 692 (D.C.1990), and Pierson, supra, because she: (1) "backdated the deposit slip to make it appear that the deposit occurred prior to [Ms.] Patterson's death"; (2) "insisted that [Ms.] Patterson gave her the [money orders] in May of 1993," despite the fact that the money orders were not purchased until June; and (3) maintained that she was entitled to take the $939.84, "without reporting it to the Probate Court." A determination as to whether Ms. Berryman's case falls within our precedent pertaining to negligent or intentional misappropriation requires a review of our relevant past cases.
We begin with our intentional misappropriation cases. In Addams, supra, the respondent attorney held funds needed to prevent foreclosure on his client's home. He removed funds from the escrow account, and consequently, the check he sent to the noteholder was returned for insufficient funds. He engaged in the action of taking funds. He engaged in the action of taking funds from the escrow account on more than one occasion, and made a false accounting report to his client, which did not show the funds that he had taken. When the hearing committee and Bar Counsel questioned him about his actions, he gave conflicting explanations. 579 A.2d at 199. We concluded that the respondent "knowingly used his client's money as if it were his own...." He did so "on more *769 than one occasion, and ... attempt[ed] to hide his actions from his client...." In affirming the Board's finding of intentional misappropriation, we said:
We now reaffirm that in virtually all cases of misappropriation, disbarment will be the only appropriate sanction unless it appears that the misconduct resulted from nothing more than simple negligence. While eschewing a per se rule, we adhere to the presumption laid down in our prior decisions and shall regard a lesser sanction as appropriate only in extraordinary circumstances.... [A]s a matter of course, the mitigating factors of the usual sort ... will suffice to overcome the presumption of disbarment only if they are especially strong and, where there are aggravating factors, they substantially outweigh any aggravating factors as well.
Id. at 191. During oral argument, Bar Counsel, on behalf of the Board, relied heavily on In re Robinson, 583 A.2d 691 (D.C.1990). There, the respondent attorney cashed and used a client settlement check. When the client made repeated demands for the settlement funds, the respondent refused to honor the request, and subsequently, tendered a check for which there were insufficient funds in the account, as well as assured the client that "the bank had told him the check would be honored." Id. at 692. When the client protested the non-payment and threatened to report him to Bar Counsel, the respondent offered to pay the settlement funds in exchange for the client's agreement not to make a report to Bar Counsel. Id. We determined that the mitigating factors could not overcome the presumption of disbarment. Id. Among the mitigating factors were "the relatively small amount of money, the relatively short period of time during which the client was denied the misappropriated funds, the absence of financial harm to the client, the fact that the misappropriation involved a single client, the relative inexperience of respondent, the absence of a prior disciplinary record, and the character testimony offered on respondent's behalf." Id. We concluded that the aggravating factor of "knowing dishonesty" would not have overcome an "[e]ven ... stronger showing of mitigating factors...."
The respondent in Micheel, supra, received rather substantial client funds related to the purchase of a residential property. The funds were placed in the attorney's regular office checking account, instead of a separate account. After paying the seller and noteholder, the attorney still retained $2,639.15 earmarked for taxes and other fees. He wrote two checks for these payments, but both were dishonored for insufficient funds. Checks written on the account, in the same period, for the attorney's business and personal expenses were not dishonored. 610 A.2d at 233. The Board rejected the hearing committee's finding of negligent misappropriation, finding instead, that the respondent's "misappropriation `was the consequence at least of reckless handling of client funds, not mere negligence or inadvertence.'" Id. at 234. We agreed with the Board's determination, and held that "`[a] clear rational basis exists for [the] conclusion that attorneys who knowingly misappropriate client funds stand in a different position than attorneys who commit other acts involving dishonesty.'" Id. at 237 (quoting In re Dulansey, 606 A.2d 189, 190 (D.C.1992)).
In In re Pels, 653 A.2d 388 (D.C.1995), the respondent attorney used part of a $20,000 client settlement fund for personal and business-related expenses, and consequently, lacked the funds to pay the client's medical bills which amounted to $2,427. Id. at 390. Checks written for some of these bills were dishonored. Id. at 391. In his defense, the attorney maintained that he had thousands of dollars in other accounts, and thus, sufficient funds to cover the medical bills; we rejected that argument. Id. at 394. We concluded that the misappropriation was intentional, in part, because of the attorney's approximate *770 year-long practice of "indiscriminate mingling of personal and client funds" and the dishonoring of the checks for medical bills; and the failure to account for remaining settlement funds. Id. at 395-96. We also "reject[ed] [the respondent's argument that] good faith his reasonable but erroneous belief that he was entitled to the balance of the funds reduced his culpability to simple negligence." Id. at 397.
Similar to the respondent in Pels, supra, the attorney in Pierson, supra, received client settlement funds. She used the funds to pay her law firm's operating expenses, and thus, did not tender the funds to the proper party. Because the suit had been dismissed after settlement was reached, the case had to be reinstated and a new settlement reached, which required an additional $500 payment. Ms. Pierson did not tell her client about this development; nor did she have the funds to pay the settlement to the proper party, even though she indicated that the funds were in her escrow account. Therefore, a second default took place. Subsequently, Ms. Pierson tendered a certified check to the settlement party for part of the funds, and a non-certified check for the remainder. The non-certified check was dishonored. Eventually Ms. Pierson paid the required sum. Id. at 943-44. We refused to accept Ms. Pierson's argument that her misappropriation was inadvertent, and that "when coupled with her past history of pro bono work, the absence of a prior disciplinary record, and her forthrightness with the Board and the hearing committee should be sufficient to mitigate the penalty [of disbarment]." Id. at 949-50. We also declared that these factors did not amount to "extraordinary circumstances" under Addams, supra. Id. at 950.
The respondent in Utley, supra, took unauthorized fees and commissions from an estate account. For example, on one occasion she took $1,223.42, and inadvertently made a duplicate payment of the same sum to herself; on another occasion, she took $5,000. Id. at 448. We determined that Ms. Utley's misappropriation was intentional, first, because "her prolonged failure to repay the duplicate fee [was] tantamount to recklessness." Id. at 450. She refused to repay the duplicate sum despite repeated requests from the Probate Division. Second, Ms. Utley's misappropriation was deemed intentional because "each of [her] three preapproval payments to herself was a deliberate act," and the third payment was made to herself despite the Probate Division's requests to return the prior payments. Id.
Next, we turn to the pertinent negligent misappropriation cases which were decided after Addams, supra, and resulted in a sanction of suspension, instead of disbarment. The respondent in Choroszej, supra, represented a taxi driver in a claim for personal injuries. He received two settlement checks in connection with that representation, which he placed in his client trust account. A doctor who had treated the client had to be paid out of the settlement funds. The Board found that the respondent "genuinely believed that he had paid [the doctor] ...", id. at 435, but had not. The respondent called the doctor's office to ask about the bill. Although he was informed that the doctor's office would get back to him, the "[r]espondent heard nothing further from the doctor's office, and respondent continued to hold an honest, but erroneous belief, that the doctor had been paid." Id. at 436. Thus, the attorney erroneously thought that the remainder of the funds in his client trust fund represented legal fees, and used those funds to pay business and personal expenses. After moving to Boston, the respondent learned that in fact the doctor's bill had not been paid, and subsequently, paid the $840 medical bill. Id. The Board concluded that the respondent's conduct was inadvertent and negligent. Id.
In Ray, supra, the respondent, who had never before probated an estate, assisted the client in the probate of an estate. Id. at 1383. In connection with that assistance, *771 the respondent received a check for $20,763.70 resulting from the sale of stock. The check was made payable to the estate of the decedent. The respondent deposited the check into his escrow account, and sent a check in the amount of $18,263.00 to the client. He paid estate expenses and taxes, in the amount of $223.85, out of part of the remaining $2,500.70, and kept the rest for himself as his legal fee, without a court order. He maintained that he was unaware of the need for a court order before he could take his legal fee. Id. at 1384. The Hearing Committee found no "`clear and convincing evidence that [the respondent] deliberately or recklessly attempted to deprive the estate of its funds.'" Id. at 1387. The Board also determined that the respondent's "conduct `did not reach the level of recklessness, but that his misappropriation stemmed from no more than simple negligence.'" Id. at 1388.
The respondent in Reed, supra, also was inexperienced in the area in which the professional rules violation occurred. At the time the respondent agreed to handle her first personal injury case for a friend, the respondent had been in practice for less than two years and had specialized in criminal defense work. Id. at 507. The respondent's representation resulted in a settlement of $3,600, one-third of which represented her legal fee. After the respondent sent a check to the client, representing her share of the settlement, she had sufficient funds to pay two doctor's bills. However, one of the bills, for $435, was not paid. Believing she had paid the doctor's bill, the respondent used the remaining funds for other purposes, unrelated to her representation of the client. When the respondent discovered that there was no record of payment of the medical bill, she mailed a check to the doctor's attorney. Id. at 508. The Board found that the failure to pay the doctor was inadvertent, and Bar Counsel filed no exception to this finding. Id.
In Chang, supra, 694 A.2d 877 (D.C. 1997), the respondent handled a real estate purchase transaction for his brother. In connection with that transaction he received $890,000 which he placed in his escrow account. Although, in addition to the purchase price of the property in question, the respondent had to pay property taxes, he had not obtained the tax money from his brother, but thought that there were sufficient funds in his escrow account to cover the taxes, which amounted to $8,013.77. The respondent left town for a family vacation and was unaware that two checks written on his escrow account, one for $1,000, the other for $2,000 had been dishonored because of insufficient funds. Id. at 879. Upon his return, he corrected the problem and made the payments that had been dishonored. Id. at 880. The Hearing Committee credited the respondent's explanation and Bar Counsel found it "`entirely credible.'" Id. at 879. Consequently, the Board recommended that the respondent be disciplined for negligent, rather than intentional misappropriation.
In re Haar, 698 A.2d 412 (D.C.1997) involved a dispute between the respondent and his client regarding his legal fee for representation in an employee termination matter. The respondent demanded $12,921.75, and the client offered to settle for $4,000. Id. at 414. The attorney maintained that he agreed to accept $10,161.75. Id. Three settlement checks were received from the employer, two made payable to both the client and the respondent, and one only to the client. Id. The respondent paid the funds to the client which were represented by the check paid solely to her, and placed the joint checks in an escrow account. He then advised the client that he would take the $4,000 undisputed part of his legal fee. Id. at 414. He also advised the client that he planned to take the remainder of the fee which he claimed, but the client responded by requesting that he replace the $4,000 which he had withdrawn from the trust account. Id. at 415. The respondent *772 refused to do so, and eventually obtained a default judgment against the client in the amount of $12,921.75. Id. We determined that:
[The respondent] mistakenly perceived no dispute whatsoever over his right to the $4,000 because he mistakenly understood the law to accord him at least that much since it had been offered in settlement. We therefore have here a special form of misappropriation case based on a lawyer's good faith, negligent mistake of established law and on his good faith, negligent failure to address a controlling question of fact.
Id. at 422. Neither Bar Counsel, nor the Board maintained that the facts of this case evidenced intentional misappropriation.
In another negligent misappropriation case, also decided today, In re Travers, 764 A.2d 242 (D.C.2000), the respondent took a $3,000 legal fee before the filing of a petition for probate, with the concurrence and signature of the personal representative named in the will, as well as with the consent of the heirs of the estate, but without the approval of the Probate Division. He also accepted a $652.74 fee for the sale of a property asset of the estate, with the consent of the heirs, but without the approval of the Probate Division. Subsequently, he was ordered to repay the estate the sum of $3,652.74, but failed to do so despite demands from the successor personal representative of the estate. The Hearing Committee concluded, in part, that he violated former DR 2-106(A) by agreeing to, charging and collecting an illegal fee; and that under Ray, supra, he misappropriated funds, in violation of former DR 9-103(A) and Rule 1.15(a). In concluding that respondent engaged in negligent misappropriation, the Hearing Committee stated: "Respondent has convinced the Committee that initially he sincerely believed the requirement [to obtain court approval of his legal fee] was not applicable to him under the circumstances." Furthermore, the Committee found no recklessness or intent to conceal: "Respondent's actions in obtaining the consents of the heirs and filing those consents with the Court, we believe support a finding that he was not reckless and that he was no way trying to mislead or conceal his conduct." The Hearing Committee also determined that respondent's failure to pay the judgment against him seriously interfered with the administration of justice under Rule 8.4(d). However, the Committee concluded that he did not engage in conduct prejudicial to the administration of justice, under former DR 1-102(A)(5), when he failed to seek approval of the Probate Division before he took his legal fee, stating: "if anything [respondent has been] over zealous in engaging in a dialogue with the courts regarding this issue." This court accepted the Hearing Committee's findings.
Ms. Berryman's situation does not fall neatly into any of the intentional and negligent misappropriation cases discussed above. Unlike the various intentional misappropriation cases, Ms. Berryman did not misappropriate client funds on more than one occasion nor engage in protracted mishandling of estate funds, nor present checks which were dishonored for insufficient funds. However, unlike the different negligent misappropriation cases, there was no finding by Bar Counsel or the Board that Ms. Berryman's misappropriation was traceable to an "honest, but erroneous belief"; Ms. Berryman specialized in probate matters; and backdated a deposit slip. Thus, Ms. Berryman is not in the same posture as the respondents in Ray and Reed, supra, who had not handled a probate matter prior to their misappropriation. Nor can she rely on the lack of evidence of intentional misappropriation, that is, the absence of any backdated document, as in Travers or Haar, supra, or any honest but erroneous belief, as in Choroszej, supra, that client funds had been properly used for a client matter. Nor, as in Travers, supra, can she assert that she took the $939.84 with the consent of the *773 heirs, or with the concurrence of a third party.
What draws Ms. Berryman closer to the intentional misappropriation cases are two factors. First, the absence of a prior disciplinary record in Ms. Berryman's case, even when coupled with other mitigating factors, is not a sufficient to overcome the presumption of disbarment. The respondent in Pierson, supra, not only was relatively inexperienced, but also had a clean disciplinary record prior to writing checks for client matters that were dishonored. In fact, Ms. Pierson's "past history of pro bono work, the absence of a prior disciplinary record, and her forthrightness with the Board and hearing committee," id. at 950, were insufficient to "substantially outweigh the aggravating factor of dishonesty." Id. As we reiterated in that case:
Given the holding of Addams, the mitigating factors in this case the relatively small amount of money, the relatively short period of time during which the client was denied the misappropriated funds, the absence of financial harm to the client, the fact that the misappropriation involved a single client, the relative inexperience of respondent, the absence of a prior disciplinary record, and the character testimony offered on respondent's behalf are insufficient to overcome the presumption of disbarment.... Even with a stronger showing of mitigating factors, the aggravating factors found by the Board, including the incident[] of knowing dishonesty ... make clear his failure to overcome the presumption.
Id. (quoting In re Robinson, 583 A.2d 691, 692 (D.C.1990)). Second, the Board's finding of Ms. Berryman's dishonesty and interference with the administration of justice, in violation of Rules 8.4(c) and 8.4(d), is indisputable, and separates her case, in large measure, from that of the respondent in Travers, supra. Unlike the respondent in Travers who sought the consent of the personal representative and the heirs before acting, Ms. Berryman refused to list Mr. Thorne as an interested party in Ms. Patterson's estate, or to include him in her service certifications to all parties in Ms. Patterson's probate matter, even though Mr. Thorne's attorney advised her that he was Ms. Patterson's lawful husband at the time of Ms. Patterson's death. Although she may well have been stunned and skeptical when Mr. Thorne resurfaced after an apparent absence of some thirty years from Ms. Patterson's life and refused to believe his status until presented with proof, nonetheless as an officer of the court, she had an obligation to list him as an interested party upon receiving the communications from his attorney. In addition, contrary to Ms. Berryman's initial explanation that she had the rental money orders in hand on May 30, 1993, prior to Ms. Patterson's death, the record is clear that she could not have received the money orders until June 14, 1993, when they were purchased. Furthermore, despite being an experienced probate attorney, and knowing that the rental money orders, the T. Rowe Price and the Pennzoil checks, all totaling $939.84, were made payable to Ms. Patterson, and thus, were presumptively part of Ms. Patterson's estate, nonetheless Ms. Berryman took these funds for herself, without court approval, and, unlike the respondent in Travers, supra, who made no attempt to conceal his actions, backdated the July 17, 1993 deposit slip, so that it appeared that the money orders and checks were received as of May 30, 1993, before Ms. Patterson's death. Although Ms. Berryman may have held a steadfast belief that the $939.84 belonged to her as part of Ms. Patterson's indebtedness to her, she should have recognized her obligation, as Personal Representative of Ms. Patterson's estate, to account for those funds, to list herself as a creditor of Ms. Patterson's estate, and to permit the court to resolve her claim. Instead, she placed herself ahead of all other creditors, without the approval of the Probate Division.
*774 Accordingly, we are constrained to agree with the Board that Ms. Berryman engaged in intentional misappropriation, and that the appropriate sanction is disbarment. Obviously, disbarment may appear to be quite harsh in this case where Ms. Berryman previously enjoyed a twenty-four year career as an attorney without a single blemish, rendered extraordinary service to Ms. Patterson, even to the point of depositing her $30,000 legal fee, for persuading D.C. General Hospital to cancel Ms. Patterson's $499,000 indebtedness, in a joint account so that Ms. Patterson might use the funds to ease her own apparent cash flow problem, and took the $939.84 as part of Ms. Patterson's indebtedness to her. Nevertheless, we have stated previously that harshness does not overcome the presumption of disbarment:
We recognize that "disbarment in a case such as this may seem to be a harsh sanction when compared with sanctions for other violations involving arguably more egregious conduct." In re Micheel, supra, 610 A.2d at 236 (citations omitted). However, we are equally mindful that, "where client funds are involved, a more stringent rule is appropriate" to ensure that "there not be an erosion of public confidence in the integrity of the bar." In re Addams, supra, 579 A.2d at 197-198.
Pierson, supra, 690 A.2d at 949.
It is therefore ORDERED that respondent, Matilene S. Berryman, is disbarred from the practice of law in the District of Columbia, effective thirty days from the date of this opinion. See D.C. Bar R. XI, § 14(f). For the purpose of seeking reinstatement to the Bar, the period of disbarment shall not be deemed to begin until respondent files a sufficient affidavit pursuant to D.C. Bar R. XI, § 14(g). See D.C. Bar R. XI, § 16(c).
FARRELL, Associate Judge, concurring:
I join entirely Judge Reid's opinion for the court, but do not wish to be read as endorsing the current Board's view that the Addams rule is too inflexible and should be reconsidered.
NOTES
[1] Ms. Berryman holds a Bachelor of Math degree from American University and a masters degree in marine affairs from the University of Rhode Island. She taught oceanography, environmental science, and marine science at the Naval Oceanographic Office and the University of the District of Columbia. She completed her law degree at Howard University School of Law.
[2] During the probate of Ms. Patterson's will, the Honorable Cheryl M. Long made factual findings and conclusions regarding the $30,000 legal fee and the joint bank account:
The $30,000 was made available to [Ms.] Berryman by a deposit into a bank account. The account was opened in the names of both [Ms.] Berryman and [Ms.] Patterson. [Ms.] Berryman made withdrawals both for her own needs (in effect spending part of her retainer) and for certain needs of Ms. Patterson as well. [Ms.] Patterson told [Ms.] Berryman that she wanted to maintain access to this account temporarily, so that [Ms.] Berryman could easily obtain cash for her and for other reasons. [Ms.] Patterson agreed to replenish whatever monies were withdrawn from this account for her benefit. This was their arrangement.
Judge Long concluded "that this bank account was a joint tenancy with a right of survivorship in Matilene Berryman."
[3] Judge Long of the Probate Division made the following findings and conclusions regarding Ms. Berryman's $6,000 claim:
By the time of the decedent's death, [Ms.] Berryman claimed only to be owed the final sum of $6,000. She acknowledges that she made this payment directly to herself from this account, at some point following the decedent's demise. Eventually, [Ms.] Berryman achieved a substantial benefit for the decedent and her estate in the form of cancellation of over $499,000 worth of hospital bills from D.C. General (footnote omitted)....
[Ms.] Berryman has indeed reported the $6,000 payment and seeks judicial ratification of this transaction. She has not sought to hide the existence of the account. To the contrary, she initially listed it as an asset of the estate on the First Account....
In retrospect, the nature of the arrangement between [Ms.] Berryman and decedent seemed to have been confidential and private between the two of them, as in a lawyer-client confidence. Thus, this Court is not surprised that there is not more corroboration of any other details. The corroboration that is provided, however, is enough to satisfy this Court that [Ms.] Berryman is not fabricating her explanation of how she came to be owed the $6,000.00.
[4] Copies of these money orders also were attached to Ms. Berryman's amended reply brief.
[5] With regard to the remaining specifications, both the Hearing Committee and the Board agreed that, under Rule 1.5(a), Ms. Berryman did not charge "an unreasonable fee for her legal services" in connection with the administration of Ms. Patterson's estate, and that 5% of the estate assets constituted a reasonable fee. Significantly, however, while the Hearing Committee found that Ms. Berryman's failure to serve Mr. Thorne and to inform the Probate Division of his claims or the $939.84 in estate assets, constituted conduct prejudicial to the administration of justice, in violation of Rule 8.4(d); the Board determined that this conduct was dishonest, and thus, a violation of Rule 8.4(c).
[6] In rendering her August 2, 1995 memorandum opinion and order in the case of Thorne v. Berryman, Admin. No. 1460-93 (Superior Court, Probate Division), Judge Long quoted from a statement by counsel for Mr. Thorne during a status hearing before the Honorable Peter H. Wolf on November 23, 1993:
I don't think Mr. Thorne genuinely objects to Ms. Berryman serving so long as she's willing to recognize that she has a duty to him also, which is to account for the property and to make a proper distribution. She was the decedent's attorney and is familiar with her affairs. And I don't have any genuine question as to her ability to handle this so long as his status is recognized. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578965/ | 267 Wis.2d 491 (2003)
2003 WI App 221
671 N.W.2d 371
STATE of Wisconsin, Plaintiff-Respondent,
v.
Rick L. EDWARDS, Defendant-Appellant.[]
No. 03-0790-CR.
Court of Appeals of Wisconsin.
Submitted on briefs August 14, 2003.
Decided September 24, 2003.
*494 On behalf of the defendant-appellant, the cause was submitted on the briefs of Jack E. Schairer, assistant public defender, and Maraget A. Maroney, assistant public defender.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Peggy A. Lautenschlager, attorney general, and Lara M. Herman, assistant attorney general.
Before Anderson, P.J., Nettesheim and Snyder, JJ.
¶ 1. NETTESHEIM, J.
Rick L. Edwards appeals from a trial court order denying his postconviction motion for confinement credit against his probation-related conditional jail time for days spent in the hospital.[1] The trial court denied Edwards' request for credit because the court had stayed the confinement time while Edwards was in the hospital. We hold that the court's decision to stay the confinement time was a proper exercise of discretion, and therefore Edwards *495 could not have been charged with escape if he had left the hospital. We affirm the order denying Edwards' confinement credit request.
FACTS
¶ 2. Following his guilty plea to felony bail jumping contrary to WIS. STAT. § 946.49(1)(b) (2001-02),[2] Edwards was placed on probation under an imposed and stayed sentence of five years followed by three years of extended supervision. As a condition of probation, Edwards was ordered to serve one year of conditional jail time with work release.
¶ 3. On November 14, 2002, while serving his jail time, Edwards was transported to the hospital due to a heart-related condition. The following day, the jail administrator sent a letter to the trial court requesting a stay of Edwards' jail time "until his medical condition is determined to be acceptable for incarceration." Without a hearing, the trial court granted the stay on November 18, 2002, by entering an amended judgment of conviction indicating that Edwards' "conditional jail time is stayed until he recovers from his medical condition." On November 26, 2002, Edwards returned to jail but was again returned to the hospital on November 27, 2002. Once again, the trial court stayed Edwards' confinement time.
¶ 4. This pattern of periodic hospitalization followed by Edwards' return to the jail continued. On February 21, 2003, while again hospitalized, Edwards filed a postconviction motion seeking confinement *496 credit for the time periods he had been in the hospital.[3] In his motion, Edwards contended that he was "in custody" while he was in the hospital and therefore he was entitled to the claimed credit.
¶ 5. At the hearing on the motion, Edwards testified that he was transported by ambulance each time he was taken to the hospital and, upon release, he was taken back to the Walworth county jail or Huber facility by a deputy sheriff. The jail administrator testified that the jail would "notify the hospital that when it was time for [Edwards] to be released from the hospital, that we would pick him up, so he had transportation back to the jail."
¶ 6. At the close of the hearing, the trial court denied Edwards' postconviction motion for confinement credit. The court found that because, as of November 18, 2002, Edwards' conditional jail time was stayed during the periods of hospitalization, Edwards was entitled to credit for only that period of hospitalization that occurred prior to the stay November 14 through 18.
¶ 7. Edwards appeals.
DISCUSSION
[1]
¶ 8. As a threshold matter, we reject Edwards' challenge to the trial court's order staying Edwards' conditional jail time because the order was issued ex parte and without notice. We hold that Edwards failed to raise this issue with sufficient prominence before the *497 trial court. Schwittay v. Sheboygan Falls Mut. Ins. Co., 2001 WI App 140, ¶ 16 n.3, 246 Wis. 2d 385, 630 N.W.2d 772 ("A party must raise an issue with sufficient prominence such that the trial court understands that it is called upon to make a ruling."). True, Edwards' motion stated as a matter of historical fact that the trial court had amended the judgment of conviction without a hearing. However, Edwards never argued this fact as a basis for the confinement credit he was seeking. Since Edwards failed to signal that this was a basis for his motion, the trial court understandably did not speak to this fact in its ruling.[4]
[2]
¶ 9. We therefore turn to the merits. Edwards first contends that the trial court did not have the authority to stay the conditional jail time condition during his medical treatment. This issue requires us to interpret a number of statutes, which presents a question of law that we review de novo. See State ex rel. Hensley v. Endicott, 2001 WI 105, ¶ 6, 245 Wis. 2d 607, 629 N.W.2d 686.
[3]
¶ 10. Like the trial court, the State cites to an opinion of the attorney general, 77 Op. Att'y Gen. 249 (1988), in support of its contention that Edwards is not entitled to confinement credit. While a decision of an attorney general is not binding, such decisions may be *498 persuasive as to the meaning and purposes of statutes. State v. Longcore, 2001 WI App 15, ¶ 9 n.5, 240 Wis. 2d 429, 623 N.W.2d 201.
¶ 11. In its opinion, 77 Op. Att'y Gen. at 253, the attorney general concluded, "[A] sentencing court that imposes county jail time as a condition of probation may suspend that jail time while the probationer receives hospital care." This opinion was based on WIS. STAT. § 973.09(4) which authorizes a trial court to fix the specific time that a probationer must spend in a county jail and § 973.09(3)(a) which provides a trial court with continuing jurisdiction to modify the conditions of probation for cause.
[4-8]
¶ 12. When interpreting WIS. STAT. § 973.09(4) and 973.09(3)(a), our goal is to ascertain and give effect to the intent of the legislature. See Nunez ex rel. Poulos v. Am. Family Mut. Ins., 2003 WI App 35, ¶ 24, 260 Wis. 2d 377, 659 N.W.2d 171, review denied, 2003 WI 32, 260 Wis. 2d 753, 661 N.W.2d 101 (Wis. Apr. 22, 2003) (No. 02-1041). The first step in construing a statute is to look to the language of the statute itself and attempt to interpret it based on the plain meaning of its terms. Id. If the language of the statute is clear and unambiguous, we generally apply it to the facts at hand without further analysis. Id. However, the plain language of a statute should not be construed in a manner that leads to absurd or unreasonable results. Id. We presume that "the legislature intends for a statute to be interpreted in a manner that advances the purposes of the statute." Id. (citation omitted).
¶ 13. WISCONSIN STAT. § 973.09(4)(a) provides in relevant part, "[t]he court may also require as a condition of probation that the probationer be confined during such period of the term of probation as the court *499 prescribes, but not to exceed one year." Section 973.09(3)(a) provides, "[p]rior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof."
[9, 10]
¶ 14. As did the attorney general, we conclude that the plain language of these statutes authorizes the trial court to extend probation or modify its terms and conditions. Whether to do so is left to the trial court's discretion. Huggett v. State, 83 Wis. 2d 790, 801, 266 N.W.2d 403 (1978). While the trial court may only modify the conditions of probation for "cause," see State v. O'Connor, 77 Wis. 2d 261, 295, 252 N.W.2d 671 (1977), the law places no limitation on what the trial court may consider as cause when making that determination, see State v. Gerard, 57 Wis. 2d 611, 625, 205 N.W.2d 374 (1973) (the "cause" contemplated by the statute includes impossibility, undue hardship and probably other causes).
[11]
¶ 15. We think it self-evident that when the trial court imposed the conditional jail time against Edwards, the court expected such confinement to be served in the county jail setting. Given that Edwards' later medical condition frustrated that expectation, we conclude that the trial court did not erroneously exercise its discretion when it chose to stay Edwards' confinement during his extended and repeated periods of hospitalization.[5]
*500 ¶ 16. Edwards argues that he is nonetheless entitled to confinement credit because another provision of WIS. STAT. § 973.09(4)(a) provides for the medical treatment of probationers serving confinement time in the county jail. Edwards relies on the following language of § 973.09(4)(a):
The court may grant the privilege of leaving the county jail, Huber facility, work camp, or tribal jail during the hours or periods of employment or other activity under s. 303.08(1)(a) to (e) while confined under this subsection. The court may specify the necessary and reasonable hours or periods during which the probationer may leave the jail, Huber facility, work camp, or tribal jail or the court may delegate that authority to the sheriff. (Emphasis added.)
This statute incorporates WIS. STAT. § 303.08(1)(e), which states "[a]ny person sentenced to a county jail for crime, nonpayment of a fine or forfeiture, or contempt of court or subject to a confinement sanction under s. 302.113(8m) or 302.114(8m) may be granted the privilege of leaving the jail during necessary and reasonable hours for ... [m]edical treatment." (Emphasis added.)
¶ 17. We disagree with Edwards that these two statutes preclude a trial court's discretionary decision to stay a condition of probation for cause based on extended or repeated periods of hospitalization. These statutes do not mandate a trial court to allow a prisoner to leave the county jail for purposes of medical treatment.[6] Instead, these statutes state that the court "may" allow such leave. Thus, these statutes do not *501 trump the trial court's discretion to modify a condition of probation. And, as we have already held, the trial court here properly exercised its discretion when staying Edwards' confinement during the periods of his hospitalization.
¶ 18. Moreover, it appears from the tenor of WIS. STAT. §§ 973.09(4)(a) and 303.08(1)(e) that these statutes are designed to address shorter term medical conditions that do not require extended or repeated hospitalization. We say this because § 973.09(4)(a) speaks of an absence from the county jail in terms of "hours or periods of employment or other activity under s. 303.08(1)(a) to (e)" and further authorizes the court to "specify the necessary and reasonable hours or periods during which the probationer may leave the jail." Similarly, § 303.08(1)(e) speaks of an absence from the jail "during necessary and reasonable hours for . . . [m]edical treatment." This as compared to WIS. STAT. § 302.38(1) which requires the sheriff to provide needed medical care, including hospital care, to a prisoner.[7]*502 This latter statute seems to envision the extended and repeated kind of medical treatment presented by the facts of this case.
[12]
¶ 19. As we have just noted, WIS. STAT. § 302.38(1) obligates the sheriff to "provide appropriate care or treatment and may transfer the prisoner to a hospital or to an approved treatment facility . . . making provision for the security of the prisoner." As his final argument, Edwards contends that this statute mandates that he receive credit for his hospitalization periods. However, we have already determined that the trial court had properly stayed Edwards' conditional jail time pursuant to WIS. STAT. § 973.09(3)(a). As such, Edwards was no longer a "prisoner" as contemplated and required by § 302.38(1).
[13]
¶ 20. Lending support to our determination that Edwards was not a "prisoner" for purposes of WIS. STAT. § 302.38(1) is the escape statute, WIS. STAT. § 946.42. Section 946.42(1)(a) provides that a probationer is in "custody" if he or she is "in actual custody or is subject to a confinement order under s. 973.09(4)." "Actual custody includes custody of an institution, a secured correctional facility, a secure detention facility, a peace officer, or an institutional guard." State v. Dentici, 2002 WI App 77, ¶ 12, 251 Wis. 2d 436, 643 N.W.2d 180 (citation omitted).
¶ 21. The supreme court has held that "for sentence credit purposes an offender's status constitutes custody whenever the offender is subject to an escape charge for leaving that status." State v. Magnuson, 2000 *503 WI 19, ¶ 25, 233 Wis. 2d 40, 606 N.W.2d 536.[8] Edwards was subject to a confinement order pursuant to WIS. STAT. § 973.09(4) and therefore was in custody when he first entered the hospital on November 14, 2002. However, when the trial court stayed Edwards' conditional jail time on November 18, he was no longer subject to the confinement order during the periods of his hospitalizations. As such, Edwards was not in custody and could not have been charged with "escape" if he had left the hospital and failed to return to the jail.[9]
CONCLUSION
¶ 22. We hold that a trial court has the discretionary authority to stay a probationer's conditional jail time while he or she is hospitalized. We further hold that the trial court did not err in the exercise of its discretion by staying Edwards' confinement time during the periods of his hospitalization. Finally, we hold that when the trial court chooses to stay such confinement time, the probationer is not a prisoner and is not entitled to credit against such confinement time because the probationer could not be charged with escape. We therefore affirm the order denying Edwards' request for credit against his confinement time.
By the Court.Order affirmed.
NOTES
[] Petition to review denied 2-24-04.
[1] We use the phrase "confinement credit" instead of "sentence credit" since confinement time imposed as a condition of probation is not a sentence. See Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43 (1974).
[2] All references to the Wisconsin Statutes are to the 2001-02 version.
[3] The transcript of the motion hearing held on March 5, 2003, reflects that Edwards was returned to the jail on February 26, 2003.
[4] Even if we were to address the issue on the merits, we would reject Edwards' argument because he has failed to demonstrate any prejudice. Although the trial court entered the stay order ex parte, the court functionally revisited the question at the postconviction proceeding and confirmed its prior ruling.
[5] Similarly, the trial court could have chosen not to stay the period of confinement. The point is that the question is committed to the trial court's discretion.
[6] As we will demonstrate shortly, WIS. STAT. § 302.38(1) obligates the sheriff, not the trial court, to provide appropriate care or treatment to a prisoner, including transportation to a hospital or approved treatment facility. See supra note 3.
[7] WISCONSIN STAT. § 302.38 provides:
(1) If a prisoner needs medical or hospital care or is intoxicated or incapacitated by alcohol the sheriff, superintendent or other keeper of the jail or house of correction shall provide appropriate care or treatment and may transfer the prisoner. to a hospital or to an approved treatment facility under s. 51.45(2)(b) and (c), making provision for the security of the prisoner. The sheriff, superintendent or other keeper may provide appropriate care or treatment under this subsection for a prisoner under 18 years of age and may transfer a prisoner under 18 years of age under this subsection without obtaining the consent of the prisoner's parent, guardian or legal custodian. The sheriff, superintendent or other keeper may charge a prisoner for the costs of providing medical care to the prisoner while he or she is in the jail or house of correction. If the sheriff or other keeper maintains a personal money account for an inmate's use for payment for items from canteen, vending or similar services, the sheriff or other keeper may make deductions from the account to pay for the charges under this subsection.
[8] We appreciate that State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, addressed sentence credit under WIS. STAT. § 973.155, whereas this case concerns confinement credit. See supra note 1. Nonetheless, we deem Magnuson informative on the issue of custody.
[9] Based on this reasoning, we also reject Edwards' reliance on State v. Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646257/ | 9 So.3d 626 (2009)
PITTS
v.
STATE.
No. 2D07-3236.
District Court of Appeal of Florida, Second District.
May 1, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515698/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DMITRY PRONIN,
Plaintiff,
v. Civil Action No. 17-1807 (TJK)
FEDERAL BUREAU OF PRISONS,
Defendant.
MEMORANDUM OPINION
Dmitry Pronin, proceeding pro se and in forma pauperis, filed this suit against the
Federal Bureau of Prisons (BOP), alleging violations of the Freedom of Information Act, 5
U.S.C. § 552. For his document requests that remain at issue, Pronin challenges both the
adequacy of BOP’s searches and its withholding of BOP staff lists at three facilities where he
was incarcerated, which include the names and positions of staff members. The Court denied
BOP’s first motion for summary judgment, finding insufficient BOP’s searches and
explanations for withholding these documents under various FOIA exemptions. BOP filed a
renewed motion for summary judgment, declaration, and Vaughn Index, relying on
Exemptions 2, 6, and 7(C) to withhold them. Because BOP has now justified its searches and
withholdings of staff lists under Exemption 6, which protects private information from
personnel files, the Court need not address the validity of BOP’s other claimed exemptions and
will grant summary judgment in its favor.
Background
Pronin, a prisoner currently in custody of the Federal Bureau of Prisons (BOP), submitted
several Freedom of Information Act (FOIA) requests in 2016 and 2017, only two of which
remain at issue, Request No. 2016-02619 and Request No. 2017-05599. Memorandum Opinion
and Order, ECF No. 33 at 2.1 The only information in the documents responsive to those
requests that Pronin still seeks are the names and positions of staff members at three BOP
facilities: the federal correctional center (FCC) in Florence, Colorado; United States Penitentiary
(USP) in Terre Haute, Indiana; and FCC in Beaumont, Texas.2 See ECF No. 1 (“Compl.”) at 5–
6; ECF No. 1-1 at 5–6; ECF No. 26 at 2, 6, 8; ECF No. 29 at 3; ECF No. 39 at 14, 19, 29–30,
37.3
To locate documents containing staff lists at FCC Florence, its Human Resources
Division staff searched its “Human Resources Staffing Reports,” which are generated
electronically each pay period. ECF No. 36-2, Stroble Decl. II ¶ 5. This search yielded (1) a 28-
page “Staffing and Strength Report” of FCC Florence staff names “used to assist the BOP . . . in
planning of staff movement locally and for management of staff throughout the agency for
succession planning and other efforts made by the BOP to place employees in a properly
classified position[]” and (2) four pages from a “‘DOJ Internal White Pages’ . . . employee
directory that contains” “routine employment information maintained in different formats in an
employee’s employment record.” Id. ¶¶ 5, 20–21, 26. BOP withheld the FCC Florence Staffing
Report in full under FOIA Exemptions 2, 6, and 7(C), and it withheld all information from the
DOJ Internal White Pages directory under Exemptions 6 and 7(C), except for the names of FCC
wardens, which it disclosed. Id. ¶¶ 13–14, 20–21, 27, 31, 33; Vaughn Index II at 1, 4.
1
The Court incorporates the background and legal standard sections of its prior Memorandum
Opinion and Order, ECF No. 33 at 2–7.
2
The Court’s prior opinion erroneously stated that FCC Beaumont is in South Carolina, as
opposed to Texas. ECF No. 33 at 2.
3
Citations are to the ECF-generated page numbers for Pronin’s filings.
2
To locate documents containing staff lists at USP Terre Haute and FCC Beaumont,
Human Resources Division staff at those facilities generated a report in the National Finance
Center (NFC) database, which is “where all employee pay functions are performed, and only
human resources staff have access to the NFC database.” Stroble Decl. II ¶¶ 6, 10. The NFC
database has a function called “Batchfoc” that generates various reports. Id. These NFC
searches yielded (1) a 17-page “Staff List” or “Employment Verification Data Report” from USP
Terre Haute used to look up individual staff and track performance evaluations, address changes,
benefits, and other information and (2) a 15-page “Staffing Report and Strength Report” from
FCC Beaumont used “to assist the BOP . . . in planning of staff movement locally and for
management of staff throughout the agency for succession planning and other efforts made by
the BOP to place employees in a properly classified position.” Id. ¶¶ 6, 10, 22, 28. BOP
withheld these documents in full under FOIA Exemptions 2, 6, and 7(C). Id. ¶¶ 15–16, 21–23,
28–29, 31–32; Vaughn Index II at 2, 5. 4
Analysis
A. Adequacy of the Search
To determine the adequacy of a FOIA search, the Court is guided by principles of
reasonableness. Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998). “[T]he
agency must show that it made a good faith effort to conduct a search for the requested records,
using methods which can be reasonably expected to produce the information requested.” Id.
(quoting Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). To state the
4
BOP clarified that its “original Vaughn index erroneously identified a document as ‘FCC
Florence Staff List’ (ECF No. 24-4 at 1)” that is “properly identified now as ‘USP Terre Haute
Staff List.’” ECF No. 36 at 3 (citing Vaughn Index II at 2).
3
obvious, it was reasonable for BOP—in response to Pronin’s FOIA requests for staff lists at three
of its facilities—to search those facilities’ personnel databases in the ways described.
Still, Pronin challenges the adequacy of BOP’s search on a few grounds. See ECF No. 39
at 12, 23, 28–29. First, while he points out that BOP did not specify the names of individual
staff members who conducted the searches, id. at 12, 23, that omission is immaterial. The Court
“cannot fathom how providing the names of search personnel would significantly inform the
Court’s analysis of the adequacy of [BOP’s] search for documents responsive to his FOIA
requests.” Bigwood v. U.S. Dep’t of Defense, 132 F. Supp. 3d 124, 143 (D.D.C. 2015); see
Harrison v. Fed. Bureau of Prisons, 611 F. Supp. 2d 54, 65 (D.D.C. 2009).
Second, Pronin argues that BOP did not specify the “locations of the files” or
“description of the searches.” ECF No. 39 at 23. The record reflects the opposite. BOP’s
declaration by FOIA attorney Clinton Stroble details the methods, databases, and records that
Human Resources Division staff searched at each BOP facility. ECF No. 36-2. And Pronin
even acknowledges that “different systems were search[ed], penitentiary by penitentiary.” ECF
No. 39 at 28.
Third, he contends that BOP searched “different systems” across similar facilities, which
rendered “drastically different types of records.” Id. The Court finds this argument unavailing.
The searches at FCC Florence and FCC Beaumont, for example, each produced a Staffing and
Strength Report, exactly the same type of internal human resources document, and the DOJ
Internal White Pages directory serves a similar personnel function. Stroble Decl. II ¶¶ 13, 26;
Vaughn Index II at 1, 5. To be sure, USP Terre Haute’s search generated a 17-page Staff List
that appears somewhat different from the Staffing and Strength Reports. Stroble Decl. II ¶¶ 6,
13, 22, 26; Vaughn Index II at 1–2, 5. But those differences are inconsequential, as “the
4
adequacy of a FOIA search is generally determined not by the fruits of the search,” Iturralde v.
Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003), or “whether there might exist any
other documents possibly responsive to the request,” Weisberg v. U.S. Dep’t of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984). Instead, a search’s adequacy depends on “the appropriateness of
the methods used to carry out the search,” Iturralde, 315 F.3d at 315, and whether those methods
“can be reasonably expected to produce the information requested,” Campbell, 164 F.3d at 27.
BOP clearly passes that hurdle for its searches at the three facilities.
B. FOIA Exemption 6
Pronin also challenges BOP’s reliance on FOIA Exemption 6 to withhold BOP staff
names and positions from the four documents BOP identified. “Exemption 6 allows agencies to
withhold ‘personnel and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy.’” Judicial Watch, Inc. v. Food & Drug
Admin., 449 F.3d 141, 152 (D.C. Cir. 2006) (quoting 5 U.S.C. § 552(b)(6)). The exemption has
two requirements. First, the document must be a “personnel,” “medical,” or “similar file[].” 5
U.S.C. § 552(b)(6). Second, to assess if disclosure of the file “would constitute a clearly
unwarranted invasion of personal privacy,” id., the Court must balance the public interest in
disclosure with the personal privacy at stake, Judicial Watch, 449 F.3d at 153. “The only
relevant public interest in disclosure to be weighed in this balance is the extent to which
disclosure would contribute significantly to public understanding of the operations or activities
of the government.” Bartholdi Cable Co. v. Fed. Commc’ns Comm’n, 114 F.3d 274, 282 (D.C.
Cir. 1997) (cleaned up). The privacy interest in withheld information must be “greater than a de
minimis privacy interest,” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1229 (D.C.
Cir. 2008), and it varies “depending on the context in which it is asserted,” Armstrong v. Exec.
Office of the President, 97 F.3d 575, 582 (D.C. Cir. 1996).
5
Pronin wisely does not dispute that BOP meets the first requirement. The FCC Florence
and FCC Beaumont Staffing and Strength Reports, USP Terre Haute Staff List, and DOJ Internal
White Pages directory are “personnel” files or similar “[g]overnment records on an individual
which can be identified as applying to that individual.” U.S. Dep’t of State v. Wash. Post Co.,
456 U.S. 595, 602 (1982); see Stroble Decl. II ¶¶ 20, 22, 26, 28.
The second requires the Court to weigh the public interest in disclosure of BOP staff
names and positions against those individuals’ privacy interests. That weighing is
straightforward here because there is no cognizable public interest at stake. The disclosure of
BOP staff names and positions “sheds no light on the activities of the BOP.” Stroble Decl. II ¶
21. And the “public has no cognizable interest in the release” of names and titles that “reveal[]
little or nothing about an agency’s own conduct,” Beck v. Dep’t of Justice, 997 F.2d 1489, 1493
(D.C. Cir. 1993) (internal quotation omitted), or “what the Government is up to,” Nat’l Ass’n of
Retired Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989) (“NARF”). See Pinson v. U.S.
Dep’t of Justice, 61 F. Supp. 3d 164, 186 (D.D.C. 2015) (no “significant public interest in the
release of” agency employees’ names).
Pronin argues that he needs the identities of prison staff to pursue various lawsuits, see
Compl. at 1–2; ECF No. 26 at 7–8; ECF No. 39 at 13–14, but Pronin’s personal interest in
discerning potential defendants for his own litigation “does not count in the calculation of the
public interest.”5 Oguaju v. United States, 288 F.3d 448, 450 (D.C. Cir. 2002), vacated sub nom.
5
There are additional reasons why Pronin’s purported personal interest in litigation does not
translate into a public interest for FOIA purposes. According to Pronin, conditions at FCC
Beaumont in 2017 after Hurricane Harvey were inhumane, and prison staff violated his civil
rights. See ECF No. 39 at 13–14. Pronin makes similar, yet more vague, allegations of civil
rights abuses at FCC Florence. See id. at 14. Although Pronin argues that the public has an
interest in knowing which staff members participated in the government wrongdoing he alleges,
6
on other grounds, Oguaju v. U.S. Marshals Service, 541 U.S. 970 (2004); see Lazaridis v. U.S.
Dep’t of Justice, 766 F. Supp. 2d 134, 145 (D.D.C. 2011). Indeed, “a requester’s personal need
for information is immaterial to whether that information is protected from disclosure by one of
the exemptions to the FOIA,” Engelking v. Drug Enf’t Admin., 119 F.3d 980, 980–81 (D.C. Cir.
1997) (emphasis added), because the information—if disclosed—“belongs to [all] citizens to do
with as they choose,” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004). Of
course, if Pronin wants BOP staff names for his personal litigation purposes, he may file a
lawsuit and seek those names in civil discovery. Indeed, he appears to have had some success
with that approach “[i]n summer 2016 . . . during the litigation of” his Federal Tort Claims Act
(FTCA) suit against the United States for alleged misconduct at USP Terre Haute, Pronin v.
United States, No. 2:15-cv-183 (S.D. Ind. April 23, 2014), when he received “a number of the
full names and positions of staff for USP Terre Haute.” ECF No. 39 at 37. 6 But regardless of
whether that avenue will ultimately lead to success, “[t]he primary purpose of the FOIA was not
to benefit private litigants or to serve as a substitute for civil discovery.” Baldrige v. Shapiro,
455 U.S. 345, 360 n.14 (1982).
see id., the Court cannot credit that interest because he has failed to “produce evidence that
would warrant a belief by a reasonable person that the alleged Government impropriety might
have occurred.” Boyd v. Criminal Div. of U.S. Dep’t of Justice, 475 F.3d 381, 387 (D.C. Cir.
2007) (quoting Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004)). And
even if the law recognized his interest in litigation directed at USP Terre Haute as a public
interest, that litigation has been resolved on the merits already. See Pronin v. United States, No.
2:15-cv-183, ECF Nos. 1, 160 (S.D. Ind. July 24, 2018) (asserting claims for negligence under
the FTCA); Pronin v. Tussey, No. 2:15-cv-61, ECF No. 7 (S.D. Ind. May 4, 2015) (asserting
violations of the Clean Air Act and Eighth Amendment allegedly caused by prison guards’
smoking).
6
While Pronin received some names of USP Terre Haute employees through his FTCA suit,
ECF No. 39 at 37–38, it appears he still seeks a “complete list of [those] employees,” ECF No.
24-3 at 2; see ECF No. 39 at 13 (seeking “lists of employees for three federal penitentiaries”).
7
“In the absence of any public interest in disclosure, any countervailing interest in privacy
defeats a FOIA request.” Oguaju, 288 F.3d at 451 (D.C. Cir. 2002). BOP asserts that it must
protect employees in “primary law enforcement position(s)” because “[t]he release of names of
these law enforcement officials is reasonably expected to endanger the life and/or physical safety
of staff since it will allow inmates or members of the general public to look up staff through
Motor Vehicle Administration, tax, or other state open access records and permit the location of
staff home addresses for targeted threats to staff and their families.” Stroble Decl. II ¶¶ 21, 23,
27, 29.7 The Court need not decide precisely how great BOP’s staff’s privacy interests are in this
regard. Suffice it to say that BOP’s declaration establishes that they have some privacy interest
in their names and positions, one that is “greater than [] de minimis” for purposes of Exemption
6, Multi Ag Media, 515 F.3d at 1229. See Fed. Labor Relations Auth. v. U.S. Dep't of Treasury,
Fin. Mgmt. Serv., 884 F.2d 1446, 1453 (D.C. Cir. 1989) (“[F]ederal employees’ have privacy
interests in their names . . . .”); Walston v. U.S. Dep’t of Def., 238 F. Supp. 3d 57, 67 (D.D.C.
2017) (employees with “sensitive occupations . . . have a cognizable privacy interest in keeping
their names from being disclosed” under Exemption 6 (quoting Long v. Office of Pers. Mgmt.,
692 F.3d 185, 192 (2d Cir. 2012)); see also Judicial Watch, Inc., 449 F.3d at 152–53 (holding
that DEA properly invoked Exemption 6 in refusing to release the names of agency personnel
and that it “need not justify the withholding of names on an individual-by-individual basis”
(cleaned up)).
7
Although Pronin seeks in camera review of BOP’s documents, “the agency affidavits are
sufficiently detailed to permit meaningful review and adversarial testing of exemption claims,”
Thompson v. Exec. Office for U.S. Attorneys, 587 F. Supp. 2d 202, 206, n.1 (D.D.C. 2008), and
the Court finds that review unnecessary. See Juarez v. Dep't of Justice, 518 F.3d 54, 60 (D.C.
Cir. 2008).
8
Pronin suggests that BOP’s assertion of its staff’s privacy interest must be in bad faith
because he received staff names and positions from the Federal Correctional Institution (FCI) in
Edgefield, South Carolina through another FOIA request, and he received some staff names from
USP Terre Haute through civil discovery. See ECF No. 39 at 4–5, 10, 35–38; ECF No. 26 at 11–
15. But none of that, even if true, suggests bad faith here. Pronin offers no context for his FOIA
request of the FCI Edgefield “staff directory released in December 2012,” ECF No. 39 at 36, and
the “interests on both sides of the Exemption 6 balancing test might vary” substantially
depending on the context. Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration
Review, 830 F.3d 667, 675 (D.C. Cir. 2016); see Armstrong, 97 F.3d at 581; Judge Rotenberg
Educ. Ctr., Inc. v. U.S. Food & Drug Admin., 376 F. Supp. 3d 47, 74 (D.D.C. 2019). “While the
BOP . . . may have chosen to release employee names” in response to that FOIA request, it has
expressed a valid privacy interest here under Exemption 6 “extend[ing] to the names of agency
personnel.” Pinson, 61 F. Supp. 3d at 185. In any event, “[t]here can be no doubt that agencies
frequently turn over documents even though FOIA may not strictly require them to do so.”
Williams & Connolly v. SEC, 662 F.3d 1240, 1245 (D.C. Cir. 2011). And by doing so, “the
government does not waive any right it has to withhold other properly” exempted documents in
later litigation under FOIA. Id.
Likewise, “not all documents available in discovery are also available pursuant to FOIA.”
Stonehill v. IRS, 558 F.3d 534, 539 (D.C. Cir. 2009). Whereas FOIA “reflect[s] a congressional
balancing of interests,” “[d]ifferent considerations determine the outcome of efforts to obtain
disclosure: relevance, need, and applicable privileges—bounded by the district court’s exercise
of discretion.” Id. at 538. A district court balanced those different considerations in Pronin’s
FTCA suit—about alleged misconduct at USP Terre Haute, Pronin v. United States, No. 2:15-
9
cv-183 (S.D. Ind. April 23, 2014)—and ordered the Government to respond to his request for a
“list of employees for USP Terre Haute.” Id., ECF No. 55 at 1; id., ECF No. 61 at 1. The Court
cannot hold that involuntary production against the agency in a later FOIA action, where it has
asserted bona fide privacy interests.
In sum, the record reflects “no public interest in, and”—at the very least—“a modest
personal privacy interest against, disclosure of the names” and positions of BOP staff members
at FCC Florence, USP Terre Haute, and FCC Beaumont. NARF, 879 F.2d at 879. The Court
“need not linger over the balance; something, even a modest privacy interest, outweighs nothing
every time.” Id. Accordingly, BOP properly relied on Exemption 6 to withhold the requested
information. Because Exemption 6 applies and Pronin only seeks BOP staff names and
positions, the Court will grant BOP summary judgment and need not address BOP’s additional
bases for withholding that information in the requested documents. 8 See Shapiro v. U.S. Dep’t of
Justice, 239 F. Supp. 3d 100, 106 n.1 (D.D.C. 2017).
8
Pronin’s complaint also appears to frame BOP’s alleged shortcomings in producing documents
under FOIA as a violation of his First and Fifth Amendment rights. Compl. at 1, 3, 5–6. Those
claims are without merit. See Tereshuk v. Bureau of Prisons, 67 F. Supp. 3d 441, 453 (D.D.C.
2014). “FOIA is a comprehensive statutory scheme to resolve all issues associated with the
release of government documents.” Harrison v. Lappin, Civ. No. 04-0061 (JR), 2005 WL
752186, at *3 (D.D.C. Mar. 31, 2005). It is not a means to vindicate constitutional rights. See
McGehee v. Casey, 718 F.2d 1137, 1147 (D.C. Cir. 1983) (“A litigant seeking release of
government information under FOIA, therefore, relies upon a statutory entitlement—as narrowed
by statutory exceptions—and not upon his constitutional right to free expression.”); Banks v.
Dep’t of Justice, 700 F. Supp. 2d 9, 19 (D.D.C. 2010) (dismissing plaintiff’s due process
violation claims premised on the agency’s withholding of records).
10
Conclusion
For all these reasons, the Court will grant Defendant’s Renewed Motion for Summary
Judgment, ECF No. 36, and enter judgment for Defendant. A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: March 12, 2020
11 | 01-03-2023 | 03-12-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2440280/ | 963 N.E.2d 246 (2012)
357 Ill. Dec. 293
KRUMPHOLZ PROPERTIES, LLC
v.
KRUMPHOLZ.
No. 113309.
Supreme Court of Illinois.
January 1, 2012.
Disposition of petition for leave to appeal Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918300/ | 730 So. 2d 296 (1999)
Christopher BAIN, Appellant,
v.
STATE of Florida, Appellee.
No. 97-02007
District Court of Appeal of Florida, Second District.
January 29, 1999.
Rehearing Denied April 16, 1999.
*297 James Marion Moorman, Public Defender, and Jeffrey Sullivan, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
EN BANC
NORTHCUTT, Judge.
This case poses the threshold question of whether we have jurisdiction to entertain an appeal of a criminal sentence when the defendant has failed to preserve any of his asserted errors. Because the issue is one of exceptional importance, and because we recede in part from one of our previous decisions, on our own motion we consider the matter en banc. See Fla. R.App. P. 9.331(a).
In November 1996, the State charged Christopher Bain with robbery in two separate cases. Bain pleaded guilty to robbery, without a weapon, and to grand theft. In his plea agreement, he acknowledged that he qualified for treatment as a habitual violent felony offender. In April 1997, the circuit court sentenced Bain to a fifteen-year minimum mandatory term of imprisonment as a habitual violent felony offender on the robbery charge, and to a concurrent term of ten years' imprisonment as a habitual felony offender on the grand theft charge. On appeal he argues that the minimum mandatory aspect of the robbery sentence exceeds that permitted by the habitual violent felony offender statute. He challenges the grand theft sentence on the ground that the State did not prove that he was a habitual felony offender.
When entering his plea, Bain reserved no issues for appeal. He did not object to his sentences at the time they were imposed, nor did he move to correct them under Florida Rule of Criminal Procedure 3.800(b), or to withdraw his plea. Therefore, Bain did not preserve any alleged sentencing errors for appeal. But he asks us to review the sentences on the ground that they constitute fundamental error. We conclude that we have jurisdiction in this case, and we reverse.
*298 APPELLATE JURISDICTION UNDER THE CRIMINAL APPEAL REFORM ACT
On the question of jurisdiction, we must examine two restrictions imposed by the Criminal Appeal Reform Act of 1996, section 924.051, Florida Statutes (Supp.1996). Subsection (3) of the statute addresses criminal appeals generally, and subsection (4) relates to appeals following pleas of guilty or nolo contendere.
We first consider the general provision. Subsection(3) states:
An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.
When analyzing the effect of this provision we make three important assumptions, all of which derive from our supreme court's discussion of the Act when adopting corresponding amendments to Florida Rule of Appellate Procedure 9.140. See Amendments to the Florida Rules of Appellate Procedure, 696 So. 2d 1103 (Fla.1996). There being no case or controversy giving rise to the Amendments decision, the court's remarks arguably were dicta. Certainly, dicta or no, they are subject to being revisited. That being so, we note that, although we abide by these three propositions, we do not necessarily agree with one of them.
Three Assumptions
Our first assumption: The Florida Constitution grants to our citizens the right to appeal, and confers upon the appellate courts jurisdiction to review, all final orders of trial courts. The supreme court expressed this conclusion in Amendments, receding from its earlier holding to the contrary in State v. Creighton, 469 So. 2d 735 (Fla.1985). The court came to this view because the documentary history of the 1972 revision of article V does not suggest that the revisers intended to remove from the constitution the right to appeal, which had been set forth in the immediately preceding constitution in an arguably more explicit fashion. See Amendments, 696 So.2d at 1104.
There is another reason for finding a constitutional right to appeal all final orders. The constitution, in article V, section 4(b)(1), provides that district courts of appeal shall have jurisdiction to hear "appeals, that may be taken as a matter of right, from final judgments or orders of trial courts...." (Emphasis added.) Standing alone, that language begs the question whether all appeals from final orders, or only some appeals from final orders, may be taken as a matter of right.[1] We believe there is a right to appeal all final orders, because the constitution no-where grants authority to designate which final orders are appealable by right, and which are not. This is a significant omission, considering that article V otherwise specifies who shall make decisions affecting the jurisdiction of the courts. For example, in section 4(b)(1), the supreme court is charged with determining which, if any, nonfinal orders may be appealed. Under section 3(b)(2), the legislature is empowered to grant the supreme court jurisdiction to hear appeals of final orders in bond validation proceedings *299 and to review statewide agency action relating to electric, gas, or telephone utilities' rates or service. Pursuant to section 4(b)(2), the legislature determines whether district courts of appeal have jurisdiction to review administrative action.[2]
As can be seen, the revisers of article V were quite explicit about who is to shape the jurisdiction of our courts in specific ways. But they did not appoint the arbiter of which final orders are appealable by right. The only reasonable explanation for this is that all final orders are appealable as a matter of right. That construction is consistent with the admittedly imprecise language of article V, section 4(b)(1), with the documentary history of the 1972 constitutional revision, and with the overall scheme of article V.
That same reasoning, however, undermines our confidence in the second assumption we take from the Amendments decision. That is, "the legislature may implement this constitutional right and place reasonable conditions upon it so long as they do not thwart the litigants' legitimate appellate rights." Amendments, 696 So.2d at 1104. Assuming the legislature has authority to implement the right to appeal final orders, nevertheless we question whether it has discretion to condition (or limit, or qualify) this right when the constitution has not, regardless of the perceived reasonableness of the conditions. See Sparkman v. State ex rel. Scott, 58 So. 2d 431, 432 (Fla.1952) (holding that express or implied provisions of constitution cannot be altered, contracted, or enlarged by legislative enactments).
Our concern is heightened by our recognition that, as previously discussed, the constitution expressly empowers the legislature to affect the courts' jurisdiction in other, specific, respects. But nowhere does it suggest that the legislature may prescribe whether, or under what conditions, a final order may be appealed.[3] It is unlikely that the revisers would expressly grant such power to the legislature in some instances but not in others, unless the legislature was meant to have the power only where specified.
Additionally, we believe that two other aspects of the constitution mandate caution when inferring legislative authority to control the power of the judiciary. The first, of course, is the separation of powers doctrine, embodied in the constitution at article II, section 3.[4] The other is the constitution's guarantee of free access to the courts, contained in the Declaration of Rights, article I, section 21.[5] This guarantee includes the appellate courts. See Kennedy v. Guarantee Management Services, Inc., 667 So. 2d 1013 (Fla. 3d DCA 1996). And it requires that any attempt to limit the right of access to courts must be liberally construed in favor of the right. See Kennedy, 667 So.2d at 1014; Lehmann v. Cloniger, 294 So. 2d 344 (Fla. 1st DCA 1974). Surely, in light of these principles, any question about legislative power to encroach upon an important appellate right guaranteed by the constitution must be resolved against the encroachment.
*300 The foregoing factors, individually and collectively, cause us to doubt that the legislature may condition, limit, or qualify our jurisdiction to hear appeals of final orders, when the constitution declares that all final orders may be appealed as a matter of right. Despite our reservations, however, we must defer to our supreme court's expression in this regard. Therefore, we assume that the legislature does have this authority, but we exercise our discretion to certify this question to the supreme court. See U.S. Steel Corp. v. Save Sand Key, Inc., 303 So. 2d 9 (Fla.1974).
The last assumption underlying the discussion to follow is that in the Criminal Appeal Reform Act the legislature endeavored to limit the jurisdiction of Florida's appellate courts to entertain appeals from final orders in criminal cases. In Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998), we ventured that the first sentence of section 924.051(3) limits our jurisdiction, and that the second sentence endeavors to restrict either our scope of review or our standard of review, or both. This view is not universal among the district courts of appeal. The First, Third, and Fourth Districts appear to treat the entire Act as a nonjurisdictional restriction of the appellate scope and standard of review in criminal cases. See Stone v. State, 688 So. 2d 1006 (Fla. 1st DCA 1997), review denied, 697 So. 2d 512 (Fla.1997); Neal v. State, 688 So. 2d 392 (Fla. 1st DCA 1997), review denied, 698 So. 2d 543 (Fla.1997); Jefferson v. State, 23 Fla. L. Weekly D2305, 724 So. 2d 105 (Fla. 3d DCA 1998); Thompson v. State, 708 So. 2d 289 (Fla. 4th DCA 1998). But it seems clear from the Amendments opinion that the supreme court viewed the Act as jurisdictional; hence, the court's discussion of the constitutional right to appeal final orders, and the legislature's authority to impose conditions on that right, in the context of the Act. See Amendments, 696 So.2d at 1104.
Moreover, the legislative history of the Act confirms that the legislature understood that section 924.051 not only affected the scope and standards of appellate review, but went directly to the right of appeal. This belief was founded on the lawmakers' reasonable belief, based on the then-extant Creighton decision, that the Florida Constitution did not establish a right to appeal, and that appellate rights in criminal cases were strictly statutory. See Bill Analysis & Economic Impact Statement for PCS/HB 211, pp. 2, 5-7, House of Representatives Committee on Criminal Justice, March 19, 1996.
Keeping in mind the foregoing three assumptionsthat there is a Florida constitutional right to appeal all final orders, and concomitant appellate jurisdiction to entertain such appeals; that the legislature may impose reasonable conditions on that right; and that in criminal cases the Criminal Appeal Reform Act limits the right of appeal, and thereby limits our jurisdictionwe turn to the central issue posed by Bain's case. That is, whether and to what extent we may review unpreserved sentencing errors.
Appellate Review of Unpreserved Sentencing Errors
Recall that our jurisdiction under the first sentence of section 924.051(3) is two-fold. We may entertain an appeal if it alleges prejudicial error that has been "properly preserved or, if not properly preserved, would constitute fundamental error." Recall, as well, that Bain did not preserve either of his alleged sentencing errors in the circuit court. Therefore, under the Act we have no jurisdiction unless one of the errors is fundamental.
The district courts of appeal differ about which sentencing errors, if any, may be deemed to be fundamental. The Fifth District has concluded that there is no such thing as a fundamental sentencing error, and that an appeal such as this one may not be entertained. See Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998) (en banc), review granted, 718 So. 2d 169 (Fla.1998). The Fourth District agrees with Maddox except with respect to illegal sentences, which it considers to be reviewable under the Act as fundamental error. See Hyden v. State, 715 So. 2d 960 (Fla. 4th DCA 1998) (en banc); Harriel v. State, 710 So. 2d 102 (Fla. 4th DCA 1998) (en banc).
*301 Although the First and Third Districts have not published similar comprehensive discussions of their authority under the Act, their decisions leave no doubt that, at the least, they consider illegal sentences to be fundamental error, and reviewable as such. See Nelson v. State, 719 So. 2d 1230, 23 Fla. L. Weekly D2241 (Fla. 1st DCA 1998) (general division en banc); McDaniel v. State, 704 So. 2d 686 (Fla. 1st DCA 1997), opinion corrected, 706 So. 2d 923 (Fla. 1st DCA 1998); Jordan v. State, 23 Fla. L. Weekly D2130, 728 So. 2d 748 (Fla. 3d DCA 1998). As we will explain in depth below, we disagree with Maddox. In our view, certain sentencing errors are fundamental, and for that reason we have jurisdiction to review them under the Act.
We indirectly touched on this issue in Denson. In that case the defendant properly preserved a sentencing error, but on appeal he raised two additional, unpreserved, sentencing errors. We concluded that, under the constitutional separation of powers, the legislature cannot restrict our scope or standard of review in an unreasonable manner that eliminates our judicial discretion to correct "illegal sentences and other serious, patent sentencing errors." 711 So. 2d at 1230. Because we had acquired jurisdiction based on the preserved error, we proceeded to examine the two unpreserved ones, which we deemed to be serious, patent errors, and reversed.
We reaffirm the principle that we articulated and applied in Denson. But we take this opportunity to revisit and, to some extent, revise our remarks regarding fundamental sentencing error and the Criminal Appeal Reform Act. We note that, because our jurisdiction in Denson was founded on a preserved error, and because the other two errors rose to the level of serious, patent error, our ruling did not require us to determine whether those errors were fundamental. Therefore, our statements about fundamental error were dicta.
In Denson we posited that when the legislature enacted section 924.051, its concept of fundamental error was narrower than that previously employed by the courts. On further reflection, we conclude otherwise. When crafting the statute the lawmakers were well aware that "fundamental error" is an important term of art in the law, and they were familiar with the range of compelling circumstances in which courts have applied the concept to permit appellate review of unpreserved errors. See Ford v. Wainwright, 451 So. 2d 471, 475 (Fla.1984) (stating that legislature is presumed to be acquainted with judicial decisions on the subject matter of statutes it enacts). In light of this, the legislature's unqualified use of the term fundamental error in the first sentence of section 924.051(3) compels the conclusion that Florida's appellate courts are meant to continue exercising jurisdiction in cases presenting such circumstances. See City of Tampa v. Thatcher Glass Corp., 445 So. 2d 578, 579 n. 2 (Fla.1984) (explaining that terms of special legal significance are presumed to have been used by legislature according to their legal meanings). Moreover, the specific use of the term in the second sentence of that section, in reference to sentencing, forecloses any suggestion that the legislature's concept of fundamental error excludes sentencing error. See Goldstein v. Acme Concrete Corp., 103 So. 2d 202, 204 (Fla.1958) (noting that legislature is presumed to have meant the same thing when it used same word in related statutory provisions).
As we have seen, when the legislature enacted the Criminal Appeal Reform Act it did not alter the appellate courts' historic jurisdiction to correct fundamental error. The next question is whether the Florida Supreme Court has done so with respect to sentencing issues. Partly in response to the Act, the supreme court amended and promulgated various rules of criminal and appellate procedure.[6]Maddox concluded, and Denson suggested, that these rules evince an intent to abolish fundamental error in the sentencing context. We think not. It is true, as we pointed out in Denson, that the promulgation of rule 3.800(b) now permits a trial court to *302 correct its own sentencing errors upon the filing of a timely motion. But the question of whether an error is fundamental has never turned on the existence vel non of a mechanism for correcting it in the lower court. If it did, no error that could have been corrected by a contemporaneous objection, or a motion for rehearing, or a motion for relief from judgment under Florida Rule of Civil Procedure 1.540, could ever be reviewed as fundamental. Just as the availability of those remedies has no bearing on whether a particular error is fundamental, neither does rule 3.800(b) eliminate the possibility that a sentence could be fundamental error.
In Maddox, the Fifth District contended that the supreme court did away with fundamental error in sentencing when it amended Florida Rule of Appellate Procedure 9.140, governing appeals in criminal cases. The amendments, effective January 1, 1997, included the following new subsection:
(d) Sentencing Errors. A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal:
(1) at the time of sentencing; or
(2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).
Fla. R.App. P. 9.140(d).
Although the preclusive language of that subsection might support an inference that the supreme court meant to prohibit review of sentences under the fundamental error doctrine, we believe such an inference is unwarranted for several reasons. First, appellate review of fundamental error is, by its nature, an exception to the requirement of preservation. Indeed, it is only in this context that the concept has meaning. Put another way: no rule of preservation can impliedly abrogate the fundamental error doctrine because the doctrine is an exception to every such rule. It makes no difference that this particular rule is codified. Over the years, Florida's appellate courts have applied the preservation requirement regardless of whether the codified rules expressly imposed it, and they have corrected fundamental error regardless of whether the codified rules expressly permitted it.[7]
The latter fact underscores the importance of the fundamental error doctrine. Its purpose extends beyond the interests of a particular aggrieved party; it protects the interests of justice itself. It embodies the courts' recognition that some errors are of such a magnitude that failure to correct them would undermine the integrity of our system of justice. See Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580, 584 (Fla. 2d DCA 1996) (explaining that doctrine functions to preserve the public's confidence in the judicial system). As such, the correction of fundamental error is not merely a judicial power; it is an unrenunciable judicial duty. See In re Alkire's Estate, 142 Fla. 862, 144 Fla. 606, 198 So. 475, 482 (1940) (holding that judicial power vested by constitution cannot be abdicated in whole or part by the courts). Given that the authors of the Act expressly embraced this critically important safeguard, we do not believe that the supreme court simply would discard it by implication. Indeed, the supreme court's comment on the 1996 amendments to rule 9.140 implies otherwise. In its opinion adopting the amendments, the court stated that "[r]ule 9.140 was substantially rewritten so as to harmonize with the Criminal Appeal Reform Act of 1996 (CS/HB 211)." Amendments, 696 So.2d at 1137 (emphasis added). That statement contradicts the notion that the rule amendments were meant to eliminate jurisdiction that the Act retained.
On the other hand, while the Act did not disturb our jurisdiction to correct fundamental errors, it did limit our jurisdiction to correct nonfundamental errors. Before the *303 enactment of section 924.051(3), Florida's courts routinely reviewed another category of error in criminal appeals: unpreserved, purely legal sentencing errors that were apparent on the face of the record. In those instances, preservation by contemporaneous objection was excused because the purpose of the contemporaneous objection rule was not served. See, e.g., State v. Rhoden, 448 So. 2d 1013 (Fla.1984); State v. Montague, 682 So. 2d 1085, 1088 (Fla.1996) (and cases cited therein). Consequently, those errors were reviewed regardless of whether they were fundamental, and so included a variety of comparatively less serious sentencing errors such as unauthorized costs and improper probation conditions. The enactment of the Criminal Appeal Reform Act makes it clear that such nonfundamental errors can serve as bases for appellate jurisdiction only if they are preserved. See Nelson, 23 Fla. L. Weekly D2241, 719 So. 2d 1230 (holding that under the Act, unpreserved sentencing errors no longer are correctable on direct appeal merely because they are apparent from face of the record).
Rule 9.140(d) implements that restriction on our jurisdiction while acknowledging that rule 3.800(b) furnishes a mechanism for preserving such errors for appeal. See Amendments to Florida Rule of Appellate Procedure 9.020(g) and Florida Rule of Criminal Procedure 3.800, 675 So. 2d 1374, 1375 (Fla. 1996) (noting that rule 3.800(b) provides "a vehicle to correct sentencing errors in the trial court and to preserve the issue should the motion be denied."). Rules 3.800(b) and 9.140(d) are directed to the "preserved error" prong of appellate jurisdiction under the Act. They do not affect, let alone impliedly revoke, appellate jurisdiction to correct fundamental error in sentencing.
The Effect of a Guilty Plea
As earlier noted, the Criminal Appeal Reform Act imposes two restrictions on our jurisdiction. The second potential jurisdictional impediment to Bain's appeal stems from the fact that his sentences were imposed following guilty pleas. Section 924.051(4), provides:
If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence.
When amending the appellate rules to harmonize with the Act, the supreme court held that this provision is constitutional only if it is read to conform to Robinson v. State, 373 So. 2d 898 (Fla.1979). See Amendments, 696 So.2d at 1105. In Robinson, the court addressed the validity of a similar statute. It held that the statute properly foreclosed appeals from matters which took place before the defendant agreed to the judgment of conviction, but it could not preclude appeals of a limited class of issues that arose contemporaneously with entry of the plea. These included: (1) subject matter jurisdiction; (2) illegality of the sentence; (3) failure of the government to abide by a plea agreement; and (4) the voluntary intelligent character of the plea. See Robinson, 373 So.2d at 902.
Similarly, in addressing section 924.051(4), the supreme court held that "the principle of Robinson controls. A defendant must have the right to appeal that limited class of issues described in Robinson." Amendments, 696 So.2d at 1105. Accordingly, the court devised Florida Rule of Criminal Procedure 3.172(l), which authorizes a motion to withdraw a plea within thirty days after rendition of the sentence, on the grounds recognized by Robinson or otherwise provided by law. The court also amended Florida Rule of Appellate Procedure 9.140(b)(2) to provide that a defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order, and
(B) [] may otherwise directly appeal only
(i) the lower tribunal's lack of subject matter jurisdiction;
(ii) a violation of the plea agreement, if preserved by a motion to withdraw plea;
(iii) an involuntary plea, if preserved by a motion to withdraw plea;
(iv) a sentencing error, if preserved; or
(v) as otherwise provided by law.
In Maddox, the Fifth District cited this rule as additional evidence that the supreme court has abrogated the concept of fundamental *304 error in the sentencing realm. See Maddox, 708 So.2d at 619-620. The Fourth District, in Harriel, acknowledged that under rule 9.140(b)(2), a sentencing error may not be appealed unless it has been preserved by contemporaneous objection or by motion to correct the sentence under rule 3.800(b). But it disagreed with Maddox "to the extent that it holds that a sentence which exceeds the statutory maximum is not a fundamental error which can be addressed on direct appeal without necessity of preservation." Harriel, 710 So.2d at 104. It is apparent that the Harriel court declined to infer from the rule an intention to altogether exclude sentencing from the operation of the fundamental error doctrine.
For the reasons previously described, we agree with Harriel that rule 9.140(b)(2) does not prohibit our review of unpreserved fundamental sentencing errors. Again, the preservation requirements of rule 9.140(b)(2), like rule 9.140(d), are directed to the preserved error aspect of our two-fold jurisdiction under the Act. They do not affect our jurisdiction under the fundamental error prong.
To recapitulate, under the Criminal Appeal Reform Act our jurisdiction to review a sentence may be founded on an allegation either of a preserved sentencing error or of an unpreserved fundamental sentencing error. Also, if our jurisdiction is properly invoked by the allegation of any preserved or fundamental error, we have discretion to correct unpreserved nonfundamental sentencing errors that rise to the level of serious, patent errors. See Denson. To the extent that our statements here and in Denson regarding our authority to correct unpreserved serious, patent sentencing errors conflict with Chojnowski v. State, 705 So. 2d 915 (Fla. 2d DCA 1997), we recede from Chojnowski.[8]
WHAT CONSTITUTES FUNDAMENTAL SENTENCING ERROR
When enacting section 924.051, the legislature did not undertake to define "fundamental error." Rather, the lawmakers left to the courts the task of mapping the parameters of the concept. Certainly, they knew that the judiciary has endeavored to be circumspect in its application of the fundamental error doctrine. And, just as certainly, the legislature was aware that the courts have struggled to define the concept in a way that is both sufficiently comprehensive and sufficiently exclusive.
In part, this is because each judicial error has two facets, and we have varying degrees of concern for either of them. The first aspect of an error is, of course, that a rule has been broken. When assessing whether a particular error is fundamental, we hold some rules, such as due process of law, in higher regard than others, such as the rules of evidence. The other characteristic of an error is its consequence, which can be nominal or can be so harmful that it offends our notions of fundamental fairness. To complicate matters further, our assessment of either aspect of an error can be either qualitative or quantitative. For example, although a single evidentiary error is less likely to be deemed fundamental than a single due process violation, in a given case a pervasive series of evidentiary errors might well produce a fundamentally erroneous result.
For these reasons, we credit the legislature for recognizing that a definition of fundamental error that emphasized concern for one aspect of judicial error over the other would be dangerous. It could produce seemingly anomalous results, which themselves might undermine public confidence in the judicial system. Consider, for example, Dodson v. State, 710 So. 2d 159 (Fla. 1st DCA 1998), in which the First District noted that since the enactment of section 924.051 it had been following supreme court precedent and reversing, as fundamental error, public defender liens imposed without notice or hearing, but it had been declining to review other unpreserved errors that resulted in lengthier prison terms. The court observed: "We fail to see how the wrongful imposition of a *305 nominal discretionary attorney's fee lien can be deemed any more fundamental than wrongful incarceration." 710 So. 2d at 161.
In Denson we bemoaned the judiciary's inability to define fundamental error in a manner that is predictive rather than descriptive. See Denson, 711 So.2d at 1229. Dodson illustrates why attempting such a definition would be folly. At best, we can identify a type of sentencing error that we do not hesitate to correct as fundamental. Beyond that, we can only point to some factors that we consider relevant to whether a particular sentencing error is fundamental.
As do the First, Third, and Fourth Districts, we consider illegal sentences to be fundamentally erroneous. Indeed, an illegal sentence epitomizes error that, if left uncorrected, could undermine public confidence in our system of justice. An institution charged with the duty to punish illegal conduct must not itself be seen to engage in illegality. When we discover that we have done so, we must undo our transgression regardless of when or how it was uncovered. See Sanders v. State, 698 So. 2d 377, 378 (Fla. 1st DCA 1997) (explaining that illegal sentences are regarded with disdain by the law); Hayes v. State, 598 So. 2d 135, 138 (Fla. 5th DCA 1992) (stating that when an illegal sentence is discovered, the system should willingly remedy it) (cited with approval in State v. Montague, 682 So. 2d 1085, 1089 n. 6 (Fla.1996)).
We emphasize that our use of the adjective "illegal" in this context is not confined to a sentence that exceeds the statutory maximum sentence for the crime, as the term was employed in Davis v. State, 661 So. 2d 1193, 1196 (Fla.1995). In State v. Mancino, 714 So. 2d 429 (Fla.1998), the supreme court disavowed the notion that under Davis only sentences that exceed statutory maximums are illegal for purposes of rule 3.800(a). Rather, the court held, "[a] sentence that patently fails to comport with statutory or constitutional limitations is by definition `illegal.'" 714 So. 2d at 433. We believe that any sentence to which our judiciary is constrained to attach the opprobrium "illegal" must be corrected as fundamental error.
That said, we cannot declare that only "illegal" sentences can constitute fundamental sentencing error. We cannot predict that no other sentence could involve an error so egregious as to demand correction for the sake of protecting the integrity of our system of justice. Still, we safely can observe that the less concern we have about a particular kind of error as a qualitative matter, the greater must be its quantitative impact before we would feel compelled to correct it as fundamental. Our societal values are such that in the sentencing context we are more solicitous of personal liberty than of pecuniary interests. Thus, an error that improperly extends the defendant's incarceration or supervision likely would impress us as fundamental. But only in an extreme case would an improper cost assessment or public defender's lien qualify as fundamental error. See Gaines v. State, 23 Fla. L. Weekly D2645, 724 So. 2d 139 (Fla. 2d DCA 1998) (holding that improper imposition of public defender lien is neither fundamental nor serious, patent sentencing error).
BAIN'S SENTENCES
Bain pleaded guilty to robbery without a weapon, a second degree felony. See § 812.13(2)(c), Fla. Stat. (1995). For this offense, he received a fifteen-year minimum mandatory sentence as a habitual violent felony offender. This was error, because under the habitual violent felony offender statute the minimum mandatory portion of a sentence for a second degree felony cannot exceed ten years. See § 775.084(4)(b)2., Fla. Stat. (1995). Because the minimum mandatory portion of Bain's sentence exceeds the maximum allowed by law, it is illegal and constitutes fundamental error. Cf. Powell v. State, 719 So. 2d 963, 23 Fla. L. Weekly D2310 (Fla. 4th DCA 1998) (holding that improper imposition of minimum mandatory sentence is reviewable as fundamental error because of inherent potential to lengthen defendant's incarceration). Therefore, we have jurisdiction, and we reverse and remand for resentencing on the robbery conviction. See § 924.015(3), Fla. Stat. (Supp.1996).
For the grand theft offense, the circuit court sentenced Bain to a concurrent term of ten years' imprisonment as a habitual *306 felony offender. This, too, was error. Bain stipulated that he qualified as a habitual violent felony offender. But he did not agree that he could be sentenced as a habitual felony offender, and the State did not present the required evidence of two prior felonies that would have qualified him for that treatment for his grand theft conviction. See § 775.084(1)(a)1., Fla. Stat. (1995).
Having acquired jurisdiction based on the fundamentally erroneous sentence for Bain's robbery offense, we need not determine whether the grand theft sentencing error is fundamental because it is at least a serious, patent sentencing error. See Denson. Accordingly, we reverse the habitual offender sentence imposed for Bain's conviction for grand theft, and remand for resentencing. Because Bain failed to object to the habitual offender sentence, on remand we permit the State to again attempt to qualify him as a habitual felony offender. See Lowenthal v. State, 699 So. 2d 319 (Fla. 2d DCA 1997).
We certify that this decision presents the following questions of great public importance:
1. IS THE CRIMINAL APPEAL REFORM ACT OF 1996, SECTION 924.051, FLORIDA STATUTES (SUPP.1996), AN ATTEMPT TO AFFECT THE JURISDICTION OF APPELLATE COURTS TO ENTERTAIN APPEALS IN CRIMINAL CASES?
2. IF SO, IS THE ACT A VALID EXERCISE OF LEGISLATIVE AUTHORITY IN LIGHT OF THE FOLLOWING PROVISIONS OF THE FLORIDA CONSTITUTION: ARTICLE I, SECTION 21 (ACCESS TO THE COURTS), ARTICLE II, SECTION 3 (SEPARATION OF POWERS), AND ARTICLE V, SECTION 4(b)(1) (APPEALS FROM FINAL ORDERS MAY BE TAKEN AS A MATTER OF RIGHT)?
CAMPBELL, PATTERSON, BLUE, FULMER, WHATLEY, GREEN, CASANUEVA, and SALCINES, J.J., Concur.
ALTENBERND, J., Dissents with opinion in which PARKER, C.J., and THREADGILL, J., Concur.
ALTENBERND, Judge, Dissenting.
In its simplest terms, the troublesome issue in this case is whether an illegal sentence is "fundamental error" for purposes of the Criminal Appeal Reform Act. I conclude that it is not.
I agree that the certified questions are important and need to be resolved.[9] Nevertheless, I would reluctantly dismiss this appeal. The legislature's imprudent invasion into judicial territory in the Criminal Appeal Reform Act, while constitutionally questionable, is not the controlling issue here. The supreme court has created rules of procedure that require Mr. Bain to address these unpreserved sentencing issues in the trial court. At all times during the pendency of this appeal, Mr. Bain has had an available remedy in the trial court that should have been pursued prior to invoking this court's jurisdiction. As a matter of due process, I would hold that Mr. Bain is entitled to counsel to pursue his rights under Florida Rule of Criminal Procedure 3.800(a) when those rights replace his traditional right of appeal, and I would authorize his public defender to file the trial court motion to correct these problems. However, I would not declare these unpreserved errors to be fundamental in an appellate court when there exists an avenue of redress in the trial courts that is now, and always has been, available to Mr. Bain.
I. THE BASIC FACTS
On April 17, 1997, Mr. Bain pleaded either nolo contendere or guilty to six different informations, charging six separate offenses that had occurred on different dates.[10] Four *307 of these offenses are drug-related. For these offenses, Mr. Bain received concurrent 5-year sentences that apparently are guideline sentences.[11] He has not appealed these four cases. It is obvious from the sentencing transcript that these convictions and sentences were entered to clean up all of his pending less serious offenses in conjunction with his plea to the two more serious offenses.
Mr. Bain has appealed case number 96-17046 in which he was charged with the second-degree felony of robbery. He was convicted for that offense and sentenced to 15 years' imprisonment as a habitual violent felony offender. He received a 15-year minimum term. Although the 15-year term of imprisonment is proper, the minimum term cannot exceed 10 years. From the transcript of the sentencing hearing, it appears that both the assistant state attorney and the defense attorney thought this minimum term was applicable. Thus, the plea was negotiated based on a mutual mistake of law and no one ever suggested to the trial court that any problem existed with this sentence. Nevertheless, there is no question that the 15-year minimum term is unauthorized as a matter of law and that this legal error is not dependent upon any question of fact.
Mr. Bain also has appealed case number 96-16643 in which he was charged with robbery, but pleaded to the lesser offense of grand theft, as a third-degree felony. For this offense, he received a 10-year sentence of incarceration as a habitual offender. Mr. Bain made no effort to suggest that his record would not allow sentencing for this offense as a habitual offender. From a practical perspective, this sentence is probably insignificant because it is concurrent with the longer 15-year sentence.
The plea colloquy in this case is messy, but not unique. Mr. Bain, by his attorney's admission, is a man of limited intelligence. He was facing two separate robbery charges for which his total sentence could have been 60 years' imprisonment with a 20-year minimum mandatory. Presumably, his four guidelines sentences could have been added as an additional 5 years of imprisonment. When this plea negotiation reached its final stages, Mr. Bain was mostly concerned about gain time issues and whether a 15-year sentence would mean that he would actually spend 15 years in prison. Even with his limited intelligence, he seemed to know that the 15-year total sentence was a very favorable deal. He was not concerned about the 10-year sentence because it will have no practical ramifications so long as it is concurrent with the habitual violent felony offender sentence. It cannot be denied, however, that the written plea agreement does not describe the maximum sentence and is barely legible. The judge never even asked Mr. Bain to plead guilty or nolo contendere, but accepted a rather free-flowing plea agreement.
I am not certain whether Mr. Bain must withdraw his plea to receive a benefit from the majority's opinion. If he must withdraw his plea, he risks the possibility that the grand theft conviction will once again become a charge of robbery subject to lengthy, consecutive habitual violent felony offender sentencing.
II. ALLEGING JURISDICTION UNDER THE CRIMINAL APPEAL REFORM ACT
When Mr. Bain's trial attorney filed this appeal, he alleged in his statement of judicial acts to be reviewed that Mr. Bain wished to challenge the denial of his motion to suppress. This pleading was filed in bad faith. The motion to suppress concerned a pretrial identification that was not dispositive. The trial court had clearly stated that the motion was not dispositive, and had explained at sentencing that this issue could not be appealed. The trial attorney's effort to reserve the right to appeal this issue was meaningless.
I point this out because section 924.051(3) requires an allegation of prejudicial error. Where does a defendant "allege' the necessary prejudicial error, which is either preserved or fundamental, to invoke the court's jurisdiction? Typically, an allegation to invoke *308 a court's jurisdiction is filed at or near the inception of the legal proceeding.[12] The supreme court has not amended the appellate rules of procedure to require allegations of error in notices of criminal appeal.[13] Currently, an appellant in a criminal appeal must file a "statement of the judicial acts to be reviewed" in any criminal case in which a publicly funded transcript is required. Fla. R.Crim. P. 9.140(b)(5)(A)(ii). This document is filed in the great majority of such criminal appeals within a few days of the notice of appeal. See Fla. R.App. P. 9.140(e)(2)(A). Absent any other current procedural device for alleging the error necessary to invoke our jurisdiction, I am inclined to rely upon this statement to establish jurisdiction. When such a document has not been filed and we have reason to question our jurisdiction after reviewing the issues raised in the initial brief, we could issue an order to show cause to provide the appellant an opportunity to file a jurisdictional "allegation" prior to deciding whether to dismiss the appeal.
In this case, I would accept Mr. Bain's statement of judicial acts as an allegation giving us jurisdiction if it were not a bad faith allegation. If I concluded we had jurisdiction, I might be willing to correct the erroneous 15-year minimum mandatory designation under Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998), but I would not treat the shorter concurrent habitual offender sentence as such an error on this record.
III. ILLEGAL SENTENCES ARE NO LONGER FUNDAMENTAL ERROR ON DIRECT APPEAL
Even in the face of the Criminal Appeal Reform Act, a defendant has the right to appeal certain sentencing issues. See Amendments to the Florida Rules of Appellate Procedure, 696 So. 2d 1103 (Fla.1996). The question here is whether a defendant may appeal unpreserved sentencing errors that, at all relevant times, can be corrected by the filing of a motion in the trial court. With all due respect to Judge Northcutt's efforts and the viewpoint of the majority, and recognizing that their approach is more practical than that chosen by the legislature and the supreme court, I do not think we should employ the concept of fundamental error in an expansive manner in order to avoid the general rule requiring preserved error.
Without explaining its evolution in great detail, it seems to me that the Criminal Appeal Reform Act was enacted to address the problems created by unpreservable sentencing error. Prior to the Act, many errors that occurred during sentencing hearings, and especially in sentencing documents, simply could not be preserved by contemporaneous objection. As a result, appellate courts forgave defendants when these errors were raised on appeal without an objection in the trial court. Unfortunately, we often described these errors as "fundamental." I do not believe that the legislature intended the statutory word "fundamental" to include any and every sentencing error that an appellate court referred to as fundamental under the earlier rules of procedure.
No matter how one defines "fundamental error," at least when it is a jurisdictional concept, such errors should be serious and should necessitate action by the reviewing *309 court. The 15-year minimum mandatory designation in this case might be serious, but it is currently subject to repair in the trial court by means of a rule 3.800(a) motion. Although it would be very practical for this court to assume jurisdiction, there is no legal reason for this court to assert jurisdiction to correct an error currently correctable in the trial court. I am not certain that the habitual offender sentence is even erroneous, but if it is erroneous, it causes no practical harm and is currently subject to repair in the trial court.
Although this court clearly has authority to correct erroneous rulings by trial courts concerning illegal sentences, the supreme court has not expressly given it authority to correct such errors as fundamental errors. Instead, it has expressly prohibited parties from raising such issues unless they are preserved. See Fla. R.App. P. 9.140(d). When we have jurisdiction, I have no qualm with this court's power to correct an illegal sentence on its own authority. See Denson, 711 So. 2d 1225. I hesitate, however, to invoke our jurisdiction, as an inherent power, to correct errors that remain correctable in the trial court.[14]
IV. PUBLIC DEFENDERS FOR POST-CONVICTION MOTIONS THAT SERVE AS CONDITIONS PRECEDENT TO DIRECT APPEAL OF SENTENCING ISSUES
The Criminal Appeal Reform Act and the related rule amendments were clearly intended to force the trial courts to clean up their own mess. The policy seems to be based on a belief that a trial judge who is inundated with postsentencing motions pursuant to rules 3.800(a) and (b), and a trial lawyer who is alleged to be ineffective in hundreds of motions pursuant to rule 3.850, claiming a failure to file rule 3.800(b) motions, will soon learn that it is better to handle sentencing with greater care. See Maddox v. State, 708 So. 2d 617 (Fla. 5th DCA 1998). Although I dissent in this case, I agree with my colleagues that this policy risks harm to defendants and that it should be the job of this court to protect the rights of such defendants. If due process requires fair play, Mr. Bainwith an IQ of 80 cannot fairly be expected to file a pro se postconviction motion seeking a legal sentence merely to satisfy someone's concept of tidiness.
In light of the recent changes, a defendant clearly has the constitutional right to appointed counsel to file any necessary postsentencing motion pursuant to rule 3.800(b). Given that a motion pursuant to rule 3.800(a) is now a condition precedent to direct appellate review of any illegal sentence not preserved by a rule 3.800(b) motion, I would authorize the public defender to file this motion for Mr. Bain. I recognize that this solution has its limitations and that either the legislature or the supreme court could fashion a better approach, but this seems to be the best option available to this court if the legislature and the supreme court have eliminated both our jurisdiction and our prior standards of review concerning unpreserved sentencing errors. Thus, I would dismiss this appeal with instructions to the public defender to file a motion pursuant to rule 3.800(a), if that is in fact in Mr. Bain's best interests.
NOTES
[1] The ambiguity stems from the common interchangeability of the words which and that. As a matter of grammatic propriety, which generally is descriptive, while that tends to define. Fowler, Dictionary of Modern English Usage, 2d rev. ed.1983. Therefore, if the revisers of article V intended to describe all appeals from final orders as being rightful, they more properly would have written "appeals, which may be taken as a matter of right...." On the other hand, if instead the revisers intended their use of that to define the district courts' jurisdiction as extending only to those "appeals that may be taken as a matter of right," their use of commas to create the phrase following "appeals" was superfluous at best, and ambiguous at worst. Alas, the "rules" governing these things often are, perhaps usually are, dishonored in common practice. For that reason, the principle that legal documents should be construed according to the "rules" of grammar offers no insight into the intentions of either the revisers who proposed the language or the voters who approved it.
[2] Other examples of constitutional provisions granting authority to affect the jurisdiction of the courts include article V, section 2(a), in which the supreme court is directed to enact a rule establishing the jurisdictional time period for commencing an appeal, and article V, section 1, which directs the legislature to apportion the judicial power geographically by dividing the state into appellate court districts and judicial circuits. The legislature's authority to affect the jurisdiction of circuit courts is more wide ranging. Article V, section 5(b), provides that circuit courts shall have original jurisdiction not vested in the county courts, appellate jurisdiction as provided by general law, and the power of direct review of administrative action prescribed by general law. Legislative responsibility for establishing the parameters of county court jurisdiction is broader still. Under article V, section 6(b), county courts exercise the jurisdiction "prescribed by general law."
[3] For that matter, neither does the constitution appear to grant such authority to the supreme court, save for its duty under article V, section 2(a), to prescribe the time for commencing an appeal.
[4] "The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein."
[5] "The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay."
[6] Even before passage of the Act, the supreme court had lamented that "scarce resources were being unnecessarily expended in ... appeals relating to sentencing errors." See Amendments to the Florida Rules of Appellate Procedure, 696 So. 2d 1103 (Fla.1996) (citation omitted).
[7] Before the codification of a preservation rule, the Florida Supreme Court enforced one. See Coker v. Hayes, 16 Fla. 368, 372 (1878). Later, in the day when litigants were statutorily obliged to reserve exceptions for appeal, based on objections made in the trial proceedings, Revised Statutes of Florida 1892, section 1266, the fundamental error rule applied even though the statutes did not provide for it. See, e.g., Parker v. Dekle, 46 Fla. 452, 35 So. 4 (1903). Today, aside from the provisions at issue here, neither the Florida Rules of Appellate Procedure nor the Florida Statutes contain a general requirement that errors be preserved for appeal, nor do they except fundamental errors from the preservation requirements.
[8] In Chojnowski v. State, 705 So. 2d 915, 916 (Fla. 2d DCA 1997), we observed that as a result of the Criminal Appeal Reform Act, "a criminal defendant has only one avenue for correction of a nonfundamental sentencing error after the entry of a judgment and sentence. That avenue is the filing of a motion under rule 3.800(b)."
[9] We should, however, acknowledge that neither the public defender nor the State requested these certified questions. Indeed, the Office of the Attorney General, which proposed the Criminal Appeal Reform Act to the legislature, has suggested that we reverse the trial court in this case despite the preservation and jurisdictional issues.
[10] The relevant plea hearing was disjointed at best. One cannot determine from the written plea agreement or from the transcript whether Mr. Bain pleaded guilty or nolo contendere to these crimes.
[11] The guidelines scoresheet could not be located for inclusion in our record.
[12] This is comparable to the method by which a circuit court's subject matter jurisdiction in invoked. It is not essential that a case ultimately involve damages in excess of $15,000 in order for circuit court jurisdiction to exist; the plaintiff must simply allege such damages in good faith. See Tantillo v. Miliman, 87 So. 2d 413, 415 (Fla. 1956); Floyd v. Baxter, 508 So. 2d 549 (Fla. 1st DCA 1987).
[13] I am inclined to believe that some of the reform sought by the legislature could be accomplished if trial counsel in criminal cases were required to allege with some specificity in the notice of appeal the error sought to be reviewed on appeal. Cf. In re Florida Appellate Rules, 142 So. 2d 725 (Fla.1962) (requiring assignments of error under the pre-1978 rules). Especially in appeals from guilty pleas and pleas of nolo contendere, this might allow appellate courts to dismiss non-meritorious appeals near their inception. See Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979). Such a rule would also force the trial counsel to consider appellate issues at the same time that he or she reviewed the sentencing documents to determine whether to file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b). Obviously, this is a rule-making function for the supreme court and is not a function for either this court or the legislature. See Art. V, § 2(a), Fla. Const.
[14] At this point I must apologize to Chief Judge Schwartz, who must surely believe that I have run away and joined a Thomist monastery. See Mizell v. State, 716 So. 2d 829 (Fla. 3d DCA 1998). Jurisdiction is simply not a power to be taken lightly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918316/ | 101 B.R. 800 (1989)
In re John F. DODGE, Bankrupt.
Bankruptcy No. 78-330-BK-CA-B.
United States Bankruptcy Court, S.D. Florida.
June 2, 1989.
Douglass E. Wendel, Palm Beach, Fla., Trustee.
Theodore Jewell, Palm Beach, Fla., for trustee.
Sylvan B. Burdick, Burdick & Daves, West Palm Beach, Fla., for John Dodge.
John A. Finn, Miami, Fla., for Creditors Finn and McCauley.
Jack F. Weins, Hollywood, Fla., for creditor United Wire.
John J. Brickman, Great Neck, N.Y., for Trustees of United Wire.
Gregory J. Perrin, New York City, for Charles Robbins.
Daniel L. Bakst, West Palm Beach, Fla., for various unsecured creditors.
ORDER REGARDING POSTPETITION INTEREST
THOMAS C. BRITTON, Chief Judge.
The trustee reports that the assets of this estate, $634,000, are more than sufficient to pay all creditors and all administrative expenses in full and has moved (CP 652) for a ruling whether postpetition interest is payable on unsecured claims from the surplus which otherwise will be returned to the bankrupt, and if so, then at what rate. The motion was heard May 16.
For the reasons which follow, I now conclude that postpetition interest is payable upon the $30,000 claim of Finn and McCauley at the rate of 10% per annum, the rate specified in the promissory note upon which that claim is based.
The Applicable Law
The present Code, Title 11, §§ 101 et seq., explicitly provides payment of postpetition interest to secured creditors to the extent the value of the collateral exceeds the secured claim, 11 U.S.C. § 506(b), and to unsecured creditors as a fifth priority, ahead only of the return of surplus to the debtor, § 726(a)(5). These provisions, however, have no application in this case.
This voluntary bankruptcy was filed March 24, 1978, more than a year before the effective date, October 1, 1979, of the present Code. This motion is, therefore, governed by the provisions of the Bankruptcy Act of 1898, as amended, without regard to the present Code. This is so, because the present Code contains the following savings clause:
"A case commenced under the Bankruptcy Act, and all matters and proceedings in or relating to any such case, shall be conducted and determined under such Act as if this Act had not been enacted, and the substantive rights of parties in *801 connection with such bankruptcy case, matter, or proceeding shall continue to be governed by the law applicable to such case, matter, or proceeding as if the Act had not been enacted." Pub.L. No. 95-598 § 403(a).
The Bankruptcy Act was completely silent with respect to the payment of interest upon bankruptcy claims. By judicial gloss, however, it was well-settled, as stated in Vanston Bondholders Protective Committee v. Green, 329 U.S. 156, 67 S. Ct. 237, 91 L. Ed. 162 (1946), that in determining how a debtor's assets shall be distributed, a bankruptcy court does not apply the law of the state where it sits, but must administer and enforce the Bankruptcy Act as interpreted by the Supreme Court in accordance with authority granted by Congress to determine how and what claims shall be allowed "under equitable principles;" Postpetition interest, though not generally payable on bankruptcy claims, may be allowed by the bankruptcy court where justified by the "balance of equities":
"It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor." Vanston, supra, 329 U.S. at 165, 67 S. Ct. at 241. (Emphasis added).[1]
In Vanston the Court affirmed the denial of postpetition interest on the equitable principle that in that case to do otherwise would be the imposition of interest upon unpaid interest where the debtor's default had been ordered by the court. The Court said:
"Such a result is not consistent with equitable principles. For legal suspension of an obligation to pay is an adequate reason why no added compensation or penalty should be enforced for failure to pay." Supra, 329 U.S. at 166-67, 67 S. Ct. at 241-42.
Thirty-five years earlier, the Fifth Circuit[2] had foreshadowed Vanston in Johnson v. Norris, 190 F. 459 (5th Cir.1911) by applying equitable principles to hold that the court created rule against postpetition interest had no application to a solvent estate and that the "surplus should be applied first to the payment of the interest accruing on the claims subsequent to the filing of the petition, and the remainder only returned to the bankrupt."[3]
It is clear that the holding in Johnson limits the payment of postpetition interest to those creditors who have "proved interest-bearing claims in the first instance" and *802 the Johnson court was obviously influenced by the fact that estate assets were interest-bearing.
Balancing The Equities
In the instant case, the estate assets are not interest-bearing. The surplus results from the trustee's settlement of the bankrupt's claim against a New York bank, one of three trustees of a very large spendthrift trust established for his benefit during his minority. That claim was settled in 1983 for $775,000 by the trustee, with this court's immediate approval, but was not approved by the New York court until October 18, 1988 and was not received until December 22, 1988. The settlement contained no provision for interest.
The two major (77%) unsecured claims in the instant case, each in the amount of $100,000 (Robbins and United Wire) result from postpetition fixed sum settlement agreements between the two creditors and the trustee. Neither contained any stipulation for interest.
Of the remaining $60,629.81 unsecured claims in the instant case, this record reflects (Adversary Proceeding # 6 in 78-328) that the $30,000 claim of Finn and McCauley is based upon a March 2, 1978 unsecured promissory note bearing 10% interest commencing April 15, 1978. This claim, like the two larger ones and like four others, which total $14,139.06, were joint and several obligations of this bankrupt's estate and the bankruptcy estates of his mother and step-father. Payment (without interest) was advanced by the other two estates on April 5, 1989.
Applying the Johnson holding to the facts of the instant case, I conclude that neither of the two largest unsecured creditors is entitled to any postpetition interest. The Finn/McCauley claim is entitled to 10% simple interest to April 5, 1989, the day the principal was advanced by the other two estates. It is entitled to no other postpetition interest.
Only those claims (if any) which are interest-bearing as evidenced by an instrument or judgment are entitled to postpetition interest. The computation of any such interest shall be consistent with the holding in the preceding paragraph.[4]
The foregoing application of Johnson is, I believe, entirely consistent with the balancing of equities directed in Vanston. It would be inequitable to allow interest to a creditor who has never bargained for nor been promised interest, from an estate, the assets of which are not interest-bearing. There are no equities in the instant case which would require a different result. On the contrary, I find that they support that result. The additional equities persuasive to me in this case follow.
In the instant case, the extraordinary and unforeseen delayed distribution is not chargeable to either the bankrupt or any of the creditors. It resulted from the reluctance of a New York lower court to rule on issues presented by a third party New York co-trustee.
For many years, it has been understood by all parties to this case and by this court that there would be a substantial surplus returnable to the bankrupt and he was justified in relying upon that understanding when he supported the trustee in the ultimately effective effort to overcome the impasse in New York. The bankrupt's cooperation was of significant assistance in that respect. No creditor offered or provided any assistance. If all unsecured creditors are paid postpetition interest, there would be no surplus returnable to the bankrupt.
The entire expense of obtaining the settlement and of resolving the New York impasse will be borne by the bankrupt as an administrative expense deducted from the surplus otherwise returnable to him. No part of any administrative expense in any of the three related bankruptcies will be borne by any of the unsecured creditors.
The bankrupt's claim, which is the asset that has made possible the 100% distribution *803 to all creditors in the instant case, is an asset to which he alone was entitled. It was an asset against which no creditor had any legal or moral claim until the bankrupt voluntarily filed for bankruptcy. It would be inequitable to leave him with little or nothing from the settlement of that claim by distributing most or all of it to the creditors of his mother (the third co-trustee of the spendthrift trust) and his step-father.
The trustee and his attorney are, once again, directed to expedite the closing of this long overdue case.
DONE and ORDERED.
NOTES
[1] See also 3A Collier on Bankruptcy (14th Ed.) ¶ 63.16[1]:
"it should be kept in mind that bankruptcy courts have the power to determine how a debtor's assets should be distributed, and that equitable principles of bankruptcy administration rather than the validity of a claim under state law govern the payment of interest accruing during administration." (Emphasis added).
See also In re Newbury Cafe, Inc., 841 F.2d 20, 21-22 (1st Cir.1988) (decided under Code, oversecured taxing authority not entitled to interest on debt which accrued during bankruptcy proceedings), where the Court said:
"Pre-Code law held post-petition interest generally unrecoverable. [citations omitted] The courts recognized three exceptions. Interest might accrue: (1) where it eventuated that the debtor is in fact solvent; (2) where securities, held by the creditor as security for the debt, produced income after the filing of the petition; and (3) where the value of the secured creditor's contracted security was sufficient to satisfy both principal and interest due on the secured claim. . . . the existence and scope of the three exceptions was a function of the equitable powers of the bankruptcy court." (Emphasis added).
[2] The decisions of the Fifth Circuit before October 1, 1981 are controlling in this Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).
[3] The Court also said:
"Can it be that the act means that a voluntary petitioner may, although solvent in fact, stop the interest on his debts, while collecting by the trustee the interest on his assets; . . . The extraordinary result would be that a delay in payment arising from a proceeding begun by the debtors, and which the creditors were powerless to resist [the voluntary chapter VII petition], would prevent the creditors from collecting interest out of an estate able to pay it, when the general rule is that interest is always given for delay in payment. The bankrupt's estate often, as in this case, may consist, in the main, of interest-bearing assets." Id. at 463.
[4] Because this record is incomplete with respect to the remaining unsecured claims ($30,629.81), I cannot presently be more specific. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918336/ | 730 So. 2d 393 (1999)
Joanne L. PERRY and Bruce L. Perry, Appellants,
v.
Edwin L. MUNGER and Capital Enterprise Insurance Company, a Foreign Corporation, Appellees.
No. 98-03154.
District Court of Appeal of Florida, Second District.
April 9, 1999.
*394 Sylvia H. Walbolt and Robert E. Biasotti of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., St. Petersburg, and Guy N. Perenich of Perenich, Carroll, Perenich, Avril, & Caulfield, P.A., Clearwater, for Appellants.
Daniel P. Mitchell of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for Appellee Capital Enterprise Insurance Company.
No appearance for Appellee Edwin L. Munger.
PATTERSON, Acting Chief Judge.
Joanne and Bruce Perry appeal from a final summary judgment entered in favor of Capital Enterprise Insurance Company (Capital) on the Perrys' claim for underinsured motorist benefits. We reverse.
In December 1989, Joanne Perry was involved in an auto accident in which she was hit by a vehicle Edwin Munger was driving. She claimed to have sustained damages totaling $280,000. At the time of the accident, Munger was insured by Allstate Insurance Company (Allstate) with an automobile insurance policy which included $100,000 of liability coverage. Perry was insured by Capital with a policy which included $100,000 of uninsured/underinsured motorist coverage.
Between March 1991 and February 1992, Perry, through counsel, and Capital exchanged numerous letters regarding the payment of medical bills and other policy-related issues. Perry then requested written authorization from Capital to settle with Allstate. Capital responded that "the information we currently have in our file, indicates [Perry's] injury should be compensated within the limits of the primary carrier." On September 27, 1993, Perry sent a certified letter to Capital notifying Capital that Allstate had offered $68,750 to settle her claims and requested authorization to accept the offer. When Capital did not reply, Perry sent Capital information detailing her $280,000 of claimed damages. A representative of Capital responded by saying, "My evaluation of this claim is close to the offer made by Allstate. Inasmuch as it appears that the value of this case is well within Allstate's limits, I must refer you back to Allstate for settlement of the claim." Perry wrote again, asking if that response was an authorization to settle with Allstate. On November 16, 1993, without directly saying yes or no, Capital responded, "We are not willing to waive our subrogation rights." Perry then settled with Munger and Allstate for $68,750.
In December 1993, Perry sued Capital, seeking declaratory relief on her claim for underinsured benefits.[1] Capital answered *395 and asserted eight affirmative defenses, none of which played a part in the outcome of the case. Three years later, Capital filed an amended answer to include an additional affirmative defense. That defense alleged that Perry had prejudiced Capital's right to subrogation by settling with Allstate. Capital then moved for summary judgment. In response, Perry filed copies of her correspondence (through counsel) with Capital, a clerk's certificate reflecting an unsatisfied judgment against Munger, and an "asset investigation report" by an investigation company reflecting that Munger had no assets. None of these documents were in the form of an affidavit. The trial court granted Capital's motion for summary judgment. Perry filed a motion for rehearing supported by the affidavit of her attorney. In that affidavit, counsel attempted to authenticate the various documents he had previously filed. The trial court denied the motion.
Neither party in this case demonstrates artful litigation of a motion for summary judgment. Capital had filed a motion for leave to amend its answer, but never set it for hearing. Therefore, the amended answer, which was the court's basis for granting the motion, was not properly before the court. However, it appears that Perry's counsel made no objection. Although Capital's motion for summary judgment relies on terms of the Perry insurance policy and her settlement with Allstate, these allegations are not under oath. Capital did not authenticate or offer into evidence the insurance policy. Additionally, there is no evidence establishing a settlement or its terms.
However flawed this record may be, it is nonetheless Capital's burden to demonstrate conclusively that the nonmoving party cannot prevail. See Fatherly v. California Fed. Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997). Although an insured's failure to obtain an uninsured motorist insurer's consent prior to settlement with the tortfeasor in violation of a nonsettlement provision raises a presumption that the insurer has been prejudiced, that presumption is rebuttable. See Watherwax v. Allstate Ins. Co., 538 So. 2d 108 (Fla. 2d DCA 1989). The probable insolvency of the tortfeasor can be sufficient to overcome the presumption. See Tucker v. Seward, 400 So. 2d 505 (Fla. 5th DCA 1981); Southeastern Fidelity Ins. Co. v. Earnest, 395 So. 2d 230 (Fla. 3d DCA 1981). This record contains ample indications that Munger may be insolvent or that he is deceased and his estate is insolvent; this creates a factual issue which Capital has not overcome. Additionally, Capital's equivocal responses to Perry's request for authorization to settle raise a factual issue as to whether authorization was withheld. This issue alone was enough to preclude summary judgment. Therefore, we reverse the summary judgment in favor of Capital and remand for further proceedings.
Reversed and remanded.
NORTHCUTT and GREEN, JJ., Concur.
NOTES
[1] The claim arose from the terms of the insurance policy in effect at the time of the accident in 1989. Thus, the 1989 version of section 627.727, Florida Statutes, which governs underinsured motor vehicle insurance coverage, applies to this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575597/ | 17 So. 3d 1265 (2009)
Bill MITCHELL, Appellant,
v.
The BEACH CLUB OF HALLANDALE CONDOMINIUM ASSOCIATION, INC., Appellee.
Nos. 4D08-2123, 4D09-1903.
District Court of Appeal of Florida, Fourth District.
September 23, 2009.
*1266 Rachel H. LeBlanc of Shutts & Bowen LLP, Fort Lauderdale, for appellant.
Edo Meloni, Steven A. Fein, and Shelley J. Murray of Fein & Meloni, Plantation, for appellee.
WARNER, J.
The trial court dismissed appellant's complaint for an injunction to prevent the levy of a condominium special assessment, without prejudice to refile a complaint which met the "jurisdictional limits" of the court. Because the complaint sought an injunction for which the circuit court has subject matter jurisdiction, we reverse the order of dismissal as well as the order granting prevailing party attorney's fees in favor of the condominium association.
After his condominium association passed a resolution imposing a special assessment of $1,299,895, amounting to $4,194 per unit, appellant Mitchell filed an "ex parte petition for injunctive relief" to prevent the enforcement of the special assessment. He alleged that the association failed to give proper notice of the meeting, failed to establish a quorum, used expired proxies, and failed to provide an audited financial statement in violation of the bylaws and Florida Statutes. Despite its "ex parte" title, the Association was served and filed a motion to dismiss, claiming that because no permanent injunction was sought, the court could not grant a temporary injunction. Second, the Association maintained that the matter was in the exclusive jurisdiction of the Department of Business and Professional Regulation and subject to mandatory nonbinding arbitration. Finally, it claimed that the petition was factually insufficient to show irreparable harm. During the hearing on the motion, the Association also argued that the special assessment against Mitchell for $4,194 did not meet the jurisdictional limit for the circuit court and that the case had to be refiled with more homeowners. The trial court ultimately dismissed the petition without prejudice to refile within the jurisdictional limits of the circuit court. It then awarded prevailing party attorney's fees to the condominium association. Mitchell appeals, and our standard of review of the order of dismissal is de novo. See Accardi v. Hillsboro Shores Improvement Ass'n, 944 So. 2d 1008, 1011 (Fla. 4th DCA 2005).
The trial court's order of dismissal states that the complaint was dismissed without prejudice to refile within the jurisdictional limits of the court. However, Mitchell did not seek monetary relief. Instead, he sought to enjoin the assessment, meaning that he requested injunctive relief. County and circuit courts have concurrent jurisdiction over equitable matters, including those requesting injunctive relief, regardless of the amount in controversy. See Baldwin Sod Farms, Inc. v. Corrigan, 746 So. 2d 1198, 1202 (Fla. 4th DCA 1999) ("county courts and circuit courts have concurrent jurisdiction over matters in equity, including injunctions"). Under section 34.01(4), Florida Statutes, county courts "may" hear matters in equity involving sums within the jurisdictional *1267 amount of the county court. Thus, county court jurisdiction is not exclusive. The court erred in applying the monetary jurisdictional limit to dismiss this complaint for lack of jurisdiction.
The remaining reasons for dismissing the complaint on jurisdictional grounds also fail. First, as to the Association's claim that Mitchell was required to arbitrate his claim before proceeding to suit, a dispute over the levy of an assessment is not subject to the arbitration provisions of the Condominium Act. See § 718.1255(1)(b), (4)(a), Fla. Stat. (2008). Second, although the Association claimed that only a temporary injunction was requested in the complaint, the complaint requested that an injunction be entered to prevent the Association from collecting any special assessment against Mitchell. The complaint alleges that the Association failed to comply with its rules and with due process. Proving these allegations would invalidate the special assessment and prevent its enforcement permanently, not temporarily. Section 718.303(1), Florida Statutes, permits a unit owner to seek injunctive relief for failure of a condominium association to comply with its rules or the Condominium Act. Finally, the complaint shows sufficient irreparable harm in the violation of the Condominium Act to warrant injunctive relief. When bringing an action for injunctive relief against an association, an alleged violation of chapter 718 is itself a harm for which section 718.303 authorizes injunctive relief. See Hobbs v. Weinkauf, 940 So. 2d 1151, 1153 (Fla. 2d DCA 2006). Although the appellant requested an ex parte injunction without notice, notice was in fact given. If anything, the complaint may have been deficient for requesting a temporary ex parte injunction, because it did not allege the requisite requirements for ex parte relief. It sufficiently pled allegations to warrant a permanent injunction.
We also reverse the award of prevailing party attorney's fees. Not only is this necessary because of our reversal of the order dismissing, the Association did not "prevail" where the complaint was dismissed on jurisdictional grounds without prejudice to refile. See Shaw v. Schlusemeyer, 683 So. 2d 1187 (Fla. 5th DCA 1996).
Reversed and remanded for further proceedings in accordance with this opinion.
POLEN and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575589/ | ROSS HENNESSEY
v.
DEPARTMENT OF FIRE
No. 2009-CA-0590
Court of Appeals of Louisiana, Fourth Circuit.
September 2, 2009
Not Designated for Publication
LOUIS L. ROBEIN, Jr., KEVIN R. MASON, ROBEIN URANN SPENCER PICARD & CANGEMI, APLC Counsel for Plaintiff/Appellee.
Penya Moses-Fields City Attorney NOLAN P. LAMBERT Chief Deputy City Attorney VICTOR L. PAPAI, Jr. Assistant City Attorney Counsel for Defendant/Appellant.
Court composed of Chief Judge ARMSTRONG, Judge GORBATY, Judge BONIN.
DAVID S. GORBATY, Judge
This is an appeal by the Department of Fire for the City of New Orleans ("NOFD") from a decision of the Civil Service Commission ("Commission") granting a limited appeal to Captain Ross Hennessey ("Capt. Hennessey"). For the reasons set forth below, we affirm.
FACTS AND PROCEDURAL HISTORY
The NOFD hired Capt. Hennessey on October 2, 1983, and promoted him to Fire Captain in 1996.
In February of 2007, Capt. Hennessey was stationed at Engine Company Number 9, located at the corner of Decatur Street and Esplanade Avenue. The station located at Decatur Street and Esplanade Avenue responds to calls up to Toulouse Street in the French Quarter.
Capt. Hennessey testified that on February 19, 2007, Lundi Gras, he and other firemen responded to a call. The firemen parked the fire truck at Orleans Avenue and Bourbon Street. As the firemen returned to the fire truck, Mardi Gras revelers asked to take a photograph with them. An anonymous individual posted the photograph on "craigslist", an internet site, approximately one year later. The photograph depicts Capt. Hennessey standing directly behind one female. The photograph also depicts an Italian firefighter, in town for a "ride-along" with Engine 9, with his arm around the second female. The photograph reveals that the female Mardi Gras revelers wore only body paint and pasties on their upper bodies.
Superintendent Charles Parent (Supt. Parent) testified that Deputy Chief Gary Frank provided a copy of the photograph to him, and in June of 2008, an investigation began. After the investigation, the NOFD charged Capt. Hennessey with violating the rules and regulations of the NOFD. Specifically, the NOFD charged Capt. Hennessey with violating Article 3, Section 3.1.3.1, which provides, "The Captain shall be responsible for the proper discipline of members also, the efficiency and operation of the unit under his/her command." The NOFD further charged Capt. Hennessey with violating Article 5, Section 5.2.27, which provides, "Members shall be governed by the customary and reasonable rules of proper behavior and shall not commit any act that brings reproach upon themselves or the Department."
A Peer Review Committee met and held a hearing on August 3, 2008. Thereafter, the Peer Review Committee found Capt. Hennessey guilty of both charges and recommended a six hour suspension for violating Article 3, Section 3.1.3.1 and a twelve hour suspension for violating Article 5, Section 5.2.27.
After reviewing the information presented at the Peer Review Committee hearing, Supt. Parent imposed a six hour suspension for the violation of Article 3, Section 3.1.3.1. Supt. Parent deviated from the twelve hour suspension recommended by the Peer Review Committee and demoted Capt. Hennessey to the classification of Firefighter for the violation of Article 5, Section 5.2.27, as well for the violation of Article 3, 3.1.3.1.
Capt. Hennessey appealed the discipline imposed by the NOFD. In due course, a hearing officer was appointed to receive testimony.
Before the hearing officer, Supt. Parent testified that he disciplined Capt. Hennessey as Capt. Hennessey interfered with the efficiency of the NOFD by bringing a bad reflection on the NOFD. Supt. Parent opined the picture made the NOFD look like an "unprofessional group of buffoons." Supt. Parent acknowledged that he did not receive a complaint from a member of the public regarding the picture.
Supt. Parent also testified that the firemen were not in their proper location and were surrounded by people, which would slow their response time in the event of a call. Supt. Parent further stated part of a captain's job "is to be instructing his younger underlings on proper behavior and proper firefighting."
Capt. Hennessey admitted the other firemen in the Lundi Gras photograph were under his command. Capt. Hennessey testified that he has been asked to pose for thousands of photographs, both in and out of the French Quarter, when he has gone out on calls. Capt. Hennessey admitted he and the other firemen were in uniform at the time the Lundi Gras photograph was taken.
Capt. Hennessey further identified photographs taken during the Red Dress Race. Capt. Hennessey testified the NOFD approved the use of a hose by the participants. Photographs taken during the event show scantily attired men and women wetting one another down and posing with the fire hose.
The parties stipulated that if Deputy Chief Joseph Buras were called to testify, he "would testify that he was ordered by his command to provide not only water, but the use of a hose for the participants of the Red Dress Race." Further, while Deputy Chief Buras questioned the order, the participants of the race were allowed to use the hose for whatever purpose they chose.
Capt. Steve Cordes (Capt. Cordes) testified he was previously stationed at 317 Decatur Street. Capt. Cordes further stated that while it was not condoned, the companies that bordered the French Quarter were always out in the crowd during the Mardi Gras season. Additionally, Capt. Cordes noted that women like to take pictures with the firemen while they are in uniform and sometimes the women are wearing less than the women in the picture at issue. Capt. Cordes testified that other administrations "never encouraged, but they knew it went on, and they just overlooked it." Capt. Cordes stated District Chief Chris Michaels not only knew these sorts of activities occurred, but that District Chief Michaels participated in the activities.
After reviewing the testimony and evidence, the Commission granted the appeal for the limited purpose of reducing the Appellant's discipline to the recommendation of the Peer Review Committee, namely a six hour suspension for violating Article 3, Section 3.1.3.1 and a twelve hour suspension for violating Article 5, Section 5.2.27. In its decision, the Commission stated:
We have no hesitancy agreeing with Fire Superintendent Charles Parent's conclusion that circulation of the picture on the internet brought "reproach" to the New Orleans Fire Department. The internet site carrying the photograph identifies the New Orleans Fire Department, and an observer could readily reach the conclusion that some firemen in the "Big Easy" are cavorting around with partially clad women while on duty and in uniform during Mardi Gras.
Though we do not condone Appellant's [Capt. Hennessey] bad judgment, we are not convinced that the disciplinary step of demotion was commensurate with Appellant's misconduct. There is no credible evidence in the record that he has previously compromised Fire Department ethical standards or that the isolated incident during the Mardi Gras season adversely affected the performance of his duties as a fireman. Appellant testified that it is common for civilians to want to be photographed with firemen-out of respect for their position-and that the Department has never explicitly condemned such a practice. Under the right circumstances such photographs can generate good will for the Fire Department. Unfortunately that was not the case here. Though Appellant should be disciplined, we think demotion from the position of Captain, a position which he has properly performed for 12 years, was unjustified.
STANDARD OF REVIEW
The Commission has authority to "hear and decide" disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const. art. X, §12; Pope v. New Orleans Police Dept., XXXX-XXXX, p.5 (La. App. 4 Cir. 4/20/05), 903 So. 2d 1, 4. The appointing authority is charged with the operation of its department and it is within its discretion to discipline an employee for sufficient cause. The Commission is not charged with such discipline. The authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty. Pope, XXXX-XXXX, pp.5-6, 903 So.2d at 4.
The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, XXXX-XXXX, p.2 (La. App. 4 Cir. 8/1/07), 964 So. 2d 1093, 1094, citing Marziale v. Dept. of Police, XXXX-XXXX, p.10 (La. App. 4 Cir. 11/8/06), 944 So. 2d 760, 767. The protection of civil service employees is only against firing (or other discipline) without cause. La. Const. art. X, §12; Cornelius v. Dept. of Police, XXXX-XXXX, p.8 (La. App. 4 Cir. 3/19/08), 981 So. 2d 720, 724, citing Fihlman v. New Orleans Police Dept., 2000-2360, p.5 (La. App. 4 Cir. 10/31/01), 797 So. 2d 783, 787.
The decision of the Commission is subject to review on any question of law or fact upon appeal to this court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const. art. X, §12; Cure, XXXX-XXXX, p.2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision of the Commission is "arbitrary and capricious" if there is no rational basis for the action taken by the Commission. Cure, XXXX-XXXX, p.2, 964 So.2d at 1095.
DISCUSSION
The NOFD argues Capt. Hennessey's conduct was detrimental to the efficient operation of the NOFD. Further, the NOFD argues the punishment imposed was commensurate with Capt. Hennessey's dereliction. Therefore, the NOFD concludes lawful cause existed for the NOFD's decision to demote Capt. Hennessey and the Commission erred in reducing the punishment imposed by the NOFD.
In this case, Capt. Hennessey did not file an appeal or answer the appeal. Under Rule 1-3 of the Uniform Rules, Courts of Appeal, our review is limited to issues which were submitted to the trial court and which are contained in specifications or assignments of error. See Brown v. Harrel, 98-2931, pp. 5-6 (La. App. 4 Cir. 8/23/00), 774 So. 2d 225, 229. Therefore, our review is limited to whether the Commission erred in reducing the punishment imposed by the NOFD.
In support of its argument that the Commission acted arbitrarily and capriciously in granting the limited appeal and reducing the punishment imposed by the NOFD, the NOFD cited Whitaker v. New Orleans Police Dept., XXXX-XXXX, p.6 (La. App. 4 Cir. 9/17/03), 863 So. 2d 572, 576. Therein, the Court stated "the Commission should give heightened regard to the appointing authorities that serve as special guardians of the public safety and operate as quasi-military institutions where strict discipline is imperative." Id.
The Commission found demotion unwarranted as Capt. Hennessey properly performed his duties for twelve years; the Department has never explicitly condemned the practice of firemen posing for photographs; there was no evidence Capt. Hennessey previously compromised NOFD ethical standards; or that the isolated incident adversely affected his duties as a fireman. Indeed, Capt. Cordes testified that engaging in the sort of conduct at issue here is well-known throughout the NOFD.
In Parker v. Dept. of Police, XXXX-XXXX, pp.7-8 (La. App. 4 Cir. 1/24/08), 977 So. 2d 180, 185, this Court affirmed the Commission's reduction of the penalty imposed upon an officer. As Hurricane Katrina approached, the police department was placed on emergency activation status. While police officers were working twelve-hour shifts, they were "on-duty" twenty-four hours per day. Id., p.2, 977 So.2d at 181. Officer Parker worked all of her shifts until September 1, 2005. After her shift ended, she attempted to contact her supervisors to let them know she was headed to Baton Rouge to provide emergency funds to her family. Officer Parker received messages from her husband that he and the six children were sleeping in a car. When she arrived in Baton Rouge, Officer Parker located shelter for her family. By the time this was accomplished, Officer Parker had been awake for over twenty-four hours. Officer Parker spent the night with her family and missed one regularly scheduled shift. Due to the obstacles presented by the aftermath of Hurricane Katrina, Officer Parker took longer than anticipated to return the following day and missed the first two hours of her shift. Id., pp.2-3, 977 So.2d at 181-182. The Superintendent imposed a thirty-day suspension for Officer Parker's neglect of duty. The Commission reduced the penalty to a ten-day suspension. The Court noted the Commission took into account the individual officer involved as well as the surrounding circumstances. Id., p.4, 977 So.2d at 182-183. The Court specifically stated it was not condoning or minimizing the severity of the conduct. Id., p.7, 977 So. 2d 185.
In this instance, we note the Commission took into account Capt. Hennessey's record as well as the surrounding circumstances. We recognize the NOFD serves as a special guardian of the public safety and operates as a quasi-military institution where strict discipline is imperative. However, while we do not condone Capt. Hennessey's conduct or seek to minimize the conduct, we believe a demotion is too harsh a penalty for conduct that is well-known throughout the NOFD and not explicitly condemned. The NOFD presented no evidence that Capt. Hennessey previously compromised NOFD ethical standards. Further, the NOFD presented no evidence that the isolated incident adversely affected his duties as a fireman. Under the facts presented herein, a demotion is not commensurate with the dereliction. Therefore, we find a rational basis exists for the decision of the Commission to grant a limited appeal and reduce the penalty imposed to the twelve hour suspension recommended by the Peer Review Committee.
CONCLUSION
Accordingly, for the foregoing reasons, the decision of the Commission is affirmed.
AFFIRMED | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575593/ | 17 So. 3d 927 (2009)
In re Donald Ray SMITH.
No. 2009-B-1141.
Supreme Court of Louisiana.
September 25, 2009.
*928 ATTORNEY DISCIPLINARY PROCEEDINGS
PER CURIAM.[*]
This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Donald Ray Smith, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Smith, 09-0183 (La.2/4/09), 999 So. 2d 1130.
UNDERLYING FACTS AND PROCEDURAL HISTORY
The ODC filed three separate sets of formal charges against respondent, consisting *929 of a total of seven counts of misconduct. Respondent failed to answer or otherwise reply to any of the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration in any of the three matters.
The formal charges were considered by separate hearing committees before being consolidated by order of the disciplinary board. The board subsequently filed in this court a single recommendation of discipline encompassing all three sets of formal charges.
06-DB-020
Count I
In October 2004, respondent referred several clients to chiropractor George Putnam for treatment. The clients were treated and released in February 2005. In April 2005, respondent settled his clients' personal injury claims and withheld funds for payment of their medical treatment. However, respondent did not pay Dr. Putnam's bills on behalf of his clients. He also did not respond to Dr. Putnam's numerous telephone calls to his home and office regarding payment.
In June 2005, Dr. Putnam filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint, necessitating the issuance of a subpoena for the ODC to obtain his sworn statement. Despite being personally served with the subpoena, respondent did not appear. He assured the ODC that he would reschedule the sworn statement but, thereafter, became inaccessible to the ODC. Respondent also failed to update his registration address with the Louisiana State Bar Association ("LSBA").
The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The ODC also alleged that respondent violated Supreme Court Rule XIX, § 8(C) by failing to file an annual registration statement with the LSBA.
Counts II and III
Respondent has been ineligible to practice law since September 7, 2004 for failing to pay bar dues and the disciplinary assessment. He has also been ineligible to practice law since February 4, 2005 for failure to comply with mandatory continuing legal education ("MCLE") requirements.
During this period, respondent filed an answer and discovery pleadings on behalf of the defendants in Darryl F. King v. RAJEH, et al., No. 0412-11084-C on the docket of the Baton Rouge City Court. In these pleadings, respondent provided the court with an invalid telephone number and did not update or correct his contact information. He further failed to update his registration address with the LSBA. Respondent also failed to maintain contact with his clients during the representation, and relocated to Baton Rouge without notifying his clients.
In December 2005, respondent's clients hired attorney Dale Baringer to represent them. Mr. Baringer was unable to contact respondent at either his published telephone number or the telephone number *930 listed on the pleadings. As such, Mr. Baringer filed an ex parte motion and order to substitute counsel. On December 16, 2005, the trial judge ordered respondent removed as counsel of record for the defendants. Thereafter, Mr. Baringer filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint and evaded service of a subpoena to obtain his sworn statement.
The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b) (failure to comply with MCLE requirements), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(c) (a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation), 1.16(d) (obligations upon termination of a representation), 3.4(c), 5.5(a) (engaging in the unauthorized practice of law), and 8.1(c). The ODC also alleged that respondent violated Supreme Court Rule XIX, § 8(A) by failing to pay his bar dues and § 8(C) by failing to file an annual registration statement with the LSBA.
Hearing Committee Report
After considering the ODC's deemed admitted submission in 06-DB-020, the hearing committee determined that the factual allegations of the formal charges were deemed admitted. The committee did not make specific findings regarding rule violations, but it did determine that, by violating the Rules of Professional Conduct, respondent knowingly and intentionally violated duties owed to his clients, the public, and the legal profession. Relying on the ABA's Standards for Imposing Lawyer Sanctions, the committee determined that the applicable baseline sanction is disbarment. The committee did not specify aggravating factors but determined that there are no mitigating factors present. After further considering this court's prior jurisprudence, the committee recommended that respondent be disbarred.
Neither respondent nor the ODC filed an objection to the hearing committee's recommendation.
08-DB-025
Count I
Ronald Landeche hired respondent to handle a personal injury matter. Stagni Chiropractic treated Mr. Landeche and, on January 25, 2007, issued a medical narrative report with an invoice for $1,135.
In February 2007, respondent settled Mr. Landeche's claim for $3,900. Respondent disbursed $1,480 to Mr. Landeche on February 9, 2007 but failed to pay Stagni Chiropractic. Respondent also failed to provide Mr. Landeche with a settlement statement or disbursement sheet. Thereafter, respondent became inaccessible to Mr. Landeche.
In June 2007, Mr. Landeche filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint.
The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.15(a) (safekeeping property of clients or third persons), 1.15(d) (failure to timely remit funds to a client or third person), 8.1(c), 8.4(a), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).
Counts II & III
In September 2007, Charlene Randolph hired respondent to handle her divorce. Ms. Randolph paid respondent $850 for the representation. Thereafter, respondent failed to communicate with Ms. Randolph and did not take any action on her *931 behalf. Respondent failed to account for or refund any portion of the fee to Ms. Randolph and failed to return her documents to her. Respondent also closed his law practice, abandoning his client.
In February 2008, Ms. Randolph filed a complaint against respondent with the ODC. However, because respondent failed to update his registration information with the LSBA, notice of the complaint to respondent was returned.
As previously noted, respondent has been ineligible to practice law since September 7, 2004. Accordingly, he was ineligible to practice law when he accepted the representation of Ms. Randolph.
The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f) (failure to account for or refund an unearned fee), 1.16(d), 5.5(a), 8.4(a), and 8.4(c). The ODC also alleged that respondent violated Supreme Court Rule XIX, § 8(C) by failing to file an annual registration statement with the LSBA.
Hearing Committee Report
After considering the ODC's deemed admitted submission in 08-DB-025, the hearing committee determined that all of the factual allegations are deemed admitted and proven by clear and convincing evidence. Based on these facts, the committee determined that respondent violated Rules 1.3, 1.4, 1.5(f), 1.15(a), 1.15(d), 1.16(d), 8.1(c), 8.4(a), and 8.4(c) of the Rules of Professional Conduct.
The committee determined that respondent intentionally violated duties owed to his clients and the legal profession. His conduct harmed Stagni Chiropractic and Ms. Randolph. Relying on the ABA's Standards for Imposing Lawyer Sanctions, the committee determined that the baseline sanction is disbarment.
In aggravation, the committee found a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, and "total indifference to these proceedings." The only mitigating factor the committee found was the absence of a prior disciplinary record.
Under these circumstances, the committee recommended that respondent be disbarred.
Neither respondent nor the ODC filed an objection to the hearing committee's recommended sanction.
08-DB-043
Count I
In August 2007, Marsha Joubert paid respondent $800 to handle her divorce. Thereafter, respondent failed to communicate with Ms. Joubert and did not take any action on her behalf. Respondent also did not inform Ms. Joubert that he had been ineligible to practice law since September 7, 2004.
In October 2007, Ms. Joubert filed a complaint against respondent with the ODC. Notice of the complaint to respondent was returned "undeliverable as addressed-forwarding order expired." Respondent failed to update his registration information with the LSBA and failed to cooperate with the ODC in its investigation.
The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(a) (charging an unreasonable fee), 1.5(f), 1.16(d), 5.5(a), 8.1(c), and 8.4(a). The ODC also alleged that respondent violated Supreme Court Rule XIX, § 8(C).
*932 Hearing Committee Report
After considering the ODC's deemed admitted submission in 08-DB-043, the hearing committee found that Ms. Joubert indicated respondent did not tell her he was ineligible to practice law when she hired him. Ms. Joubert did not recall signing a contract with respondent and indicated that her first meeting with respondent was the only time she spoke with him. He gave her his cell phone number and his mother's phone number, but shortly after she paid him the $800 fee, his cell phone number was disconnected. Ms. Joubert has since hired another attorney, who has filed her divorce petition.
Based on these findings, the committee determined that respondent violated the Rules of Professional Conduct and Supreme Court Rule XIX as alleged in the formal charges.
After further considering this court's prior jurisprudence and the ABA's Standards for Imposing Lawyer Sanctions, the committee recommended that respondent be disbarred. The committee also recommended that respondent make restitution to Ms. Joubert.
Neither respondent nor the ODC filed an objection to the hearing committee's recommended sanction.
Disciplinary Board Recommendation
06-DB-020, 08-DB-025 & 08-DB-043
After review, the disciplinary board found that the factual allegations of the formal charges in these consolidated matters are deemed admitted and proven by clear and convincing evidence. In 06-DB-020, the board found that respondent violated the Rules of Professional Conduct and Supreme Court Rule XIX as alleged in the formal charges. In 08-DB-025 and 08-DB-043, the board adopted the rule violations found by the committee except the finding in 08-DB-043 that respondent violated Rule 1.5(a), determining that there is no factual allegation or evidence to indicate the $800 fee respondent charged and collected from Ms. Joubert was unreasonable.
The board determined that respondent knowingly, if not intentionally, violated duties owed to his clients, the legal system, and the legal profession. He caused serious actual harm to Ms. Randolph, Ms. Joubert, and the third-party medical providers. He also caused potentially serious harm to his clients by practicing law while ineligible and to the legal system and the ODC by ignoring the ODC's subpoenas. The board determined that the baseline sanction is disbarment based on the ABA's Standards for Imposing Lawyer Sanctions.
The board found the following aggravating factors present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victims, and indifference to making restitution. The only mitigating factor the board found was the absence of a prior disciplinary record.
Citing In re: Domm, 04-1194 (La.10/8/04), 883 So. 2d 966, wherein this court disbarred an attorney for misconduct similar to respondent's, the board recommended that respondent be disbarred. The board also recommended that respondent be ordered to pay restitution to his victims.
Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.
DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La. *933 Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So. 2d 343; Louisiana State Bar Ass'n v. Boutall, 597 So. 2d 444 (La.1992).
In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So. 2d 715.
The deemed admitted facts in this consolidated matter indicate that respondent failed to pay bar dues and the disciplinary assessment, failed to comply with MCLE requirements, failed to update his address with the LSBA, practiced law while ineligible, failed to pay funds due to third-party medical providers, neglected legal matters, failed to communicate with clients, failed to fulfill his obligations upon terminating the representation of his clients, failed to refund unearned fees, and failed to cooperate with the ODC.
Based on this conduct, respondent violated the Rules of Professional Conduct as alleged in the formal charges, with the one exception the disciplinary board pointed out in 08-DB-043there is no evidence that the $800 fee respondent charged to handle Ms. Joubert's divorce was unreasonable; thus, there is not clear and convincing evidence that respondent violated Rule 1.5(a). Respondent also violated Supreme Court Rule XIX, § 8(A) and 8(C) as alleged by the ODC.
Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis, 513 So. 2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington, 459 So. 2d 520 (La.1984).
Respondent knowingly and intentionally violated duties owed to his clients, the legal system, and the legal profession. His conduct caused actual and potential harm. The baseline sanction for this type of misconduct is disbarment. The record supports the aggravating and mitigating factors found by the board.
At the time of his interim suspension, respondent had been ineligible to practice law for almost four and a half years. In that time, he made no effort to cure his ineligibility, yet he continued to practice law. His conduct suggests he lacks respect for his professional obligations and duties as well as for his clients.
Accordingly, we will adopt the disciplinary board's recommendation and disbar respondent, retroactive to February 4, 2009, the date of his interim suspension. We further order respondent to make full restitution to his victims.
*934 DECREE
Upon review of the findings and recommendations of the hearing committees and the disciplinary board, and considering the record, it is ordered that the name of Donald Ray Smith, Louisiana Bar Roll number 24881, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked, retroactive to the date of his interim suspension in In re: Smith, 09-0183 (La.2/4/09), 999 So. 2d 1130. It is further ordered that respondent make full restitution to his victims. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.
NOTES
[*] Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tempore, participating in the decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575620/ | 829 S.W.2d 614 (1992)
Walter NICKLES, et al., Respondents/Cross-Appellants,
v.
AUNTIE MARGARET DAYCARE, CORP., Appellants.
No. 59394.
Missouri Court of Appeals, Eastern District, Division Four.
March 24, 1992.
Motion for Rehearing and/or Transfer Denied April 22, 1992.
*615 Schwartz, Herman & Davidson, Robert Herman, St. Louis, for appellant.
The Wallach Law Firm, Cathy Steele, St. Louis, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied April 22, 1992.
AHRENS, Judge.
In this action for rent and possession of leased premises, Auntie Margaret Daycare, Corp., (Auntie Margaret), lessee, appeals from the judgment of the trial court voiding a lease between Auntie Margaret and lessors, Walter Nickles, Shirley Nickles, Richard Wilke, and Debra Wilke. Lessors cross-appeal from the judgment. We reverse and remand.
Lessors are the owners of commercial property in St. Louis County. On May 9, 1990, lessors signed a Commercial Lease delivering possession of the property to Auntie Margaret Day Care Corporation. On the signature lines designated "Lessee," Anthony Daly signed: "Auntie Margarets [sic] Day Care Corp [sic] Margaret Daly."
The following provision was typewritten on the form lease under the "Term and Rental" section.
This Lease shall be effective on the date hereof, but the demised term and Lessee's obligations hereunder shall not commence until the first day of the calendar month following the issuance of a permanent Certificate of Use and Occupancy for the demised premises executed by the appropriate public authority.
Typewritten "Additional Terms and Conditions" were attached to the form lease. These included two pertinent provisions:
1. Upon execution hereof, Lessee shall pay to Lessor the sum of One Thousand Six Hundred Dollars ($1,600.00) and on May 9, 1990, the sum of One Thousand Six Hundred Dollars ($1,600.00) will be paid on date of occupancy, as and for a "Security Deposit" for the full and faithful performance by Lessee of each and every term, provision, condition and covenant of this Lease. The Security Deposit shall not bear interest, and shall not be considered an advance payment of any sums payable hereunder. Lease payments will start within 90 days after signing or if opening comes before 90-day time period.
* * * * * *
8. This Lease is contingent upon Lessee's ability to secure from all appropriate government authorities all permits and licenses necessary (including occupancy permits) to enable Lessee to use the demised premises for the purposes set forth herein. In the event Lessee is unable to obtain the necessary permits and licenses within ninety (90) days following the execution hereof, Lessee may cancel this Lease by so notifying Lessor of such intention. In the event of such termination and cancellation, Lessee's security deposit shall thereupon be returned to Lessee, this Lease shall thereupon be null and void, and each party hereto shall release the other and hereby does release the other from and against any and all further liability whatsoever.
On August 21, 1990, lessors' attorney sent a certified letter to "Auntie Margaret's Day Care, Inc., Margaret Daly, 11070 Little Drive, St. Louis, MO, 63126." The receiver signed "Daly" on the receipt. That letter advised, "as of August 10, 1990 no rental payments have been made and that first payment was due on August 9, 1990 ... As such please be advised and notice is hereby given that my clients do hereby exercise their option to cause forfeiture of said agreement. Possession of said premises shall be delivered within ten (10) days of the date hereof."
On September 21, 1990, lessors filed a petition for rent and possession, alleging Auntie Margaret had defaulted in its obligation to pay August and September rent.
*616 Lessors requested a judgment of $3,200.00 plus accrued rent to the date of judgment, costs, and restitution of possession of the premises. No answer was filed; however, Auntie Margaret's attorney entered appearance on behalf of the corporation.
The cause was tried on November 20, 1990. On the day of trial, lessors orally amended their petition and requested reimbursement for property taxes. During the presentation of their evidence, lessors also specifically requested reimbursement for insurance premiums from August 9, 1990, to November 26, 1990, when lessors' policy lapsed. Auntie Margaret raised no objection to this request.
At the close of lessors' evidence, Auntie Margaret presented an oral motion to dismiss. Auntie Margaret contended, "There's only one Defendant here, and that's the Daycare Corporation. There's been no foundation laid and no establishment of anyone to sign the lease on behalf of the corporation." As further grounds for the motion, Auntie Margaret asserted, "the first page of the lease provides that no obligation under this lease shall commence until after occupancy permit is issued. And that isAnd even in their own records, that is referred to as a contingency that has not been satisfied."
Upon consideration of Auntie Margaret's motion, the trial court determined the provision regarding commencement of lease payments within 90 days was subordinate to the provision making the commencement of Auntie Margaret's obligations contingent upon securing a permanent Certificate of Occupancy and Use. The trial court found lessors failed to meet their burden of showing Auntie Margaret's lack of good-faith effort to comply with the contingency. Further, the trial court determined the lease was void because there was never a meeting of the minds on the agreement. Accordingly, the trial court ordered Auntie Margaret to restore possession of the property to lessors, and lessors to return $1,601.00 to Auntie Margaret.
In its first point, Auntie Margaret contends the trial court erred in sustaining objections to Auntie Margaret's cross-examination of lessors' witnesses regarding the intention of the parties and the execution of the written lease. Auntie Margaret asserts the lease was ambiguous on its face, and, therefore, the trial court should have permitted extrinsic evidence of the parties' intent.
"An ambiguity is said to exist in a written instrument `only if it is reasonably susceptible of different constructions.'" Edgewater Health Care v. Health Sys., 752 S.W.2d 860, 865 (Mo.App.1988) (quoting Kalen v. Steele, 341 S.W.2d 343, 346-7 (Mo.App.1960)). "In determining whether vel non an ambiguity exists, the whole instrument must be considered." Edgewater, 752 S.W.2d at 865. "A contract is not rendered ambiguous by the fact that the parties do not agree upon the proper construction to be given it." Id. "[W]hether the terms of an agreement are ambiguous is a question of law." Id. Moreover, "[i]t is only when the contract or contract term is unclear that the court considers evidence of how the contract was understood or acted upon by the parties." Dehner Urban Redevelopment Corp. v. Dun & Bradstreet, Inc., 567 S.W.2d 700, 704 (Mo.App.1978).
The trial court did not expressly find an ambiguity existed in the terms regarding commencement of Auntie Margaret's obligations under the lease. Auntie Margaret argues, however, "as the court did construe the contract, it must be inferred that the court did make this primary finding that the contract was ambiguous, and therefore extrinsic evidence would be allowed."
Considering the instrument as a whole, we conclude the terms regarding commencement of Auntie Margaret's obligations under the lease are not reasonably susceptible of different constructions, and, therefore, are unambiguous as a matter of law. The lease terms are clear that lease payments were to commence within ninety days from the date of execution. Under the lease, those payments included rent, insurance, and property taxes. Auntie Margaret had the option of canceling the agreement if it was unable to obtain the *617 Certificate of Use and Occupancy within ninety days from the date of execution. Thus, the issuance of a permanent Certificate of Use and Occupancy was the triggering event for commencement of Auntie Margaret's obligation to make lease payments at any time prior to the ninetieth day. Because Auntie Margaret chose not to exercise its option to cancel the agreement after it failed to obtain the certificate, Auntie Margaret's obligation to begin making lease payments commenced on the ninetieth day following execution.
The terms regarding commencement of Auntie Margaret's lease payment obligations were unambiguous as a matter of law. Therefore, we find no error in denying Auntie Margaret the opportunity to present extrinsic evidence regarding the parties' intent. See Edgewater, 752 S.W.2d at 865.
In its second point, Auntie Margaret alleges the trial court erred in "concluding the lease was void and entering a judgment of rescission prior to allowing appellant to place any testimony into evidence in appellant's case."
Under this point, Auntie Margaret initially contends the trial court erred in entering a judgment which favored lessors in part, because lessors "failed to make a submissible case by failing to prove an essential element of their case: that the person who purported to bind Auntie Margaret Daycare, Inc.[,] was in fact acting with authorization from the corporation. Because [lessors] failed to make a case on the merits, [lessors] had no right to relief: and thus [Auntie Margaret was] entitled to dismissal as a matter of law."
Auntie Margaret's contention is without merit. "It is uniformly held that the principal must, within a reasonable time after knowledge, ratify or repudiate the unauthorized act of an agent or the unauthorized act of a third party in behalf of the principal." Ireland v. Shukert, 238 Mo. App. 78, 177 S.W.2d 10, 14 (1944). Moreover, "[w]here it appears that an agent has done an act for the benefit of his principal and the principal has not questioned the authority of the agent to bind him, it will be presumed, until the contrary appears, that the agent was duly authorized." Darr v. Structural Sys., Inc., 747 S.W.2d 690, 693 (Mo.App.1988).
Auntie Margaret has not repudiated or questioned Anthony Daly's authority to bind the corporation under the lease. To the contrary, at oral argument before this court, counsel for Auntie Margaret conceded that on the day Auntie Margaret moved into the premises, it was a tenant under the lease and a landlord/tenant relationship existed between lessors and Auntie Margaret. Further, counsel for Auntie Margaret conceded that the corporation did not dispute in the trial court that the corporation was occupying the premises as a tenant under the lease. The trial court did not err in denying Auntie Margaret's motion to dismiss for failure to make a submissible case.
Auntie Margaret also asserts under its second point that, "As the court did enter a judgment, it may be inferred that the motion to dismiss was denied. If this was the case, then the trial court erred by not hearing the additional testimony defendant was entitled to offer under section 510.140 R.S.Mo."[1] Auntie Margaret made no offer of proof regarding the nature of the testimony it contends it should have been permitted to present. Further, aside from references to purported testimony regarding the intent of the parties, Auntie Margaret has not enlightened this court as to the nature or content of any additional testimony. Nevertheless, Auntie Margaret has asserted its right to present additional testimony under § 510.140 RSMo. For that reason, it is necessary to remand this case to permit Auntie Margaret the opportunity to present additional testimony. In *618 light of our holding that the contract was unambiguous as a matter of law, however, any additional testimony may not relate to the intent of the parties regarding the terms of the lease agreement.
Auntie Margaret contends the trial court erred in "voiding a contract after construing it in favor of Auntie Margaret, when neither party sought rescission, and the contract was not void under Missouri law." Thus, Auntie Margaret asserts, the trial court "erred by finding an unreasonable interpretation and voiding the contract; rather than finding the more reasonable interpretation and affirming the contract." In their cross-appeal, lessors also assert the trial court erred in failing to award them the relief they sought and in voiding the lease, because neither party sought rescission and the lease was not void.
Lessors' action was for rent and possession. In light of our previous discussion regarding the absence of ambiguity as a matter of law, we agree the trial court erroneously declared and applied the law in voiding the lease. The lease terms are clear and unequivocal that lease payments were to commence within ninety days from the date of execution. Under the lease, those payments included rent, insurance, and property taxes. Accordingly, we reverse the trial court's judgment. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
Lessors raise as an additional ground for their cross-appeal that the trial court erred in setting an inadequate supersedeas bond. The trial court ordered the bond set at $500.00. In a motion to amend that order, lessors requested the trial court to set the bond at $49,368.00 to cover twenty-four months' rent and real estate taxes, and to require Auntie Margaret to provide the trial court with evidence of insurance as a condition of the bond. The trial court denied lessors' motion.
Rule 81.09 governs what actions may be stayed on appeal upon the filing of a supersedeas bond. The requirements for the form and amount of the bond are set forth in Rule 81.09(b) which provides, in part:
The bond shall be conditioned for the satisfaction of the judgment in full together with costs, interest, and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed, and to satisfy in full such modification of the judgment and such costs, interest, and damages as the appellate court may adjudge and award.... When the judgment determines the disposition of the property in controversy as in real actions, replevin, and actions to foreclose mortgages, or when such property is in the custody of the sheriff, or when the proceeds of such property or a bond for its value is in the custody or control of the court, the amount of the supersedeas bond shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay....
"Rule 81.09 affords substantial discretion in marshalling security, so long as security is the ultimate goal." State ex rel. Brickner v. Saitz, 664 S.W.2d 209, 214 (Mo. banc 1984).
Further, under § 535.110 RSMo 1986, an appeal in a Chapter 535 landlord/tenant action will not "stay execution unless the defendant give bond, with security sufficient to secure the payment of all damages, costs and rent then due, and with condition to stay waste and to pay all subsequently accruing rent, if any, into court within ten days after it becomes due, pending determination of the ... appeal." § 535.110.
Auntie Margaret argues that because the trial court awarded lessors no damages, "there was no amount of judgment left unsatisfied" and "the trial court could reasonably find that a $500.00 bond was adequate to protect [lessors'] cost." Auntie Margaret's argument ignores the fact that the stay of execution pending appeal permitted the corporation to remain in possession of the premises without payment of rent, insurance, and property taxes. Thus, under Rule 81.09(b) and § 535.110, the bond was insufficient to protect lessors' interest in the event the judgment voiding the lease and returning possession to lessors was affirmed on appeal.
*619 The trial court's judgment is reversed. The cause is remanded with directions to permit Auntie Margaret the opportunity to present additional evidence consistent with this opinion, only upon Auntie Margaret's posting of a bond within fifteen days from the date of our mandate. Said bond must be sufficient to cover the following lease payments: rent in the amount of $1,600.00 per month from August 9, 1990 to the date of our mandate; $285.00 as reimbursement for insurance lessors maintained on the property from August 9, 1990, to November 26, 1990; and $457.00 per month from August 9, 1990, to the date of our mandate as reimbursement for real estate taxes on the property. As an additional condition of said bond, Auntie Margaret must stay waste and pay all subsequently accruing rent, if any, into court within ten days after it becomes due, pending the trial court's entry of a final judgment. After receiving additional evidence, if any, the trial court is further directed to enter judgment consistent with this opinion.
In the event Auntie Margaret fails to post said bond within fifteen days from the date of our mandate, the trial court is directed to enter judgment in favor of lessors and against Auntie Margaret; award possession of the property to lessors; order Auntie Margaret to vacate the premises; and award lessors the following lease payments: rent in the amount of $1,600.00 per month from August 9, 1990 to the date of the trial court's judgment following our mandate; $285.00 as reimbursement for insurance lessors maintained on the property from August 9, 1990, to November 26, 1990; and $457.00 per month from August 9, 1990, to the date of the trial court's judgment following our mandate as reimbursement for real estate taxes on the property.
Although lessors exercised their option under the lease to declare a forfeiture, lessors elected to seek recovery in a Chapter 535 RSMo rent and possession proceeding. Therefore, in accordance with § 535.160 RSMo 1986, on the date the trial court enters judgment, Auntie Margaret will be entitled to cure any default by tendering to lessors or bringing into the trial court all lease payments set forth above and all costs, including the costs of this appeal.
SMITH, P.J., and KAROHL, J., concur.
NOTES
[1] Section 510.140, RSMo 1986 provides, in part:
After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, or in the event that the motion is granted and the resulting judgment is later held erroneous, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575625/ | 829 S.W.2d 875 (1992)
Scott CANTRELL, Appellant,
v.
HENNESSY INDUSTRIES, INC. and the Coats Company, Appellees.
No. 12-89-00251-CV.
Court of Appeals of Texas, Tyler.
March 31, 1992.
Rehearing Denied June 18, 1992.
*876 Leonard Davis, Tyler, for appellant.
Scott L. Davis, Dallas, for appellees.
BILL BASS, Justice.
Cantrell appeals the judgment against him in his product liability suit. Cantrell was injured when an automobile tire exploded in his face while changing the tire on a machine manufactured by the Coats Company. Because we find the trial court abused its discretion in too narrowly restricting discovery, we will reverse and remand for a new trial.
Nineteen-year-old Scott Cantrell had been working at the W.G. Tire Center in Sulphur Springs for four weeks when the accident took place. He was in the process of mounting a tire using Coats' 40.40A pneumatic tire-changing machine when, apparently, the tire was inflated with too much air pressure while the bottom bead of the tire was not in place. The exploding tire and rim left Cantrell blind and permanently disfigured.
Cantrell brought suit against the Coats Company (hereinafter "Coats") and its parent company, Hennessy Industries, Inc., under the theories of strict product liability and negligence. The jury did not find the machine to be defective, nor did they find Coats to be negligent in the design of the 40.40A. The jury did find Cantrell to be negligent in the operation of the machine. Accordingly, the trial court entered a takenothing judgment against Cantrell.
A Coats tire-changing machine serves several functions. It can be used to take a tire off a rim, put a replacement tire on a rim, or seat the beads and inflate a replacement tire using its inflation system with air supplied by the operator's air compressor. Coats had manufactured many generations of the same design prior to making the 40.40A. The company also manufactured a different design referred to as the European-style tire changer. All designs manufactured by Coats used basically the same inflation system. At issue at trial was the safety of the inflation system employed by the 40.40A.
The Coats tire-changing machine relies on air supplied by the air compressor in a service station, which usually supplies up to 180 p.s.i. of air pressure. Bead seating only requires approximately 60 p.s.i. Cantrell's theory was that the 40.40A was unreasonably dangerous or defective because the machine allowed excessive air pressure to the tire during bead seating. He contends that Coats failed to equip the machine with a pressure-limiting device that *877 would have restricted the amount of air pressure to safe levels.
Cantrell argued that a pressure-limiting device was technically feasible and available years before 1983, the year the 40.40A in question was manufactured. The trial court, ruling on discovery objections by Coats, limited discovery to documents regarding the 40.40A machine manufactured between 1978 and 1983. The court repeatedly excluded evidence at trial of pressure-limiting devices used on other Coats tire-changing machines. Cantrell maintains that the trial court abused its discretion in limiting discovery to the 40.40A only, causing the rendition of an improper judgment in the case. We agree.
A matter is discoverable if it is relevant to the subject matter of the action; that is, if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Tex. R.Civ.P. 166b(2)(a). Such a broad grant is intended to increase the likelihood that all relevant evidence will be disclosed and brought before the trier of fact. Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984). In Jampole, the trial court limited discovery to knowledge and information pertaining to 1971-77 Chevrolet Vegas in a product liability suit against General Motors. The plaintiff had sought to discover impact tests for other General Motors vehicles built between 1967 and 1979, including GM models manufactured by a foreign subsidiary. The Texas Supreme Court held that the trial court took an unduly restrictive view of the degree of similarity necessary for matters concerning other vehicles to be relevant. "The automobiles need not be identical in order for tests on one to be relevant in determining whether the design of another is defective." Id. at 573-74. Furthermore, courts must determine whether a product is defectively designed in relation to safer alternatives. Whether a safer design suitable for one machine is adaptable to another is a question of feasibility to be decided by the trier of fact, not a question to be resolved in ruling on discovery requests. Id. at 574. Evidence of the actual use of, or availability of practical, safer alternatives is therefore relevant. Boatland of Houston v. Bailey, 609 S.W.2d 743, 746 (Tex. 1980). We cannot presume harm resulted, even if we find Cantrell has shown on appeal that proper discovery was denied. Jampole, 673 S.W.2d at 576. The burden is on Cantrell to show error requiring reversal. Pope v. Stephenson, 787 S.W.2d 953, 954 (Tex. 1990).
Although Coats built a diverse line of tire-changing machines, all Coats tire changers used basically the same inflation system to seat the beads and inflate the tires. The trial court should have allowed the discovery of documents relating to safer Coats designs using the same or similar inflation system. The availability before 1983 of a pressure-limiting device on other Coats machines appears to be not only discoverable but directly relevant to the central question in the case. We find that the trial court abused its discretion in limiting discovery to 40.40A machines only.
The documents attached to Cantrell's motion for new trial show Coats' efforts, as early as 1975, to research, develop, and evaluate safety devices to be used on their lines of tire-changing machines. Although Coats consistently maintained at trial that such a device was not available nor feasible in 1983, an internal Coats memorandum indicates that by 1975, the main practical problem had already been solved. The memo showed the results of an inflation test using a pressure-limiting device that yielded a negligible increase in inflation time compared to inflation time without the safety device.
Coats successfully objected to the discovery of safety devices on other Coats tire-changing machines. Coats then argued Cantrell's failure to show the availability and feasibility of any safety devices at the time the 40.40A was manufactured, the very evidence Coats had successfully kept from the jury. Cantrell has shown that such evidence existed but was not discoverable under the trial court's order. Harm is shown.
We conclude that the improper discovery order by the trial court amounted to such a *878 denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court. Tex.R.App.P. 81(b)(1). Therefore, the judgment of the trial court is reversed and the case remanded for a new trial.
COLLEY, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575641/ | 829 S.W.2d 125 (1992)
In re the MARRIAGE OF Phyllis Diane MAUPIN and James Corbett Maupin, II
Phyllis Diane Maupin, Petitioner-Respondent, and
James Corbett Maupin, II, Respondent-Appellant.
No. 17653.
Missouri Court of Appeals, Southern District, Division One.
May 12, 1992.
*126 Donald L. Clough, Rockaway Beach, for petitioner-respondent.
James K. Justus, Justus & McCullah, Forsyth, for respondent-appellant.
PREWITT, Presiding Judge.
Appellant appeals from the judgment of the trial court dissolving the parties' marriage and placing primary physical custody of their children with respondent. Appellant presents three points relied on.
Review of this nonjury matter is under Rule 73.01(c). As that rule is interpreted, this court is to affirm the trial court's determination, unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990). This court sets aside a judgment on the ground that it is against the weight of the evidence only when it has a firm belief that the judgment is wrong. Looney v. Estate of Eshleman, 783 S.W.2d 164, 165 (Mo. App.1990).
All facts upon which no specific findings are made are presumed found in accordance with the result reached. Rule 73.01(a)(2). Due regard is given to the opportunity of the trial judge to assess the credibility of witnesses. Rule 73.01(c)(2).
For his first point appellant states that the court erred in finding no reasonable likelihood that the marriage could be preserved and that the marriage was irretrievably broken. Appellant claims there *127 was insufficient evidence of irretrievable breakdown of the marriage under § 452.320.2(1), RSMo 1986.
Although there was sufficient evidence, it was unnecessary to consider it. Respondent alleged in her petition that the marriage was irretrievably broken and appellant admitted that allegation in his answer. At trial appellant testified that the marriage was not irretrievably broken, but that denial and appellant's request to amend to change his answer after the evidence at trial came too late.
Section 452.320.2(1) did not come into play because of the admission in the answer that the marriage was irretrievably broken. See § 452.320.1, RSMo 1986. As a judicial admission had occurred, that was not an issue at trial. Allegations in a petition, admitted in an answer, are judicial admissions on that issue. Costello v. Costello, 643 S.W.2d 81, 82 (Mo.App.1982). A judicial admission "waives or dispenses with the production of evidence and concedes for the purpose of the litigation that a certain proposition is true." Hewitt v. Masters, 406 S.W.2d 60, 64 (Mo.1966).
Section 452.320.2, RSMo 1986, requires certain findings if one of the parties has denied under oath or affirmation that the marriage is irretrievably broken. That reference is obviously to the pleadings. The issues cannot be changed at trial by testimony contrary to that contained in the parties' pleadings. Point one is denied.
Appellant states in his second point that the trial judge erred in not disqualifying. Appellant filed an application for change of judge, which in its body stated:
COMES NOW, Respondent, JAMES CORBETT MAUPIN, II, and respectfully requests a Change of Judge.
Further Respondent states that the Honorable James Eiffert is prejudiced in this matter against the Respondent.
That the Honorable James Eiffert has consistently and continuously refused to allow Respondent the time necessary to prepare for a trial in the above entitled cause of action.
WHEREFORE, Respondent respectfully requests a Change of Judge.
This case was filed on November 20, 1990 and appellant served that day. Appellant filed an "Answer and Cross-Petition for Dissolution of Marriage" on December 12, 1990. The application for change of Judge was filed on May 3, 1991, the day of trial.
Appellant does not contend that he had an absolute right to change of Judge under Rule 51.05. The application was not timely filed under that rule. Appellant's motion does not specifically state any reason that the trial judge should have been disqualified; nor does the record. Rulings against a party do not establish bias or prejudice on the part of a trial judge. In re Marriage of Ryterski, 655 S.W.2d 102, 104 (Mo.App.1983). Point two is denied.
The remaining point which appellant presents asserts that the trial court improperly applied § 452.375, RSMo Supp.1990, and abused its discretion by determining, against the weight of the evidence, that the best interests of the children was to place primary physical custody in respondent. As earlier noted, this court sets aside a judgment for being against the weight of the evidence only when there is a firm belief that the judgment was wrong. The record here does not reflect a situation where this court can say with a firm belief that the custody provisions were improper. Point three is denied.
The judgment is affirmed.
CROW and PARRISH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575636/ | 829 S.W.2d 157 (1992)
ELI LILLY AND COMPANY, et al. Relators,
v.
The Honorable John MARSHALL, Judge, Respondent.
No. D-1827.
Supreme Court of Texas.
April 29, 1992.
*158 Robert G. Hogue, Mark E. Smith, Dallas, Joe C. Freeman, Jr., Atlanta, Ga, Wade C. Smith, Dallas, John L. Hill, Houston, for relators.
Paul L. Smith, Dallas, for respondent.
PER CURIAM.
In this products liability suit, plaintiffs requested discovery of documents relating to the drug Prozac. Defendants filed a motion with the trial court seeking an order limiting the disclosure of certain of these documents under Rule 76a of the Texas Rules of Civil Procedure, based upon a claim of trade secret. At the hearing on the motion, the application of Rule 76a to trade secrets was disputed, and the trial court declined to consider the merits of this claim.
Although the rule's definition of "court records" excludes "discovery in cases originally initiated to preserve bona fide trade secrets or other intangible property rights," Tex.R.Civ.P. 76a(2)(c), it does not mean that access to trade secrets cannot be limited in other types of litigation. Regardless of the cause of action, a properly proven trade secret is an interest that should be considered in making the determination required by Rule 76a. If the trial court determines the documents are "court records" within the meaning of the rule, it must decide whether any specific, serious, and substantial interest, including a trade secret interest, has been established that justifies restricting access to the documents in question.
The defendants filed a motion for leave to file a petition for writ of mandamus in this court, and plaintiffs responded as the interested parties. The court determines that the writ of mandamus should conditionally issue because the trial court abused its discretion by refusing to conduct a hearing and render decision on the motion in compliance with Rule 76a. See Texas State Bd. of Examiners in Optometry v. Carp, 388 S.W.2d 409, 417 (Tex.1965) (writ will issue to compel trial court to proceed to judgment). Having reached this conclusion, the court expresses no opinion on any aspect of the merits of the relators' motion under Rule 76a.
We conditionally grant the writ of mandamus without oral argument pursuant to Rules 122 and 170 of the Texas Rules of Appellate Procedure. The Fourteenth District Court in and for Dallas County should hear and render decision on the relators' motion in compliance with Rule 76a. Relators shall give notice of the hearing and file a verified copy of the notice as required by Rule 76a(3). Any party aggrieved by the trial court's decision, finding, or failure to find made pursuant to Rule 76a, including the decision whether the document is a "court record" as that term is defined by the rule, may seek review by interlocutory appeal. Tex.R.Civ.P. 76a(8). Writ will issue only should the trial court fail to comply with these directives. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601336/ | 1 So.3d 477 (2009)
STATE ex rel. Joseph CHISLEY
v.
STATE of Louisiana.
No. 2008-KH-1862.
Supreme Court of Louisiana.
February 20, 2009.
Rehearing denied.
WEIMER, J., would grant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575661/ | 17 So. 3d 184 (2009)
Desmond Kantie McCLENDON, Appellant
v.
STATE of Mississippi, Appellee.
No. 2007-KP-02001-COA.
Court of Appeals of Mississippi.
August 25, 2009.
*185 Desmond Kantie McClendon, appellant, pro se.
Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.
Before LEE, P.J., ISHEE and ROBERTS, JJ.
ISHEE, J., for the Court.
¶ 1. Desmond Kantie McClendon was indicted for attempted armed robbery as a result of an incident on the night of February 17, 2007, and a trial was held in the Circuit Court of Scott County. The jury convicted McClendon of attempted armed robbery, and the circuit court sentenced him to eight years in the custody of the Mississippi Department of Corrections (MDOC). McClendon filed a motion for a new trial, following the denial of which he timely filed the present appeal. He asserts three alleged points of error:
I. His conviction was against the overwhelming weight of the evidence.
II. The circuit court erred in advising the prosecution as to the proper objection to make.
III. He received ineffective assistance of counsel.
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. On the night of February 17, 2007, Robert McDonald was at home alone when McClendon and McClendon's half-sister, Shaeil Lewis, came to his mobile home. McDonald said that he did not know McClendon, but he was able to identify him in court. According to McDonald, McClendon came into the house, pointed a pistol at him, and told him to give him money. During a struggle in which McDonald attempted to wrestle the gun from McClendon, McClendon was shot in the arm. After the struggle, McClendon and Lewis followed McDonald outside and then left. According to McDonald, he was scared. After they left, McDonald went to his cousin's house to notify the police of the incident.
¶ 3. Officer Billy Patrick, with the Scott County Sheriff's Department, spoke with McClendon on February 27, 2007. Officer Patrick advised McClendon of his Miranda rights, a copy of which was introduced in to evidence. He then took a statement from McClendon. In the statement, McClendon said he picked up Lewis in his mother's car, and they drove to McDonald's house. He said that Lewis told him they were going to rob McDonald, and she gave McClendon a pistol. Lewis initially went up to McDonald's house alone, but McClendon followed shortly thereafter. McClendon then pulled out the pistol and pointed it at McDonald. According to McClendon, Lewis was talking *186 to McDonald about "the money." At some point, McDonald tried to grab the gun from McClendon. The ensuing struggle resulted in the gun firing a shot that hit McClendon in the arm. After the struggle, McClendon followed McDonald outside, but he said that he no longer pointed the gun at him. Once outside, McClendon said he convinced Lewis not to shoot McDonald, and the two of them got in the car and left.
¶ 4. Officer Marcus Lingle responded to McDonald's call on the night of the incident. Officer Lingle testified that he initially thought McDonald was intoxicated. However, since his initial meeting with McDonald, Officer Lingle said that McDonald had spoken in the same manner on each occasion. Therefore, he thought that his initial impression of McDonald might have been skewed by McDonald's normal speech pattern.
¶ 5. Lewis corroborated much of McClendon's statement to the police. She had also been arrested for attempted armed robbery, but instead of going to trial, she pleaded guilty to the charge and was sentenced to five years in the custody of the MDOC. She said that, on the night of the incident, she was the first to enter McDonald's house. On cross-examination, Lewis said she went there to have sex with McDonald in exchange for money. Lewis further stated that McClendon followed her into the house after a short time, and he pulled a gun on McDonald and demanded money from him. McDonald tried to get the gun from McClendon, and as the two of them struggled, McClendon suffered a gunshot wound to his arm. Lewis and McClendon then followed McDonald outside, and the two of them left.
¶ 6. At the close of the trial, the jury returned a verdict of guilty of attempted armed robbery against McClendon. The circuit court sentenced him to eight years in the custody of the MDOC. McClendon timely appealed from his conviction and sentence.
DISCUSSION
I. Weight of the Evidence
¶ 7. In McClendon's first issue, he argues that the circuit court erred in denying his motion for a new trial. Appellate review of a trial court's denial of a motion for a new trial looks to the weight of the evidence. Bush v. State, 895 So. 2d 836, 844(¶18) (Miss.2005) (citing Herring v. State, 691 So. 2d 948, 957 (Miss.1997)). We will review the evidence in the light most favorable to the verdict, and we will reverse the denial of the motion for a new trial only if the verdict is "so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Id.
¶ 8. Mississippi Code Annotated section 97-3-79 (Rev.2006) provides the elements of armed robbery or attempted armed robbery:
Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....
¶ 9. Weighing the evidence in the light most favorable to the verdict, we cannot say that McClendon's conviction was so contrary to the overwhelming weight of the evidence that allowing it to stand would sanction an unconscionable injustice. According to McClendon's own statement, he went to McDonald's house with Lewis with the intent to rob McDonald. McClendon admitted that he pointed the gun at McDonald while Lewis demanded money. *187 At trial, this account was mostly corroborated by both Lewis and McDonald.
¶ 10. McClendon's argument that he was only trying to get the money that he was owed is of no avail to him. The supreme court has stated: "We are not willing to lay down the proposition that if a man collects a debt by force and threats, and putting in fear, he will not be guilty of robbery." Williams v. State, 317 So. 2d 425, 428 (Miss.1975) (quoting Herron v. State, 176 Miss. 795, 801, 170 So. 536, 538 (1936)). McClendon also argues that McDonald's life was never threatened. However, this argument also affords him no relief because McClendon admitted to pulling out a gun and pointing it at McDonald, and the gun was fired during an ensuing struggle.
¶ 11. Based on the foregoing, we find no error with the circuit court's denial of McClendon's motion for a new trial. This issue is without merit.
II. Ruling on the State's Objection
¶ 12. Next, McClendon takes issue with the circuit court's handling of an objection made by the State during the cross-examination of McDonald. McClendon argues that the following exchange was improper:
Q. Mr. McDonalduhhow much had you had to drink that evening?
A. Nothing.
Q. All right. Now, OfficeruhPete Lingle, do you remember meeting him?
A. Yes, sir.
Q. Did you remember meeting him that night?
A. I (inaudible).
Q. Now, if he said that you were heavily intoxicated
By Mr. Thames: I'm going to object. He's speculating as to what he says. He cannot speculate [about] what the officer would say.
By the Court: Overruled.
Q. (By Mr. Smith) Now, if Officer Lingle said that you were heavily intoxicated that night
By the Court: Waitwait a minute. The objection you should make, Jack, is that you cannot pit the testimony of one witness against that of another witness, so I'll sustain your objection for that reason.
McClendon does not assert that the ruling by the circuit court was in error, nor that sustaining the objection affected the outcome of the case. Nevertheless, McClendon argues that plain error requires reversal of his conviction.
¶ 13. The admission or exclusion of evidence is within the discretion of the trial judge. Robinson v. State, 940 So. 2d 235, 238(¶7) (Miss.2006). This Court will not reverse an evidentiary ruling unless the trial judge abused his discretion and the defendant suffered prejudice as a result. Id. (citation omitted). Mississippi Rule of Evidence 103(a) provides that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected...." Additionally, when the ruling excludes evidence, there must be an offer of proof. M.R.E. 103(a)(2).
¶ 14. Notwithstanding this ruling by the circuit court, the defense effectively cross-examined McDonald and brought to light his statements that he had not had any alcohol to drink that night. Later, when cross-examining Officer Lingle, the defense attempted to impeach McDonald's claims with Officer Lingle's police report, which reflected that McDonald was "heavily intoxicated" on the night of the incident. Furthermore, on cross-examination, Lewis stated that she had seen McDonald drinking *188 alcohol earlier that day. Accordingly, we fail to see how the judge's decision to change his mind and sustain the State's objection on a ground not specified by the State had any effect on McClendon's trial. We find that the circuit court did not abuse its discretion in sustaining the State's objection. Furthermore, we do not find that the exclusion of McDonald's testimony concerning Officer Lingle's belief as to McDonald's intoxication affected any substantial right of McClendon. Therefore, this issue is without merit.
III. Ineffective Assistance of Counsel
¶ 15. Last, McClendon takes issue with the performance of his trial counsel. McClendon alleges that his counsel's representation was deficient and that his defense was prejudiced as a result. He points to four instances that demonstrate his counsel's deficiency: (1) the failure to object to the circuit court's advising the prosecution of the proper objection to make, (2) the failure to object to the fact that the State did not prove the elements of attempted armed robbery, (3) the failure to object to the State's leading questions posed to McDonald, and (4) the failure to object to the State putting words in McDonald's mouth.
¶ 16. The legal test to determine whether a defendant received effective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The party complaining of ineffective assistance of counsel must show that: (1) counsel's performance was deficient, and (2) that deficient performance prejudiced the defense. Id. Review of counsel's performance is highly deferential, and there exists "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. at 689. This two-part test was applied in Mississippi in Leatherwood v. State, 473 So. 2d 964, 968 (Miss.1985). "Only where it is reasonably probable that, but for the attorney's errors, the outcome of the trial would have been different will this Court find the counsel's performance was deficient." Smiley v. State, 815 So. 2d 1140, 1147(¶25) (Miss.2002) (quoting Gary v. State, 760 So. 2d 743, 753(¶31) (Miss.2000)).
¶ 17. In the present case, McClendon has failed to demonstrate to this Court how the alleged deficiencies prejudiced his defense. Instead, McClendon quotes a lengthy passage from Strickland. As such, we do not find that the outcome of the trial would have been any different but for any or all of the alleged deficiencies. As pointed out in addressing McClendon's first two issues, his own statement and that of Lewis were sufficient to prove the State's case of attempted armed robbery. Accordingly, even if McClendon's counsel was deficient for the above-mentioned reasons, it is not reasonably probable that, but for the alleged deficiencies, the ultimate outcome of McClendon's trial would have been different. Therefore, we do not find that McClendon received ineffective assistance from his counsel. This issue is without merit.
¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY OF CONVICTION OF ATTEMPTED ARMED ROBBERY AND SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575844/ | 829 S.W.2d 589 (1992)
FRED WEBER, INC., Plaintiff-Appellant,
v.
GRANITE STATE INSURANCE CO., Defendant-Respondent.
Nos. 59435, 59775.
Missouri Court of Appeals, Eastern District, Division Three.
March 24, 1992.
Motion for Rehearing and/or Transfer Denied April 20, 1992.
Application to Transfer Denied June 2, 1992.
*590 David O. Danis, Richard Alan Cooper, Clayton, for plaintiff-appellant.
Mary F. Stafford, Chicago, Ill., John D. Warner, Jr., St. Louis, James T. Ferrini, Sonia V. Odarczenko, Edward M. Kay, Susan Condon, Chicago, Ill., for defendant-respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied April 20, 1992.
STEPHAN, Judge.
Fred Weber, Inc. appeals from the judgment entered by the trial court granting respondent Granite State Insurance Company's motion to dismiss Fred Weber, Inc.'s petition for declaratory judgment.[1] We affirm.
The allegations in appellant's petition for declaratory judgment, although sketchy, provide a sufficient factual backdrop to this appeal. Integrity Insurance Company ("Integrity") had insured appellant under a commercial catastrophe liability policy. For a $35,000 annual premium, Integrity provided first tier excess coverage of five million dollars in excess of an underlying primary insurance company identified in Integrity's policy schedule. During the same period, Granite State provided a second layer of excess umbrella liability coverage through Granite State. The Granite State policy contained a five million dollar liability limit in excess of Integrity's underlying policy limits. The annual premium for the Granite State policy was $15,611, an amount less than half that of Integrity's premium. Appellant had settled a lawsuit filed against it, but the settlement exceeded the policy limits of its primary insurer. Appellant sought recovery for the excess settlement amount it owed; however, Integrity had been declared insolvent. Appellant then filed its petition for declaratory judgment asking that Granite State be obligated under the terms of its insurance policy to "drop down" and fill the gap in appellant's insurance coverage created by the insolvency of Integrity.[2] The trial court determined the terms of Granite State's policy were unambiguous and did not require that it drop down and provide coverage.
The precise issue before us is whether the trial court erred in holding that the language of Granite State's excess liability policy does not require it to drop down and provide coverage to appellant because of Integrity's insolvency.
*591 Appellant argues that its reasonable expectations as the insured, the failure of the insurer to specify insolvency for exclusion of coverage, and ambiguities in the insurance policies of both Granite State and Integrity are all reasons for finding the trial court erred.
At the outset, we note that certain fundamental principles control our review of Granite State's insurance policy. The rules of construction applicable to insurance contracts require that plain and unambiguous language be afforded its plain meaning. U.S. Fire Insurance Co. v. Coleman, 754 S.W.2d 941, 944 (Mo.App. 1988). The language of a contract is ambiguous when there is doubt or uncertainty as to its meaning and it is fairly susceptible of two interpretations. Id. In an insurance policy, ambiguity rises when there is duplicity, indistinctness or uncertainty of meaning. Id. To determine what meaning was intended, the ambiguous phrase is not considered in isolation, but by reading the policy as a whole with reference to associated words. Id. If the language of the insurance policy is in fact ambiguous, the interpretation which is most favorable to the insured must be adopted. Id. That principle, however, does not authorize courts, under the guise of interpretation or construction, to alter or rewrite a policy. Id. Courts may not create an ambiguity where none exists. Id.
The insuring agreements of Granite State's insurance policy contain the following pertinent provisions:
I. COVERAGE
The Company [Granite State] hereby agrees, subject to the limitations, terms and conditions hereinafter mentioned, to indemnify the Assured [Fred Weber, Inc.] for all sums which the Assured shall be obligated to pay by reason of the liability (a) imposed upon the Assured by law, or (b) assumed under contract or agreement by the Named Assured ... for damages ... caused by or arising out of each occurrence happening anywhere in the World, and arising out of the hazards covered by and as defined in the Underlying Umbrella Policies stated in Item 2 of the Schedule, (hereinafter called the `Underlying Umbrella Insurers') [Integrity].
* * * * * *
II. LIMIT OF LIABILITYUNDERLYING LIMITS
It is expressly agreed that liability shall attach to the Company [Granite State] only after the Underlying Umbrella Insurers [Integrity] have paid or have been held liable to pay the full amount of their respective ultimate net loss liability as follows: [$5,000,000] Ultimate net loss in respect of each occurrence ... and the Company [Granite State] shall then be liable to pay only the excess thereof up to a further [$5,000,000] ultimate net loss in all in respect of each occurrencesubject to a limit of [$5,000,000] in the aggregate for each annual period during the currency of this Policy separately....
We discern absolutely no ambiguity in Granite State's policy where its limit of liability provision clearly states that "liability shall attach only after the Underlying Umbrella Insurers [Integrity] have paid or have been held liable to pay the full amount of their respective ultimate net loss liability ..." (Emphasis ours). Nowhere in the petition does appellant allege that Integrity paid or was held liable to pay in order to trigger Granite State's obligation to pay. Nowhere in the petition does it allege that the language of the Granite State policy is ambiguous. Nowhere in Granite State's policy is there any provision which mentions insolvency or any language which intimates that Granite State would drop down in the event of Integrity's insolvency. We do not believe that any language in this policy could reasonably be said to have insured against the insolvency of the underlying insurer. Accord, Interco Inc. v. National Surety Corp., 900 F.2d 1264, 1267 (8th Cir.1990). We agree with the trial court's ruling that Granite State's policy was unambiguous and provided no coverage.
*592 Appellant, in an effort to create an ambiguity where we believe none exists, highlights certain other portions of the policy issued by Granite State. Granite State's policy also includes a section captioned "CONDITIONS" of which there are five. The five conditions are as follows: prior insurance and non cumulation of liability, maintenance of underlying umbrella insurance, cancellation, notice of occurrence, and other insurance. Appellant focuses its attention on the second condition "MAINTENANCE OF UNDERLYING UMBRELLA INSURANCE" which includes:
This Policy is subject to the same terms, definitions, exclusions and conditions (except as regards the premium, the amount and limits of liability and except as otherwise provided herein) as are contained in or as may be added to the Underlying Umbrella Policies stated in Item 2 of the Schedule [Integrity's policy] prior to the happening of an occurrence for which claim is made hereunder.
It is a condition of this Policy that the Underlying Umbrella Policies shall be maintained in full effect during the currency hereof, except for any reduction of the aggregate limits contained therein solely by payment of claims in respect of accidents and/or occurrences occurring during the period of this Policy.... (Emphasis ours).
Appellant interprets this provision as one which, excluding those exceptions listed parenthetically, incorporates the Integrity policy in toto. Based on this language, appellant turns to the Integrity policy.
The Integrity policy contains several insuring agreements which provide in part as follows:
2. UNDERLYING LIMITRETAINED LIMIT
The Company shall be liable only for the ultimate net loss the excess of the greater of the Insured's underlying limit or retained limit defined as:
(a) Underlying limitan amount equal to the limits of liability indicated beside the underlying insurance listed in the schedule of underlying insurance, plus the applicable limits of any other underlying insurance collectible by the insured;
(b) Retained limitThe amount specified in Item 3(c) of the declarations as the result of an occurrence not covered by said underlying insurance, and which shall be borne by the insured, separately as respects to each occurrence during the period of this policy. (Emphasis ours).
Relying on this second insuring agreement "underlying limitretained limit" in Integrity's policy, appellant emphasizes the phrase "collectible by the insured" and adduces that Integrity's insolvency results in a situation where its underlying insurance is not collectible by the insured. Appellant concludes this provision creates Granite State's duty to provide coverage.
Appellant's argument assumes the phrase "collectible by the insured" modifies the phrase "underlying insurance listed in the schedule of underlying insurance", and thus requires the scheduled insurance be "collectible". Appellant relies upon Alabama Insurance Guaranty Association v. Magic City Trucking Service, 547 So. 2d 849 (Ala.1989). While this case may be of precedential value in Alabama, we see no need to turn to the jurisprudence of a sister state. This court addressed a similar issue in U.S. Fire Insurance v. Coleman, 754 S.W.2d 941, 944-45 (Mo.App.1988), and held that "collectible" modifies only the phrase "other underlying insurance." We find our own case of U.S. Fire Insurance more compelling precedent than that of Magic City Trucking Service and reject this tack by appellant.
Appellant argues alternatively that the third insuring agreement in Integrity's policy provides a basis for finding Granite State was obligated to drop down and provide coverage. That provision provides in part as follows:
3. LIMITS OF LIABILITY
* * * * * *
In the event that the aggregate limits of liability of the underlying policies, listed in the schedule of underlying insurance, are exhausted or reduced, solely as the result of occurrences taking place *593 after the inception date of this policy, this policy shall, subject to the Company's limit of liability and to the other terms of this policy, with respect to occurrences which take place during the period of this policy, continue in force as underlying insurance for the remainder of the policy year of the underlying policy or until the Company's aggregate limit of liability (stated in Item 3(b)) is exhausted, but not for broader coverage than was provided by the exhausted underlying insurance. (Emphasis ours).
Appellant states that its underlying insurance "is exhausted" by Integrity's insolvency, so that the "limits of liability" provision in the insuring agreement of Integrity's policy also creates an obligation upon Granite State to drop down and provide coverage.
The fatal flaw in this argument by appellant is the failure to read the provision in context. The policy specifies "are exhausted or reduced, solely as the result of occurrences taking place after the inception date of this policy." The glossary in Integrity's policy defines "occurrence" to mean "an accident, including continuous or repeated exposure to conditions, which results in personal injury, property damage or advertising liability neither expected nor intended from the standpoint of the insured." Insolvency clearly is not an "occurrence" within this policy provision.
Appellant disputes Granite State's position that it never intended to drop down because of the insolvency of Integrity and contends that if this had been respondent's intention, then it clearly could have excluded such a possibility. Appellant claims that the failure of Granite State to specifically exclude the insolvency of Integrity must fall upon Granite State as the author of its policy.
It is true that when the language of an insurance policy is in fact ambiguous, the interpretation which favors the insured must be adopted. U.S. Fire Insurance Co. v. Coleman, 754 S.W.2d 941, 944 (Mo.App. 1988). Appellant, however, has confused the effect of silence with that of ambiguity. It is just as logical to conclude that by not specifically listing insolvency as an exclusion, the parties clearly did not contemplate insolvency of the insurer as an event triggering liability.
We conclude that the policy of Granite State is not ambiguous and the trial court did not err in finding as a matter of law that respondent has no obligation to pay any loss that is within the policy limits of the insolvent primary insurer.
The judgment is affirmed.
PUDLOWSKI, P.J., and CRIST, J., concur.
NOTES
[1] The parties disagree on the procedural posture of this case. Appellant labels Granite State's motion to dismiss under Rule 55.27(a)(6) as a motion for summary judgment under Rule 74.04 or a motion for judgment on the pleadings under Rule 55.27(b). Generally, when matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss is to be treated as one for summary judgment. Black Leaf Products Co. v. Chemsico, Inc., 678 S.W.2d 827, 829 (Mo.App.1984). That is not the case here. The record before us does not reflect what matters were presented to the trial court at its hearing on Granite State's motion to dismiss; however, the court's order specified that it was a ruling on that motion. We accept that at face value.
[2] "Drop-down" coverage occurs when an insurance carrier of a higher level of coverage is obligated to provide the coverage that the carrier of the immediately underlying level of coverage has agreed to provide. Annot., 85 A.L.R. 4th 729, 734 n. 4 (1991). This comprehensive annotation, titled "Primary Insurer's Insolvency as Affecting Excess Insurer's Liability", provides an excellent survey of case law on the issue of drop-down coverage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575646/ | 17 So. 3d 1230 (2009)
HUNSINGER
v.
STATE.
No. 2D09-2846.
District Court of Appeal of Florida, Second District.
August 24, 2009.
Decision without published opinion. Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575664/ | 308 S.W.3d 227 (2010)
Rory Kent HILL, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 2008-CA-001752-MR.
Court of Appeals of Kentucky.
February 12, 2010.
Ordered Published March 26, 2010.
*228 Rory Kent Hill, Central City, KY, pro se.
Jack Conway, Attorney General of Kentucky, Jeffrey A. Cross, Assistant Attorney General, Frankfort, KY, for Appellee.
Before COMBS, Chief Judge; CLAYTON and STUMBO, Judges.
OPINION
STUMBO, Judge.
Rory Hill, pro se, appeals from an order of the Hardin Circuit Court directing that currency forfeited to the Commonwealth not be returned to him. Mr. Hill argues that the currency was not connected to any criminal activity for which he was convicted and should be returned to him. The Commonwealth argues that they made a prima facie case for the forfeiture and that the trial court correctly ruled the money *229 was not to be returned. We affirm the order.
Appellant was convicted of first-degree assault, two counts of second-degree wanton endangerment, first-degree trafficking in a controlled substance while in possession of a firearm (second offense), possession of a handgun by a convicted felon, and being a second-degree persistent felony offender. He was sentenced to a total of thirty-years' imprisonment. This conviction was affirmed by the Kentucky Supreme Court.
At the time Appellant was arrested, police officers found cocaine and $2,175 on his person. Pursuant to Kentucky Revised Statute (KRS) 218A.410(1)(j), the money was forfeited to the Commonwealth. KRS 218A.410(1)(j) states anything of value, including money, is subject to forfeiture when it is traceable to a drug exchange. Further,
[i]t shall be a rebuttable presumption that all moneys, coin, and currency found in close proximity to controlled substances, to drug manufacturing or distributing paraphernalia, or to records of the importation, manufacture, or distribution of controlled substances, are presumed to be forfeitable under this paragraph. The burden of proof shall be upon claimants of personal property to rebut this presumption by clear and convincing evidence. The burden of proof shall be upon the law enforcement agency to prove by clear and convincing evidence that real property is forfeitable under this paragraph.
KRS 218A.410(1)(j).
On examination of the foregoing statute, it is apparent that any property subject to forfeiture under (j) must be traceable to the exchange or intended violation. This requirement exists without regard to the presumption which appears later in the statute....
Recognizing the difficulty of proof with respect to showing a connection between currency and drug transactions, the General Assembly created a presumption whereby currency found in close proximity to controlled substances was presumed to be forfeitable subject to the right of the owner to rebut the presumption. While the presumption would, at first blush, appear to dispense with the requirement of traceability, we believe the two must be construed harmoniously so as to give effect to the intention of the General Assembly.
The Commonwealth may meet its initial burden by producing slight evidence of traceability. Production of such evidence plus proof of close proximity, the weight of which is enhanced by virtue of the presumption, is sufficient to sustain the forfeiture in the absence of clear and convincing evidence to the contrary. In practical application, the Commonwealth must first produce some evidence that the currency or some portion of it had been used or was intended to be used in a drug transaction. Additional proof by the Commonwealth that the currency sought to be forfeited was found in close proximity is sufficient to make a prima facie case. Thereafter, the burden is on the claimant to convince the trier of fact that the currency was not being used in the drug trade.
Osborne v. Commonwealth, 839 S.W.2d 281, 284 (Ky.1992).
Appellant does not deny that the money and drugs were in close proximity to each other. He does argue that the Commonwealth did not provide the evidence necessary to trace the money to a drug transaction. Appellant claims that the money in his possession was not related to any drug transaction. He argues now, and testified to such during trial, that he won the money gambling on a casino boat. Appellant *230 also argues that no one during the trial testified that he bought or sold drugs to obtain the money.
The Commonwealth argues that there was sufficient evidence to trace the money to the drugs. We agree. During trial, Appellant's recorded confession was introduced into evidence. When asked if he smoked crack, Appellant replied "No, I don't smoke no damn crack. Damn. I make money at this shit ..." Also, Appellant was found with one large bag of cocaine in one pants pocket and several small baggies in the other pocket. The trial court described the smaller bags as being "packaged." Appellant also admitted to "giving" cocaine to a person involved in the underlying crime.
Given this evidence, we find the Commonwealth had "slight evidence of traceability." Osborne at 284. The burden of proof then shifted to Appellant, forcing him to rebut the presumption, by clear and convincing evidence, that the money was not involved in drug related activity.
We review the trial court's decision using the abuse of discretion standard. Johnson v. Commonwealth, 277 S.W.3d 635, 641 (Ky.App.2009). We find that the trial court did not abuse its discretion. The only evidence Appellant presented that the money was not involved in a drug transaction was his selfserving testimony that he won it gambling. He claimed he had a casino receipt on him at the time of his arrest, but he did not produce it at trial or the forfeiture hearing. We agree with the trial court's findings that this did not amount to clear and convincing evidence sufficient to rebut the presumption contained in KRS 218A.410(1)(j).
Appellant also argues that the forfeiture of the money is an excessive fine that violates the 8th Amendment of the United States Constitution and section 17 of the Kentucky Constitution.
In determining whether a fine is unconstitutionally excessive, the trial court must determine that "the property is sufficiently tainted by the criminal act to be subject to forfeiture." It must also "determine that the particular forfeiture is not grossly disproportionate to the particular offense." "The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality." "Among the factors relevant to this determination [of proportionality] are the gravity of the offense, the potential penalties, the actual sentence, sentences imposed for similar crimes in this and other jurisdictions, and the effect of the forfeiture on innocent third parties." (Citations omitted).
Smith v. Commonwealth, 205 S.W.3d 217, 223 (Ky.App.2006); see also Commonwealth v. Fint, 940 S.W.2d 896 (Ky.1997).
The trial court found that the forfeiture was not excessive and we agree. Appellant was sentenced to thirty-years' imprisonment and the charges he was convicted of were all felonies. When compared to other cases involving the forfeiture of property, this forfeiture cannot be deemed excessive. In Osborne, a motor vehicle was ordered forfeited because it contained one marijuana plant and a set of scales. In Fint, a motor vehicle worth over $1,800 was ordered forfeited. In Smith, a vehicle worth $6,500 was ordered forfeited even though the drugs involved were only worth half that amount.
As for cases in other jurisdictions: in United States v. One 1990 Ford Ranger Truck, 876 F. Supp. 1283 (N.D.Ga.1995), a truck transporting a small amount of psilocybin mushrooms was ordered forfeited; in Worthington Police v. One 1988 Chevrolet Berreta, 516 N.W.2d 581 (Minn.Ct.App. 1994), a vehicle valued between $2,500 and *231 $4,500 which was used to transport a stolen color TV worth $300 from the scene of the crime to another person was ordered forfeited; and in State ex rel. McGehee v. 1989 Ford F-150, 888 P.2d 1036 (Okla.Ct. App.1994), a truck used to transport fifteen grams of marijuana was ordered forfeited.[1]
Additionally, there was no evidence presented to the trial court that innocent third parties would be harmed by the forfeiture. We would also note that Appellant could have been fined between $1,000 and $10,000 due to his being convicted of a felony. KRS 534.030(1). Based on this, we find the forfeiture was not excessive.
We therefore affirm the order of the trial court denying the return of the money to Appellant.
ALL CONCUR.
NOTES
[1] Even though these cases involve the forfeiture of vehicles, they are still illustrative of the issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575683/ | 829 S.W.2d 909 (1992)
Bassiony RHIMA d/b/a Rhima's Commercial Properties, Appellant,
v.
Larry WHITE, Sr., Appellee.
No. 2-91-059-CV.
Court of Appeals of Texas, Fort Worth.
April 29, 1992.
Rehearing Overruled July 17, 1992.
*910 Pezzulli & Associates and Charles J. Fortunate, Dallas, for appellant.
Cribbs & McFarland, P.C. and Paul F. Wieneskie, James A. Cribbs and Paul Francis, Arlington, for appellee.
Before JOE SPURLOCK, II, HILL and DAY, JJ.
OPINION
JOE SPURLOCK, II, Justice.
Bassiony Rhima, d/b/a Rhima's Commercial Properties, appeals from the granting of a summary judgment in favor of Larry White, Sr., appellee. In three points of error, Rhima claims that the trial court erred by: 1) granting White's motion for summary judgment, because material issues of fact existed; 2) failing to continue the summary judgment hearing, and failing to grant him a new trial; and 3) striking his Fourth Amended Petition because it asserted a new cause of action against White.
We affirm.
*911 This dispute arose out of a deed of trust given to White by Hugh Moore on a parcel of land and subsequent conveyance of that same parcel by Moore to Rhima. On October 17, 1986, Moore gave a deed of trust on the parcel to White for the purpose of securing a pre-existing debt owed by Moore to White in the amount of $3,000,000.00. There is evidence in the record that Moore and White had had previous business dealings. The deed of trust was filed in the real property records of Tarrant County on December 11, 1986.
On January 7, 1987, Moore, in need of cash, approached Rhima about selling a portion of the encumbered parcel to Rhima. Moore did not tell Rhima about the deed of trust to White. On January 9, 1987, some four weeks after White had recorded Moore's deed of trust, Rhima bought two tracts of land from Moore and paid $119,424.00 for them. They were a part of the encumbered property covered by the deed of trust. Rhima did not perform a title search on the properties prior to the transaction, and did not become aware of White's recorded deed of trust lien until long after he had purchased the property. In the instant suit, Rhima sued to quiet title, and alleged fraud and conspiracy against both White and Moore.
In point of error number one, Rhima complains that the trial court erred in rendering summary judgment in White's favor, as material issues of fact remain with respect to each of his causes of action.
We must determine whether or not White met his burden for summary judgment by establishing that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); TexR.Civ.P. 166a.
Rhima's allegation of fraud against both Moore and White is founded upon the facts that Moore did not inform him of the deed of trust he had given to White, and that Moore and White had had prior business dealings between them. White counters that these facts are not sufficient proof that he defrauded Rhima. We agree, and hold that the summary judgment evidence conclusively disproves two essential elements of Rhima's cause of action against White.
Moore gave the deed of trust to White in October 1986, and the instrument was properly recorded in December of 1986. The sale to Rhima was made by Moore some four weeks after the public recordation of the deed of trust by White. The record further reflects that Rhima and White had not met each other until April of 1987, and therefore no act or statement by White could give rise to any act of reliance by Rhima. Therefore, White conclusively negated the elements of both misrepresentation and reliance in regard to him with respect to the sale by Moore to Rhima made the basis of this suit. Manges v. Astra Bar, Inc., 596 S.W.2d 605, 611 (Tex. Civ.App.Corpus Christi 1980, writ ref'd n.r.e.). On the facts before the court in the summary judgment hearing, as a matter of law there was no fraud shown on the part of White.
With respect to Rhima's conspiracy cause of action, we agree with Rhima that the affidavit of an interested witness or party seeking to defeat a conspiracy cause of action via summary judgment is alone not competent summary judgment evidence, in that such facts are not readily controvertible. American Petrofina, Etc. v. Crump Bus. Forms, 597 S.W.2d 467, 470-71 (Tex.Civ.App.Dallas 1980, writ ref'd n.r.e.); see also Winkler v. Kirkwood Atrium Office Park, 816 S.W.2d 111 (Tex. AppHouston [14th Dist.] 1991, writ denied).
However, the Court in American Petrofina indicated that if there is other summary judgment evidence in the record supporting and corroborating the affiant's testimony, the rule regarding affidavits of interested witnesses will not apply. American Petrofina, 597 S.W.2d at 471. In the instant case, there is competent summary judgment proof that the deed of trust was executed, delivered and recorded by White long before Moore approached Rhima to sell him the property. There is also Rhima's *912 testimony in the record that Moore, acting alone, induced him to purchase the property, and that Rhima never met White until some three months after the sale to Rhima was consummated. These facts, coupled with White's open recordation of the deed of trust well before Rhima's purchase negates any possible conspiracy agreement between Moore and White, and fails to show a common purpose between conspirators.
There is no suggestion anyone ever told Rhima "not" to check the county deed records, or that the deed of trust was not readily discoverable. Even had the trial court erred in considering the affidavit of White, Rhima failed to object to both the affidavit of White and the balance of White's summary judgment motion, and thus has failed to preserve error in that regard. Tex.R.Civ.P. 166a(c) & (f). We hold that the summary judgment was proper as to the conspiracy cause of action.
Rhima's third cause of action was an equitable claim to quiet title. The uncontroverted summary judgment evidence shows that White's deed of trust was filed on December 11, 1986, and that the deed from Moore to Rhima was executed and filed on January 9, 1987.
Pursuant to the provisions for recording liens and conveyances set out in the Texas Property Code, White has made a prima facie showing that his interest in the property is superior to that of Rhima. Tex. Prop.Code Ann. sees. 13.001 (Vernon Supp. 1992) & 13.002 (Vernon 1984). The only summary judgment evidence alleged by Rhima in support of his action to quiet title is that the deed of trust should fail as a result of the fraud and conspiracy, as well as because of a lack of consideration for the deed of trust. In view of our determination of the validity of Rhima's claims for fraud and conspiracy, and the fact that Rhima brought forth no competent summary judgment evidence in support of his claim of failure of consideration, we hold that the trial court properly granted summary judgment against Rhima on his action to quiet title. Point of error number one is overruled.
In point of error number two, Rhima complains that the trial court erred in not continuing the summary judgment hearing and in not granting his motion for new trial to the extent that it was based upon newly discovered evidence. The motion for continuance was based upon Rhima's expressed need to depose Moore, the codefendant to this action. We note that there was no attempt to depose Moore for more than a year after this action was filed, and that he was not in fact deposed until after the summary judgment hearing. The fact that Moore was in a federal penitentiary when his deposition was first scheduled, and that Rhima changed counsel during the pendency of the summary judgment motion does not excuse Rhima's lack of due diligence in obtaining the requisite summary judgment evidence to controvert White's motion. See Eckman v. Centennial Sav. Bank, 757 S.W.2d 392, 395-96 (Tex. App.Dallas 1988, writ denied).
We further agree with White that Rhimain his motion for continuancedid not present to the trial court an affidavit showing that he had used due diligence in procuring Moore's deposition, and that Moore's testimony was material to his opposition of the summary judgment. Tex. R.Civ.P. 252. Therefore, we hold that the trial court did not abuse its discretion in denying Rhima's motion for continuance.
The alleged newly discovered evidence that Rhima based his motion for new trial upon was a product of Moore's deposition. Specifically, Rhima alleges that he discovered that Moore had transferred properties to White without White's knowledge or consent, that the transfers were often made without consideration, and that Moore and White had conducted business together on many instances. We note that Rhima's response to the motion for summary judgment and the affidavit of Rhima attached thereto essentially state these same allegations. Rhima did not "discover" any probative new evidence after summary judgment, and his motion for new trial simply sets forth cumulative evidence. See Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983). We hold that *913 the trial court did not abuse its discretion in overruling Rhima's motion for new trial. Point of error number two is overruled.
In point of error number three, Rhima claims that the trial court erred in striking his fourth amended petition. This petition alleged an additional cause of action against White and was filed with the court on August 13, 1990. However, the hearing on White's motion for summary judgment took place on June 28, 1990. Leave of court was not obtained by Rhima to file an amended petition during the seven days prior to the summary judgment hearing, nor thereafter, as is required. See Love v. Sneed, 802 S.W.2d 422, 423-24 (Tex.App.Austin 1991, no writ); Tex. R.Civ.P. 63. Further, the trial court's decision granting White's motion for summary judgment was pronounced by letter dated August 7,1990. Although neither a docket entry nor memorandum of judgment was made at the time, the record indicates that Rhima acknowledged receipt of the court's decision.
We agree with White that a decision of the court announced by letter from the court to the parties, when no announcement is made in open court, constitutes rendition of judgment. Estes v. Carlton, 708 S.W.2d 594, 596 (Tex.App.Fort Worth 1986, writ ref'd n.r.e.). Even were we to hold that Rhima could have amended his petition without leave of court subsequent to the summary judgment proceeding, he could obviously have not done so after the rendition of judgment. We hold that the trial court did not abuse its discretion in striking Rhima's fourth amended petition. Point of error number three is overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575676/ | 308 S.W.3d 189 (2009)
2009 Ark. App. 373
Clifton GHOLSON, Appellant,
v.
STATE of Arkansas, Appellee.
No. CA CR 08-1100.
Court of Appeals of Arkansas.
May 6, 2009.
C. Brian Williams, West Memphis, for appellant.
Dustin McDaniel, Att'y Gen., by: Leaann J. Irvin, Ass't Att'y Gen., for appellee.
KAREN R. BAKER, Judge.
Appellant Gholson appeals from the revocation of his suspended sentence and the subsequent denial of his motion to vacate the judgment and commitment order. He argues that the trial court had no authority to set aside a nolle prosequi order *190 erroneously entered prior to his revocation hearing and that the erroneously entered order rendered the pending petition nonexistent, which violated his due-process rights. The trial court in this case appropriately entered a judgment nunc pro tunc to correct an erroneous judgment. McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999). The standard of review here is abuse of discretion. Id. We hold the trial court did not abuse its discretion and affirm.
On February 17, 1998, Gholson pled guilty to two counts of battery in the first degree, for which he received a sentence of 240 months' incarceration and 120 months' suspended sentence. On October 9, 2007, the State filed a petition to revoke his suspended sentence, alleging that appellant had violated the following conditions of his suspended sentence: (1) failure to pay fine, costs, and fees; (2) commission of rape; (3) failure to notify the sheriff of his current address and employment. Various scheduling orders and an order directing the return of appellant to the county for the purpose of giving testimony in his revocation case were entered from October 9, 2007 through January 18, 2008. The last scheduling order set the revocation proceeding for March 6, 2008. An order of nolle prosequi as to the petition to revoke was signed and filed of record on February 26, 2008. Despite the fact that the nolle prosequi order was entered, a hearing on the petition to revoke was held on March 6, 2008. The March 6 hearing proceeded as scheduled, and the trial court ultimately revoked Gholson's suspended sentence finding that he had violated the terms of his suspended sentence by committing the act of rape. No one acknowledged or referenced the entry of a nolle prosequi order in this case, prior to, during, or immediately after the revocation hearing.
Appellant later learned of the entry of the nolle prosequi order and filed a motion to set aside the judgment on March 18, 2008. He alleged that pursuant to Ark. R.Crim. P. 37.2, the February 26, 2008 order of nolle prosequi left the court without subject-matter jurisdiction to hear the revocation petition. Gholson amended that motion on March 20, 2008, to clarify that he did not become aware of the order nolle prosequi until March 17, 2008, and to note the absence of a new petition to revoke on the part of the State. On March 25, 2008, the State filed a response, alleging that the order of nolle prosequi was entered and filed erroneously. The State explained that the case number was provided to the prosecuting attorney's office by the Administrative Office of the Courts in a list of active stale cases, and that the order was presented to the trial court in error, having been included in a stack of orders intended to dismiss stale cases in which no activity had occurred within the past year. After a hearing, the trial court set aside the nolle prosequi order, citing that it was a scrivener's error, and simultaneously denied Gholson's motion to set aside his revocation. This appeal followed.
The authority of the court to set aside the order of nolle prosequi directly affects the success or failure of appellant's arguments. Appellant merely states that the "trial court did not have authority to set aside the nolle prosequi order and re-instate the revocation petition as requested by the State." He cites no authority for that proposition, but merely reinforces his assertion by stating that "the State did not give any authority, and appellant has found none, wherein the trial court had the authority to change its order."
Contrary to appellant's suggestion, authority does exist for the trial court to set aside the nolle prosequi order. A circuit court judge may set aside its own *191 order dismissing charges in a criminal case if the original order was entered in error. See Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977) (holding that a trial court may set aside its own order in the same term of court without notice to the parties if the original order was entered in error). Additional authority also supports a trial court's authority to set aside an order erroneously entered in a criminal case. While appellant argues that our supreme court does not allow the application of Arkansas Rule of Civil Procedure 60 in criminal cases, he is only partially correct. Our supreme court has specifically acknowledged that the theory behind Rule 60 has been applied in those criminal cases where it recognized a trial court's power to correct a judgment nunc pro tunc to make it speak the truth. State v. Dawson, 343 Ark. 683, 38 S.W.3d 319 (2001).
As orders entered in error do not speak the truth, courts have the power to enter an amended judgment and commitment order nunc pro tunc to correct an erroneous judgment. McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999); Willis v. State, 90 Ark.App. 281, 205 S.W.3d 189 (2005). Our supreme court has defined a true clerical error, one that may be corrected by nunc pro tunc order, as "essentially one that arises not from an exercise of the court's judicial discretion but from a mistake on the part of its officers (or perhaps someone else)." Francis v. Protective Life Ins. Co., 371 Ark. 285, 293, 265 S.W.3d 117, 123 (2007) (citing Luckes v. Luckes, 262 Ark. 770, 772, 561 S.W.2d 300, 302 (1978)).
The trial court in this case determined that the entry of the nolle prosequi order resulted from a mistake by an officer of the court, the prosecutor, by presenting the case as one of the many cases in which no activity had occurred in over a year that were ripe for dismissal. The record supports the trial court's finding that the order for nolle prosequi of the petition to revoke was entered in error. The form, which became the erroneously entered nolle prosequi order in this case, was generated in response to a list prepared by the Administrative Office of the Courts (AOC). The AOC list was included in the supplement to the record and identified a list of active stale cases. The prosecutor stated that the intent was to nolle prosequi the stale cases. The list as presented in the briefs was twenty-nine pages of difficult to read case numbers and names including various information regarding the cases. Our review of the list indicates that neither appellant's name nor his case number were included on the list; however, the difficulty in ascertaining the numbers or names on the list demonstrates the ease with which case names and numbers could be misread.
At the hearing on appellant's motion to set aside judgment, the prosecutor explained that the AOC directed the circuit courts to "clean up" the dockets and to close inactive cases. The prosecutor stated that he personally "sat down and went through the docket and spent a number of hours going through those forms.... This case happened to be in the midst of that group and I erroneously looked at the docket sheet.... The name didn't register at that time. I did a Nolle Pros order and put it in the stack with a number of others, which Your Honor signed off on at some later date." Moreover, it is clear that at no time before or during the hearing on the petition to revoke were the parties or the judge aware that the petition to revoke had been nolle prossed. In conducting the hearing, all parties proceeded as if the petition to revoke was pending.
Our supreme court has explained the wisdom in recognizing the trial court's inherent *192 power to correct erroneously entered judgments, particularly when the appellant is fully aware of the nature of the proceedings:
Here, appellant was aware at all times that he was being tried for crimes he committed in 1986. He had been put on notice by the State of the correct dates for the crimes and was not prejudiced by his trial for the 1986 crimes. This case presents the exact situation where a clerical error may have been corrected by a nunc pro tunc order. Clerical errors of this type do not entitle appellant to a writ of habeas corpus.
Appellant's petition has failed to show that he was being detained without lawful authority. Appellant was not tried for crimes that he had not yet "consummated." A mere clerical error in the offense dates stated in the judgment and commitment order does not negate the jurisdiction of the trial court as the clerical error does not speak the truth. Appellant failed to prove that the judgment and commitment order was invalid on its face or that the trial court lacked jurisdiction over the cause.
Carter v. Norris, 367 Ark. 360, 363, 240 S.W.3d 124, 127 (2006) (citations omitted).
Similar to the appellant in Carter, appellant was fully aware of the allegations pending against him in this revocation proceeding. He participated in the hearing and was afforded the full opportunity to address each and every allegation presented by the State. The only fact of which he was not aware, at the time of the hearing, was that an order erroneously dismissing his case had been filed with the clerk.
Accordingly, we find no error with the trial court setting aside the nolle prosequi order. With the removal of the nolle prosequi order, the State's petition was unaffected by the erroneously entered order.
Appellant contends that his due process rights were violated because, as a result of the order for nolle prosequi, the petition requirements of § 5-4-310(b)(3) (Repl. 2006) were not met. Arkansas Code Annotated section 5-4-310(b)(1) provides that a suspension or probation shall not be revoked except after a revocation hearing. Arkansas Code Annotated section 5-4-310(b)(3) states that "[t]he defendant shall be given prior written notice of the: (A) Time and place of the revocation hearing; (B) Purpose of the revocation hearing; and (C) Condition of suspension or probation the defendant is alleged to have violated." Each of the requirements of section 5-4-310 was met in this case.
Appellant does not dispute that he had actual notice of the requirements in Arkansas Code Annotated section 5-4-310(b)(3). Appellant does not argue that the State failed to provide him with notice of the time and place of his revocation hearing, the purpose of the revocation hearing, and the conditions of suspension that he was alleged to have violated. See Ark.Code Ann. § 5-4-310(b)(3). Here, appellant was present at the hearing, was provided the opportunity to hear and controvert evidence against him at the hearing, was provided the opportunity to offer evidence in his own defense, and was represented by counsel. See Ark.Code Ann. § 5-4-310(b)(4) (Repl.2006) (stating that "the defendant has the right to: (A) Hear and controvert evidence against him or her; (B) Offer evidence in his or her own defense; and (C) Be represented by counsel"). See Reynolds v. State, 282 Ark. 98, 666 S.W.2d 396 (1984) (holding that in light of the fact that Reynolds received actual notice of the time and place of the hearing and did not ask for a continuance, there was no error in the lack of written notice of the time and place of the revocation hearing).
*193 Moreover, appellant has failed to demonstrate that any due process protecting fundamental fairness was not provided to him. He has failed to show any prejudice, without which we will not reverse. Here, a hearing was held, appellant was found to have committed the offense of rape, and the court revoked his probation. Given these unique facts, we cannot say the trial judge abused his discretion in refusing to set aside the judgment and commitment order.
Affirmed.
VAUGHT, C.J., and MARSHALL, J., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575674/ | 308 S.W.3d 6 (2010)
Wesley Don RHODES, Appellant,
v.
STATE of Texas, Appellee.
No. 11-08-00005-CR.
Court of Appeals of Texas, Eastland.
October 29, 2009.
Rehearing Overruled December 3, 2009.
Discretionary Review Dismissed March 24, 2010.
*9 David L. Richards, Fort Worth, TX, for Appellant.
Jason Cashon, District Attorney, Stephenville, TX, for Appellee.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
RICK STRANGE, Justice.
The jury convicted Wesley Don Rhodes of sexual assault of a child and assessed his punishment at twenty years confinement. We affirm.
I. Background Facts
R.K. alleged that Rhodes, her father, sexually assaulted her while they were deer hunting. R.K. testified that he forced her down on a bed; took off her clothes; and, while using a rubber glove as a condom, penetrated her. Rhodes denied R.K.'s allegations. He contended that his wife was manipulating R.K. to gain an advantage in their pending divorce action.
II. Issues
Rhodes challenges his conviction with four issues. Rhodes contends that the trial court erred by admitting evidence of the victim's good character, that the trial court erred by not holding an evidentiary hearing on an ineffective assistance of counsel claim raised in his motion for new trial, that the trial court deprived him of procedural due process when it ruled on his motion for new trial because the State's response included an affidavit that he had no opportunity to rebut, and that his trial counsel was constitutionally ineffective.
III. Character Evidence
The State called Toby Cox as a character witness. Cox testified that he was an *10 elementary school assistant principal but that he previously worked as a high school teacher and counselor and that R.K. was a high school student while he was a counselor. Cox testified over objection that R.K.'s reputation for being a truthful and honest person was good. The State also called Stan McVey as a character witness. He was an assistant high school principal who knew R.K. through FFA. He too testified over objection that R.K. was a truthful person. Rhodes contends that the trial court erred by overruling his objection to Cox's testimony because R.K.'s character had not been previously challenged. Rhodes does not challenge McVey's testimony.
To determine if character evidence is admissible, the Texas Court of Criminal Appeals distinguishes between an attack on a witness's character and an attack on the witness's accuracy. See Michael v. State, 235 S.W.3d 723, 726 (Tex. Crim.App.2007). An attack on a witness's character is one that contends the witness is a liar and, therefore, is wrong about "X." A challenge to the witness's accuracy is one that concedes the witness may normally be a truthteller but contends that the witness is wrong about "X." Only when a witness's character for truthfulness is attacked may it be rehabilitated with good character evidence. Id. Impeachment by a prior inconsistent statement is normally just an attack on the witness's accuracy. Id. The test for trial courts is whether a reasonable juror would believe that a witness's character for truthfulness has been attacked by cross-examination, evidence from other witnesses, or statements of counsel. Id. at 728.
The State argues that Rhodes attacked R.K.'s character several times. The State initially points to Rhodes's opening statement. Rhodes's counsel told the jury that the allegations against his client were false, that R.K.'s mother was manipulating her for divorce purposes, that R.K.'s mother had been physically abusive with her, and that psychological disorders run in her mother's family. To the extent these constitute a challenge to R.K. rather than her mother, they are not an attack on R.K.'s character.
The State next points to Rhodes's cross-examination of the outcry witness, Clinton Lynn Barnett. During that examination, Rhodes established that Barnett did not believe R.K. had told him everything, that Barnett pressured R.K. to come forward with her allegation, and that R.K.'s story became bigger and more elaborate with time. This is not a challenge to R.K.'s character but to the accuracy of her allegation. Finally, the State points to Rhodes's cross-examination of Don Beeson. At the time of trial, Beeson was a county commissioner, but he previously served as a detective for the Johnson County Sheriff's Department and was responsible for investigating crimes against children. Rhodes pointed out the inconsistencies between what R.K. told Beeson in an interview and what Barnett had said in a statement. This is also a challenge to R.K.'s accuracy and not a challenge to her character. Because Rhodes did not attack R.K.'s character for truthfulness, the trial court abused its discretion by allowing Cox to offer character evidence.
The erroneous admission of Cox's testimony is nonconstitutional error. See Schutz v. State, 63 S.W.3d 442, 444-46 (Tex.Crim.App.2001) (improperly admitted expert testimony on the complainant's truthfulness is nonconstitutional error). Nonconstitutional error must be disregarded unless it affects the appellant's substantial rights. TEX.R.APP. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if, after *11 examining the record as a whole, the court has fair assurance that the error did not influence the jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002). When a trial court errs by improperly admitting evidence, an appellate court determines the likelihood that the error adversely affected the jury's decision by considering everything in the record, including: (1) testimony or physical evidence admitted for the jury's consideration; (2) the nature of the evidence supporting the verdict; (3) the character of the alleged error and how it might be considered in connection with other evidence in the case; (4) the jury instructions; (5) the State's theory and any defensive theories; (6) closing arguments; (7) voir dire; and (8) whether the State emphasized the error. Haley v. State, 173 S.W.3d 510, 518-19 (Tex.Crim.App.2005).
Cox's testimony was brief, constituting less than three pages of the record. The majority of that testimony consisted of Cox identifying himself and explaining how he knew R.K. Of relevance to this appeal are only two questions. Cox was asked if he was familiar with R.K.'s reputation for veracity and if that reputation was good. He answered both questions affirmatively without elaboration.
There was considerable testimony supporting the jury's verdict. R.K. testified that her father began assaulting her when she was eleven. In October 2005, during youth deer season, she and her father went hunting with other family members. They arrived at the campsite first and ate lunch. He then held her down on the bed and took her clothes off. He used a rubber glove as a condom and penetrated her. She did not say anything about this to her other family members when they arrived at the campsite or to anyone else at first, but she told her boyfriend in November 2006. She then told her mother. R.K. testified that her mother confronted her father, that her father essentially admitted molesting her, and that he then left the house.
R.K.'s mother and brother confirmed that Rhodes confessed and apologized when confronted with R.K.'s allegation and that he then left the house. R.K.'s mother testified that Rhodes was scared and shaking after the confrontation and that he begged her not to call the police. Rhodes denied that he had assaulted R.K., denied asking his wife not to call the police, and denied confessing. His recollection was that his wife confronted him with R.K.'s allegation, that he was shocked and angry, and that he said to her and his son: "[I]s all you want to hear me say is, yes, I did, and because you held out on me." He called his brother and nephew as witnesses, and both testified that R.K. did not act unusually at the deer lease.
Credibility was a key issue in this case because of the absence of corroborating evidence such as physical evidence or eye-witness testimony. The State's closing argument primarily addressed R.K.'s credibility but made only minimal reference to Cox's testimony. That testimony was merely referenced as an additional reason why R.K. was believable.
Considering the record as a whole, we are left with a fair assurance that the trial court's error influenced the jury only slightly. The testimony was brief, was not a principal part of the State's case, and did not differ in any material manner from McVey's testimony. Judging the nature of the evidence supporting the verdict and the character of the error and its relationship with the remainder of the State's evidence, the trial court's error did not have a substantial and injurious effect or influence in determining the jury's verdict or affect Rhodes's substantial rights because the record does not support the *12 conclusion that Cox's testimony supplanted the jury's credibility determination. C.f., Schutz, 63 S.W.3d at 445 (the danger posed by the erroneous admission of expert testimony on a witness's credibility is that the jury could allow this to supplant its decision). Issue One is overruled.
IV. Motion for New Trial
Rhodes was sentenced on November 6, 2007. The trial court's jurisdiction to consider a motion for new trial expired on January 22, 2008. TEX.R.APP. P. 21.8(a). On December 4, Rhodes filed a motion for new trial and alleged that his trial counsel was constitutionally ineffective in a number of respects. That motion was supported by his own affidavit. Rhodes requested the trial court to hold a hearing on this motion. On January 17, the State filed a response. The State's response included an unsworn written reply from Rhodes's trial counsel to the ineffective assistance allegations. Rhodes objected to consideration of his motion without a hearing, contending that he had been given insufficient opportunity to marshal affidavits and to rebut trial counsel's unsworn statement.[1] On January 22, the State filed a supplemental response. That response included an affidavit from trial counsel, the substance of which was substantially similar to the initial unsworn written response. The trial court overruled Rhodes's objection and denied his motion for new trial.
Rhodes acknowledges that the trial court is not obligated to hold an evidentiary hearing on a motion for new trial and that it has the authority to consider that motion solely on the basis of affidavits. See TEX.R.APP. P. 21.7. But, Rhodes contends that the trial court's decision to rely solely on affidavits denied him constitutional due process because that decision was not made until shortly before the trial court lost jurisdiction and because the trial court considered an affidavit filed by the State on the last day of its jurisdiction.
The Fourteenth Amendment of the United States Constitution forbids deprivation of life, liberty, or property by the State without due process of law. U.S. CONST. amend. XIV. The Texas Constitution also requires due course of law. TEX. CONST. art. I, § 19. At a minimum, due course requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Reed v. State, 269 S.W.3d 619, 624 (Tex.App.-San Antonio 2008, no pet.).
Courts utilize the three-part balancing test first announced in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), to determine whether procedural due process has been violated. Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 930 (Tex.1995). The factors to be balanced are:
(1) the private interest that will be affected by the official action;
(2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and
(3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. Rhodes's challenge focuses on the second and third factors, contending that he was entitled to more notice that no hearing would be held and that he was entitled to additional opportunity to rebut his trial counsel's affidavit.
As to Rhodes's first contention, he was on notice that the trial court had the authority *13 to conduct an evidentiary hearing or rule strictly based upon affidavits and that the trial court's deadline for ruling was January 22. See TEX.R.APP. P. 21.7, 21.8(a). The trial court was not required to give Rhodes greater notice of its decision to not hold an evidentiary hearing. Rhodes had sufficient opportunity to marshal affidavits in support of the contentions he made in his motion for new trial, was on notice that affidavits might be the only evidence considered by the court, and knew that those affidavits were needed no later than January 22.
Nor were Rhodes's due process rights violated by his trial counsel's affidavit. In this regard, it is important to note that the affidavit was in response to Rhodes's allegations and that it was not an affirmative claim for relief. It is also noteworthy that, even though the affidavit itself was filed on January 22, Rhodes was given an unsworn version of that testimony on January 17 and that he was able to marshal several affidavits controverting his trial counsel's statements. The disputed issues raised by the opposing affidavits largely concerned the conduct of Rhodes's defense. The trial court was well-positioned to address that conflict having just presided over Rhodes's trial. Finally, the trial court's decision to proceed solely on affidavits does not foreclose Rhodes's ability to pursue his ineffective assistance of counsel claim further through post-conviction procedures. The trial court did not violate Rhodes's due process rights. Issues Two and Three are overruled.
V. Ineffective Assistance of Counsel
Rhodes contends that his trial counsel was constitutionally ineffective by not objecting to prejudicial outcry hearsay, by misrepresenting his legal background, by misrepresenting that it was illegal for him to contact any of the State's witnesses prior to trial, and by misrepresenting his pretrial investigation. To determine if trial counsel rendered ineffective assistance, we must first determine whether Rhodes has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and Rhodes must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim.App.1991). An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999).
A trial court's ruling denying a motion for new trial is typically reviewed under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim.App.2001). However, Rhodes's allegations involve mixed questions of law and fact. We must afford almost total deference to a trial court's determination of the historical facts and of mixed questions of law and fact that turn on the credibility and demeanor of witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).
Rhodes's allegations that his trial counsel was ineffective because of misrepresentations concerning his background, pretrial investigation, and the rules for contacting witnesses all involve disputed fact issues. The trial court did not abuse its discretion by finding trial counsel's affidavit testimony more credible than the affidavits filed by Rhodes.
*14 Rhodes also complains that trial counsel was constitutionally ineffective because he did not object to hearsay testimony. Rhodes does not identify the specific testimony but refers us to twenty pages of the record. His complaint has not been preserved. See TEX.R.APP. P. 38.1(i). We have, however, reviewed the record. R.K.'s ex-boyfriend and mother were asked about statements R.K. made to them. Rhodes's trial counsel elicited some hearsay testimony during his cross-examination of R.K.'s ex-boyfriend. But by doing so, counsel established that R.K.'s story became bigger with time and that the ex-boyfriend threatened to leave R.K. unless she came forward with her allegation. This was an appropriate trial strategy because it undermined both R.K.'s testimony and the ex-boyfriend's testimony. The remainder of the testimony contains nothing significant that R.K. did not testify to herself. Thus, there was no harm. Issue Four is overruled.
VI. Holding
The judgment of the trial court is affirmed.
NOTES
[1] Rhodes attached several affidavits to his objection from friends and family members corroborating his ineffective assistance allegations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575690/ | 308 S.W.3d 550 (2010)
Ex parte Geoffrey T. WOOD.
No. 09-09-00551-CR.
Court of Appeals of Texas, Beaumont.
Submitted March 17, 2010.
Decided March 31, 2010.
*551 Jarrod L. Walker, Aduddell, Walker, Owen & Finch, PLLC, Conroe, for appellant.
Brett W. Ligon, Dist. Atty., Michael C. Young, Robert Freyer, Asst. Dist. Attys., Conroe, for state.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
OPINION
DAVID GAULTNEY, Justice.
Geoffrey T. Wood appeals the denial of his pretrial habeas corpus application requesting bail reduction. Wood is charged by indictment with two counts of aggregate theft that, under the facts of this case, are first degree felonies. See TEX. PEN. CODE ANN. § 31.09 (Vernon 2003); TEX. PEN.CODE ANN. §§ 12.32, 31.03(e)(7) (Vernon Supp.2009). The trial court set bail at $375,000 on each of the two counts. Wood argues the bail is excessive. We interpret his argument to include constitutional and statutory bases. After a review of the record, existing bonds, and the factors a trial court considers in setting bail, we conclude the bail is excessive. See TEX. CODE CRIM. PROC. ANN. art. 17.15 (Vernon 2005); see also Ex parte Rubac, 611 S.W.2d 848, 849-50 (Tex.Crim.App.1981). We set bail at $50,000 on each count of aggregate theft; these two bonds are in addition to the existing bonds.
BACKGROUND
Wood was initially indicted on multiple counts of theft. The charges revolved around an alleged theft operation arising out of a car consignment business. Wood and his father stand accused of not paying owners whose cars were sold through the consignment business, and of not delivering cars to buyers after the Woods took the buyers' money. The amounts allegedly stolen total approximately $1.4 million.
The record indicates that bail was initially set at $110,000, and additional bail of $260,000 was later set, as more theft cases were added. The total of the bonds at that point was $370,000. The State then re-indicted the offenses, aggregating all the theft counts into two first degree felony cases. At the habeas proceeding, the prosecutor explained:
[Prosecutor]: Judge, you know, when I inherited this case when I came up here back in January, I realize that it would be much more expedient to file these cases as first degree felonies. I can't speak to the motives of a previous prosecutor as to why he filed, 30 or 40 separate state jail and first third degree theft cases on this defendant and on the codefendant.
[Defense Counsel]: If I remember correctly, there was at first there were maybe a half dozen or so.
[Defendant]: Three on my behalf.
[Defense Counsel]: Three on your behalf. And then it went up to 26 vehicles yeah. That's where the number 260 comes from. And then the State lumped them all together in two counts, two first degree counts.
*552 [Prosecutor]: That each, each count separately just based upon what I have charged, is in the neighborhood of $400,000. And that doesn't include numerous witnesses or victims that live overseas that were the perfect people to steal from because getting them here would be very difficult. We're over a million and a half dollars. And it's much more convenient and expedient and makes more sense to aggregate these cases because this was part of a scheme that they ran up until the middle of August of 2008.
Ruling on the State's motion to set bail on the re-indicted cases, the trial court set the amount for two new bonds at $375,000 on each aggregate theft count, for a total of $750,000 in additional bonds.
BAIL
The right to a reasonable bail is protected by the United States and Texas constitutions. Ex parte Sabur-Smith, 73 S.W.3d 436, 439 (Tex.App.-Houston [1st Dist.] 2002, no pet.). An appearance bond secures the presence of a defendant in court for trial. Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex.Crim.App.1980). The trial court should set bail sufficient to provide reasonable assurance the defendant will appear at trial, but not so high as to be oppressive. Ex parte Ivey, 594 S.W.2d 98, 99 (Tex.Crim.App.1980).
The defendant has the burden to show the bail is excessive. Ex parte Rodriguez, 595 S.W.2d at 550. An appellate court reviews a trial court's decision in setting the amount of a bond under an abuse of discretion standard. See Ex parte Rubac, 611 S.W.2d at 850. The trial court's ruling will not be disturbed if it is within the zone of reasonable disagreement. Clemons v. State, 220 S.W.3d 176, 178 (Tex.App.-Eastland 2007, no pet.) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991)).
Both the United States and Texas constitutions prohibit excessive bail. U.S. CONST. amends. VIII, XIV; TEX. CONST. art. I, §§ 11, 13. Article 17.15 of the Code of Criminal Procedure sets out a framework for the trial court's consideration in setting bail:
The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense and the community shall be considered.
TEX.CODE CRIM. PROC. ANN. art. 17.15. Other factors and circumstances that may be considered in determining the amount of bail include family and community ties, length of residency, aggravating factors involved in the offense, the defendant's work history, prior criminal record, and previous and outstanding bail. Ex parte Rubac, 611 S.W.2d at 849.
Article 17.09 of the Texas Code of Criminal Procedure provides that a bond is valid and binding upon the defendant and any sureties for the defendant's personal appearance before the court and "for any and all subsequent proceedings had relative *553 to the charge[.]" TEX.CODE CRIM. PROC. ANN. art. 17.09, § 1 (Vernon Supp. 2009). Subject to certain exceptions, when a defendant has once given bail on a criminal charge, he shall not be required to give another bond in the course of the same criminal action. TEX.CODE CRIM. PROC. ANN. art. 17.09, § 2 (Vernon Supp.2009).
Article 17.08 provides in part that a bail bond must reflect that "in no event shall the sureties be bound after such time as the defendant ... is ... dismissed from the charge[.]" TEX.CODE CRIM. PROC. ANN. art. 17.08(5) (Vernon 2005). A re-indictment may, however, be a subsequent proceeding under article 17.09 relating to the original charge. See generally Euziere v. State, 648 S.W.2d 700, 703 (Tex.Crim.App. 1983) (finding that re-indictment for possession of marihuana as an habitual offender was the same criminal action for which bond was initially posted); Garcia v. State, 292 S.W.3d 146, 149-51 (Tex.App.-San Antonio 2009, no pet.) (New indictment adding an enhancement paragraph was a subsequent proceeding related to original indictment.).
Section 3 of article 17.09 contains an exception to section 2: although the defendant generally is not required to give another bond in the course of the same criminal action, the trial court in its discretion may conclude the bond is insufficient and require the accused to give another bond. TEX.CODE CRIM. PROC. art. 17.09, § 3 (Vernon Supp.2009). The trial court granted the State's motion to set new bonds for Wood after re-indictment. We conclude that the re-indictments (aggregating the thefts) are "subsequent proceedings had relative to the [original] charge[s]," and that the trial court's authority to increase the bonds is governed by section 3 of article 17.09. See TEX.CODE CRIM. PROC. ANN. art. 17.09 §§ 1, 3. We therefore consider the existing bonds in our review of Wood's excessive-bail claim in the re-indicted cases.
FACTS
To determine whether the trial court abused its discretion, we consider the rules found in article 17.15 of the Code of Criminal Procedure, as well as the factors set out in Rubac. See TEX. CODE CRIM. PROC. ANN. art. 17.15; Ex parte Rubac, 611 S.W.2d at 849.
A. SUFFICIENT BAIL TO ASSURE APPEARANCE
The evidence shows Wood is a resident of Montgomery County; he lives with his wife and mother-in-law in The Woodlands. Previously, he lived with his parents in Conroe and worked with his brother-in-law. He no longer has a vehicle. Wood traveled extensively with the car consignment business, and much of the $1.4 million that was allegedly taken is still missing. Detective Grasshoff of the Montgomery County Auto Theft Task Force considered Wood to be a flight risk.
B. NOT TO BE USED AS AN INSTRUMENT OF OPPRESSION
The record shows the different theft amounts have been aggregated to make first degree felonies. Wood testified that he is unable to make bail on the new charges because he exhausted his resources in making bail on the original charges.
C. NATURE OF THE OFFENSE
Wood was indicted for two counts of aggregate theft. The amount allegedly defrauded, $1.4 million, made the two charges first degree felonies. The punishment range for a first degree felony is five to ninety-nine years or life and a maximum fine of $10,000. TEX. PEN.CODE ANN. § 12.32.
*554 The alleged offenses involved at least twenty-six cars and forty to fifty complainants. Alleging they relied on Wood's misrepresentations, complainants purportedly paid Wood and his father thousands of dollars to buy and sell cars. There were some vehicles whose owners, at the time of the November 2009 habeas hearing, had not been determined. Apparently, the forty to fifty complainants were from many different countries and states. Some complainants alleged they never received a car for their money although they paid money to purchase it; other complainants allegedly never received money for the cars they had sold. Detective Grasshoff explained that in reviewing the records, "I see all the money coming into the accounts, but I see a lot of hot checks." He did not know where all the money went. Grasshoff testified Wood had been driving an expensive car, was looking to purchase an expensive home, and was "living a lifestyle of basically just having fun, travel, parties."
The alleged theft crimes are serious offenses and carry a substantial penalty. The alleged crimes are non-violent offenses.
D. ABILITY TO MAKE BAIL
A person's inability to make the bail set by the trial court does not automatically render the bail excessive. See Ex parte McCullough, 993 S.W.2d 836, 838 (Tex.App.-Waco 1999, no pet.). Nonetheless, inability to make bail is a factor to be considered. Golden v. State, 288 S.W.3d 516, 519 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd). The record contains evidence that Wood's financial circumstances will not allow him to make the additional $750,000 bail set by the trial court. His mother-in-law, Evelyn Loving, testified Wood had to borrow to make the bail on the two prior indictments and could not secure $750,000 to make this bail. The prior bonds were on payment plans; they are now paid off. David Simoneaux, the bail bondsman on Wood's other bonds, testified Wood did not have the funds to put up the whole amount for the first bonds. Simoneaux believed Wood's funds are gone.
Wood testified at the November 2009 habeas hearing. He indicated he does not have the financial ability to make the $750,000 bond on the two counts. He explained he had been in jail since April 28, 2009, and during that time his financial circumstances "ha[d] gotten worse." By borrowing money, he indicated he could manage to put up $5,000 on each bond. Wood testified he has exhausted all of his available funds.
E. FUTURE SAFETY OF THE VICTIM AND THE COMMUNITY
Much of the money allegedly defrauded has not been located. The record also reveals the car consignment business in which Wood was involved is no longer in existence.
F. THE RUBAC FACTORS
As noted, a trial court may consider the defendant's work history, prior criminal record, his family and community ties, length of residency, aggravating factors in the offense, and previous and outstanding bail. Ex parte Rubac, 611 S.W.2d at 849. Evelyn Loving testified Wood and her daughter (Wood's wife) lived with her in The Woodlands. Loving indicated she has known Wood for five years, and Wood and her daughter Toby have been married for approximately a year. When Loving met Wood, he was living with his mother and father in Conroe. Loving also explained that during the time she has known Wood, he has lived in an apartment. When Wood and Toby married, they had a place of their own, but now they live with Loving because of financial difficulties. Prior to Wood's incarceration, he was working with *555 his brother-in-law tearing out sheetrock and "doing odd and end things" for a living. At that time, his brother-in-law drove Wood to and from work. Wood has no prior convictions. He previously made bail twice. He has made every court appearance. See Ex parte Rubac, 611 S.W.2d at 849; see also Ex parte Traylor, Nos. 01-98-01376-CR, 01-99-00012-CR, 1999 WL 497424, at *3, *5. (Tex.App.-Houston [1st Dist.] July 8, 1999, no pet.) (not designated for publication) (bail of $500,000 found to be excessive in theft case involving approximately $1.2 million of investors' money; bond reduced to $100,000).
ANALYSIS
In Ex parte Keller, 595 S.W.2d 531 (Tex.Crim.App.1980), the trial court set bail at $200,000 per case on three charges of theft of property alleged to be worth $1,000,000. Id. at 531. The Court of Criminal Appeals considered evidence showing appellant had substantial ties to the community and had been self-employed for many years. The Court noted there was a lack of evidence showing the circumstances of the offense and a lack of evidence showing the likelihood of appellant's failure to appear at trial as directed. Finding the bail to be excessive, the Court reduced it to $10,000 for each of the three offenses. Id. at 533. Given the existing bonds of $370,000, the imposition of new bail totaling $750,000 in this case seems inconsistent with the result in Keller. We recognize, however, that case law may be "`of relatively little value in addressing the ultimate question of the appropriate amount of bail in a particular case' because appellate decisions on bail matters are often brief and avoid extended discussions, and because the `cases are so individualized that generalization from results reached in others is difficult.'" Ex parte Beard, 92 S.W.3d 566, 571 (Tex.App.-Austin 2002, pet. refd) (quoting "41 Dix and Dawson § 16.51"). The circumstances in this case must be considered, not simply those that may have been present in Keller.
The record reveals the re-indictments arise out of the same alleged criminal conduct as the prior indictments for which bail was set at a total amount of $370,000. Although there was discussion during the April 2009 hearing about the possible dismissal of the prior cases, no dismissals had occurred at the time of the November 2009 hearing. Nevertheless, whether the prior individual theft cases have been dismissed is not the issue presented here, because, whether or not the prior individual cases have been dismissed, the bonds remain in effect in this subsequent proceeding relative to the original charges. See TEX.CODE CRIM. PROC. ANN. art. 17.09, § 1.
The trial court asked counsel for briefing on the effect of the prior bonds. The trial court told appellant's counsel she was denying his request to credit the prior bonds "at this time," but she would consider whatever else he presented after conducting research. Counsel said he would bring a "new motion" or a "new writ" if needed. Considering the arguments made to the trial court and the significance of the issue, however, we do not find that Wood waived the issue by not providing the additional briefing or filing a new motion or writ with the court.
Even if the prior bonds were not in effect, the exhaustion of resources on the prior bonds affects Wood's ability to pay. Given that the new indictments arose out of the same criminal conduct as the prior indictments and are subsequent proceedings relative to the original charges, and considering evidence that appellant has exhausted resources in making the original bonds, we conclude the imposition of bail *556 totaling $750,000 on top of the $370,000 in bonds from the prior indictments is excessive. The trial court carefully explained the reasons for setting the bail amount, and the court considered the statutory factors. Nevertheless, it appears the court did not consider the prior bonds because of the continued existence of the other cases. Under article 17.09, the existing bonds must be taken into account in this case. See TEX.CODE CRIM. PROC. ANN. art. 17.09. We sustain Wood's issue, reverse the trial court's order, and set bail at $50,000 for each of the two counts of aggregate theft, for a total of $100,000 additional bail.
REVERSED AND RENDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575751/ | 308 S.W.3d 215 (2010)
KENTUCKY BAR ASSOCIATION, Movant,
v.
Jane K. KISSLING, Respondent.
No. 2009-SC-000628-KB.
Supreme Court of Kentucky.
April 22, 2010.
OPINION AND ORDER
On October 1, 2009, the Kentucky Bar Association (KBA) moved this Court to enter an order directing Jane K. Kissling, whose KBA member number is 81087 and whose bar roster address is P.O. Box 8314, Lexington, Kentucky, 40533, to show cause why she should not be subject to reciprocal discipline after being permanently disbarred by the Supreme Court of New Jersey on September 24, 2008. The KBA also requested that if such cause be lacking, this Court enter an order in accordance with SCR 3.435(4) permanently disbarring Kissling from the practice of law in this Commonwealth. On November 25, 2009, this Court granted the KBA's request, ordered Kissling to show cause why she should not be subject to reciprocal discipline, and noted that the identical discipline would be imposed on Kissling if she failed to respond within twenty days of receipt of the show cause order. Having received no response from Kissling, this Court now grants the KBA's motion and recommended disciplinary sanction.
Kissling was admitted to practice law in this Commonwealth on March 1, 1972, and was admitted to practice law in New Jersey in 1989. In 1994, Kissling was indicted by a New Jersey grand jury for knowingly misappropriating $52,100.97 from one of her clients, Ms. Violet Sachs.[1] Following the indictment, which charged Kissling with a third-degree felony, Kissling disappeared and was a fugitive for the next four years. Kissling was ultimately apprehended in 1998 and entered into a one-year pretrial intervention program. Subsequently, in 1999, an ethics complaint was filed against Kissling based on her misappropriation of Ms. Sachs' property. After Kissling filed an answer to this complaint in 2002 requesting a stay, the Supreme Court of New Jersey stayed the ethics *216 proceedings against Kissling until July 17, 2006, when the Court granted the Office of Attorney Ethics' motion to lift the stay.
On June 25, 2008, the New Jersey Disciplinary Board entered its decision finding Kissling guilty of violating the New Jersey Rules of Professional Conduct (RPC) 1.15(a), which prohibits an attorney from knowingly misappropriating a client's trust funds, and 8.4(c), which prohibits an attorney from engaging in conduct involving fraud, dishonesty, deceit or misrepresentation. The Board unanimously recommended that Kissling be permanently disbarred from the practice of law for her misconduct. On September 24, 2008, the Supreme Court of New Jersey adopted the Board's recommendation and entered an order permanently disbarring Kissling.
If an attorney licensed to practice law in this Commonwealth receives discipline in another jurisdiction, SCR 3.435(4) requires this Court to
impose the identical discipline unless Respondent proves by substantial evidence:
(a) a lack of jurisdiction or fraud in the out-of-state disciplinary proceeding, or
(b) that misconduct established warrants substantially different discipline in this State.
As noted previously, Kissling, by not responding to the show cause order, has failed to demonstrate why this Court should not impose the identical discipline she received in New Jersey. Furthermore, SCR 3.435(5) requires this Court to recognize that a final adjudication of misconduct in another jurisdiction establishes conclusively the same misconduct for purposes of a disciplinary proceeding in Kentucky.
Here, the rules Kissling violated in New Jersey are identical to the corresponding Rules of Professional Conduct in Kentucky: RPC 1.15(a) is the equivalent of SCR 3.130-1.15(a), and RPC 8.4(c) is the equivalent of the recently amended SCR 3.130-8.4(c). Thus, because Kissling has been disciplined by the Supreme Court of New Jersey and because she has failed to show adequate cause why she should not be subject to reciprocal discipline pursuant to SCR 3.425(4), this Court grants the KBA's motion and adopts their recommended discipline of permanent disbarment. It is hereby ORDERED that:
1. Jane K. Kissling is permanently disbarred from the practice of law in the Commonwealth of Kentucky.
2. Pursuant to SCR 3.450, Jane K. Kissling is directed to pay all costs, if any, associated with these disciplinary proceedings against her and for which execution may issue from this Court upon finality of this Opinion and Order.
3. Pursuant to SCR 3.390, Jane K. Kissling shall, within ten (10) days from the entry of this opinion and order, notify all clients, in writing, of her inability to represent them; notify, in writing, all courts in which she has matters pending of her disbarment from the practice of law; and furnish copies of all letters of notice to the Executive Director of the Kentucky Bar Association. Furthermore, to the extent possible, Kissling shall immediately cancel and cease any advertising activities in which she is engaged.
All sitting. All concur.
ENTERED: April 22, 2010.
/s/ John D. Minton, Jr.
Chief Justice
NOTES
[1] Kissling has been temporarily suspended from the practice of law in New Jersey since the date of this indictment, September 19, 1994. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575741/ | 612 F. Supp. 153 (1985)
UNITED STATES of America
v.
Juan AGREDA, Defendant.
No. 78 CR 350.
United States District Court, E.D. New York.
June 19, 1985.
*154 Raymond J. Dearie, U.S. Atty., E.D.N.Y. by Patricia A. Pileggi, Asst. U.S. Atty., Brooklyn, N.Y., for the U.S.
Michael G. Dowd, Kew Gardens, N.Y. and Bronis & Portela by Stephen J. Bronis, Miami, Fla., for defendant.
MEMORANDUM AND ORDER
PLATT, District Judge.
Defendant moves pursuant to the Sixth Amendment to the United States Constitution and Rule 48(b) of the Federal Rules of Criminal Procedure to dismiss the indictment herein on the ground that his rights to a speedy trial have been violated in that the indictment in the instant case was returned on June 20, 1978, and that he was not arrested until February 10, 1985.
On its return the indictment was sealed and was not thereafter unsealed until defendant's friend and co-defendant Bernabe Oliveras was arrested and arraigned thereon on July 22, 1981.
During the entire period between the return of the indictment and the date of his arrest the defendant has been a resident and a citizen of his native country of Venezuela, where he has lived (according to the testimony of his daughter) in four or more separate houses with his wife, son and daughter. His daughter also testified that the defendant was unaware of the pending indictment against him until he was arrested on February 10, 1985.
*155 The testimony at the evidentiary hearing was further clear that during the period between indictment and arrest the defendant had undertaken a number of commercial transactions in the United States and in connection therewith had regularly traveled to the United States, making numerous trips thereto using passports and visas issued to him under his true name.
Moreover, on or about November 2, 1981, while the defendant was in Miami, Florida on one of these business trips, he was shot and wounded by one or more unidentified person or persons. During his treatment at Jackson Memorial Hospital he was interviewed by police officers about the shooting and various reports were made of the incident. Subsequent to his discharge from such hospital he traveled to and convalesced in Florence, Alabama.
In its memorandum the Government sets forth an interesting "Statement of Facts", a substantial portion (if not all) of which it presumably intends to prove at the trial and which we set forth in full herein so that the reader may be apprised of the nature of the Government's claims:
"In 1977, Eduardo Pernia Bonnett, a cooperating source, provided DEA agents with details of a large cocaine smuggling conspiracy whose membership included the defendant Agreda and which was responsible for the monthly importation into the United States of approximately 100 pounds of cocaine. Bonnett described one of the methods of importation as involving the acquisition of cocaine from laboratories in Colombia and the transportation of that cocaine to Venezuela. In Venezuela, the defendant arranged for 30-50 kilogram quantities to be placed on Venezuelan ships. This cocaine was then transported to Miami. In Miami, the defendant arranged for the offloading of the cocaine. The cocaine was then transported by car or by Amtrak's Autotrain to New York where the defendant supervised the distribution of the cocaine.
"Bonnett decided to cooperate with the Drug Enforcement Administration after the defendant Agreda and others threatened to kill Bonnett because they believed he had stolen $240,000 from them. Prior to Bonnett's coopertion, Bonnett had made reservations at the Hilton Hotel, 1335 Avenue of the Americas, New York for Agreda. Agreda brought a suitcase containing $240,000, the proceeds of cocaine distributions, to the hotel. After leaving the suitcase in that room, Agreda claimed that Bonnett had stolen the case from the hotel room.
"After the disappearance of this cash, Agreda and co-defendants Bernabe Oliveras, Jose Selimo Garcia, and Juan Manuel confronted Bonnett at his residence. Agreda threatened to kill Bonnett. Co-defendant Bernabe Oliveras interceded on behalf of Bonnett, asking that Bonnett's life be spared. Oliveras pointed out that Bonnett's father was a presidential candidate in Colombia and that he (Oliveras) was related by marriage to Bonnett. Agreda and the others were persuaded by Oliveras. After this incident, Bonnett contacted federal agents and began providing information concerning the importation of cocaine by Agreda and his co-conspirators.
"Bonnett's debriefings included his admission that on March 9, 1977, he smuggled $200,000 of currency in a false bottom suitcase out of the United States and into Colombia for Agreda and co-defendants Jose Selimo Garcia and Hector Chacon. Jose Selimo Garcia and Hector Chacon escorted Bonnett to the John F. Kennedy International Airport where he departed for Colombia. In Colombia, Agreda met Bonnett at the airport.
"During this trip to Colombia, Bonnett learned of the group's plans to import twenty kilograms of cocaine to the United States. The cocaine was to be driven from Bogota, Colombia to Caracas, Venezuela. Then, in Caracas, the defendant Agreda was to turn the twenty kilograms over to a Venezuelan ship's captain. This ship would transport the cocaine to Miami. From Miami, the cocaine would be transported to New York.
"On March 13, 1977, Bonnett returned to New York, and was contacted by Oliveras *156 who asked Bonnett to keep 35 kilograms of cocaine in Bonnett's apartment. Subsequently, at Oliveras' request, Bonnett met Oliveras at the apartment. During the course of Bonnett's meeting with Oliveras, Agreda came to the apartment, picked up a large quantity of cocaine, placed it in a suitcase and left.
"At the request of DEA agents, Bonnett consented to the recording of phone conversations with Agreda as well as with co-defendants Bernabe Oliveras, Mendoza, and Jose Selimo Garcia. In addition, Bonnett wore a Nagra recorder during meetings with Agreda and Oliveras. During these discussions, particularly those with Agreda, frequest references were made to the cash taken from Agreda's hotel room. Bonnett also discussed, with Agreda, various ways that he could help Agreda recover the lost cash. Specifically, on August 10, 1977, Agreda offered to sell `pure' cocaine to Bonnett at $32,000 per kilogram. In this same conversation, Agreda indicated to Bonnett that he did not expect Bonnett to pay him for the lost cash and that he considered the stolen funds `a campaign contribution,' an apparent reference to Bonnett's father.
"On June 21, 1978, a sealed indictment was filed, in the Eastern District of New York charging the defendant, and fourteen co-defendants, with conspiring to import substantial quantities of cocaine into the United States, in violation of Title 21, United States Code, Section 963. Arrest warrants were issued for each of these individuals.
"In July of 1978, the defendant's name was entered into `Narcotics and Dangerous Drugs Information System' (NADDIS) and Treasury Enforcement Computer System (TECS). The information entered into this system provided all federal criminal investigators with Agreda's name, the charges contained in the indictment and a brief description of these charges. Because Agreda's date of birth was unknown, federal agents were unable to enter information concerning Juan Agreda into National Crime Information Computer (NCIC) which would have given state and local law enforcement officers direct access to information concerning the indictment and arrest warrant outstanding against Agreda. At the time the indictment was returned, DEA agents knew, as a result of information provided by Bonnett, that Agreda resided in Caracas, Venezuela and that he travelled to Miami and New York using false documentation. In addition, Bonnett provided agents with a telephone number used by Agreda in Caracas in 1977. DEA agents also obtained information from the business records of the Hilton Hotel, 1335 Avenue of the Americas, New York, New York where Agreda stayed in 1977. These busines records revealed that a Juan Agreda, a Venezuelan citizen, stayed at this hotel.
"In September of 1981, after receiving information from the Hilton Hotel and Bonnett, a request was made to the DEA District Office in Caracas, Venezuela for subscriber information pertaining to the phone number provided by Bonnett. In addition, DEA District Offices in Caracas, Venezuela and Bogota, Colombia were asked to provide current intelligence on Juan Agreda. DEA agents made further requests for information concerning Agreda of the District Office in Caracas, Venezuela in April of 1982.
"Between the filing of the indictment, in 1978, and 1981, fifteen additional individuals were arrested during the course of DEA's continuing investigation into this group's importation of cocaine. Individuals arrested included Agreda's co-defendant Bernabe Oliveras. With each arrest, DEA agents attempted to ascertain, through the questioning of cooperating individuals as well as through analysis of documents seized, the whereabouts of Agreda. No new information was obtained until June of 1982, when a confidential source, advised DEA agents that Agreda was living in Caracas, Venezuela. That source further stated that Agreda was involved in the transportation of between 40 and 100 kilograms of cocaine from Brazil to Venezuela and ultimately Miami. This source also informed agents that, during a dispute concerning *157 his cocaine business, Agreda was shot in Miami, Florida. This source further stated that Agreda was recovering, in a hospital in Greece, from these wounds and that he was having one of his arms amputated. The confidential source provided DEA agents with two telephone numbers used by Agreda in Caracas. These telephone numbers were different from those previously provided by Bonnett.
"Because the confidential source did not know the date or location of the shooting incident, nor the name of the hospital where Agreda was treated, and because this new information indicated that Agreda was in Greece, DEA agents did not make inquiries of the City of Miami or Miami Beach police departments concerning Agreda's whereabouts.
"In June of 1982 the DEA case agent requested that the DEA District Office in Caracas, Venezuela provide him with subscriber information concerning the telephone numbers provided by this Confidential Source. Further requests for information were made of the Caracas District Office in August of 1982 and February of 1983.
"In June of 1984, Juan Agreda applied for a visa at the United States Embassy in Caracas. Officials at the United States Embassy learned, through NADDIS, that Agreda was a fugitive. Agreda again applied for a visa on January 19, 1985. The United States Embassy was advised to grant him a visa and to ascertain his travel plans. The embassy complied and determined that Agreda intended to enter the United States through Miami on February 10, 1985. This information was relayed to DEA.
"Agreda was subsequently arrested on February 10, 1985 at the Miami airport."
At the evidentiary hearing, Special Agent Arthur Anderson of the Drug Enforcement Agency testified that the DEA was unaware of the defendant's numerous trips to and business in the United States and of the injury he sustained in Miami and his recuperation in Alabama and that the DEA did not pursue requests for information concerning the defendant of the District Office in Caracas, Venezuela because the United States did not have an extradition treaty with Venezuela which would enable the Government to utilize more specific information as to the defendant's whereabouts in the latter country.
Special Agent Anderson further testified that informers had advised the DEA that when the defendant came to this country he used false names and documentation and that, in effect, a verification of the shooting incident in Miami would have been impossible to trace without more specific information than was given to them.
I.
Both sides agree that the Supreme Court has established a four-part balancing test to determine whether a defendant's constitutional right to a speedy trial has been violated in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), namely, (i) the length of delay, (ii) the reasons for the delay, (iii) the nature of the defendant's assertion of his right to a speedy trial, and (iv) the prejudice caused to the defendant as a result of the delay (id. at 530-33, 92 S.Ct. at 2192-93).
Moreover, both parties agree that the length of the delay in the case of Barker (in excess of seven years) is considered "presumptively prejudicial" (id. at 530, 92 S.Ct. at 2192).
Such presumption compels us to inquire into the other three factors to determine whether they overcome the same.
II.
As to the second factor, i.e., the reason for the delay, the Government has a duty under normal circumstances to make a diligent good faith effort to locate and apprehend a defendant and bring him or her to trial. The question is "whether the reason for the delay is because the Government breached that duty." United States v. Deleon, 710 F.2d 1218, 1221 (7th Cir. 1983).
*158 Before commencing this analysis we must remember that hindsight is better than contemporaneous or foresight and Monday morning quarterbacking is a favorite sport of armchair strategists and litigating lawyers.
In all fairness, we must examine this question in the light of facts known at the time action or non-action is taken.
The DEA knew that it had a sealed indictment until June 16, 1980; it further knew that defendant's co-conspirator and cousin, Hector Chacon, had been murdered in Texas in 1978; and it also knew that there were contracts out on the lives of all the defendants and that defendant Agreda had traveled to the United States under false names and documents; but it also learned some six months after the event that he had been shot and wounded in Miami, Florida, and that he had gone to Greece to recover in a hospital there. The DEA says it did not know the defendant's correct address or telephone number in Venezuela, nor did it know that he was continuing to make trips under his true name to the United States.
The defendant says now that the DEA "should have" attempted to locate the defendant in Venezuela, that it "should have" realized he was using his true name and continuing to enter the United States, and "should have" alerted the United States Embassy in Venezuela and Customs at key points in this country, and that it "should have" investigated the details of the shooting in Miami.
Viewed objectively, none of these "should haves" makes much sense. If the DEA had located the defendant in Venezuela and advised him of the indictment, they would have made sure of only one thing, namely, that he would never return to this country again. And, as Special Agent Anderson pointed out, there was no legal way that the DEA could have compelled him to return. Secondly, there was no reason for the DEA to believe that the defendant would openly (as distinguished from covertly) return to this country, his cousin and co-defendant having been murdered, contracts being out on the lives of all of the remaining defendants, and he himself having been the target of an apparent attempted murder. Finally, the DEA says it did not have sufficient facts with respect to the six months old reported attempt on defendant's life in Miami to conduct any kind of a meaningful investigation.
The best the DEA could hope for, according to the Government, was either a good informant's tip or the break it received when the defendant's name was spotted on the NADDIS check by an alert official at the U.S. Embassy in Venezuela. When this happened, a prompt arrest was thereafter made. Under the circumstances, the Government may not properly be charged with negligence or breach of duty contributing to the delay.
A not dissimilar situation existed in United States v. Deleon, 710 F.2d 1218 (7th Cir.1983), wherein the Court of Appeals concluded that "any delay in this case was caused not by the Government's negligence but by Deleon's fugitive status" at 1221, and went on to say in pertinent part:
"With respect to the contention by Deleon that the Government should have found him while he was in the custody of Texas officials or while he was out on bond, we do not agree. Deleon does not allege that the Government received information from Texas officials concerning Deleon's whereabouts. Furthermore, we do not believe that knowledge of Deleon's location by the Texas authorities should be imputed to the federal government. We also do not agree with Deleon regarding his assertion that the Government should have found and apprehended him on one of the occasions when he crossed the U.S.-Mexican border. In light of the fact that thousands of people both legally and illegally cross the border daily, we believe that such a requirement, without some type of reasonable lead, would place too great a burden on the Government."
710 F.2d at 1221.
So also in the case at bar, knowledge of the defendant's location by the *159 Miami and/or Florida authorities should not be imputed to the Federal Government nor is it reasonable to hold that the Government should have found and apprehended the defendant on one of the occasions when he entered Miami absent "some type of reasonable lead." Moreover, as in Deleon, there is no allegation in the case at bar that "the Government deliberately delayed in apprehending" the defendant herein.
III.
The third Barker factor, i.e., the nature of the defendant's assertion of his right to a speedy trial, is not relevant or applicable herein.
IV.
As to the fourth factor, in Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193, the Supreme Court offered the following guidelines:
"A fourth factor is prejudice to the defendant. Prejudice, of course, should be asserted in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired."
and thereafter elaborated on these guidelines as follows:
"The Sixth Amendment right to a speedy trial is ... not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges."
United States v. MacDonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 1502, 71 L. Ed. 2d 696 (1982).
In the case at bar there was virtually no prejudice to the defendant under the foregoing guidelines; there was no pretrial incarceration between the date of the indictment and the date of defendant's arrest; the defendant was not burdened with any anxiety and concern because he claims he did not have any knowledge of the existence of the pending indictment and no evidence was introduced at the hearing that would indicate that any defense available to the defendant might have been impaired by virtue of the lapse of time. Indeed, a substantial portion of the Government's case appears to be based upon taped conversations of the defendant and these tapes, of course, are being made available to the defendant at this time.
Based on all of the foregoing, after balancing the four factors listed in Barker v. Wingo, we believe that there has been no denial of defendant's constitutional right to a speedy trial.
Rule 48(b) Motion
Defendant also claims that because of the more than seven years delay we should dismiss the indictment under Federal Rule of Criminal Procedure 48(b). However, as stated by the United States Supreme Court in United States v. Marion, 404 U.S. 307, 319, 92 S. Ct. 455, 462, 30 L. Ed. 2d 468 (1971), Rule 48(b) "clearly is limited to post-arrest situations." See also United States v. Deleon, 710 F.2d at 1223.
For the foregoing reasons, defendant's motion to dismiss the indictment must be and the same hereby is denied.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575705/ | STATE OF LOUISIANA
v.
ANTWINE MAGEE
No. 2008 KA 1526.
Court of Appeals of Louisiana, First Circuit.
September 11, 2009.
Not Designated for Publication
WALTER P. REED, District Attorney, KATHRYN LANDRY, Attorneys for State-Appellee
FRANK SLOAN, C. GARY WAINWRIGHT, Attorneys for Defendant-Appellant Antwine Magee.
Before: WHIPPLE, HUGHES, and WELCH, JJ.
WELCH, J.
The defendant, Antwine Magee, was charged by amended grand jury indictment with one count of second degree murder (Count I), a violation of La. R.S. 14:30.1; and one count of armed robbery (Count II), a violation of La. R.S. 14:64, and pled not guilty on both counts. Following a jury trial, on Count I, he was found guilty of the responsive offense of manslaughter, a violation of La. R.S. 14:31; and on Count II, he was found guilty as charged. On Count I, he was sentenced to thirty-five years at hard labor. On Count II, he was sentenced to thirty-five years at hard labor without benefit of parole, probation, or suspension of sentence to run concurrently with the sentence imposed on Count I. He now appeals, contending that the trial court imposed unconstitutionally excessive sentences in this matter; that trial counsel's failure to move for reconsideration of the sentences constituted ineffective assistance of counsel; and that the trial court failed to properly advise him of the delays for applying for post-conviction relief. We affirm the convictions and sentences on Counts I and II.
FACTS
The victim, Phillip Partman, lived in a house trailer near his mother's house in Franklinton, Louisiana. On January 8, 2005, at approximately midnight, three men stormed the victim's trailer, wrapped a cord around his neck, ransacked the trailer, fatally shot the victim, and fled the scene. A fourth man was seen waiting nervously in a car during the offense. The victim was shot seven times, and the wounds indicated he may have been rotating or ducking as he was shot.
The victim's cousin, Derrick Magee, went to check on the victim during the incident and heard men inside the house trailer demanding money from the victim. Derrick went to get help and returned with another cousin, Dennis Magee. After Dennis kicked open the door of the victim's trailer, one of the assailants shot at him, but missed him.
Following an anonymous telephone call, the police questioned the defendant concerning his involvement in the crime. He initially denied any involvement, but later implicated himself, Teamus Magee, Nicholas Magee, and Torres "Toto" Gatlin in the crime. In a January 10, 2005 audiotape statement, the defendant indicated that he had been drinking beer, snorting cocaine, and smoking pot with Teamus, Nicholas, and Gatlin when "someone" suggested that the men needed a "lick," meaning needed to commit a robbery. The defendant drove the other men around, pointed out the victim's trailer, and advised the men that the victim sold marijuana. The defendant and his passengers agreed to rob the victim. Thereafter, the defendant borrowed a car from Derrick "Zulu" LaFrance and went with Teamus to get his gun to use in the robbery. The defendant claimed that during the robbery, Teamus forced open the victim's door and held a gun on the victim, while the defendant and Gatlin searched the victim's trailer. The defendant claimed that Nicholas initially waited in the car, but left on foot before the defendant, Teamus, and Gatlin returned. The defendant claimed that he removed one and one-half ounces of marijuana from the victim's trailer and Gatlin removed $7. The defendant claimed that Teamus shot at Dennis and shot the victim during the robbery. According to the defendant, after the robbery, he, Teamus, and Gatlin went back to Teamus's house, divided up the marijuana, and smoked "blunts."
EXCESSIVE SENTENCES; INEFFECTIVE ASSISTANCE OF COUNSEL
In assignment of error number 1, the defendant argues that the sentences imposed on Counts I and II gave him "virtually no credit" for his voluntary confession and the fact that he did not take the stand and try to lie his way out of his involvement in the crimes. He also argues that the sentences imposed should not have been longer than those offered in the plea agreement he rejected. In assignment of error number 2, he argues that trial counsel failed to preserve the right to appeal the sentences and there was no strategic reason for counsel's failure.
We will address assignment of error number 1, even in the absence of a timely motion to reconsider sentence or a contemporaneous objection, because it would be necessary to do so as part of the analysis of the ineffective assistance of counsel claim. See State v. Bickham, 98-1839, pp. 6-7 (La. App. 1st Cir. 6/25/99), 739 So.2d 887, 891-92.
The Louisiana Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence. La. C.Cr.P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Hurst, 99-2868, p. 10 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, XXXX-XXXX (La. 10/5/01), 798 So.2d 962.
Article I, Section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Hurst, 99-2868 at pp. 10-11, 797 So.2d at 83.
A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial; the defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that but for the counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel's performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 859-860 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993).
As applicable here, whoever commits the crime of manslaughter shall be imprisoned at hard labor for not more than forty years. La. R.S. 14:31(B). On Count I, the defendant was sentenced to thirty-five years at hard labor.
Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than ten years and not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B). On Count II, the defendant was sentenced to thirty-five years at hard labor without benefit of parole, probation, or suspension of sentence.
Shirley Partman, the victim's mother, testified at the sentencing hearing. She indicated the victim had been her help around the house because his other siblings lived in Houston. The victim was the third of her six children, but he was "just like [her] first." At family events, she missed the victim raiding her refrigerator and seeing what she was cooking. She also missed the victim asking her what she was cooking for dinner. She indicated the victim had made electrical and plumbing repairs at her house and, in her opinion, was a gifted artist.
Bessie Magee, the defendant's mother, also testified at the sentencing hearing. The defendant was born on November 19, 1977, and was the youngest of her three children. The defendant was so good at football when he was a junior-high school student, that he played high school football. The defendant always listened to her and was great in school. Bessie Magee stated she knew that she "never raised a murderer," and that the defendant was at home alone with her when "this happened." She pleaded with the court not to take her son away forever.
Following the defendant's convictions, the court ordered a pre-sentence investigation report (PSI). The PSI indicated that the defendant was a first-felony offender. The PSI also indicated that the defendant was facing "another violent offense charge" due to his participation with "a few jail buddies" in beating an inmate senseless. The probation and parole officer preparing the PSI indicated that the defendant's actions following his arrest for the instant offenses indicated that he was not sorry for what occurred in the victim's home and that he had not learned any lessons. The officer also noted that the defendant had pled not guilty even though he had given a complete statement of his active participation in the crimes. Additionally, the officer noted that the defendant and his friends had intentionally gone into the victim's home to rob him and had shot at neighbors who attempted to help the victim. The officer asked, "If [the defendant] did not want to be a part of a shooting[,] why did he not stop and help the victim instead of driving off with the shooter and leaving the victim to die?" The officer concluded that the defendant had "displayed a complete disregard for the laws of society and a total lack of respect for the property of others. We believe [that] subject is a serious danger to society and will learn the consequences of his choices and actions by receiving the maximum penalty allowed by the law."
The defense counsel advised the court that the defendant denied participating in the aggravated battery mentioned in the PSI, had pled not guilty to that charge, and had not been convicted of that offense.
In sentencing the defendant, the trial court noted: the defendant had been convicted of manslaughter and armed robbery after being initially charged with first degree murder and armed robbery, and after standing trial for second degree murder and armed robbery; and he had rejected a plea bargain offer for twenty-five years. The court indicated that it had considered all of the aggravating circumstances in the case, which were: that the defendant knew he was going to rob the victim; that he arranged for the car, rather than taking one of his own cars; that the defendant drove to the victim's house, parked the car, and left a man in the car, while the defendant, Teamus, and Gatlin went into the victim's trailer, intending to steal drugs and money from him; that the defendant ransacked the victim's home and found marijuana, while his accomplice found $7; that when the robbery was disturbed, the shooting started and the victim was dead on the floor; that the defendant, Teamus, and Gatlin then got into a car, sped off, and smoked the marijuana. The court found that the defendant's actions were "extremely calloused," and that he had left a man dying on the floor of his home after stealing his money and drugs. In regard to mitigating factors, the court noted: that the defendant had no juvenile or adult criminal record; that he had a family who loved him; that the crime was solved because of the defendant's mother and relatives wanting to do the right thing; and that, even though the defendant had initially denied any involvement in the crimes, he had later told the police what had happened, and without his confession, the crime probably would never have been solved.
A thorough review of the record reveals that the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentences herein. See La. C.Cr.P. art. 894.1(B)(9), (B)(21), (B)(28) & (B)(33). Further, the sentences imposed were not grossly disproportionate to the severity of the offenses and thus, were not unconstitutionally excessive. The defendant's claim that he was given "virtually no credit" for his voluntary confession and the fact that he did not lie at trial has no basis in the record; rather, the sentencing transcript indicates that, in sentencing the defendant, the trial court listened to testimony, reviewed the PSI, and carefully considered all the aggravating and mitigating circumstances in the case. Further, it is permissible for the State to encourage guilty pleas by offering substantial benefits to a defendant for a guilty plea and by threatening more severe punishment should a negotiated plea be refused. A defendant who refuses a plea bargain cannot expect to receive the benefits of that abandoned agreement after conviction. See Cousin v. Blackburn, 597 F.2d 511, 512 (5th Cir. 1979) (per curiam), cert, denied, 445 U.S. 945, 100 S.Ct. 1343, 63 L.Ed.2d 779 (1980).
In regard to the defendant's ineffective assistance of counsel claim, we note, even assuming arguendo, that the defense counsel performed deficiently in failing to timely move for reconsideration of the sentences, the defendant suffered no prejudice from the deficient performance because this court considered the defendant's excessive sentences argument in connection with the ineffective assistance of counsel claim.
These assignments of error are without merit.
NOTICE OF PRESCRIPTIVE PERIOD FOR POST-CONVICTION RELIEF
In assignment of error number 3, the defendant argues that the trial court failed to properly advise him of the prescriptive period for filing for post-conviction relief. The defendant is correct.
The trial court advised the defendant that, "under the provisions of Article 930.8 of the Louisiana Code of Criminal Procedure, I'm advising you that you have only two years to file any and all petitions for postconviction relief." Louisiana Code of Criminal Procedure article 930.8(A), in pertinent part provides, "No application for post-conviction relief, ... shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922...." (Emphasis added.)
As the issue has been raised herein, it is apparent that the defendant has notice of the correct limitation period and/or has an attorney who is in the position to provide him with such notice. Although we have done so in the past, we decline to remand for the trial court to provide such notice. Instead, out of an abundance of caution and in the interest of judicial economy, we note that La. C.Cr.P. art. 930.8(A) generally provides that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Godbolt, XXXX-XXXX, pp. 7-8 (La. App. 1st Cir 11/3/06), 950 So.2d 727, 732.
This assignment of error has merit.
CONCLUSION
For the foregoing reasons, the defendant's convictions and sentences are affirmed.
CONVICTIONS AND SENTENCES ON COUNTS I AND II AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3034470/ | FILED
NOT FOR PUBLICATION MAR 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
QUINCY WINSTON ADAMS, No. 09-55268
Plaintiff - Appellant, D.C. No. 2:07-cv-02215-AHS-SS
v.
MEMORANDUM *
SHELDON BROOKS, DDS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Quincy Winston Adams, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
IL/RESEARCH 1
09-55268
deliberate indifference to his dental needs in violation of the Eighth Amendment.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Sorrels v.
McKee, 290 F.3d 965, 969 (9th Cir. 2002), and we vacate and remand.
The record does not indicate that the district court provided Adams with any
notice under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc). Further,
the error was not harmless because it does not appear that Adams had recently
received a Rand notice in any other litigation, and the record does not disclose that
he had a complete understanding of the requirements of Federal Rule of Civil
Procedure 56. See id. at 961-62.
Each party shall bear its own costs on appeal.
VACATED and REMANDED.
IL/RESEARCH 2
09-55268 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3345490/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION TO STRIKE COUNTERCLAIM, MOTIONTO STRIKE FROM JURY LIST, MOTION TO STRIKE FROM TRIAL LIST MOTIONTO STRIKE COUNTERCLAIM, COUNTS SECOND AND FOURTH
The plaintiff, Mafcote Industries, Inc., filed a complaint against the defendant, Randall Swanson, seeking damages for the alleged theft of a car, office equipment and confidential sales information.
On November 21, 1997, the defendant filed a second amended answer, affirmative defenses and counterclaims.1 The four count counterclaim sounds in breach of contract (count one), intentional infliction of emotional distress (count two), negligent infliction, of emotional distress (count three), and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (count four).2
The plaintiff filed a motion to strike the second and fourth counts of the amended counterclaim. The plaintiff moves to strike the second count on the ground that the defendant's allegations "do not amount to conduct which is of a nature which is especially calculated to cause mental distress of a very serious kind. Such conduct does not constitute extreme and outrageous conduct as a matter of law." The plaintiff moves to strike the fourth count on the ground that "[CUTPA] does not apply to the employer-employee relationship. "
"A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." Fairfield Lease Corp. v. Romano's Auto Service,4 Conn. App. 495, 496, 495 A.2d 286 (1985). The role of the trial court is "to examine the [pleading] construed in favor of the [non-movant], to determine whether the [non-movant] has stated a legally sufficient cause of action." Napoletano v. Cigna
CT Page 820Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33,680 A.2d 127 (1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1106,137 L.Ed.2d 308 (1997).
The second count of the defendant's counterclaim sounds in intentional infliction of emotional distress. The plaintiff argues, in support of its motion to strike, that the defendant fails to allege conduct which rises to the level of "extreme and outrageous."
In order to establish a counterclaim for intentional infliction of emotional distress, the defendant must allege, in the counterclaim, the following elements: "(1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the [plaintiffs] conduct was the cause of the [defendant's] distress; and (4) that the emotional distress sustained by the [defendant] was severe. . . ." Drew v. K-Mart Corp.,37 Conn. App. 239, 251, 655 A.2d 806 (1995).
The plaintiff does not dispute that all of the requisite elements have been pleaded. The only issue that the plaintiff raises regarding the defendant's allegations is whether the conduct alleged rises to the level of "extreme and outrageous" as a matter of law.
"The issue of whether a defendant's conduct rises to the level of extreme and outrageous behavior is a question of law to be determined by the court. . . . For conduct to be considered extreme and outrageous, it must exceed all bounds usually tolerated by a decent society, and be of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." Pantaleo v. Ravski, Superior Court, judicial district of New Haven at New Haven, Docket No. 326931 (Feb. 14, 1997, Silbert, J.).
In the present case, the defendant, in his counterclaim, alleges that the plaintiff's conduct, "taken together as an entire course shows that [the plaintiff] was seeking to harass and burden [the defendant]." The defendant also claims that the plaintiff's conduct, taken in its totality, was "outrageous and beyond the pale of civilized conduct." Specifically, the defendant alleges that: "a. [The plaintiff] put several different, inconsistent choices before [the defendant]; b. [The CT Page 821 plaintiff] changed its stated posture as negotiations continued; c. [The plaintiff] reneged on particular items previously agreed to by the parties during the course of the negotiation; d. The changes in [the plaintiff's] position frequently were regressive in nature; e. In response to [the defendant's] request that he be permitted to purchase his company car, [the plaintiff's] agents stated that they would consider his offer. [The plaintiff] did not consider [the defendant's] offer in good faith; f. After agreeing to consider [the defendant's] request to purchase [the] company car, and without prior notice, [the plaintiff's] agent went to [the defendant's] home during the [n]ew [y]ear [h]oliday for the purpose of repossessing the car. Finding that [the defendant] was not at home, [the plaintiff's] agent tried to persuade [the defendant's] adolescent son to give him possession of the car, notwithstanding that there was no parent, nor any adult, present at the time; g. [The plaintiff] unreasonably delayed in paying [the defendant] monies which had been previously earned by him and which were due and owing to him, notwithstanding that [the defendant] had been terminated in November, shortly before the holiday season and that [the plaintiff] knew [the defendant] was without a regular employment or stream of income to support his family during this period; h. [The defendant] had arranged for the purchase of [the] company car at the, outset of his employment. The car had been purchased from a dealer in Wisconsin and had been utilized by [the defendant] from his home and office in Wisconsin. [The plaintiff] initially refused, by its silence, to sell [the defendant] the car even though at other times it sold company vehicles on favorable terms to those who had used them. [The plaintiff's] stated reason for refusing to sell [the defendant] the car which he used was that that particular car was needed in New Jersey. This reason was pretext. i. Within approximately four months following [the defendant's] termination, [the plaintiff] had abandoned its purported need to utilize [the] company car [held by the defendant] in or around New Jersey or anywhere else. Notwithstanding this, [the plaintiff] did not offer the car to [the defendant]; did not inform [the defendant] that it no longer desired to have the car; did not offer the car for sale, nor did it authorize [the defendant] to do so. In this way[, the plaintiff] intended to burden, and did burden, [the defendant] with a car which it did not want[,] but which [the defendant] could not use. j. By coming to [the defendant's] home unannounced and unexpected during a holiday period and by constricting [the defendant's] cash flow as set forth . . . above, [the plaintiff] embarrassed [the defendant] before his family." CT Page 822
The conduct alleged by the defendant does not "exceed all bounds usually tolerated by a decent society." Nor is the conduct alleged "of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." The facts alleged by the defendant amount to little more than a company's refusal to sell its legally owned vehicle to a former employee; an attempt to recover the vehicle; and an alleged withholding of wages. The facts, as pleaded, are legally insufficient to sustain a cause of action for intentional infliction of emotional distress. Therefore, the plaintiff's motion to strike the second count of the counterclaim is granted.
In the fourth count of the counterclaim, the defendant alleges that "[the plaintiff's] actions constitute unfair trade practices within the meaning of [General Statutes] §§ 42-110 et seq." Specifically, the defendant alleges that the plaintiff's actions listed above were "unfair and coercive." The defendant also claims that the plaintiff "was seeking to harass, intimidate and burden [the defendant] with respect to his conduct following his termination from [the plaintiff] and as to his interactions and relations with third parties unrelated to [the plaintiff]."
In Quimby v. Kimberly Clark Corp., 28 Conn. App. 660, 670,613 A.2d 838 (1992), the court upheld the trial court's granting of a motion to strike a CUTPA claim arising from the employer-employee relationship because "[t]here [was] no allegation in the complaint that the [employer] advertised, sold, leased or distributed any services or property to the [employee]."Quimby v. Kimberly Clark Corp., supra, 28 Conn. App. 670. The court further stated that "[t]he United States District Court . . . [has] held that the employer-employee relationship does not fall within the definition of trade or commerce for the purposes of an action under CUTPA. . . ." (Citations omitted; internal quotation marks omitted.) Id.
In the present case, the defendant does not allege that the plaintiff "advertised, sold, leased or distributed any services or property" to him. In fact, the only relationship alleged by the defendant is found in paragraph one of the counterclaim. Paragraph one states only that "[the defendant] was employed by [the plaintiff]." Therefore, the defendant has not alleged facts that are legally sufficient to maintain a cause of action under CUTPA. CT Page 823
The defendant argues in his memorandum in opposition to the motion to strike that "[i]t is clear from the pleadings that all of the actions complained of in the [c]ounterclaims arise after [the defendant] had been severed from employment." Therefore, the defendant argues, CUTPA applies to the present case.3 The defendant cites two cases in support of his position: LarsenChelsey Realty Co. v. Larsen, 232 Conn. 480, 656 A.2d 1009 (1995) and Fink v. Golenbock, 238 Conn. 183, 680 A.2d 1243 (1996).
The Supreme Court stated in Larsen: "The plaintiff contends, in short, that [the defendant] accepted a job with a competing real estate broker and then, acting as a competitor, took actions that harmed the plaintiff. . . . These allegations lie outside the narrow confines of the employer-employee relationship and may constitute a violation of; CUTPA . . . ." Larsen Chelsey RealtyCo. v. Larsen, supra, 232 Conn. 494. The court also stated that "[u]nlike the situation in Quimby, [supra,] this case presents a fact pattern that involves a potentially viable cause of action under CUTPA because Larsen's allegedly tortious conduct was outside the scope of his employment relationship with the plaintiff." Larsen Chelsey Realty Co. v. Larsen, supra,232 Conn. 493-94.
Larsen does not apply to the present case. Here, the allegations made by the defendant lie within "the narrow confines of the employer-employee relationship. " Further, the Larsen court did not hold, as the defendant maintains, that the door is open to the bringing of any CUTPA claim, for any reason, after the employee's employment is terminated. Rather, the CUTPA action inLarsen arose out of a business practice. Here, the CUTPA action arises out of an employer-employee relationship.
Fink is also inapplicable to the present case. In Fink, the court stated that "the defendant took certain actions designed to usurp the business and clientele of one corporation in favor of another. As such, [the defendant's] acts fit squarely within the provenance of CUTPA." Fink v. Golenbock, supra, 238 Conn. 212.
Here, as already stated, the defendant's counterclaims arise solely from the employer-employee relationship. The contract, car and wages that are at the center of the defendant's counterclaim all stem directly from the defendant's employment with the plaintiff. Recalling that "the employer-employee relationship does not fall within the definition of trade or commerce for the purposes of an action under CUTPA"; Quimby v. Kimberly Clark
CT Page 824Corp., supra, 28 Conn. App. 670; the court holds that the fourth count of the counterclaim is legally insufficient. The plaintiffs motion to strike the fourth count of the counterclaim is granted.
MOTION TO STRIKE FROM TRIAL LIST
MOTION TO STRIKE FROM JURY DOCKET
On May 30, 1996, the present case was claimed to the trial list and is assigned for trial before an attorney trial referee on January 21, 1998. On November 20, 1997 however, the defendant filed a certificate of closed pleadings and a claim to the jury list. The plaintiff has filed a motion to strike the jury claim based on two grounds: "(1) the jury claim is untimely and (2) the defendant has waived a trial by jury." The defendant has filed an opposition to the motion to strike.
General Statutes § 52-215 states: "When . . . an issue of fact is joined, the case may, within ten days after such issue of fact is joined" be claimed to the jury list. "Where the original ten day period for claiming a case to the jury has expired, a new ten day period may be created by the filing of an amended pleading, provided that the amended pleading introduces a new issue of fact into the case. . . . If a new issue of fact is introduced by the amended pleading, requiring the filing of a responsive pleading, then the new ten day period within which the parties may elect a jury trial begins to run from the time that the responsive pleading is filed and the parties are again at issue." (Citation omitted.) Javit v. Marshall's, Inc.,40 Conn. App. 261, 266, 670 A.2d 886, cert. denied, 236 Conn. 915,673 A.2d 1142 (1996).
In the present case, an amended answer, defenses and counterclaim were all filed on February 21, 1997. The counterclaim raised a plethora of new factual issues. On November 7, 1997, this court granted the plaintiff's motion to strike counts one and three of the amended counterclaim. On November 14, 1997, the plaintiff answered count two of the counterclaim. Since the ten day period begins to run from the time that the responsive pleading is filed; Javit v. Marshall's, Inc., supra,40 Conn. App. 266; the ten day period begins to run on November 14, 1997.
The defendant filed a jury claim on November 20, 1997. That date being within ten days of November 14, 1997, the jury claim CT Page 825 was timely made.
The plaintiff also argues, however, that the defendant waived his right to a trial by jury. The plaintiff points specifically to an employment agreement made between the plaintiff and the defendant which states: "In any action or proceeding relating to this Agreement, the parties mutually waive trial by jury."
The defendant argues that: (1) the jury waiver provision is limited to remedies for breach of paragraphs 8, 9 and 10 to which this action does not apply; and (2) the counterclaim "exceeds the scope of the employment agreement" and therefore the jury waiver does not apply.4
The counterclaim, as it currently stands, contains an action for breach of contract (count one) and negligent infliction of emotional distress (count three). Both counts begin with several paragraphs of allegations pertaining to the making of the subject employment agreement. Therefore, the counterclaim does not "exceed the scope of the employment agreement" as is claimed by the defendant. Rather, the counterclaim explicitly incorporates the employment agreement.
"Absent a statutory warranty or definitive contract language, the trial court's interpretation of a contract, being a determination of the parties' intent, is a question of fact . . . ." Lawson v. Whitey's Frame Shop, 241 Conn. 678, 686, ___ A.2d ___ (1997).
The subject agreement is ambiguous regarding whether the jury waiver applies to the entire agreement or only to paragraphs 8, 9 and 10. The plain language of the, sentence quoted above suggests that the parties waived all jury claims relating to the employment agreement. That sentence read in context, however, might indicate that the waiver was only intended to relate to paragraphs 8, 9 and 10 of the employment; agreement. This issue presents a question of fact for the court to resolve. The court does not currently have evidence, however, to make such a determination. Nevertheless, even if the court were now to resolve that issue, an evidentiary hearing would still be required for a different reason.
Recently, the appellate division held that "the execution of a document containing a contractual jury trial waiver provision does not automatically constitute an enforceable jury trial CT Page 826 waiver. Instead, the contractual jury trial waiver must be made knowingly, voluntarily and intelligently, and this factual determination must be made via an evidentiary hearing, where the party seeking to enforce the waiver bears the burden of proof." L R Realty v. Connecticut National Bank, 46 Conn. App. 432, 442, ___ A.2d ___, cert. granted, 243 Conn. 933, ___ A.2d ___ (1997).
"In determining the validity of the contractual jury trial waivers at this evidentiary hearing, the trial court should . . . [consider] such factors as (1) the conspicuousness of the waiver provisions, (2) whether the parties were represented by counsel, (3) whether there was a gross disparity in bargaining power between the parties, (4) the business or professional experience of the party opposing the waivers, and (5) whether the party opposing the waivers had an opportunity to negotiate contract terms." L R Realty v. Connecticut National Bank, supra,46 Conn. App. 442-43.
In the present case, the determination of whether the waiver provision was intended to apply to the entire agreement or only to paragraphs 8, 9, and 10 is a question of fact that the court will resolve at the time of an L R Realty — type evidentiary hearing.
Therefore, in light of the above discussion, the court's decision regarding the plaintiff's motion to strike the jury claim and the defendant's motion to strike from the trial list is reserved pending an evidentiary hearing.
The parties should arrange with the Stamford/Norwalk Caseflow Office for the date and time of said hearing to be heard by this judge.
So Ordered.
D'ANDREA, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1575744/ | 829 S.W.2d 558 (1992)
STATE of Missouri, Respondent,
v.
Ralph LOAZIA, Appellant.
Ralph LOAZIA, Movant-Appellant,
v.
STATE of Missouri, Respondent.
Nos. 58240, 59835.
Missouri Court of Appeals, Eastern District, Division Four.
March 17, 1992.
Motion for Rehearing and/or Transfer Denied April 20, 1992.
Application to Transfer Denied June 2, 1992.
*560 William M. Barvick, Jefferson City, for appellant.
William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied April 20, 1992.
AHRENS, Judge.
In this jury-tried case, defendant, Ralph Loazia, appeals from a conviction of sodomy in violation of § 566.060 RSMo 1986. Defendant also appeals from the denial of his motion for post-conviction relief. Defendant was sentenced to ten years' imprisonment in accordance with the jury's assessment. We affirm.
The evidence adduced at trial established the following facts. On a Saturday in May, 1989, A.B.[1] stayed overnight at the home of a friend, the victim in this case. At that time, A.B. and the victim were ages eleven and nine, respectively. The victim's mother had moved to the residence with her children approximately two years earlier, leaving the residence she and the children had shared with defendant for four years. With the consent of the victim's mother, defendant had maintained a relationship *561 with the children. It was not uncommon for defendant to visit or stay at the victim's home, and defendant went to the home on the night in question in order to be with the victim and her friend, A.B. The victim's mother left for work shortly before 10:00 p.m., and defendant remained in the house with A.B., the victim, and the victim's ten year-old brother.
After the victim's mother left, defendant suggested that he, A.B., and the victim play a game of "spin the bottle" in the victim's bedroom. Defendant made the rules: the bottle was spun, and the person to whom the open end pointed was to remove a piece of clothing. A.B. and the victim testified they removed some of their clothing; defendant removed all of his. A.B. further testified that defendant kissed the victim between her legs and touched both girls with his hands. At trial, the victim testified she does not remember whether defendant touched her during the game.
After the game ended, defendant left the room; and the girls stayed in the victim's bedroom. A.B. testified defendant told the girls he wanted to show them something; they met defendant in the bathroom. While the girls were watching, defendant masturbated and ejaculated into the sink. The girls testified defendant told them not to tell anyone what they had seen. Further, A.B. testified defendant told the girls that "This is how you get women pregnant," and that he would get in trouble if they told anyone. The victim and A.B. testified that defendant then returned to the victim's bedroom and gave them ice cream. They ate the ice cream and went to bed; defendant left the room.
A.B. testified defendant later returned to the room after the lights were out; she pretended to be asleep, but was wide awake. According to A.B., defendant awoke the victim, told her to take off her underwear, and kissed her genitals for two to three minutes. A.B. first testified defendant took off the victim's underwear, but upon cross-examination stated the victim removed her own clothing and did not resist. Upon further cross-examination, A.B. testified she had her eyes closed during part of the act and was looking up at the ceiling; she also stated that although defendant didn't threaten the victim, he told her not to tell anyone about the incident. Lastly, A.B. testified the door to the hallway was open and she could see defendant; she did not see a face, but the shape of the person entering the room was the same as that of defendant, and defendant was the only adult in the house at the time.
The victim testified she did not know if defendant returned to her room after he brought the girls ice cream, and that she did not remember defendant asking her to remove her clothes or doing anything to her while she was in bed. Over defense counsel's objection, the state elicited from the victim an account of prior sexual acts with defendant: defendant had touched the victim between the legs, and had removed her clothing and kissed her between the legs on more than three occasions.
During the summer of 1989, A.B. told a friend about the incident involving defendant. A.B. explained she had not told anyone previously because defendant had told the girls not to tell, and because they were scared. After telling her friend, A.B. told her parents.
In September, 1989, two deputy sheriffs visited defendant at his home. Defendant invited the sheriffs inside, and Officer Carl Fowler informed defendant he was under arrest and read the arrest warrant to him. Fowler read defendant his Miranda[2] rights and repeated some of them upon defendant's request; defendant indicated he understood the rights. The warrant identified the victim by her initials, and Fowler testified defendant asked whose name the initials represented. According to Fowler, defendant nodded his head when Fowler stated he thought defendant knew the victim's identity.
One to two weeks before the police interview, defendant had undergone surgery to replace an aortic valve. Fowler testified that defendant at the interview moved *562 slowly and had a large scar on his chest, but there was nothing unusual about his speech, he was not perspiring excessively, and he did not appear to be under stress. Defendant never asked Fowler to discontinue the questioning, and never asked that he be allowed to take medication or call a doctor or nurse. After the questioning, defendant said he was tired; the interview was terminated. Fowler did not at that time take defendant into custody, because he was concerned about defendant's physical condition and because he had no way of providing defendant with any medical assistance he might need.
Over defense counsel's objection based upon the trial court's overruling of defendant's pretrial motion to suppress, Fowler testified concerning certain responses defendant made during the questioning. Defendant nodded[3] his head yes when confronted about touching and kissing the victim's genitals. Further, Fowler testified that after being confronted about kissing the victim between the legs, defendant stated he thought his heart condition was "God's way of punishing him for what he had done." Lastly, Fowler testified defendant stated he had known for a long time that he needed counseling, and that because he loved the victim and felt like a father figure to her, "what he had done made it seem that much worse."
Defendant testified on his own behalf. He admitted initiating the "spin the bottle game" in the victim's bedroom and stated that by the game's end, he and the girls had removed all their clothing. However, defendant denied touching either child during the game. Further, defendant admitted masturbating in front of the girls, but denied asking them to watch him. He contended they pushed open the bathroom door and found him masturbating. Defendant testified he said nothing to the girls other than telling them to leave the bathroom. Further, defendant denied bringing the girls ice cream and returning to the victim's bedroom that night. Defendant testified the victim was "mistaken" and told a "mistruth" when she said defendant had on earlier occasions touched her between the legs and on her "private parts." He further contended the victim was lying when she said his lips had on three or more earlier occasions touched her genitals.
Finally, defendant testified concerning his physical condition at the time of the police questioning. Defendant claimed that during the interview he was wearing an "infusion pump" which pumped certain medications into his arm, making him nauseated and weak; he also stated he was ingesting painkillers and metabolism regulators, which made him tired. Lastly, defendant testified that at the time of the interview, he was not working and was confined to the house, although he was able to get up and walk around by himself. He was being seen by a visiting nurse two to three times a week. To support his testimony concerning his physical condition, defendant offered the testimony of an acquaintance, Juliana Massman. Massman testified she visited defendant at home four to five times about one or two weeks after his discharge from the hospital. During those visits, defendant had trouble breathing and had difficulty following a conversation, because he easily lost his train of thought.
Defendant at trial contended he remembers only "bits and pieces" of his conversation with Fowler. He testified he does not remember asking Fowler whose name the initials in the arrest warrant represented, and he does not remember being asked about touching or kissing the victim's genitals. The interview lasted approximately thirty to forty-five minutes, during which, according to defendant, Fowler was "compassionate and understanding."
After deliberating for thirty minutes, the jury returned a verdict finding defendant guilty of sodomy and assessed a punishment of ten years' imprisonment. The trial court overruled defendant's motion for new trial and sentenced him in accordance with the jury's assessment.
Defendant raises twelve points. In his first five points, he contends the trial court *563 erred in (1) overruling his motion for judgment of acquittal, because there was insufficient evidence of his guilt; (2) overruling his objection to the use of leading questions in the state's direct examination of the victim's friend; (3) overruling his motion to suppress his statements to Officer Fowler; and (4-5) permitting the victim to testify she had engaged in prior sexual acts with defendant. Defendant's points six through twelve concern the trial court's denial of his Rule 29.15 motion after an evidentiary hearing.
I. Direct Appeal
In his first point, defendant argues the trial court erred in overruling his motion for judgment of acquittal at the close of all the evidence, because the state failed to make a submissible case. In determining whether sufficient evidence supports the verdict, we review all substantial evidence and inferences therefrom in a light most favorable to the verdict, disregarding all contrary evidence and inferences. State v. Cody, 800 S.W.2d 750, 752 (Mo.App.1990).
Defendant first contends the testimony of A.B. required corroboration, citing State v. Bursley, 548 S.W.2d 586 (Mo.App. 1976). While it is true that corroborating evidence must be adduced when the testimony of a complaining witness in a rape or sodomy prosecution is contradictory or unconvincing,[4]id. at 588, "[a] defendant is not entitled to a judgment of acquittal because of discrepancies or conflicts in the testimony of the state's witnesses." Cody, 800 S.W.2d at 753. The jury is to resolve any inconsistencies, and the testimony of a single witness, even if inconsistent, may be considered sufficient. Id. Further, contradictions do not prevent a witness' testimony from constituting substantial evidence. State v. Rodney, 760 S.W.2d 500, 503 (Mo. App.1988).
Defendant contends these cases are distinguishable because none involves a victim who has no recollection of her victimization. We decline to distinguish the cases on that basis and find support for their rationale as applied to this case. The victim did not deny she was sodomized, as defendant contends. Rather, she testified she "doesn't remember" whether defendant sodomized her on the date in question, although she did recall at least three prior sodomitic incidents involving defendant. The jury was entitled to weigh this testimony in light of the other evidence adduced at trial, including the prior abuse, the longstanding relationship between defendant and the victim, and the testimony of A.B. that defendant woke the victim late at night in order to engage in the sodomy. It is not our function to substitute our judgment for that of the jury. Cody, 800 S.W.2d at 752. Conflict between the victim's testimony and that of other witnesses does not trigger application of the corroboration rule. State v. Daniel, 767 S.W.2d 592, 593 (Mo.App.1989); State v. Ellis, 710 S.W.2d 378, 382 (Mo.App.1986).
Further, evidence corroborating the testimony of a complaining witness is only required when the testimony is so inherently contradictory or in conflict with physical facts, surrounding circumstances, and common experience that its validity is rendered doubtful. Cody, 800 S.W.2d at 753. Even if we were to subject the testimony of state witnesses other than the prosecutrix to the rule requiring corroboration, A.B.'s testimony is not so contradictory and unconvincing as to invoke the rule.
Defendant makes two attacks on A.B.'s testimony. First, he cites her contradictory testimony concerning whether defendant or the victim removed the victim's underwear.[5] Second, defendant contends A.B.'s testimony that defendant kissed the victim's genitals cannot coincide with her *564 testimony that the lights were off and that she was looking at the ceiling or her eyes were closed part of the time defendant was engaged in the sodomy.
Any inconsistencies in A.B.'s account of the sodomy are clearly distinguishable from the drastically varying accounts given by the victims in Bursley, 548 S.W.2d 586, upon which defendant relies. Further, defendant in making his arguments fails to recognize that A.B. never testified she watched defendant the entire time he was sodomizing the victim. He also fails to note A.B.'s testimony that defendant was the only adult in the house at the time of the sodomy, that the door to the hallway was open, that she saw defendant enter the room and heard him speak to the victim, and that, although she couldn't see his face, the shape of the person entering the room was the same as that of defendant. Defendant presents only an issue of credibility, which the jury resolved against defendant.
As a second prong in his attack on the sufficiency of evidence, defendant contends his confession did not constitute evidence of the crime charged, in that it lacked corroboration, it was not an admission of sodomy, and the interrogation leading to the confession was vague and the responses nonverbal.
It is true that absent independent proof (corroboration) of the corpus delicti, defendant's confession would not have constituted sufficient evidence to sustain a conviction. State v. Hooker, 791 S.W.2d 934, 935 (Mo.App.1990). However, we find sufficient corroboration in the testimony of A.B. and the victim's testimony concerning defendant's prior sexual abuse. See State v. Graham, 641 S.W.2d 102, 105 (Mo. banc 1982) (prior acts of "lascivious familiarity" not amounting to intercourse tend to show the "relationship between the parties and the probability that the parties committed the specific act charged ..., or as corroborative evidence...."); State v. Bascue, 485 S.W.2d 35, 37 (Mo.1972).
Further, we do not find defendant's confession lacking in indicia of reliability, as defendant contends. Defendant makes much of the fact that Deputy Fowler testified from memory at trial, since the interview was not recorded and defendant did not make a written statement. While this is true, Fowler took contemporaneous notes of the interview which he used at trial to refresh his recollection of the questioning, and the case was the only sodomy he had investigated as deputy sheriff of Osage County. Although Fowler did not question defendant concerning specific dates, he did question him about specific incidents and read him the arrest warrant, which noted the victim's initials and the month and year the sodomy was alleged to have occurred. Further, defendant nodded when confronted about touching and kissing the victim's genitals; he did not remain silent as he did when asked about the "spin the bottle" game, but gave an affirmative, nonverbal response. Lastly, although defendant did not openly admit he committed the sodomy, he did state he felt his heart condition was "God's way of punishing him for what he had done"; defendant made this statement after Fowler questioned him about kissing the victim between her legs. The state made a submissible case, and defendant's first point is denied.
In his second point, defendant contends the trial court erred in overruling his objections to certain leading questions in the state's direct examination of A.B. We find no error.
It is largely within the trial court's discretion to permit leading questions and, absent abuse, its determination will not constitute reversible error. State v. Johnson, 663 S.W.2d 265, 268 (Mo.App.1983). In making the determination, much depends upon circumstances and the subject matter of the questions. State v. Branom, 689 S.W.2d 778, 780 (Mo.App.1985).
In the instant case, the trial court appears to have sustained one of defendant's objections and overruled two others, twice admonishing the prosecutor regarding the leading form of his questioning. A.B. testified concerning the details of defendant's sodomy of her friend, the victim, while the victim was lying in bed beside *565 her. Further, although A.B. was not the victim of defendant's charged conduct in this case, she testified that he had touched her during the strip "spin the bottle" game he had initiated earlier in the evening, and that she had seen him ejaculate. A.B. was twelve years old at the time of trial, and the state indicated she testified pursuant to a subpoena. In light of the surrounding circumstances and subject matter of the questioning, we find no abuse of discretion in this case. Point two is denied.
In his third point, defendant contends the trial court erred in failing to suppress his confession. In his pretrial motion, defendant contended he "was receuperating [sic] from serious heart surgery, was under medication, and due to these circumstances, did neither knowingly or voluntarily waive any right to an attorney or to remain silent and was not physically and mentally able to make any voluntary waiver on his behalf." After an evidentiary hearing, the trial court overruled defendant's motion without making findings. Defendant objected at trial to the admission of testimony concerning the confession, and he included in his motion for new trial an allegation that defendant's confession was not voluntarily or knowingly given. Thus, he has properly preserved the issue for our review. See State v. Hankins, 801 S.W.2d 781, 783 (Mo. App.1991).
In reviewing a trial court's ruling on a motion to suppress, we must affirm if the evidence is sufficient to sustain the court's finding. State v. Weems, 800 S.W.2d 54, 56 (Mo.App.1990). The evidence adduced at the suppression hearing was largely the same as that introduced at trial. On September 7, 1989, Deputy Fowler and another officer proceeded to defendant's home to interview defendant; defendant invited the officers inside. Prior to any questioning, Fowler advised defendant of his Miranda rights. After asking Fowler to repeat one of the rights, defendant indicated he understood them and was willing to discuss "what had happened." Fowler testified defendant nodded when asked whether he had touched and kissed the victim's genitals; discussed "his feeling that his heart problems was [sic] God's way of punishing him for what he had done"; explained that he felt like a "father figure" to the victim; and related the victim's name. Defendant testified he did not "really" remember Fowler's questions or his own responses.
Defendant never asked for an attorney or asked that the questioning be discontinued, and he never stated he did not wish to answer questions. Defendant was not handcuffed during the interview and was free to walk around the room. Defendant stated Fowler was "trying to be reassuring or compassionate" in telling him that "this type of thing" happened all the time and that defendant could get help for it. Further, when asked whether Fowler had threatened him during the interview, defendant stated, "I felt one time he got just loud, you know, to dramatize his question, perhaps." The questioning lasted thirty to forty-five minutes; defendant grew tired and asked the officers to leave, and they asked him no more questions. Defendant was not taken into custody that day.
Defendant had undergone heart surgery roughly two weeks prior to the interview. Defendant testified he was wearing an intravenous pump at the time of the interview which periodically pumped penicillin and a bacteria-killing medicine into his arm. He also stated his oral medications made him tired and nauseated when he ingested them. Finally, defendant testified that at the time of the interview, he was tired, weak, stressed, and overwhelmed; defendant stated he was holding his chest and coughed a few times, but made no complaints during the interview concerning his medical problems. Defendant's acquaintance, Juliana Massman, testified that defendant after his surgery was weak and in pain, had problems moving, and could not remember or sometimes did not understand what was said to him.
Lastly, Fowler testified that although defendant moved very slowly, he talked well, was coherent, and had no problems rising or walking. Further, defendant did not appear to be under any physical stress and was not perspiring; although his breath had a slight rasp, it did not seem to bother him a great deal. Fowler testified that the *566 responses defendant made were identifiable, and that defendant was aware of where he was and did not appear to have difficulty remembering "certain things."
The state bears the burden of proving the voluntariness of a confession; however, it need only be proved by a preponderance of the evidence. State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986). The test for the voluntariness of a confession is whether, under the totality of the circumstances, defendant was deprived of a free choice to admit, deny, or refuse to answer, and whether physical or psychological coercion was of such a degree that defendant's will was overborne at the time he confessed. State v. Sumowski, 794 S.W.2d 643, 646 (Mo. banc 1990); State v. Anderson, 800 S.W.2d 465, 467 (Mo.App. 1990). The Supreme Court has focused on the "crucial element of police overreaching" in determining the voluntariness of confessions under the Fifth Amendment. Colorado v. Connelly, 479 U.S. 157, 163-64, 107 S. Ct. 515, 519-20, 93 L. Ed. 2d 473, 482 (1986). Therefore, "coercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Id. at 167, 107 S.Ct. at 522, 93 L.Ed.2d at 484; State v. Bittick, 806 S.W.2d 652, 658 (Mo. banc 1991).
Nothing in the record even remotely hints at the presence of coercion, intimidation, or physical deprivation. See Bittick, 806 S.W.2d at 658; State v. Garner, 799 S.W.2d 950, 959 (Mo.App.1990). Under the totality of circumstances as outlined above, the state has proven the voluntariness of the confession by a preponderance of the evidence.
Even if voluntary, however, the question remains whether the confession was knowingly made. See Bittick, 806 S.W.2d at 658. Nothing in the record indicates defendant's condition so affected his mental capacity that he failed to appreciate the nature of his confession or know or understand what he was saying. In essence, defendant contends his weakened state and the medications he was ingesting rendered him mentally impaired or "intoxicated" at the time of the police interview. However, "intoxication at the time of making a statement or confession does not, at least where the intoxication, in the words of some cases, does not amount to mania, require that the statement be excluded because it is involuntary or not made knowingly and intelligently. Rather, the fact of intoxication goes to the weight and credibility to be accorded the statement." State v. Gullett, 606 S.W.2d 796, 807 (Mo.App. 1980). Moreover, the confession itself contains nothing irregular or unusual as, for example, inconsistencies which would support a finding defendant was mentally impaired.
Any conflicts in the evidence regarding the motion to suppress were for the court to resolve, and we recognize its superior ability to judge the witnesses' credibility. Lytle, 715 S.W.2d at 915. The trial court in considering the evidence was entitled to believe Fowler's testimony that defendant talked well, was coherent, and gave identifiable responses. We find sufficient evidence to sustain the court's ruling on defendant's motion to suppress. Point three is denied.
In his fourth and fifth points, defendant alleges the trial court erred in allowing the victim to testify she had engaged in prior sexual acts with defendant.[6] Defendant contends the introduction of the evidence is prohibited by § 491.015 RSMo 1986 (the "rape shield" statute). Further, he argues the testimony constitutes evidence of other crimes for which he was not charged, that it does not fall within any *567 exception to the rule against the admission of "other crimes" evidence, and that its prejudicial effect outweighs its probative value.
At trial, defendant failed to object on the basis of § 491.015 to the admission of the evidence; further, his motion for new trial included no allegation of error referencing the statute. When a party on appeal raises a different reason as to why evidence should be excluded than was presented at trial, nothing is preserved for appellate review. State v. Reynolds, 782 S.W.2d 793, 795 (Mo.App.1989). Defendant has not preserved his fourth point. Finding no manifest injustice or miscarriage of justice, we decline to review it for plain error. Rule 30.20. Accordingly, point four is denied.
Further, we reject the argument in defendant's fifth point that evidence of the separate sexual acts constitutes inadmissible "other crimes" evidence. Generally, evidence of criminal acts other than the ones for which a defendant is on trial are inadmissible. State v. Courter, 793 S.W.2d 386, 388 (Mo.App.1990). However, such evidence is admissible if it tends to establish motive, intent, identity, absence of mistake or accident, or a common scheme or plan. State v. Kerr, 767 S.W.2d 344, 345 (Mo. App.1989). In cases involving sexual abuse of children, we have also recognized a distinct "depraved sexual instinct" exception to the general rule. State v. Lachterman, 812 S.W.2d 759, 768 (Mo.App.1991). That exception permits the introduction of evidence that a defendant committed similar acts of sexual abuse with children of the same sex as the victim, providing the acts occurred near in time to the act charged. Id. at 768-69. Currently, the trend is toward the liberal admission of prior sex crimes evidence under one of the stated exceptions. Kerr, 767 S.W.2d 344, 345.
"Where a defendant is charged with committing a sexual crime against a child, evidence of acts of sexual misconduct committed at other times by defendant against the same victim is generally admissible." State v. Robertson, 816 S.W.2d 952, 954 (Mo.App.1991) (citations omitted). Prior sexual activity between a defendant and a child victim is relevant to show the defendant's sexual desire for the victim and tends to establish a motive for commission of the sexual act for which defendant is on trial. State v. Barnard, 820 S.W.2d 674, 678 (Mo.App.1992); Lachterman, 812 S.W.2d at 766-67. We find the challenged evidence admissible pursuant to this exception.
Defendant argues the motive exception has no application here, because although the victim recalled the prior instances of sexual contact, she testified she does not remember defendant committing the act for which he was charged. In so arguing, defendant ignores the evidence independent of the victim's testimony that tended to establish defendant's commission of the subject crime. Essentially, defendant is arguing the prejudicial effect of the "other crimes" evidence is greater in this case than in cases wherein the victim testifies to the details of the defendant's charged act. We find the probative value of the evidence outweighs its prejudicial effect. The acts were not so remote in time to be of little or no probative value in the subject prosecution.
Because we find the evidence properly admissible to establish defendant's motive and sexual desire for the victim, we need not determine the applicability of the "depraved sexual instinct" exception. See Barnard, 820 S.W.2d at 678. Defendant's fifth point is denied.
II. 29.15
In points six through twelve, defendant appeals from the motion court's denial of his Rule 29.15 motion after an evidentiary hearing. Our review of the denial is limited to a determination of whether the findings, conclusions, and judgment of the motion court are "clearly erroneous." Rule 29.15(j). The findings, conclusions, and judgment are "clearly erroneous" only if a review of the entire record leaves an appellate court with the definite and firm impression a mistake has been made. Moton v. State, 772 S.W.2d 689, 691 (Mo.App. 1989).
*568 In point six, defendant contends trial counsel was ineffective in failing to interview and call several witnesses to rebut the state's evidence that defendant was coherent and responsive at the time of his confession. In order to establish his counsel was ineffective, defendant must demonstrate that counsel's performance was unreasonable under prevailing professional norms, and that defendant was prejudiced thereby. State v. Fraction, 782 S.W.2d 764, 769-70 (Mo.App.1989). Prejudice must be affirmatively proved, and is demonstrated by proof that, "but for counsel's unprofessional errors, there was a reasonable probability that the result would have been different." Sidebottom v. State, 781 S.W.2d 791, 796 (Mo. banc 1989). A "reasonable probability" is one sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). We need not address both the performance and prejudice claims if defendant makes an insufficient showing on one, and if it is easier to dispose of a case on the ground of lack of sufficient prejudice, that course should be followed. Id. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699.
First, defendant contends his counsel was ineffective in failing to interview and call his heart surgeon, Dr. Lenard Politte, to testify concerning defendant's medical condition at the time he was interviewed by police. Defendant contends the testimony would "certainly have been sufficient to raise a reasonable doubt" regarding the reliability of defendant's confession. We find no reasonable probability the result of the trial would have been different had trial counsel presented Politte's testimony.
At the evidentiary hearing on the motion, defendant offered Politte's deposition into evidence.[7] At the deposition, Politte testified he replaced defendant's aortic valve on August 9, 1989. Defendant was discharged from the hospital on August 23, and Politte last saw defendant on September 6, 1989, the day before defendant's interview with police.
Politte testified that after bypass surgery, it is common for patients to experience a slowing of cerebral function in varying degrees. Politte stated that although defendant was always oriented to time, place, and person, his responses to questions were rather slow. Politte also testified defendant was not an "extremely bright, sharp individual" throughout his treatment and especially after the surgery. Politte qualified his comments by stating that defendant's responses to questions were appropriate, and that he did not know whether defendant was "dull" before the surgery as well as after. Further, Politte stated defendant was making adequate progress at the time he was discharged from the hospital and was functioning "reasonably normally" six weeks after surgery.
Lastly, Politte testified concerning the potential side effects of the medications defendant was ingesting during his recovery. One medication, Zantac, can cause nervous irritability and anxiousness; defendant was taking Zantac in September of 1989. Depression is a common side effect of some of defendant's other medications, and they can cause "a little slowing of body processes." Finally, one medication, Gentamycin, can cause kidney infection, dizziness, anxiety, hallucinations, and confusion. Defendant experienced some dizziness shortly after surgery; however, he was not taking Gentamycin in September of 1989.
Although Politte's testimony is somewhat corroborative of defendant's testimony *569 and the testimony of his friend concerning defendant's physical and mental state at the time of the police interview, we find no reasonable probability his testimony would have produced a different result at trial. Importantly, Politte's testimony was not in the nature of alibi evidence. At best, the testimony would serve only to impeach the credibility of Fowler, the investigating officer, concerning his observations of defendant's condition at the time of the confession. A trial counsel's decision not to call a witness defendant requested does not constitute ineffective assistance of counsel if the witness' testimony would serve only to impeach a state's witness. State v. Anderson, 785 S.W.2d 596, 601 (Mo.App.1990). In considering the totality of evidence before the jury, we find no reasonable probability Politte's testimony would have altered the outcome of the trial. See State v. Rounds, 796 S.W.2d 84, 87 (Mo.App.1990).
Next, defendant contends his counsel was ineffective in failing to call defendant's parents and visiting nurse, Marsha Crawford, to testify concerning defendant's mental and physical condition at the time of his statement to police.
Generally, an attorney's choice of witnesses and decision not to call a witness is virtually unchallengeable and will not support a finding of ineffective assistance of counsel. Anderson, 785 S.W.2d at 601. Defendant must overcome the presumption that counsel's challenged acts or omissions were sound trial strategy, Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 695, and counsel is entitled to use his best judgment in making strategic decisions. Stuckey v. State, 756 S.W.2d 587, 593 (Mo. App.1988).
At the evidentiary hearing on defendant's motion, the court received Crawford's testimony without objection. However, defendant failed to include in his motion any claim for relief with respect to trial counsel's failure to interview and call Crawford. Accordingly, he was waived any consideration of the issue and has forfeited any remedy available for this additional claim. Rule 29.15(d); Kelly v. State, 784 S.W.2d 270, 273 (Mo.App.1989); Rohwer v. State, 791 S.W.2d 741, 744 (Mo.App. 1990).
We turn to defendant's claim concerning his counsel's failure to call defendant's parents as witnesses. At the evidentiary hearing on the motion, defendant's parents testified that after his surgery, defendant lacked concentration, was slow in responding to questions, was not thinking clearly, and had a tendency to forget. Counsel explained he decided not to call defendant's mother because she spoke of "side issues" each time he contacted her, and he was afraid of what she might say at trial. Counsel described Mrs. Loaiza as an "unknown quantity" he would only call if the case was not proceeding well. Further, counsel testified he did not call defendant's father because he was aware of reports from the Division of Family Services that defendant's father had been involved in the molestation of other family members. Although counsel could not verify a conviction resulting from the conduct, he was concerned the information would have a "devastating effect" on defendant's case. Defendant has failed to overcome the presumption his counsel's decision was based upon sound trial strategy. Defendant's sixth point is denied.
In point seven, defendant contends his trial counsel was ineffective in failing to preserve for review an issue concerning the alleged bias of a venireperson the trial court failed to strike for cause. The record indicates counsel requested the court to strike the venireperson. However, counsel made no response or objection when the court indicated the venireperson "said she could try to be fair," nor did he include the issue in his motion for new trial.
Post-conviction relief for ineffective assistance of counsel is limited to errors which prejudiced the movant by denying him the right to a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Failure to object to improper jury selection methods could in a proper case constitute ineffective assistance of counsel affecting the fairness of a *570 criminal trial. Kirk v. State, 778 S.W.2d 661, 662 (Mo.App.1989). However, defendant states nothing in his point relied on or argument claiming his trial counsel's failure to object had any effect on the fairness of his trial. Rather, he contends only that counsel's inaction affected his ability to appeal the conviction, a claim not cognizable under Rule 29.15. Id. Point denied.
In his eighth point, defendant cites a number of alleged errors he contends cumulatively deprived him of a fair trial: (1) an improper definition of reasonable doubt by the prosecutor; (2) the prosecutor's characterization of prosecution witnesses as "victims" during voir dire; (3) the prosecutor's improper attempt to commit the jury to a guilty verdict during voir dire; (4) the prosecutor's attempt to link defendant with sex crimes committed by persons in the state of California; and (5) remarks by defendant's trial counsel conveying the notion that defendant admitted committing the offenses charged. Defendant concedes that "taken in isolation, each of these errors might be said to be harmless." However, he contends their cumulative effect created a "bias against the [d]efendant which could not be overcome."
Although defendant in his point relied on contends the errors resulted in a denial of his right to a fair trial, his claim becomes one of ineffective assistance of counsel in the argument portion of his brief. Further, defendant's 29.15 motion separately set forth each alleged error, and nowhere did he raise the "cumulative harmless error" theory he now propounds. Nevertheless, we have carefully reviewed the record with respect to each of the alleged errors and find no affirmative proof that, but for the alleged errors, there was a reasonable probability the result would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Sidebottom, 781 S.W.2d at 796. Point eight is denied.
In his ninth point, defendant contends his trial counsel was ineffective for failing to inquire into the prospective jurors' potential bias against Hispanics. At the evidentiary hearing, trial counsel stated he did not inquire into the potential bias because, in his experience, jurors were not willing to admit racial bias on voir dire, and such bias was difficult to determine other than through direct questioning. Counsel stated he thought the questioning would therefore not have been helpful and would have highlighted any existing prejudice. The state contends counsel was pursuing a reasoned trial strategy; defendant contends counsel's explanation was self-serving and typical of his "head in the sand" approach to the case.
We need not consider whether counsel's failure to question the prospective jurors on this issue constituted proper trial strategy, because defendant offers no evidence he suffered prejudice as a result of the failure. Unless a defendant both shows his trial counsel's performance was deficient and demonstrates the deficient performance prejudiced the defense, "it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Defendant's contention he has "reason to believe that the population from which the panel was selected was prejudiced" is nothing more than pure conjecture and does not constitute a showing of prejudice. Point denied.
Next, defendant contends his trial counsel was ineffective in failing to adequately prepare for trial. Specifically, defendant alleges counsel was deficient in failing to take statements from adverse witnesses, failing to prepare defendant for trial, and failing to inquire into A.B.'s reputation.
Again, defendant's argument consists of mere conclusory allegations with no attempt to demonstrate how counsel's alleged errors prejudiced his defense. He points to the amount of time counsel spent interviewing prosecution witnesses but fails to allege how his case was prejudiced by the allegedly limited contact. He contends counsel filed certain motions without his knowledge or consent but fails to offer any evidence that the motions were unreasonable or detrimental to his case. He *571 casually alleges that counsel's preparation of defendant for trial was "skimpy at best," but in no way demonstrates how the outcome of the trial would have been different had counsel spent more time preparing defendant.[8] Lastly, defendant contends counsel was ineffective for failing to call several witnesses to impeach A.B.'s credibility, but makes no attempt to show how he was prejudiced thereby. Further, he makes no response to the state's contention that defendant's counsel made a reasoned strategic decision, of which defendant approved, to attack A.B.'s credibility through cross-examination rather than mount a direct attack on the child witness and risk alienating the jury. Defendant has failed to meet the Strickland test for ineffective assistance of counsel, and his tenth point is denied.
In his next point, defendant contends the motion court erred in failing to enter specific findings of fact and conclusions of law with respect to each of defendant's allegations of error. Rule 29.15(i) requires the motion court to issue such findings and conclusions "on all issues presented." However, general findings are sufficient if they allow meaningful appellate review. State v. Hamilton, 791 S.W.2d 789, 800 (Mo.App.1990). The findings must be responsive to the matters alleged in the motion, but need not be itemized. Jackson v. State, 729 S.W.2d 253, 255-56 (Mo.App.1987). Rather, the findings and conclusions need only be sufficient for an appellate court to determine whether they are clearly erroneous. Liggins v. State, 786 S.W.2d 207, 209 (Mo.App. 1990).
The motion court found that defendant's claims concerning his alleged deprivation of the right to an impartial jury panel could have been raised on direct appeal and were unsupported by the facts appearing in the record. With respect to defendant's claims of ineffective assistance of counsel, the court stated it had carefully reviewed the evidence adduced at the hearing and found counsel's representation "met the standard by which competency is measured," although it was "not on the level that the Courts would like to see in every case." Further, the court found counsel's decisions were ones of "trial tactics," that the "outcome of the case would not have been any different if all the defects now complained of would have been absent," and that defendant "had a fair trial and his defense was put before the jury." We find the motion court's findings sufficient to permit meaningful appellate review, and nothing on this record convinces us the findings and conclusions are clearly erroneous. Point denied.
In his twelfth and final point, defendant challenges the constitutionality of § 566.060.3 RSMo 1986, the sodomy statute under which defendant was charged and convicted. Defendant contends the statute denies him the equal protection of the law and constitutes an unlawful delegation of legislative power by permitting a prosecutor, through an election of charges, to define a crime and determine the length of its punishment.
Although defendant raised this claim in his 29.15 motion, he failed to include it in his motion for new trial or present the issue on direct appeal. "Generally, a claim of error which could or should have been raised on direct appeal is not cognizable in a post-conviction motion proceeding." Richardson v. State, 773 S.W.2d 858, 860 (Mo.App.1989). Even constitutional claims which could have been raised on direct appeal may not be considered in a post-conviction motion except where fundamental fairness requires otherwise, and then only in rare and exceptional circumstances. Id.; Henderson v. State, 786 S.W.2d 194, 197 (Mo.App.1990). A post-conviction motion is not a substitute for a direct or second appeal. Henderson, 786 S.W.2d at 196. Here, defendant fails to allege or prove the existence of any rare and exceptional circumstances justifying his failure to raise *572 this claim on direct appeal; therefore, he is precluded from raising the issue in his motion for post-conviction relief. The motion court's conclusion that the claim could have been raised on direct appeal is not clearly erroneous. Point denied.
The judgments of the trial court and motion court are affirmed.
SMITH, P.J., and KAROHL, J., concur.
NOTES
[1] The initials used are not the true initials of the victim's friend.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[3] Nothing in the record supports defendant's contention that the nods were "slight."
[4] See State v. Ellis, 710 S.W.2d 378, 380 (Mo. App.1986), for a discussion of cases criticizing the corroboration rule.
[5] Although upon cross-examination A.B. testified the victim removed her own underwear, nowhere in her testimony does she state, as defendant alleges, that the victim "assisted in the sodomy" by doing so. To the extent this characterization implies defendant is somehow less culpable because his nine year-old victim removed her own underwear at his request, we reject it outright.
[6] The trial was held on February 1 and 2, 1990. Although the victim gave no testimony concerning the dates of the prior acts, the record indicates the victim's mother met defendant approximately six years before trial and introduced the victim to defendant "later on." Defendant lived with the victim's family four years and continued to see the children after the victim's mother moved to a separate residence approximately two years before trial. The conduct forming the basis of the subject offense occurred in May, 1989, and the three instances of prior sexual contact occurred prior to that date.
[7] The state made no objection to the offer of the deposition but now contends the motion court took no judicial notice of it. The court stated it had not yet read the deposition, so it would have to be "enlightened" as to specific pages if the deposition contained material which would bear on other evidence. Although defendant contends he noted specific pages of the deposition in his brief to the motion court, he failed to include the brief in the record on appeal. In any event, the court in its findings indicated it had reviewed all of the evidence adduced at the hearing, and we find nothing that indicates otherwise. Contrary to the state's suggestion, nothing in the court's comment at the hearing indicates it had no intention of reading the full deposition.
[8] Defendant contends the lack of preparation caused him to make an important misstatement, which his counsel failed to correct. Although defendant at the hearing first incorrectly stated he had last seen a doctor nine days prior to questioning by police, he immediately corrected his own testimony, stating, "I had just gotten out of the hospital and then [the police] were there." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2388363/ | 113 N.H. 224 (1973)
STATE OF NEW HAMPSHIRE
v.
WALTER ROYAL
STATE OF NEW HAMPSHIRE
v.
MICHELLE MORRISSETTE
No. 6323. No. 6382.
Supreme Court of New Hampshire.
May 31, 1973.
*225 Warren B. Rudman, attorney general, and Robert V. Johnson II, assistant attorney general (Mr. Johnson orally), for the State.
Anthony McManus, by brief and orally, for Walter Royal.
William H. M. Beckett for Michelle Morrissette filed no brief.
GRIMES, J.
These two cases, which were consolidated on appeal, involve the constitutionality of RSA 573:4 which prohibits the mutilation of the flag.
Defendant Royal was found guilty by the superior court of the charge of "mutilation of the United States Flag" for wearing as a patch over a hole in the sleeve of his jacket the American flag sewn upside down with another patch sewn partially over it. He moved to dismiss for failure of the complaint to state clearly the nature of the charge. Upon denial of this motion, he moved to dismiss on the grounds of unconstitutionality of the statute due to vagueness, or as a violation of the first amendment either on its face or only as applied to him. All questions of law arising out of defendant's exceptions to the denial of these motions were reserved and transferred by Keller, C.J.
Defendant Morrissette, charged with "Mutilation of National Flag", was found guilty by the Exeter District Court for casting contempt upon the flag by "affixing said flag to the seat of her trousers". The questions of law raised by *226 her contentions that her conduct is protected by the first and fourteenth amendments and that RSA 573:4 is unconstitutional were transferred by Gage, J.
RSA 573:4 states: "Mutilation, etc. No person shall publicly mutilate, trample upon, defile, deface, or cast contempt upon, either by words or acts, any of said flags, standards, colors, or ensigns, whether the same are public or private property." "[A]ny of said flags" refers to the flag of the United States or any State or "any flag or ensign evidently purporting to be either of said flags ...." RSA 573:1. Clearly, the flags used by defendants came within the language of the statute.
The flag is the symbol of those rights which, because they are fundamental to our society, are secured from the tyranny of the majority by incorporation in the constitution and entrusted to the courts for their defense. They dishonor the flag most, therefore, who seek to deny those rights to others. Among those rights is the right of free speech which carries with it the right to dissent from and disagree with the very principle which guarantees that right, including the right to express opinions about the flag which are defiant or contemptuous so long as they are not such as to provoke an immediate breach of the peace. See West Virginia St. Bd. of Educ. v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943); Gooding v. Wilson, 405 U.S. 518, 31 L. Ed. 2d 408, 92 S. Ct. 1103 (1972).
Thus in Street v. New York, 394 U.S. 576, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969), the Supreme Court struck down a conviction because it could have been based on that part of a statute which prohibited defendant's use of words contemptuous of the flag. Under this ruling, that aspect of RSA 573:4 dealing with words, unless construed as applying only to "fighting words", is of doubtful constitutionality. State v. Chaplinsky, 91 N.H. 310, 321, 18 A.2d 754, 762 (1941), aff'd sub nom. Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (1942); Gooding v. Wilson supra. We need not concern ourselves with the construction of the "by words" part of the statute at this time, however, for whatever its constitutional status may be, it would not affect the validity of the remainder of the section. Fernald v. Bassett, 107 N.H. 282, 285, 220 A.2d 739, 742 (1966); State v. Chaplinsky, 91 *227 N.H. at 312, 18 A.2d at 757 (1941). In each of our cases, the defendant is charged with the title of the statute, and therefore we must consider what prohibitions within the statute apply to defendant's proven conduct.
In each of the cases before us, the complaints allege specific acts as constituting violations of the statute. No words are alleged and there is no evidence that either defendant spoke so that neither conviction could have in any part been based on the use of words. Cf. Street v. New York supra.
In considering the statute for the purpose of this case, therefore, we shall treat it as though it read "or cast contempt upon, by acts, any of said flags ...."
If "or cast contempt ... by ... acts" (RSA 573:4) is intended to prohibit all acts showing contempt, the statute would face constitutional difficulty not only because of vagueness but also because of overbreadth in relation to the first amendment. It has been said that some statutes could be interpreted to prohibit any breach of flag etiquette, regardless of intent, or all gestures directed at the flag. See Goguen v. Smith, 471 F.2d 88 (1st Cir. 1972).
Our statute is more narrowly drawn than some flag statutes. It deals only with the flag itself or any "flag or ensign evidently purporting to be" the flag. State v. Cline, post at 245, decided this date. Also, as we construe it, our statute prohibits only acts of mutilation and defilement inflicted directly upon the flag itself and does not prohibit acts which are directed at the flag without touching it. The statute enumerates specific acts of flag desecration, namely "mutilate, trample upon, defile, deface", all of which involve physical acts upon the flag. The general term "cast contempt" follows these enumerated specific acts. We hold that the phrase "or cast contempt by ... acts" as used in RSA 573:4 is limited to physical abuse type of acts similar to those previously enumerated in the statute. 2 Sutherland, Statutory Construction § 4909 (3d rev. ed. Horack 1943); State v. Small, 99 N.H. 349, 111 A.2d 201 (1955); State v. N.H. Gas & Electric Co., 86 N.H. 16, 163 A. 724 (1932).
The words "cast contempt" are directed to the effect of the prohibited acts and not at the intention of the actor. Violations do not therefore depend upon the attitude or *228 politics of the actor, but all who do the same act are treated alike regardless of their attitude. Cf. Hodsdon v. Buckson, 310 F. Supp. 528 (D. Del. 1970). The specific acts prohibited or any similar acts upon the flag which ordinary men would know cast contempt upon it are within the orbit of the prohibition without regard to the purpose of the person committing the act. Our statute therefore avoids the difficulties found in the unconstrued Massachusetts statute which punished one who "treats contemptuously" the flag. Goguen v. Smith, 471 F.2d 88, 104 (1st Cir. 1972).
Under our statute thus construed, "one does not need to guess at what is prohibited", State v. Chaplinsky, 91 N.H. at 321, 18 A.2d at 762 (1941), nor does it leave "unfettered discretion" in the hands of the police. Pappachristou v. City of Jacksonville, 405 U.S. 156, 168, 31 L. Ed. 2d 110, 119, 92 S. Ct. 839, 846 (1972); Grayned v. City of Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972); Goguen v. Smith supra. It therefore is not vague, nor for the reasons hereinafter stated is it overbroad with respect to first amendment rights. Hoffman v. United States, 445 F.2d 226 (D.C. Cir. 1971).
Although neither of these defendants claims to have been saying or attempting to say anything by his conduct, nevertheless some forms of flag desecration and casting contempt by acts may be forms of symbolic expressions. The United States Supreme Court has not yet defined what limitations may be placed upon symbolic speech, but it seems clear that it does not enjoy the same degree of protection as does pure speech. Cox v. Louisiana, 379 U.S. 536, 555, 13 L. Ed. 2d 471, 484, 85 S. Ct. 453, 464 (1965). See also Street v. New York supra; Cowgill v. California, 396 U.S. 371, 372, 24 L. Ed. 2d 590, 90 S. Ct. 613, 614 (1970) (Harlan, J., concurring). Because conduct such as the defendants' might be used by others as an attempt to speak symbolically, we will consider defendants' attack upon the constitutionality of the statute on its face. Gooding v. Wilson supra; Goguen v. Smith supra.
When speech and nonspeech elements are contained in the same conduct, it has been held that under certain circumstances the State may regulate the nonspeech element even though there is an incidental limitation on the speech element. *229 United States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968). The O'Brien test for a proper governmental regulation is if it is within the constitutional power of government, if it furthers an important governmental interest which is unrelated to the suppression of free expression, and if the incidental restriction on first amendment freedom is no greater than necessary. We think our statute meets this test. Clearly, protection of the flag falls within the police power of the State and defendants do not seriously contend otherwise. State v. Cline supra.
The State has an interest in protecting the physical integrity of the flag (State v. Cline supra), in promoting patriotism and love of and pride in country (Halter v. Nebraska, 205 U.S. 34, 51 L. Ed. 696, 27 S. Ct. 419 (1907); State v. Hoskin, 112 N.H. 332, 295 A.2d 454 (1972) and in preventing breaches of the peace (Halter v. Nebraska supra; Chaplinsky v. New Hampshire supra; Gooding v. Wilson supra). Our statute furthers all three of these state interests. In view of what has been said in Cline and here, we need not dwell on the first two interests.
As to preventing breaches of the peace, we are dealing here with acts rather than words as in Chaplinsky and in Cohen v. California, 403 U.S. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971). Some of the acts prohibited in public are specifically defined, i.e. mutilation, trampling, defiling and defacing. The others which reasonable men would agree cast contempt upon the flag must be of a similar nature. The legislature therefore was able to forecast in advance the type of acts that would fall within the scope of the prohibition and make a determination that such acts if done in public would be likely to cause a breach of the peace. We cannot say that this determination was unreasonable. As was said in Halter v. Nebraska, 205 U.S. at 41, 51 L. Ed. at 701, 27 S. Ct. at 421 (1907): "Hence, it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot." We cannot say that it was unreasonable for the legislature to assume that this feeling about our flag is so prevalent that the commission of the prohibited acts anywhere, anytime in public would create a danger to the public peace.
*230 All three of these state interests are unrelated to the suppression of free expression. The statute as we have construed it is directed at acts upon the flag and not "at the expression of and mere belief in particular ideas". Goguen v. Smith, 471 F.2d at 102 (1973). The commission of the same act upon the flag would not be treated differently depending upon the attitude of the actor, for the prohibited acts as we have said are proscribed without regard to the attitude of the person performing them.
The statute also meets the last O'Brien test in that any incidental restriction on first amendment freedom is no greater than is essential to the furtherance of the state interests. The statute as we have said does not focus upon any particular attitude or belief. Rather, it is the act committed in public that furnishes the basis for the offense. Persons are free under this statute to express any ideas or convey any message they wish. They are prohibited only from performing the particular acts proscribed by the statute.
We hold that the complaints in each case clearly and fully inform the defendants what they are charged with and state an offense under RSA 573:4 which we hold to be constitutional.
The evidence is sufficient in each case to support the convictions. Royal wore the flag as a patch over a hole in the sleeve of his jacket. Since another patch was sewn partially over the flag, the flag was thus mutilated and defaced contrary to the prohibitions of the statute. Morrissette was wearing a flag on the seat of her trousers. This is an act similar to those specifically prohibited which ordinary men would all agree casts contempt upon the flag. State v. Kasnett, 30 Ohio App. 2d 77, 283 N.E.2d 636 (1972).
In each case, the order is
Exceptions overruled.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578932/ | 671 N.W.2d 545 (2003)
256 Mich. App. 674
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Chavez Dujuan HALL, Defendant-Appellant.
Docket No. 223182.
Court of Appeals of Michigan.
Submitted November 19, 2002, at Lansing.
Decided May 29, 2003, at 9:10 a.m.
Released for Publication July 14, 2003.
*546 Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Susan K. Mladenoff, Prosecuting Attorney, and Jennifer Kay Clark, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by P.E. Bennett) for the defendant on appeal.
Before: NEFF, P.J., and MURPHY and WILDER, JJ.
WILDER, J.
This case is before this Court on remand from our Supreme Court "for reconsideration in light of" People v. Cornell, 466 Mich. 335, 646 N.W.2d 127 (2002). 467 Mich. 888, 653 N.W.2d 406 (2002). On reconsideration, we affirm.
I. Facts and Proceedings
Defendant appealed as of right his jurytrial convictions of first-degree felony murder, M.C.L. § 750.316; arson of real property, M.C.L. § 750.73; assault with intent to rob while armed, M.C.L. § 750.89; and first-degree criminal sexual conduct (CSC), M.C.L. § 750.520b(1)(c). In his appeal, defendant asserted that his statement to the police was coerced and was not voluntary, that the trial court erred in failing to instruct the jury on the crime of second-degree murder, and that his convictions of felony murder and assault with intent to rob while armed constituted a violation of double jeopardy, U.S. Const, Am. V; Const 1963, art. 1, § 15.
We affirmed in part, determining that the trial court did not clearly err in ruling that defendant's statement was voluntary and that double jeopardy did not impede defendant's convictions of both felony murder and assault with intent to rob while armed. People v. Hall, 249 Mich.App. 262, 269, 272-273, 643 N.W.2d 253 (2002). In addition, we reversed defendant's conviction of first-degree felony murder and remanded to the trial court for entry of a conviction of second-degree murder and resentencing on that conviction. In our previous opinion, we noted that defense counsel had agreed that the jury should not be instructed on the lesser included offense of second-degree murder and, thus, appeared to waive any error by the trial court's "failure" in this regard. Id. at 270-271, 643 N.W.2d 253, citing People v. Carter, 462 Mich. 206, 215-218, 612 N.W.2d 144 (2000). We concluded that despite this apparent waiver, nevertheless, we were bound by People v. Jenkins, 395 Mich. 440, 236 N.W.2d 503 (1975), under which the trial court's failure to instruct the jury on second-degree murder required reversal of defendant's first-degree murder conviction. Hall, supra at 271-272, 643 N.W.2d 253. We also invited the Supreme Court to consider the viability of Jenkins under these facts. Id. at 271-272, 643 N.W.2d 253. Both parties sought leave to appeal, and the Supreme Court denied defendant's application and remanded the case for reconsideration in response to the prosecutor's application.
II. Analysis
In Cornell, supra at 357, 646 N.W.2d 127, the Supreme Court held that "a requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it." The Cornell Court overruled Jenkins to the extent that it conflicts with this holding. Id. at 358, 646 N.W.2d 127. Specifically, while Jenkins required the trial court to always instruct the jury on the necessarily included lesser offense of second-degree murder, even when this instruction is not requested or is objected to, the trial court is no longer automatically *547 required to provide an instruction on second-degree murder when it is unsupported by the evidence, consistent with the truthseeking function of a trial as expressed in M.C.L. § 768.29. Cornell, supra at 357-358 & n. 13, 646 N.W.2d 127. The Court also concluded that where a trial court erroneously refuses to give a requested instruction on a necessarily included lesser offense, a harmless-error analysis applies to the instructional error. Id. at 362-363, 646 N.W.2d 127.
Applying Cornell to the facts of this case, because the trial court was not automatically required to instruct the jury on second-degree murder, we find no error in the trial court's failure to do so. At the close of the prosecution's case, defendant moved for a directed verdict with regard to all counts. The trial court granted defendant's motion for a directed verdict on the open-murder count, and after doing so, acknowledged sua sponte that, on the basis of the evidence, it was possible for the prosecution to argue that defendant created a condition that had a very high probability of resulting in death or great bodily harm, i.e., the burning of the building, thus supporting an instruction to the jury on the crime of second-degree murder. However, the trial court inquired of counsel whether, when the open-murder charge had been dismissed, it was appropriate to instruct the jury on second-degree murder. The prosecution suggested that the trial court should not instruct the jury on second-degree murder, and the trial court agreed that this was the better course of action. Defendant also expressly agreed with this approach, suggesting that the prosecution should not be permitted to present both a premeditated-murder theory and a felony-murder theory to the jury.[1]
As the Supreme Court noted in Carter, supra at 214-215, 612 N.W.2d 144:
The rule that issues for appeal must be preserved in the record by notation of objection is a sound one. People v. Carines, 460 Mich. 750, 762-765, 597 N.W.2d 130 (1999). Counsel may not harbor error as an appellate parachute. People v. Pollick, 448 Mich. 376, 387, 531 N.W.2d 159 (1995), quoting People v. Hardin, 421 Mich. 296, 322-323, 365 N.W.2d 101 (1984). "Deviation from a legal rule is `error' unless the rule has been waived." United States v. Olano, 507 U.S. 725, 732-733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
* * *
Waiver has been defined as "the `intentional relinquishment or abandonment *548 of a known right.'" Carines, supra at 762 n. 7, 597 N.W.2d 130, quoting Olano, supra at 733, 113 S.Ct. 1770. It differs from forfeiture, which has been explained as "the failure to make the timely assertion of a right." Id. "One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error." United States v. Griffin, 84 F.3d 912, 924 (C.A.7, 1996), citing Olano, supra at 733-734, 113 S.Ct. 1770.
Here, it is clear that defendant waived any right he might have had to have the jury instructed on second-degree murder. Because defendant waived this right, there is no error to review. Carter, supra at 219, 612 N.W.2d 144; People v. Riley, 465 Mich. 442, 449, 636 N.W.2d 514 (2001); People v. Tate, 244 Mich.App. 553, 559, 624 N.W.2d 524 (2001).
Affirmed.
NOTES
[1] Although defendant asserts on appeal that defense counsel did not object to the trial court's failure to instruct on second-degree murder, we conclude from the record that defense counsel affirmatively agreed with this decision. Because this is a critical distinction that is important to our analysis, we quote the relevant discussion from the transcript of the proceedings:
The Court:... Now I don't knowand this frankly I've never been confronted with beforeif there is clearly insufficient evidence to instruct on first degree murder. When the charge is open murder can I and should I instruct on second degree murder only for Count 1?
Mr. Wallace [the assistant prosecutor]: I guess, your Honor, from the People's perspective, I would say yes you can. But we would be willing to say that you should not at all.
The Court: I think that's the better course of action, Mr. Wallace, I really do. What's your thought, Mr. Eagan, to the contrary?
Mr. Eagan [defense counsel]: No, your Honor. I agree that it'sI think the elements are the same and that at some point there has to be a selection or an election by the [p]rosecution under which theory they're gonna [sic] go to the jury.
It is apparent from the transcript of the proceedings that defense counsel, perhaps as a matter of strategy, agreed that the trial court should not instruct the jury on the crime of second-degree murder. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1032968/ | facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166
(2005).
First, appellant argues that her trial counsel was ineffective
for failing to investigate and present testimony from a linguist who had
reviewed her statement to police. Appellant argues that her statements
where she appeared to admit guilt were actually questions or
hypotheticals made in response to the police's inquiries. An expert in
linguistics testified at the evidentiary hearing that appellant's intonation
rose at the end of her statements, indicating a question and not a factual
statement. For example, appellant asserts that her statement, which
appeared to be "I hit him with a knife," was actually a question to the
officers, "I hit him with a knife?"
Appellant fails to demonstrate that her counsel's performance
was deficient or that she was prejudiced. Testimony presented at the
evidentiary hearing demonstrated that use of a linguistics expert in a
criminal trial was relatively novel at the time counsel prepared for trial of
this matter. Considering the relatively novel use of a linguistics expert in
preparation for a criminal trial, appellant fails to demonstrate it was
unreasonable for counsel to have not investigated and obtained a
linguistics expert to testify in this case. See Strickland, 466 U.S. at 689
("A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate that
conduct from counsel's perspective at the time.") The district court further
concluded, after listening to the expert's testimony and the recording of
appellant's interviews with the police, that the testimony of appellant's
expert was insufficient to demonstrate a reasonable probability of a
different outcome at trial had counsel obtained an expert in linguistics.
SUPREME COURT Substantial evidence supports the district court's finding that appellant
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failed to demonstrate prejudice. Therefore, appellant fails to demonstrate
the district court erred in denying this claim.
Second, appellant argues that her trial counsel was ineffective
for failing to provide the defense crime scene analyst with all of the
evidence available and failing to ask the analyst proper questions at trial.
Appellant fails to demonstrate that her trial counsel's performance was
deficient or that she was prejudiced. Counsel testified that he provided
the analyst with all of the evidence in his possession, but that a State's
witness caused a delay in sending one report to the analyst. The analyst
testified at the evidentiary hearing that he believed the victim pulled the
knife out of his own chest after he was stabbed; but even after further
review of all of the available evidence, the analyst testified that he could
not state how the knife got into the victim's chest. Given the analyst's
testimony that he could not opine that appellant did not cause the victim's
death, appellant fails to demonstrate a reasonable probability of a
different outcome at trial had counsel supplied the analyst with additional
evidence or asked different questions during the trial. Therefore, the
district court did not err in denying this claim.
Third, appellant argues that her trial counsel was ineffective
for failing to investigate and present evidence through a forensic
psychologist regarding battered woman's syndrome and the mental issues
appellant suffered as a result of domestic violence. Appellant fails to
demonstrate that her trial counsel's performance was deficient or that she
was prejudiced. Counsel testified that, while he could not recall if he
sought expert testimony on battered woman's syndrome, he did
investigate whether appellant had been abused by the victim; he could not
find credible evidence of such abuse. Based on that testimony, counsel's
performance was not deficient. Further, the district court concluded that
SUPREME COURT the expert testimony presented at the evidentiary hearing did not
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establish that any mental issues appellant suffered from occurred solely
by domestic violence at the hands of the victim and not due to traumas
suffered since her incarceration. Appellant fails to demonstrate a
reasonable probability of a different outcome had counsel sought to
present expert testimony on battered woman's syndrome and its effect on
appellant. Therefore, the district court did not err in denying this claim.
Fourth, appellant argues that her trial counsel was ineffective
for failing to seek an instruction on the spoliation of evidence that the
police failed to collect. Appellant fails to demonstrate that her trial
counsel's performance was deficient or that she was prejudiced as
appellant fails to demonstrate that any of the evidence she asserts the
State should have collected was material—that there is a reasonable
probability that the outcome of trial would have been different had the
defense had access to the uncollected evidence. See Daniels v. State, 114
Nev. 261, 267, 956 P.2d 111, 115 (1998). Therefore, the district court did
not err in denying this claim.
Fifth, appellant argues that trial counsel was ineffective for
requesting an instruction on self-defense. Appellant fails to demonstrate
that her trial counsel's performance was deficient or that she was
prejudiced. Counsel testified at the evidentiary hearing that he wanted to
give the jury multiple chances to return a verdict in appellant's favor and
that was why he requested a self-defense instruction. Tactical decisions
such as this one "are virtually unchallengeable absent extraordinary
circumstances," Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989),
which appellant did not demonstrate. Appellant also fails to demonstrate
a reasonable probability of a different outcome at trial had counsel not
requested a self-defense instruction. Therefore, the district court did not
err in denying this claim.
SUPREME COURT
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Sixth, appellant argues that trial counsel was ineffective for
failing to properly present evidence and testimony from an audio expert,
which would have demonstrated appellant invoked her right to counsel
prior to confessing. Appellant fails to demonstrate that her trial counsel
was deficient or that she was prejudiced. The district court concluded,
even after listening to the recording enhanced by the audio expert, that
appellant failed to demonstrate that she requested a lawyer prior to
confessing. Appellant fails to demonstrate a reasonable probability of a
different outcome had counsel presented further expert testimony
incorporating the enhanced recording. Therefore, the district court did not
err in denying this claim."
Seventh, appellant argues that trial counsel was ineffective for
failing to investigate and present testimony from R. Goldie. Appellant
fails to demonstrate that her trial counsel's performance was deficient or
that she was prejudiced. Appellant's investigator testified that he
investigated Goldie prior to trial and gave the information regarding
Goldie to counsel. Further, Goldie's testimony at the evidentiary hearing
was similar to that of witnesses who testified at trial. Appellant fails to
demonstrate a reasonable probability of a different outcome at trial had
further investigation of Goldie been performed or had Goldie's testimony
'Appellant also appears to argue that trial counsel should have
hired an independent transcriber to transcribe the recordings of
appellant's interviews with the police. Appellant fails to demonstrate that
counsel's performance was deficient or that she was prejudiced. Counsel
testified that he did not want to use a transcript at the trial, as he wanted
the jury to listen to the tape for themselves and appellant fails to
demonstrate this was an unreasonable decision. See Ford, 105 Nev. at
853, 784 P.2d at 953. As the jury was not given a transcript to use at trial,
appellant fails to demonstrate a reasonable probability of a different
outcome at trial had counsel sought an independent transcriber.
SUPREME COURT
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been presented at trial. Therefore, the district court did not err in denying
this claim.
Eighth, appellant argues that trial counsel was ineffective for
failing to file a motion to suppress evidence because the search warrant
was not served properly on appellant. Appellant fails to demonstrate that
her trial counsel's performance was deficient or that she was prejudiced.
The officer testified that he left the search warrant for appellant with the
jail after appellant's arrest and appellant fails to demonstrate that this
service was insufficient. Appellant fails to demonstrate a reasonable
probability of a different outcome had counsel argued the search warrant
was not properly served on appellant. Therefore, the district court did not
err in denying this claim.
Ninth, appellant argues that trial counsel was ineffective for
failing to move to suppress evidence allegedly obtained in violation of
Franks v. Delaware, 438 U.S. 154 (1978), as appellant asserts the officer
falsely claimed in his affidavit in support of the search warrant that
appellant was uncooperative and had confessed, and that the officer
improperly stated a particular witness had knowledge of the facts prior to
the stabbing. Appellant fails to demonstrate that her trial counsel's
performance was deficient or that she was prejudiced. Counsel testified at
the evidentiary hearing that he considered raising an argument about the
affidavit under the Franks case, but decided against it as he wanted to
challenge the officer's statement at trial and wanted the officer to be
surprised by the challenge. Tactical decisions such as this one "are
virtually unchallengeable absent extraordinary circumstances," Ford, 105
Nev. at 853, 784 P.2d at 953, which appellant did not demonstrate.
Appellant fails to demonstrate that any of the statements were false or
that the officer made knowing and intentional false statements, and
SUPREME COURT therefore, fails to demonstrate a reasonable probability of a different
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- .
outcome had counsel sought to suppress the search warrant. Franks, 438
U.S. at 155-56. Therefore, the district court did not err in denying this
claim.
Tenth, appellant argues that trial counsel was ineffective for
failing to make a proper record regarding invocation of appellant's right to
remain silent, which caused appellate counsel to litigate this issue on
appeal with an incomplete record. Appellant fails to demonstrate that her
trial counsel's performance was deficient or that she was prejudiced. The
underlying claim was considered on direct appeal and this court concluded
that the police did not violate appellant's right to remain silent. Dewey v.
State, 123 Nev. 483, 489-91, 169 P.3d 1149, 1153-54 (2007). Appellant
fails to demonstrate that the additional issues she highlights, such as
appellant's concern for her children, appellant's intoxication level, and the
waiver-of-rights form, were not available to be considered on direct appeal
as they were discussed during the trial and the discussion was included in
the trial transcript. Appellant also fails to demonstrate a reasonable
probability of a different outcome had counsel made an additional record
regarding this issue as appellant fails to demonstrate the police violated
her right to remain silent. Therefore, the district court did not err in
denying this claim.
Eleventh, appellant argues that trial counsel was ineffective
for failing to seek suppression of appellant's statements as appellant was
detained longer than 60 minutes in violation of NRS 171.123. Appellant
fails to demonstrate that her trial counsel's performance was deficient or
that she was prejudiced. A suspect has been detained 'only if, in view of
all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave. . . . [T]he subjective
intent of the officers is relevant to an assessment of the Fourth
SUPREME COURT Amendment implications of police conduct only to the extent that that
OF
NEVADA
7
(0) 1947A
12121 1421r4SEr2nA,:t
intent has been conveyed to the person confronted.' State v. McKellips,
118 Nev. 465, 469-70, 49 P.3d 655 659 (2002) (quoting Michigan v.
Chesternut, 486 U.S. 567, 573, 575 n.7 (1988)). In the context of a
voluntariness inquiry, the trial court determined that appellant was not in
custody until she was placed under arrest after her initial interview.
Here, appellant points to no evidence, other than a few police officers'
testimony that they would not have allowed appellant to leave the crime
scene on her own, to demonstrate that reasonable trial counsel would have
raised additional arguments that appellant was improperly detained pre-
arrest.
In addition, even assuming that appellant was actually
detained longer than 60 minutes prior to her arrest, ripening the
detainment into an arrest, appellant fails to demonstrate that the police
did not have probable cause to arrest her, given the evidence that
appellant was the only person with her fatally stabbed husband and that
appellant had been in a struggle with the victim. Id. at 472, 49 P.3d at
660 ("Probable cause to arrest 'exists when police have reasonably
trustworthy information of facts and circumstances that are sufficient in
themselves to warrant a person of reasonable caution to believe that [a
crime] has been . . . committed by the person to be arrested." (alteration
and omission in original) (quoting Doleman v. State, 107 Nev. 409, 413,
812 P.2d 1287, 1289 (1991))). Accordingly, appellant fails to demonstrate
a reasonable likelihood of a different outcome had counsel raised this
claim. Therefore, the district court did not err in denying this claim.
Twelfth, appellant argues that errors committed by trial
counsel cumulatively amount to ineffective assistance of counsel.
Appellant fails to demonstrate deficiency or prejudice for any of the
previous claims, and therefore, fails to demonstrate errors of counsel
SUPREME COURT
OF
NEVADA.
.8
(0) 1947A
SERUIMMEEME REIMMIEWZi4EICZZ
amount cumulatively to ineffective assistance of counsel. Therefore, the
district court did not err in denying this claim.
Having concluded that appellant is not entitled to relief, we
ORDER the judgment of the district court AFFIRMED. 2
J.
Hardesty
Pareaguirre U° Cherry
cc: Chief Judge, Fourth Judicial District Court
Hon. Charles M. McGee, Senior Judge
Richard F. Cornell
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk
2Appellant filed a motion requesting oral argument. We conclude
that oral argument is unnecessary for our disposition of this appeal and
deny appellant's motion. See NRAP 34(0(3).
SUPREME COURT
OF
NEVADA
9
(0) I947A • PD | 01-03-2023 | 07-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918551/ | 101 B.R. 332 (1989)
In re ARROW AIR, INC., Debtor.
UNITED STATES of America, Appellant,
v.
ARROW AIR, INC., Appellee.
No. 88-1538-CIV, Bankruptcy No. 88-00340-BKC-AJC.
United States District Court, S.D. Florida.
February 8, 1989.
U.S. Attys. Office, Miami, Theresa E. Mitchell, Sp. Asst., Tax Div., Washington, Paul E. Pelletier, Trial Atty., for U.S.
David M. Levine, Tew Jordan & Schulte, Miami, Fla., for Creditors Committee.
David C. Profilet, Weil, Gotshal & Manges, Miami, Fla., for Arrow Air, Inc.
MEMORANDUM OPINION
SCOTT, District Judge.
The sole issue on appeal is whether the Government is entitled to post-confirmation interest on its priority tax claim, pursuant to Section 1129(a)(9)(C) of the Bankruptcy Code. The bankruptcy court determined that the deferred payment by the debtor of the priority tax claim of the Government after the effective date of the plan was not a "deferred cash payment" within the meaning of § 1129(a)(9)(C) and therefore *333 the United States was not entitled to post-confirmation interest. We reverse.
BACKGROUND
This is an appeal from a Memorandum Decision of the United States Bankruptcy Court for the Southern District of Florida. 89 B.R. 961. The United States is the Appellant-creditor. Arrow Air, Inc. is the Appellee-debtor. This Court has jurisdiction pursuant to 28 U.S.C. § 158. The bankruptcy court's decision outlined the pertinent history of this proceeding:
On February 11, 1986, Arrow Air filed its voluntary petition for relief under chapter 11, title 11, United States Code. On June 18, 1986, the United States of America, Department of Treasury, Internal Revenue Service ("United States" or "IRS") timely filed a proof of claim in Arrow Air's bankruptcy in the aggregate amount of $125,669.00 for certain pre-petition, federal excise and withholding taxes and interest and penalties thereon, asserting priority under 11 U.S.C. § 507(a)(6) for part of the amount claimed.
By order dated April 29, 1987, the Court confirmed Arrow Air's Amended Plan of Reorganization (the "Plan"). The Plan provides with respect to the claim of the IRS, inter alia, that it is not impaired and the allowed amount of the IRS's claim will be paid in cash, in full on the Effective Date of the Plan or as soon thereafter as is feasible. The Plan further provides that Arrow Air would have sixty days from the Effective Date to interpose objections to the allowance of claims of the type filed by the IRS, unless such time was extended by order of this Court. The Court extended to September 30, 1987 the time for Arrow Air to file objections and on September 30, 1987, Arrow Air filed and served an objection to the claim of the IRS. On December 3, 1987, the Court heard Arrow Air's objection to the claim of the IRS and by order dated December 8, 1987 denied the objection without prejudice for failure by Arrow Air to effect proper service on the United States under Bankruptcy Rule 7004.
Thereafter, on February 17, 1988, the IRS amended its proof of claim by filing an amended proof of claim for pre-petition, federal excise and withholding taxes and interest and penalties thereon in the aggregate amount of $92,106.70, asserting secured status under 11 U.S.C. § 506(a) to the extent that the IRS was holding a refund due Arrow Air in the amount of $30,046.97 for the quarter ending December 31, 1986, and priority status under 11 U.S.C. § 507(a)(7) for the balance. The amended proof of claim stated: "For the purposes of section 506(b) of the Bankruptcy Code, post petition interest may be payable." No party in interest has objected to the IRS's amended proof of claim, and therefore the claim is deemed allowed pursuant to 11 U.S.C. § 502(a).
Pursuant to its Plan, Arrow Air sought ex parte an order authorizing it to disburse from the Creditors' Fund established under the Plan payment of the unsecured priority portion of the IRS's claim, $62,059.77. By order dated March 16, 1988, the Court granted Arrow Air's motion, stating: "Arrow Air, Inc. is authorized to disburse from the Creditors' Fund in payment and satisfaction of the Class III Priority Claim of the IRS, claim number 5469, the amount of $62,059.77."
On March 30, 1988, the United States served its Motion to Alter and Amend the Court's March 16, 1988 order authorizing Arrow Air to pay the claim of the IRS, alleging that the payment of the amount permitted would not fully satisfy the claim because the amount did not include "interest due on both the secured and unsecured portions of said claim pursuant to Bankruptcy Code Sections 506(b) and 1129(a)(9)(C), respectively." For the reasons set forth below, I conclude that the IRS is not entitled to post-petition interest on its tax claims and deny the motion of the United States to alter and amend.
*334 From this order, the United States appeals.[1]
LEGAL DISCUSSION
The Government argues on appeal ". . . that when a Chapter 11 debtor provides in a plan of reorganization for payment of a priority tax claim subsequent to the effective date of the plan, said payment, as a matter of law, is a deferred cash payment within the meaning of Section 1129(a)(9)(C) of the Code, thereby entitling the United States to interest on its claim during the deferral period." Brief of the Appellant, p. 5.[2] In turn, this contention can be divided into two sub-issues: (a) Is Section 1129(a)(9)(C) applicable to this case? (b) Are distributions to prior tax claimants deferred cash payments? We will consider each question in turn.
A. Is 1129(a)(9)(C) applicable to this case?
The Government's sole authority for its claim for entitlement to post-confirmation interest is 11 U.S.C. § 1129(a)(9)(C). Section 1129(a)(9)(C) states in relevant part:
(a) The court shall confirm a plan only if all of the following requirements are met:
. . . . .
(9) Except to the extent that the holder of a particular claim has agreed to a different treatment of such claim, the plan provides that
. . . . .
(C) with respect to a claim of a kind specified in section 507(a)(7) of this title, the holder of such claim will receive on account of such claim 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 such claim.
The Appellee argues that Section 1129(a)(9)(C) does not apply to this situation because the failure to comply with the requirements of Section 1129 is a basis for objection to the confirmation of a plan, but not to the manner in which a plan is administered. Appellee cites to In Re Pharmadyne Laboratories, Inc., 53 B.R. 517, 522 (Bankr.D.N.J.1985). In Pharmadyne, the Court opined,
Section 1129(a)(9)(C) is inapplicable here . . . that section does not bear upon how a plan is to be administered, but rather on how a plan must be drawn to be eligible for confirmation. The I.R.S. questions whether the plan is being administered properly where no post-contribution interest is paid, not whether it was properly drafted and confirmed.
The IRS responds that it has no quarrel with the Pharmadyne decision,
. . . however, [it] is inapposite for one simple reason Pharmadyne concerned a liquidating Chapter 11 Plan wherein the debtor agreed to pay priority tax claims "to the extent there are funds available for payment" after the payment of superior claims. There was no promise of full payment of the priority tax and the United States did not object to the confirmation of the plan. Therefore, the court correctly ruled that the Government could not invoke the interest payment provision of Section 1129(a)(9)(C). Brief of Appellant, p. 22 f/n 8.
In this case, the Government points out the plan provides in paragraph 4.03 that the IRS's claim "shall be paid from the Creditors' Fund the allowed amount of such claim on the Effective Date of this Plan . . ." In addition, the plan created a "Creditors' Fund" to pay creditors' claims. The plan further states that priority tax claims would be paid "in cash in full to the holder of such claims."
The IRS argues that the real issue is whether by promising to pay the priority claims of the Government "in full" under the language of the plan, Appellee guaranteed payment in the manner provided by *335 Section 1129(a)(9)(C). We agree with the Government on this issue. In reaching this conclusion, we rely heavily upon the opinion In Re Fawcett, 758 F.2d 588, 590-591 (11th Cir.1985) (and cases cited therein) which held under a less compelling factual scenario that a debtor was required to pay the Government post-petition interest on its secured claim where the plan of reorganization called for payment "in full 100%."[3] We now turn to the second question.
B. Are distributions to the priority tax claimants deferred cash payments?
The lower court answered this question in the negative relying upon a decision by another bankruptcy judge in In Re Pharmadyne Laboratories, Inc., 53 B.R. 517, 522 (Bankr.D.N.J.1985). As with the first issued posited, this Court opts to consider this issue anew. While Pharmadyne provides some precedent, we decline to place the authoritative value the lower court did. The relevant portions of Pharmadyne consists of exactly two paragraphs.[4] There is no citation of authority and really very little analysis. In short, we glean nothing of value from Pharmadyne other than the Government lost the issue.
The genesis of our decision lies in the plan itself. Arrow Air's plan of reorganization makes no reference to "deferred cash payments." Paragraph 6.06 of the plan governs the payments to be made pursuant to the plan. It states:
On the Effective Date of the Plan or as soon thereafter as is feasible, the Creditors' Fund, exclusive of reserves for Disputed Claims and Pending Claims . . . shall be disbursed, subject to the approval of the Bankruptcy Court, by Reorganized Arrow in the following manner and order of priority:
. . . . .
(b) All Class III Priority Claims shall be satisfied by payment in cash in full to the holders of such allowed Claims. (Emphasis supplied.)
The plan calls for payment on the effective date of the plan or soon thereafter as is feasible. It also calls for payment in cash in full.
The debtor did not make full payment on the effective date of the plan, April, 1987. Instead, after obtaining extensions, it objected to the IRS claim in September, 1987, some five months later. The bankruptcy court denied the objections, in December, 1987, now some eight months delayed. Finally, payment was made of $62,059.77 in March, 1988, a full eleven months after the effective date of confirmation of the plan.
By objecting to the IRS claim for priority taxes, the IRS was denied full payment on the effective date of the plan, or as soon thereafter as is feasible.[5] Because the payment was due after the confirmation date, the eleven month delay in payment was a "deferred cash payment."
Deferred cash payment in Bankruptcy Code Section 1129(a)(9)(C) has been defined to mean "periodic payments, the interval of which is determined by balancing the circumstances of the debtor with the reasonable right of the creditor to receive prompt payment of its claim." In Re Mason and Dixon Lines, Inc., 71 B.R. 300, 303 (Bankr. *336 M.D.N.C.1987) (finding that a deferred payment was a forced loan by the Government to the debtor). Here, balancing the language of the plan which dictates full payment against the almost eleven month delay in payment precipitated by the delayed and ultimately denied objection to the previous tax claim, the definition is clearly met under the facts of this case.
This conclusion is supported by the Congressional intent in enacting Section 1129(a)(9)(C) "to insure that creditors with priority tax claims who were required to accept payments over time would receive deferred payments equivalent to the present value of their claim." In Re Southern States Motor Inns, Inc., 709 F.2d 647, 650 (11th Cir.1983). This is especially true, as here, where the plan itself called for full payment. Moreover, as the Eleventh Circuit has observed,
[6] If a debtor submits a generalized statement that it will pay secured creditors in full 100%, creditors are entitled to interpret that statement as guaranteeing the payment of each and every part of the creditor's claim. If the debtor wishes to be more specific and secure a confirmed plan that modifies the plain language of a 100% payment guarantee, it is the debtor's duty to put the creditor on notice by specifically detailing any exceptions. Failing this, the debtor as draftsman of the plan has to pay the price if there is any ambiguity about the meaning of the terms of the plan.
In Re Fawcett, 758 F.2d 588, 590-91 (11th Cir.1985). All in all, we agree with the Government that under the circumstances of this case, it is entitled to receive post-petition interest for the eleven month period so that it can receive its deferred payment in full.[6] We pass no judgment on whether the Government should always receive post-petition interest on a priority tax claim under Section 1129(a)(9)(C).
CONCLUSION
The order of the bankruptcy court is reversed with instructions to have the debtor pay the applicable post-petition interest to the Government in accordance with this Opinion.
DONE and ORDERED.
NOTES
[1] Since this appeal involves solely a legal issue, the standard of review is de novo.
[2] The Government has abandoned on appeal another argument it advanced to the Bankruptcy Court, i.e., that it was entitled to post-petition interest under 11 U.S.C. § 506(b). In light of the statutory language in Section 506 and the Supreme Court's recent decision in United Savings Assn. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988), the Government's decision appears to be well-founded.
[3] "We concede that the Government's claim could have been more specific with regard to post-petition interest. However, the plan itself could have been more specific by explicitly excluding `post-petition interest,' rather than simply stating that secured claims would be paid in full 100%. Under these facts we fault the debtor any ambiguity, not the creditor. The crucial point is that the plan was confirmed by the court. It is the debtor's obligation when seeking the court's confirmation to specify as accurately as possible the amounts which it intends to pay the creditors." Id. at 590 (footnote omitted).
[4] On the second issue of "deferred cash payment," the Pharmadyne court merely stated, "Second, § 1129(a)(9)(C) only bears upon claims which are to be paid in deferred cash payments. The plan filed by Pharmadyne does not provide for the deferment of payments to the IRS. As the IRS has failed to show that post-confirmation interest on Pharmadyne's debt falls within an exception to the general rule against post-petition interest on pre-petition debts, the Court finds for Pharmadyne on that issue." Id. at 522.
[5] Based upon the extension of time to file its objection as well as the ultimate denial of its objections, the debtor cannot reasonably argue that payment, eleven months after the fact, is as soon thereafter as feasible.
[6] The debtor asserts that a single lump sum payment can never qualify as a deferred cash payment. We disagree because the plan itself, as in this case, can call for a contrary result. As the Government astutely observes, "[t]o take this argument to its logical extreme, a debtor conceivably could provide for a single balloon payment to a priority tax claimant six years after the effective date of the plan and not be required to pay interest on such a claim." Reply Brief, p. 6. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575719/ | 17 So. 3d 687 (2009)
Jason E. MAGEE
v.
Donyale WILLIAMS and Roney Williams.
2070779.
Court of Civil Appeals of Alabama.
February 27, 2009.
*688 William W. Watts III of Hudson & Watts, L.L.P., Mobile, for appellant.
Andrew T. Citrin and Steven P. Savarese, Jr., of Citrin Law Firm, P.C., Daphne, for appellees.
THOMAS, Judge.
Jason E. Magee appeals from an order of the Mobile Circuit court granting a new trial to Donyale Williams and Roney Williams in their action against him in which they asserted claims of negligence, wantonness, and loss of consortium. We reverse.
On January 28, 2006, Magee attended the Senior Bowl football game at Ladd-Peebles Stadium in Mobile. Donyale Williams was attending a family reunion and tailgating party in the parking lot of the stadium during the game. The evidence was undisputed that the parking lot was filled with tents, campers, recreational vehicles, and hundreds of people who were tailgating. Magee left the game at halftime, located his vehicle, and began to drive out of the parking lot, which was crowded with pedestrians.
*689 Magee testified that he inched his way through the crowd, looking out right and left for pedestrians. He stated that he kept his foot on the brake and gradually rolled forward at approximately three or four miles per hour as the crowd moved away and allowed cars to pass. Magee said that, suddenly, someone hit the hood of his car and said, "You are on her foot; back up." Magee testified that he did not hear a thump or feel a bump. He backed up, exited his vehicle, and saw Donyale Williams sitting on the asphalt with her legs stretched out in front of her. Shortly thereafter, a Mobile police officer arrived on the scene, took statements from several witnesses, and asked Magee if he had been drinking. Magee stated that he had not been drinking, and he agreed to take a Breathalyzer test to determine his blood-alcohol level. That test indicated that Magee had no alcohol in his system.
Donyale Williams testified that, at the time of the incident, she had her back to Magee's vehicle and did not see it approaching, but a friend who was standing next to her warned her of the oncoming vehicle and jerked her out of the path of the car. Williams stated that her friend pulled her off balance as the front passenger-side tire of Magee's vehicle ran over her foot.
On September 15, 2006, Donyale Williams sued Magee, alleging claims of negligence and wantonness; Donyale's husband Roney alleged a loss-of-consortium claim. Magee answered and asserted the defense of contributory negligence. The case was tried to a jury, which rendered a verdict in favor of Magee on January 16, 2008.
On January 22, 2008, the Williamses moved for a new trial, alleging that one of the jurors had engaged in misconduct by reading to the other jurors portions of the Alabama Safety Institute Driver Education Course Manual (hereinafter referred to as "the manual") dealing with the duties of drivers and pedestrians to each other. In support of their motion, the Williamses submitted the following affidavit:[1]
"My name is Patricia McWilliams Baldwin. I reside at 5512 William and Mary Street, Mobile, Alabama 36608, I am over the age of nineteen, and I have personal knowledge of the matters stated in this Affidavit.
"On January 16, 2008, I served on a jury in the case of Donyale Williams and Roney Williams v. Jason Magee, Circuit Court of Mobile County, Alabama, Civil Action No. CV-06-4076. During the course of jury deliberations, I showed my fellow jurors the Alabama Safety Institute Driver Education Course Manual, a copy of which is attached hereto. In particular, I showed a juror page 19 of the Driver Education Course Manual, which deals with pedestrians and I read aloud to the other jurors the portions of page 19 of the Driver Education Course [Manual] which are marked in pencil on page 19, attached hereto.
"After the jury returned its verdict, I spoke with [the Williamses'] attorney Andrew T. Citrin in the hallway outside of Judge Lockett's courtroom. When Mr. Citrin asked me how we the jurors felt about the case, I retrieved the Driver Education Course [M]anual from my school bag and showed him page 19 and *690 told him that I had read those provisions to the jury during deliberations. At that time, Mr. Citrin advised me that he had to report this incident to the judge and asked to keep my Driver Education Course [M]anual. He then went and found the court administrator, Nancy Cowart, and I explained the above to her as well. Mr. Citrin then placed a Court Exhibit No. 1 sticker on the manual, and I signed it in the presence of Mr. Citrin, Mr. Savarese [Mr. Citrin's cocounsel], and Ms. Cowart."
The Williamses also submitted the manual, with portions underlined or circled in pencil. We have indicated with emphasis those portions of the manual that were marked in pencil. The manual states:
"PEDESTRIANS
"When automobiles became popular as a means of traveling from one place to another, a problem arose as pedestrians and motor vehicles had to share the same roadways. There have been numbers of pedestrians killed or injured in collisions with vehicles. These numbers could be greatly reduced if motorists were more observant of pedestrian rights.
"Be especially alert for pedestrians:
On streets on which cars are parked.
During the hours of darkness or poor visibility.
At places where people crossnear mailboxes, institutions, churches, play areas, bus stops, etc.
During morning and afternoon when children are going to and from school or at play.
Be especially alert for older people who move slowly and cannot see or hear well.
"At sometime or another, every driver is a pedestrian and the traffic laws are written for both driver and pedestrian.
"DRIVERS MUST:
Yield the right of way to pedestrians.
Not pass (overtake) another vehicle stopped for pedestrians in a crosswalk.
Stop for school children and school safety patrols directing the movement of children.
Yield to blind pedestrians carrying a white or metallic cane, with or without a red tip, or using a guide dog when such blind person enters an intersection of any street, alley or other public highway.
Not block crosswalks when at a stop sign or waiting on a red light.
Stop for a school bus displaying an extended stop arm.
Exercise extreme care to avoid hitting a pedestrian.
"PEDESTRIANS MUST:
Obey traffic control signals at intersections.
Use sidewalks where provided and usable.
Walk on the left side of the roadway giving way to oncoming traffic.
Yield to all vehicles when crossing at points other than within a marked crosswalk or in a crosswalk (extension of the sidewalk) at an intersection.
Not stand in the roadway while hitchhiking.
"SAFETY RULES FOR PEDESTRIANS
When walking on a roadway, stay as near to the left side as possible and in single file.
During the hours of darkness or poor visibility, carry a light or wear clothing trimmed with reflective materials. Since all clothing is not trimmed with reflective materials, it is a good rule always to wear light-colored clothing.
*691 Through vehicles are required to yield to you in intersections and cross safely.
Be aware of a driver's difficulty in stopping quickly when streets are slippery and when visibility is poor.
Be sure that the driver sees you. Be sure that you've made eye contact before you proceed."
Magee submitted a brief in opposition to the Williamses' motion. Following a hearing, at which the circuit court heard legal arguments and no testimony was elicited, the court granted the motion for new trial on February 29, 2008. Magee filed a timely notice of appeal to the Alabama Supreme Court on March 14, 2008. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.
Standard of Review
"`It is well established that a ruling on a motion for a new trial rests within the sound discretion of the trial judge. The exercise of that discretion carries with it a presumption of correctness, which will not be disturbed by this Court unless some legal right is abused and the record plainly and palpably shows the trial judge to be in error.'"
Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d 693, 694 (Ala.1989) (quoting Hill v. Sherwood, 488 So. 2d 1357, 1359 (Ala. 1986)).
"[J]uror misconduct involving the introduction of extraneous materials warrants a new trial when one of two requirements is met: 1) the jury verdict is shown to have been actually prejudiced by the extraneous material; or 2) the extraneous material is of such a nature as to constitute prejudice as a matter of law."
Ex parte Apicella, 809 So. 2d 865, 870 (Ala. 2001) (citing Knight v. State, 710 So. 2d 511, 517 (Ala.Crim.App.1997)) (juror had a brief discussion about the law of complicity with an attorney he knew, but the juror did not reveal the conversation to other jurors). See also Ex parte Arthur, 835 So. 2d 981 (Ala.2002) (juror's introduction of information she found in a medical textbook about possible causes of migraine headaches); Pearson v. Fomby, 688 So. 2d 239, 242 (Ala.1997) (juror consulted a dictionary for the definition of the word "standard" in order to understand the meaning of the term "standard of care" in a medical-malpractice action).
Discussion
"[A]ctual prejudice may not be inferred from the exposure [to the extraneous material] itself." Pearson v. Fomby, 688 So.2d at 243. Instead, actual prejudice requires a showing that exposure to the extraneous material "actually motivated the jury or any individual juror to decide in [a] particular way." Id. at 242. In the present case, there was no evidence indicating that the information in the manual had influenced the jury's verdict or any individual juror's decision. In fact, Juror Baldwin's affidavit did not assert that the information in the manual had influenced her own decision, and the Williamses did not present the affidavit or testimony of any other juror. Thus, the Williamses did not show actual prejudice.
With respect to prejudice as a matter of law, or "presumed prejudice," the supreme court has held that prejudice as a matter of law does not arise from "mere exposure to [a] definition." Pearson v. Fomby, 688 So.2d at 245. In Ex parte Apicella, supra, the court stated that its holding in Pearson "serves to emphasize the limitations of the doctrine of `prejudice *692 as a matter of law.'" 809 So.2d at 871. The Apicella court explained:
"Generally, a presumption of prejudice applies only in a case in which the jury's consideration of the extraneous material was `"crucial in resolving a key material issue in the case."' Dawson v. State, 710 So. 2d 472, 475 (Ala.1997) (citing Hallmark v. Allison, 451 So. 2d 270, 271 (Ala.1984), and Ex parte Thomas, 666 So. 2d 855 (Ala.1995))."
809 So.2d at 872. See also Ex parte Arthur, 835 So.2d at 984 (quoting Hallmark v. Allison, 451 So. 2d 270, 271 (Ala.1984)) (holding that movants for a new trial "must prove that, as a matter of law, `consideration of the extraneous facts was crucial in resolving a key material issue in the case,' such that it should be presumed to have prejudiced the jury").
In Ex parte Arthur, a plaintiff claimed that her migraine headaches had been caused by the impact of a collision between the defendant's vehicle and the vehicle in which the plaintiff was a passenger. The jury awarded the plaintiff minimal damages, and the plaintiff moved for a new trial, asserting that the jury had been improperly influenced by extraneous information. The plaintiff submitted an affidavit from one of the jurors stating that another juror who was a nurse-practitioner student had, during a break in the jury's deliberations, consulted a medical textbook concerning the possible causes of migraine headaches. According to the affidavit, the nurse-practitioner student had been in favor of paying all the plaintiff's medical bills before he conducted the independent research but, after learning that migraine headaches can be caused by things other than accident impacts, "`he agreed with the position that the [plaintiff's] medical bills should not be paid.'" 835 So.2d at 983.
The supreme court held that the information derived from the medical textbook was "`not the type of common knowledge we expect jurors to bring to deliberations,'" 835 So.2d at 985 (quoting Castaneda v. Pederson, 185 Wis. 2d 199, 215-16, 518 N.W.2d 246, 253 (1994)), "`was crucial in resolving a key material issue in the case,'" 835 So.2d at 985 (quoting Hallmark v. Allison, 451 So.2d at 271), and was prejudicial as a matter of law.
In the present case, Juror Baldwin read to the other jurors the following safety rules pertaining to drivers and pedestrians:
"DRIVERS MUST:
Exercise extreme care to avoid hitting a pedestrian."
"PEDESTRIANS MUST:
Use sidewalks where provided and usable.
Not stand in the roadway while hitchhiking."
"SAFETY RULES FOR PEDESTRIANS
Be aware of a driver's difficulty in stopping quickly when streets are slippery and when visibility is poor."
In contrast to the extraneous material introduced to the jury in Ex parte Arthur, the information read to the jury in this case was nothing more than a set of common-sense maxims applicable to drivers and pedestrians. The information was within "`the type of common knowledge we expect jurors to bring to deliberations,'" Ex parte Arthur, 835 So.2d at 985 (quoting Castaneda, 185 Wis.2d at 215-16, 518 N.W.2d at 253). Moreover, part of the information was beneficial rather than prejudicial to the Williamses. Although the manual stated that "drivers must exercise extreme care to avoid hitting a pedestrian," *693 the circuit court's oral charge to the jury stated:
"The duty owed by the defendant to the plaintiff was to exercise reasonable care not to injure or damage the plaintiff. Again, that is to exercise such care as a reasonable prudent person would have exercised under the same or similar circumstances."
(Emphasis added.) Prejudice as a matter of law cannot be presumed from exposure to information that is favorable to the movant's theory of the case. See Dawson v. State, 710 So. 2d 472 (Ala. 1997) (juror's unauthorized inspection of crime scene and telling other jurors that, in his opinion, undercover officer's location would not have allowed officer to identify defendant could only have benefited defendant because juror's conclusions undercut credibility of officer, who was a prosecution witness); Knight v. State, 710 So. 2d 511 (Ala. Crim.App.1997) (juror's independent research into whether child victim could have contracted gonorrhea from contaminated towel as asserted by defendant charged with sexual abuse did not prejudice the defendant because the research tended to support defense theory of the case).
Finally, those parts of the manual that were not explicitly beneficial to the Williamses were simply irrelevant to the issues presented in the lawsuit. Because Donyale Williams's injury occurred in a parking lot, there were no sidewalks. No one was hitchhiking. There was no evidence indicating that the roadway was slippery or that the visibility was poor on the day in question. Irrelevant information cannot, by definition, be "crucial in resolving a key material issue in the case," Hallmark v. Allison, 451 So.2d at 271.
Conclusion
We hold that the Williamses failed to prove that the jury verdict was actually prejudiced by the extraneous material, and the extraneous material was not of such a nature as to constitute prejudice as a matter of law. Accordingly, the circuit court erred in granting the Williamses a new trial.
REVERSED.
PITTMAN and BRYAN, JJ., concur.
THOMPSON, P.J., and MOORE, J., concur in the result, without writings.
NOTES
[1] "`Generally, affidavits are inadmissible to impeach a jury's verdict[; however, an] affidavit showing that extraneous facts influenced the jury's deliberations is admissible.'" Ex parte Arthur, 835 So. 2d 981, 983 n. 1 (Ala.2002) (quoting Sharrief v. Gerlach, 798 So. 2d 646, 652 (Ala.2001), quoting in turn HealthTrust, Inc. v. Cantrell, 689 So. 2d 822, 828 (Ala. 1997)). See also Rule 606(b), Ala. R. Evid. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575717/ | 829 S.W.2d 218 (1992)
Kevin Braniard DAVIS, Appellant,
v.
The STATE of Texas, Appellee.
No. 200-91.
Court of Criminal Appeals of Texas, En Banc.
April 15, 1992.
Jane Wynegar (court appointed on appeal), Houston, for appellant.
*219 John B. Holmes, Jr., Dist. Atty., and Linda A. West and Janie A. Willis, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., and Matthew W. Paul, Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S MOTION FOR REHEARING
MALONEY, Judge.
Our prior opinion is withdrawn.
After an adverse ruling on his motion to suppress and pursuant to a plea bargain, appellant pled guilty to the felony offense of possession of a controlled substance, cocaine. TEX.HEALTH & SAFETY CODE ANN. § 481.116(b). The court assessed punishment at six years imprisonment. The Fourteenth Court of Appeals affirmed the conviction. Davis v. State, 827 S.W.2d 3 (Tex.App.Houston [14th Dist.] 1990).
We granted appellant's petition for discretionary review to determine whether the Court of Appeals erred in sustaining the trial court's denial of appellant's motion to suppress the cocaine. See TEX.R.APP.P. 200(c)(3). Appellant contends that his motion to suppress should have been granted because (1) the officer's stop and frisk was not legally justified, and (2) even if the stop was justified, the search was illegal. We will reverse the judgment of the Court of Appeals.
I.
On February 23, 1990, Houston police officer Anthony Bonasto responded to one of three dispatch calls reporting three black males selling narcotics in front of apartment number eight in a particular apartment complex.[1] Upon arrival, the officer observed appellant with two other black males. During the hearing on appellant's motion to suppress the cocaine, Officer Bonasto testified that when the men saw his patrol car "they made a hasty effort" to get into a nearby vehicle. The officer stopped his car in such a way as to prevent the men from driving away. He asked them to step out of the car and place their hands on the patrol car. With the assistance of another officer, Officer Bonasto conducted a pat-down search for weapons. He searched appellant first because the officer thought it unusual that appellant was wearing a trench coat on a sixty-five degree day. Neither of the other two men were wearing coats. When Officer Bonasto felt the pocket of the trench coat, he felt a mass solid enough to be a weapon. He reached into the pocket and found keys, papers, and a matchbox. He then opened the matchbox and found a substance which field-tested positive as cocaine.
In denying appellant's motion to suppress the cocaine, the trial court found as facts and conclusions of law that the requirements of Terry v. Ohio[2] had been met, that the officer had probable cause to open the matchbox, and that the search was therefore constitutional.
II.
We first decide whether the police officer was justified in making an investigatory stop. We find that he was justified.
A stop is justified if the officer, based upon specific and articulable facts, reasonably surmises that the detained person may be associated with a crime. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The Fourteenth Court of Appeals *220 found that Officer Bonasto had a reasonable suspicion of criminal activity because appellant was one of three black males standing in front of apartment number eight as reported in the police dispatch; the men attempted to "flee" when they saw the patrol car, and appellant was suspiciously wearing a trench coat on a warm day.
Appellant argues in his petition for discretionary review that the dispatcher did not report articulable facts upon which to base a stop reporting only that suspicious males were selling narcotics in front of apartment number eight. The record reflects that both parties maintained that the police dispatch reported three black males selling narcotics in front of apartment number eight. Because the trial court is in the best position to evaluate the testimony, we must defer to the trial court's findings. Johnson v. State, 803 S.W.2d 272, 287 (Tex. Cr.App. 1990) ("Since the trial court is the sole fact finder at a suppression hearing, this Court is not at liberty to disturb any finding which is supported by the record.") (citations omitted), cert. denied, ___ U.S. ___, 111 S. Ct. 2914, 115 L. Ed. 2d 1078 (1991); Freeman v. State, 723 S.W.2d 727, 729 (Tex.Cr.App.1986) ("Absent a showing of an abuse of discretion, the trial court's findings will not be disturbed.") (citations omitted).
Appellant also argues that it is not suspicious to wear a trenchcoat in February even if the temperature is sixty-five degrees. In justifying a stop, the police officer can make rational inferences from the articulable facts based upon the officer's personal knowledge and experience. Terry. Officer Bonasto testified, "The coat was most obvious ... He had a coat on a warm day, and from experience, it tells me usually that somebody is trying to hide something under the coat." The trenchcoat by itself does not constitute proof of illegal conduct, but all the factors taken together created a reasonable suspicion of criminal activity, therefore the stop was justified.
III.
We next decide whether Officer Bonasto was justified in opening the matchbox. We find that the search of the matchbox was not justified. The Court of Appeals relied upon Mitchell v. State[3] and Miller v. State[4] and found that probable cause arose from the stop. However, both cited cases, unlike this case, involve narcotics in the officer's plain view.
In Mitchell two Houston police officers observed a car with a dangling rear license plate and upon a check of the plate they found that it was not registered to that car. The officers conducted a self-protective pat-down search of the car's occupants and found some pills wrapped in transparent cellophane and a matchbox. The officers arrested the driver for possession of a controlled substance and then searched the matchbox incident to that arrest.
In Miller the police officer had already determined that he would arrest the appellant for public intoxication when he observed a transparent bag containing a white powdery substance sticking out of a package of cigarettes in the appellant's pocket. A field test of the substance revealed that it was cocaine.
Because the cocaine in this case was not in Officer Bonasto's plain view, the search had to be limited to the discovery of weapons that could reasonably harm the officer. During a stop and frisk, in the absence of probable cause, a police officer who reasonably fears for his or her safety, or that of others, can conduct a limited search of the outer clothing for weapons. Terry. "The purpose of a limited search after [an] investigatory stop is not to discover evidence of crime, but to allow the peace officer to pursue investigation without fear of violence." Wood v. State, 515 S.W.2d 300, 306 (Tex.Cr.App. 1974). Appellant argues in his petition for discretionary review that Officer Bonasto was looking *221 for narcotics rather than weapons. Officer Bonasto testified that he had seen narcotics hidden in cardboard matchboxes with wooden matches. He also testified that when he opened the matchbox he was looking for a razor blade or any weapon that could hurt him.[5]
Terry permits a search for only those weapons that could reasonably harm the police officer. "If in the course of a patdown frisk the officer satisfies himself that the suspect has no [such] weapons, the officer has no valid reason to further invade the suspect's right to be free of police intrusion absent probable cause to arrest." Lippert v. State, 664 S.W.2d 712, 721 (Tex. Cr.App.1984) (citations omitted).
In Worthey v. State[6], we held that the protective search for weapons in the interior of the defendant's purse was reasonable. The officer told the defendant not to move her hand, but she made a sudden movement for her purse that obstructed the officer's view of her hand and purse. The officer felt the outside of the purse but was unable to ascertain whether it contained a weapon so he searched the interior of the purse. In Worthey the defendant could have easily retrieved a gun from her purse before the officer had time to react.
Here, the facts did not justify a further search for weapons. We conclude that it is unreasonable for two armed police officers to fear a razor blade that might be contained in a matchbox. See Pace v. Beto, 469 F.2d 1389, 1390 (5th Cir.1972) ("[T]he need to discover potentially dangerous weapons can not justify the opening of the matchbox."); Duncantell v. State, 563 S.W.2d 252, 259 (Tex.Cr.App.1978) (Roberts, J., dissenting) ("[I]t is hard to imagine a dangerous weapon in a penny matchbox..."); 3 W. LaFave, Search and Seizure § 9.4(d) (2d ed. 1987).
Although there were adequate grounds to search appellant for weapons, the scope of the search conducted by Officer Bonasto clearly exceeded any justification that he might have had to search for weapons for his protection and therefore rendered the cocaine inadmissible under Article I, section 9 of the Texas Constitution and the Fourth and Fourteenth Amendments to the United States Constitution.
We conclude that the trial court abused its discretion in not granting appellant's motion to suppress the cocaine, and the Court of Appeals erred in sustaining the trial court's decision and affirming the judgment of conviction. Accordingly the judgment of the Court of Appeals is reversed and this cause is remanded to the trial court.
McCORMICK, P.J., dissents.
MILLER, J., joined by WHITE, J., dissent with a note: Believing that the Court *222 of Appeals' analysis was correct under Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983), we respectfully dissent.
NOTES
[1] The following exchange occurred between the defense attorney and Officer Bonasto:
Q. [defense attorney] The reason you went to 4300 Sherwood was because there were three black males selling drugs in front of apartment number eight.
A. Because I was dispatched to the location.
Q. For that reason?
A. Yes, ma'am.
From that point on, all parties maintained that the dispatcher reported three black males selling narcotics in front of apartment number eight.
[2] 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). For a Terry stop to be valid: (1) unusual activity must be occurring or have occurred, (2) the accused must be connected with the suspicious activity, and (3) the suspicious activity must be connected with crime. Johnson v. State, 658 S.W.2d 623, 626 (Tex.Cr.App. 1983).
[3] 632 S.W.2d 774 (Tex.App.Houston [14th Dist.] 1982), rev'd on other grounds, 645 S.W.2d 295 (Tex.Cr.App.1983).
[4] 667 S.W.2d 773 (Tex.Cr.App. 1984).
[5] We have held that as long as there is a lawful reason for a search, the officer's intent or motive is irrelevant. See, e.g., Williams v. State, 726 S.W.2d 99, 100-01 (Tex.Cr.App. 1986); Esco v. State, 668 S.W.2d 358, 366 (Tex.Cr.App. 1983) (opinion on State's motion for rehearing). Here, the search was not objectively lawful. The State asserts that Officer Bonasto had probable cause to open the matchbox because "he had seen narcotics hidden in matchboxes before." We disagree. This is unlike Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). In Brown, the officer stopped the defendant at a routine driver's license checkpoint. The officer saw the defendant drop an opaque green balloon knotted near the tip onto the seat next to him. The officer was aware that narcotics are frequently packaged in such balloons. While the defendant searched the glove compartment for his license, the officer noticed small plastic vials, loose white powder, and an open bag of party balloons in the glove compartment. When the defendant could not find his license, the officer instructed the defendant to get out of the car and he complied. The officer then picked up the green balloon which seemed to contain a powdery substance. The Supreme Court held that the officer had probable cause to believe that the green balloon contained narcotics based on his experience and the contents of the glove compartment which suggested possession of narcotics. Brown, 460 U.S. at 742-43, 103 S.Ct. at 1543-44. Here, Officer Bonasto had occasionally seen narcotics hidden in matchboxes, but the record lacks any additional facts giving rise to probable cause to search the matchbox. And, unlike a balloon, a matchbox commonly contains innocent items, i.e., matches. The mere fact that the officer was investigating a possible narcotics sale, without more, is not enough to warrant further intrusion. Terry does not permit a search for evidence of the alleged crime.
[6] 805 S.W.2d 435 (Tex.Cr.App.1991). | 01-03-2023 | 10-30-2013 |
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