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https://www.courtlistener.com/api/rest/v3/opinions/1575757/ | 829 S.W.2d 45 (1992)
Cynthia A. BEHNKE, Petitioner/Respondent,
v.
James D. BEHNKE, Respondent/Appellant.
No. 60607.
Missouri Court of Appeals, Eastern District, Division One.
March 10, 1992.
Motion for Rehearing and/or Transfer Denied April 18, 1992.
Application to Transfer Denied June 2, 1992.
Eugene Joseph Brockland, Jr., Caruthers, Herzog, Crebs & McGhee, St. Louis, for respondent/appellant.
Claude C. Knight, Knight & Schoeneberg, St. Charles, for petitioner/respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied April 18, 1992.
REINHARD, Presiding Judge.
Husband appeals from child custody and support provisions of a dissolution decree. We affirm as modified.
The parties were married on September 25, 1982. Their only child, a daughter, was born on June 24, 1988. The decree was entered on May 21, 1991.
Primary custody of the child was given to wife. Husband was given temporary custody rights on alternate weekends from 6:00 p.m. on Friday until 6:00 p.m. Sunday beginning with the first weekend after the entry of the decree and on alternate national holidays from 6:00 p.m. the evening before the holiday until 6:00 p.m. the day of the holiday. In addition, husband was to maintain medical insurance on the child.
The court ordered husband to pay wife the sum of $716.80 per month, which the court stated was "the presumed chart figure" under the child support guidelines promulgated by the Missouri Supreme Court.
On appeal, husband contends that the award of primary care, custody and control of the minor child was an abuse of discretion and against the weight of the evidence because the best interests of the child dictate that husband have primary care, custody and control of the child. He further *46 contends that the award of only "extremely limited" temporary custody rights was an abuse of discretion against the substantial weight of the evidence.
It is unnecessary to recite all of the evidence on these issues. Under our standard of review established in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we must affirm the ruling of the trial court unless it is unsupported by substantial evidence, unless it is against the weight of the evidence, or unless it misstates or misapplies the law. Id. at 32. We defer to the trial court's determinations on such matters as to the credibility of the witnesses. Id. Using this standard of review, it is plain that the trial court did not abuse its discretion and an extended opinion on these issues would have no precedential value. Rule 84.16.
Husband also contends that the court award of child support in the amount of $716.80 is not within the child support guidelines as promulgated by the Missouri Supreme Court in Rule 88.01 and Civil Procedure Form 14. See also § 452.340, RSMo Cum.Supp.1990. We have not been provided with a worksheet used by the court in its determination that the amount was within the guidelines.[1]
Wife's statement of income and expenses, entered into evidence, indicates that her gross monthly income is $1,729.[2] Husband grosses $3,427.00 per month. Thus the couple's combined gross income per month is $5,156. The child support obligation for a couple with such an income, taken from the schedule accompanying Form 14, is $632.48 for one child. Adding the $400 of reasonable work-related child care expenses which wife testified she incurs[3] produces a combined child support cost of $1,032.48 per month. Applying husband's proportionate share of combined income (66.5%) results in a child support obligation of $686.60 per month. We have examined the record and conclude that the trial court's order as to support is not in compliance with the guidelines and that it should be reduced to $686.60 per month. Rule 88.01; Campbell v. Campbell, 811 S.W.2d 504 (Mo.App.1991).[4]
The award of child support is thus modified and the husband ordered to pay $686.60 per month. Rule 84.14. In all other respects the decree of the trial court is affirmed.[5]
GARY M. GAERTNER, and CRANE, JJ., concur.
NOTES
[1] Wife's only response to husband's argument on this point is, "the Trial Court's award of child support should be affirmed in that it is extremely close to the chart figures claimed by [husband] and any such error would be [de minimus]." Husband contends the proper figure is $644 per month.
[2] Husband would have us extrapolate from wife's testimony that she earned $440 per week by multiplying $440 times 52 weeks and then dividing by twelve, which produces a gross annual income for wife of $22,880 and a gross monthly income of $1906.67. However, we are obliged to view the evidence in the light most favorable to the trial court's finding and it was certainly just as reasonable to use the figure in the written document.
[3] Husband would have us subtract a $50 federal tax exemption from that figure. Although guidelines originally published by the Missouri Supreme Court in 1987 mention that a federal tax exemption should be subtracted, there is no such provision in the guidelines published in Form 14 pursuant to Rule 88.01, which are now mandatory. See Rule 88.01; Form 14. Cf. Child Support Guidelines, 735-36 S.W.2d Missouri Cases XL (1987).
[4] We are uncertain whether the supreme court intended that even trivial deviations from the guidelines require adjustment. It would seem to us that at some point they do not. But see Campbell v. Campbell, 811 S.W.2d 504 (Mo.App. 1991).
[5] Rule 88.01, formulated in 1989 at the behest of § 452.340.7, RSMo Supp.1989, requires both parties to complete Form 14, which is a worksheet for calculating the "presumed child support amount." The completed forms are to be made part of the record. Here no form or forms were included in the legal file. An appellant seeking relief from a child support award without including these completed forms is doing so at his or her peril. See Ibrahim v. Ibrahim, 825 S.W.2d 391 (Mo.App.S.D.1992). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575747/ | 612 F. Supp. 45 (1985)
Richard S. BERRY, Plaintiff,
v.
DEPARTMENT OF JUSTICE, United States Parole Commission, United States Bureau of Prisons, Defendants.
No. Civ. 82-2041 PHX CAM.
United States District Court, D. Arizona.
May 9, 1985.
*46 Michael E. St. George, Tempe, Ariz., for plaintiff.
Susan Ehrlich, Asst. U.S. Atty., Phoenix, Ariz., for defendants.
ORDER
MUECKE, District Judge.
Having received and considered the Government's Motion to Dismiss, filed January 2, 1985; Plaintiff's Response, filed February 1, 1985; the Government's Reply, filed February 6, 1985; Plaintiff's Amended Motion for Certification of Class Action, filed January 16, 1985; the Government's Response, filed January 22, 1985; and Plaintiff's Reply, this Court finds and concludes as follows:
In 1981, Plaintiff Berry requested copies of his presentence report and Report on *47 Sentenced Offender from Defendants pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976). His request was denied administratively, on grounds that the documents requested were court records and thus exempt from disclosure under the FOIA; alternatively, the Government claimed that the documents could be withheld pursuant to one of the enumerated exemptions in the FOIA, 5 U.S.C. § 552(b)(3). See exhibits attached to Plaintiff's Complaint filed December 8, 1982. Plaintiff then filed this action.
On March 14, 1983, this Court granted the Government's motion to dismiss on grounds that the documents requested were court records rather than agency records. That decision was reversed in Berry v. Department of Justice, 733 F.2d 1343 (9th Cir.1984), in which the Ninth Circuit held that the court-generated documents requested by Plaintiff are agency records because they are in the possession of an agency and are "prepared substantially to be relied upon in agency decision-making." Berry, supra, 733 F.2d at 1349. In reaching this decision, the court noted that "[o]ne of the goals of the FOIA is to allow the public to determine how agencies reach decisions," id., and observed that the Parole Commission and Reorganization Act, 18 U.S.C. § 4201 et seq., now requires the Commission to consider available presentence reports in making parole determinations. The court thus held that presentence reports and the Report on Sentenced Offender are "agency records under the FOIA when they are in the possession of either the Federal Bureau of Prisons or the United States Parole Commission. On remand, the Department of Justice is free to assert any alternative FOIA exemptions that may preclude disclosure." Berry, supra, 733 F.2d at 1356.
The Government's pending motion to dismiss claims that both the Parole Commission and Reorganization Act, supra, and Rule 32, Federal Rules of Criminal Procedure, are "withholding statutes" for the purposes of the exemption to the FOIA set forth at 5 U.S.C. § 552(b)(3):
(b) This section does not apply to matters that are
* * * * * *
(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.
This Court holds that the statutes cited by the Government would authorize an agency to withhold certain portions of the requested documents, but would not constitute a blanket exemption for presentence reports or, under most circumstances, permit the Government to routinely withhold the entire document.
Waiver
Plaintiff first argues that the Government has waived its right to assert the (b)(3) exemption or any other FOIA exemption by its failure to expressly plead such exemption(s) in its Answer. Plaintiff cites Ryan v. Department of Justice, 617 F.2d 781 (D.C.Cir.1980), and Jordan v. Department of Justice, 591 F.2d 753 (D.C.Cir. 1978), for his argument; these cases, however, stand for the proposition that the Government may not assert an exemption for the first time on appeal, without first having raised it in the district court. Neither case requires that the Government specifically identify the exemption(s) upon which it relies in its Answer.
In its initial challenge to Plaintiff's Complaint, the Government chose to argue that Plaintiff failed to state a claim under the FOIA, because the documents requested were court records and thus not subject to the FOIA. The Ninth Circuit's ruling on that challenge was the first of its kind in this circuit. The court expressly stated that, on remand, Defendants are "free to assert any alternative FOIA exemptions that may preclude disclosure." Berry, supra, 733 F.2d at 1356. Although the court did not explicitly invoke its discretion under 28 U.S.C. § 2106, it is apparent that the *48 Ninth Circuit did not intend to preclude the Government from now asserting particular exemptions, now that it has determined that Plaintiff has stated a claim under the FOIA.
Parole Commission and Reorganization Act
Not surprisingly, the Government argues that the Parole Commission and Reorganization Act, 18 U.S.C. § 4201 et seq. ("the Act"), is a withholding statute for the purposes of the (b)(3) exemption to the FOIA. Section 4207(3) of the Act requires the Parole Commission to consider available presentence reports in making parole determinations; and section 4208(b) requires the Commission to provide a prisoner awaiting a parole determination proceeding with "reasonable access" to such reports prior to the proceeding. Section 4208(c) authorizes the Commission to withhold only the following information:
(1) diagnostic opinions which, if made known to the eligible prisoner, could lead to a serious disruption of his institutional program;
(2) any document which reveals sources of information obtained upon a promise of confidentiality; or
(3) any other information which, if disclosed, might result in harm, physical or otherwise, to any person.
If any information is withheld by the Commission under the above-quoted provisions, the Commission must summarize the basic contents of the material withheld and furnish the summary to the prisoner.
The Government's (b)(3) argument stems from the Ninth Circuit's holding in Berry, supra, 733 F.2d at 1354, that "the Parole Commission and Reorganization Act is an express nondisclosure statute which affirmatively requires confidentiality to achieve stated goals," and that "it constitutes a withholding statute under exemption (3)." However, it is clear from the opinion that only "specific portions" of the presentence report (that is, the type of information which falls into the categories described in 18 U.S.C. § 4208(c)(1)-(3)) may be withheld pursuant to the Act and exemption (b)(3) of the FOIA. The Ninth Circuit's opinion does not support the Government's broad argument that the entire presentence report may be withheld; the decision recognizes that only "certain information," "certain portions," and/or "potentially harmful parts" of the presentence report may be withheld, Berry, supra, 733 F.2d at 1354, and predicts that "the FOIA will probably entitle defendants to copies of that which they were shown at sentencing and no more." Id. at n. 17.
Thus, although the Government is correct in its argument that the Act is a withholding statute, it authorizes nondisclosure of only particular types of information; here, the Government has not identified any portions of Plaintiff's presentence report which fall into the categories set forth in 18 U.S.C. § 4208(c), and the Government's motion must be denied on this issue.
Rule 32, Federal Rules of Criminal Procedure
The version of Rule 32 in effect at the time Plaintiff was sentenced (which is set forth in Berry, supra, 733 F.2d at 1344 n. 1, and which is not substantially different from the Rule as presently formulated) required the sentencing court to allow the defendant and his counsel to read the presentence report prior to sentencing, "but not to the extent that in the opinion of the court the report contains diagnostic opinions which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons...."
Plaintiff contends that a rule of criminal procedure is not a "statute" for the purposes of the (b)(3) exemption to the FOIA. This argument was rejected as to Federal Rule of Criminal Procedure 6(e) in Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856 (D.C.Cir.1981), wherein it was *49 found that because Rule 6(e) had been "positively enacted" by Congress (as opposed to become effective through Congressional inaction), it is a "statute" under 5 U.S.C. § 552(b)(3). Similarly, the version of Rule 32 in effect at the time of Plaintiff's sentencing was proposed by the Supreme Court on April 22, 1974. Congress delayed the effective date of the proposed amendments on July 30, 1974. P.L. No. 93-361, 88 Stat. 397 (1974). Subsequently, Congress affirmatively enacted the version of Rule 32 in effect at the time of Plaintiff's sentencing on July 31, 1975. P.L. No. 94-64, 89 Stat. 370 (1975). Thus, Rule 32 is a "statute" for the purposes of the (b)(3) exemption, under Fund for Constitutional Government, supra.
The Government argues that Rule 32 meets the requirements of a withholding statute under the first prong of the (b)(3) exemption because it leaves no discretion to the agency to release the presentence report. This argument is unpersuasive because Rule 32 is wholly inapplicable to any agency; it guides the exercise of court discretion only. As for the second prong of the (b)(3) exemption, Rule 32 does establish "particular criteria for withholding" and "refers to particular types of matter to be withheld." But again, Rule 32 applies to courts and not to agencies.[1]
Furthermore, Rule 32 does not permit the court to refuse to disclose the presentence report to the defendant, if the court relies upon it in sentencing. On the contrary, the rule requires the court to provide the report to the defendant, "except with respect to certain materials as to which a factual summary must be given." Carson v. U.S. Department of Justice, 631 F.2d 1008, 1012 (D.C.Cir.1980). To the extent that the Government relies on Rule 32, the agency could withhold that which the court properly withheld; but again, no support is provided under Rule 32 for withholding the entire presentence report.
Based upon the foregoing, this Court holds that, while both the Parole Commission and Reorganization Act and Rule 32, Federal Rules of Criminal Procedure, provide a basis for the nondisclosure of some information possibly contained within a presentence report or a Report on Sentenced Offender pursuant to 5 U.S.C. § 552(b)(3), neither statute would allow an agency to withhold the entire document, unless the agency properly claimed that the entire contents of the specific document fell within the particular categories of information set forth in the Act or in Rule 32. Because the Government does not contend that any portions of Plaintiff's presentence report or Report on Sentenced Offender fall within those categories, its motion to dismiss must fail.
Plaintiff's Motion for Class Certification
Plaintiff seeks to form a class of all present and future federal inmates in the Ninth Circuit who become eligible for parole and who wish to seek copies of their presentence reports or Reports on Sentenced Offenders to prepare for parole hearings. Although Plaintiff makes an argument on each of the requirements necessary for the certification of a class action, this Court agrees with the Government that this action is not suitable for class certification. As discussed above, the Parole Commission has the statutory obligation and discretion to refuse to disclose the type of information described in 18 U.S.C. § 4208(b)(1)-(3); thus, some individual scrutiny must be given to each presentence report requested. Under these circumstances, Plaintiff's presentence report cannot possibly be "typical" of every other federal inmate's presentence report in the Ninth Circuit; questions of fact are simply not common to the proposed class.
Pursuant to the Ninth Circuit Berry opinion and this Order, Defendants may no longer claim that presentence reports are court records or that they are wholly exempt under 5 U.S.C. § 552(b)(3). The *50 Government is surely aware of the sanctions which could result from the taking of a frivolous position; there is no reason to believe that the Government would ignore these mandates in the Ninth Circuit, and no class certification is possible or necessary.
Therefore,
IT IS ORDERED that the Government's Motion to Dismiss, filed January 2, 1985, is denied.
IT IS FURTHER ORDERED that Plaintiff's Amended Motion for Certification of Class Action, filed January 16, 1985, is denied.
NOTES
[1] The Parole Commission and Reorganization Act, of course, guides agency discretion in nearly identical language once the agency obtains possession of the presentence report. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575773/ | 829 S.W.2d 432 (1992)
Daniel Boyd KISER, Appellant/Cross-Appellee,
v.
COMMONWEALTH of Kentucky, Appellee/Cross-Appellant.
Nos. 91-CA-166-MR, 91-CA-217-MR.
Court of Appeals of Kentucky.
May 8, 1992.
*433 Margaret Foley Case, Timothy Riddell, Frankfort, Maury D. Kommor, Louisville, for appellant/cross-appellee.
Chris Gorman, Atty. Gen., Frankfort, Thomas W. Dyke, Sp. Asst. Atty. Gen., Louisville, for appellee/cross-appellant.
Before EMBERTON, JOHNSON and WILHOIT, JJ.
WILHOIT, Judge.
Daniel Boyd Kiser appeals from a judgment of the Jefferson Circuit Court which denied his motion to vacate his sentence pursuant to RCr 11.42 and CR 60.02.
The appellant was indicted for theft by unlawful taking over $100 on November 10, 1982. On December 1, 1983, the appellant withdrew his original plea of "not guilty" and entered a plea of "guilty." He received a sentence of five years, which was probated. On May 14, 1985, the appellant was convicted of rape and being a persistent felony offender. The Commonwealth then moved to revoke his probation on the original conviction. The order revoking that probation was not entered until December 4, 1985. It provided that the five-year sentence would run consecutively to the 20-year sentence for the 1985 conviction.
The appellant argues that the trial court erred in finding that his December 1, 1983, guilty plea under Indictment No. 82-CR-1679 was constitutionally valid and, based on that finding, in denying his motion to vacate. The appellant contends that his plea was not made knowingly, voluntarily, and intelligently in violation of his state and federal constitutional rights. He argues that neither his attorney nor the court explained to him exactly what elements the prosecution would be required to prove in order to gain a conviction, and that counsel was ineffective in not informing him of the prosecution's burden to prove guilt beyond a reasonable doubt.
To sustain an allegation that counsel's assistance was ineffective in enabling a defendant to intelligently weigh his legal alternatives in deciding to plead guilty, the defendant must prove the following:
(1) that counsel made errors so serious that counsel's performance fell outside the wide range of professionally competent assistance; and (2) that the deficient performance so seriously affected the outcome of the plea process that, but for the errors of counsel, there is a reasonable probability that the defendant would not have pleaded guilty, but would have insisted on going to trial.
Sparks v. Commonwealth, Ky.App., 721 S.W.2d 726, 727-28 (1986), citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). The record contains a transcript of proceedings on defendant's plea of guilty, as well as a printed "Plea of Guilty" form and a "Certificate of Counsel." The transcript shows that the defendant was expressly informed of the rights guaranteed under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and questioned individually regarding his understanding of the ramifications of waiving each of these rights. The "Plea of Guilty" form, which enumerated the appellant's rights including those addressed in Boykin, supra, had been completed and signed by the defendant. The Certificate of Counsel, stating that counsel had fully explained to the appellant the allegations contained in the indictment and his constitutional rights and that in counsel's opinion the plea of guilty was voluntarily and understandingly made, was completed and signed by counsel. Further, in response to *434 the court's oral questions regarding whether counsel had explained to the appellant his rights and the nature of the alleged offense, counsel answered affirmatively. The appellant stated that he had conferred with his attorney about the case and that he was satisfied with counsel's services. There has been no showing sufficient to meet the test cited in Sparks that counsel's assistance was ineffective.
Clearly a guilty plea is valid only if it represents a voluntary and intelligent choice among the alternative courses of action open to a defendant. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). A particular plea's validity is determined from the totality of the circumstances surrounding its making, not by reference to some magic incantation recited at the time it was taken. Kotas v. Commonwealth, Ky., 565 S.W.2d 445, 447 (1978). A review of the record indicates that the requirements of Boykin, supra, were satisfied by the procedure as described above. See Commonwealth v. Crawford, Ky., 789 S.W.2d 779 (1990). We conclude that the appellant intelligently and knowingly pleaded guilty.
On cross-appeal, the Commonwealth contends that the court erred in vacating the December 4, 1985, revocation of the appellant's probation. That order was based on the finding that the revoking court was without jurisdiction to so act under the provisions of KRS 533.040(3) because the grounds for the revocation came to the attention of the Corrections Cabinet not later than May 15, 1985, and the order was entered more than 90 days later. KRS 533.040(3) provides as follows:
A sentence of probation or conditional discharge shall run concurrently with any federal or state jail, prison or parole term for another offense to which the defendant is or becomes subject during the period, unless such sentence of probation or conditional discharge is revoked. Such revocation must take place prior to parole under or expiration of the sentence of imprisonment or within ninety days after the grounds for revocation come to the attention of the corrections cabinet, whichever occurs first.
The court found the 90-day period during which revocation must occur pursuant to this statue began on May 15, 1985. It noted that although the prosecution's motion for revocation was timely filed, the revocation hearing and order of revocation did not take place until well beyond the statutory deadline. Thus it concluded that the court was without jurisdiction to revoke the appellant's probation when it acted to do so on December 4, 1985. In its order vacating the revocation the court stated the following:
Where words in a statute are clear and unambiguous and express legislative intent, there is no room for construction, and, the statute must be accepted as it is written. Manning v. Kentucky Board of Dentistry, Ky.App., 657 S.W.2d 584 (1983). Since [the appellant's] revocation of probation was contrary to the plain language of the statute, the December 4, 1985, order of revocation must be vacated. The clear and unambiguous language of KRS 533.040(3), provided that unless the specified time limits therein are satisfied, a sentence of probation may not be revoked, even if a defendant commits a subsequent offense while on probation.
(Emphasis added.)
The Commonwealth argues that KRS 533.040(3) was not intended to set a time limit within which a court must exercise its jurisdiction to revoke probation but is intended to limit the circumstances under which a revoked sentence of probation can be ordered to run consecutively to a sentence of imprisonment to which the defendant already is, or later becomes, subject during the period of probation. According to the Commonwealth, a probated sentence can be revoked at any time prior to the termination of probation under the authority of KRS 533.020(1) which provides as follows:
When a person who had been convicted of an offense or who has entered a plea of guilty to an offense is not sentenced to imprisonment, the court shall place him on probation if he is in need of the supervision, guidance, assistance or direction *435 that the probation service can provide. Conditions of probation shall be imposed as provided in KRS 533.030, but the court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the period of probation.
(Emphasis added.)
KRS 533.050 further provides that the court may at "any time before the discharge of the defendant or the termination of the sentence of probation" summon a probationer to appear before it upon probable cause to believe that he or she has failed to comply with a condition of the sentence.
The 1974 Commentary to the Kentucky Penal Code comments upon KRS 533.040(3) as follows:
Subsection (3) is designed to eliminate a problem that could exist with probation or conditional discharge sentences which are followed by a subsequent conviction for a separate offense. When this situation arises, authorities could wait until the defendant has served his prison sentence for the subsequent offense and then seek revocation of his prior sentence of probation or conditional discharge and reinstate his prior sentence of imprisonment. It is the purpose of this subsection, which is borrowed from the proposed Michigan Revised Criminal Code, § 1330, and the proposed Federal Criminal Code, § 3104, to prohibit such a practice unless the authorities act to revoke the prior sentence of probation or conditional discharge before the defendant has completed his imprisonment under the subsequent sentence. This provision would seem to be especially important in the event of a release of the defendant from prison on parole. Such a release contemplates a rehabilitation of the defendant or at least a chance to live a non-deviant existence. It also contemplates supervision of the defendant by the department of corrections. With such a release, a clean slate for the offender would serve a useful rehabilitative function. Subsection (3), like the preceding ones, is new to Kentucky law.
(Emphasis added.)
The Commentary thus appears to support the Commonwealth's position as does the statutory scheme in KRS Chapter 533 when read as a whole. KRS 533.040, as its heading implies, and in spite of its being rather inartfully written, appears to us to be intended to deal with the calculation of periods of time for the running of sentences of probation or conditional discharge rather than setting a time limitation beyond which a court has no jurisdiction to revoke probation.
Whether there may or may not be any practical difference to the appellant, we conclude that the court which revoked the appellant's probation had jurisdiction to do so, but that it could not legally order the sentence imposed upon revocation to run consecutively to the conviction for rape and being a persistent felon because revocation took place more than 90 days after the grounds for revocation came to the attention of the Corrections Cabinet. That sentence upon revocation must run concurrently with the sentence for the May 14, 1985, conviction. KRS 533.040(3); cf. Gavel v. Commonwealth, Ky., 674 S.W.2d 953 (1984).
We affirm that portion of the court's judgment which found that the appellant's guilty plea was constitutionally valid, and we reverse that portion which found that the appellant's probation was improperly revoked. We remand this case for further proceedings consistent with this opinion.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575753/ | 829 S.W.2d 184 (1992)
The STATE of Texas, Appellant,
v.
Patricia Ann HALL, Appellee.
No. 1096-90.
Court of Criminal Appeals of Texas, En Banc.
March 25, 1992.
Rehearing Denied May 6, 1992.
*185 Michael Ramsey, Colin B. Amann, Houston, for appellee.
John B. Holmes, Jr., Dist. Atty., and Alan Curry and Denise Dryer, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON THE STATE'S PETITION FOR DISCRETIONARY REVIEW
CAMPBELL, Judge.
Appellee, Patricia Ann Hall, was charged by information with two counts of criminally negligent homicide, a Class A misdemeanor. See Tex.Penal Code § 19.07. The trial court dismissed the information on the ground the prosecution was barred by the two-year statute of limitations, and the First Court of Appeals affirmed the dismissal. State v. Hall, 794 S.W.2d 916 (Tex. App.Houston [1st Dist.] 1990). We granted the State's petition for discretionary review, pursuant to Rule 200(c)(4) of the Texas Rules of Appellate Procedure, to determine whether the statute of limitations was tolled so as to enable the prosecution to go forward. Having determined that the statute of limitations was not tolled, we will affirm the judgment of the court of appeals.
We first briefly review the procedural history of this cause. On November 15, 1985, the Harris County grand jury returned two indictments, which were presented in the 228th District Court of that county and which alleged that appellee committed the criminally negligent homicide of two persons. The two indictments were worded identicallyexcept for the names of the victimsand alleged that
in Harris County, Texas, Patricia Ann Hall, hereafter styled the Defendant, ... on or about June 27, 1985, did ... unlawfully, intentionally and knowingly operate a motor vehicle on a public highway, in her official capacity as a Harris County Sheriffs Office Deputy, [and] did ... negligently cause her official police vehicle to collide with a vehicle occupied by [the victims], and by the Defendant's criminal negligence, did cause the death *186 of the [victims], namely, by poerating her official police vehicle at a greater rate of speed than was reasonable and prudent under the existing conditions, and by failing to maintain a proper lookout for the vehicle occupied by the [victims] and the Defendant was not responding to an emergency call.
Appellee, relying on articles 4.05 and 4.07[1] of the Texas Code of Criminal Procedure,[2] filed a pretrial motion to dismiss the indictments, arguing that the district court
lacks jurisdiction to hear this case of negligent homicide. Negligent homicide is a misdemeanor and it is the County Court which maintains exclusive jurisdiction of misdemeanors, with the exception of those misdemeanors which involve official misconduct. The State has failed to allege any facts giving rise to the charge [of] official misconduct which would thereby give [the district court] jurisdiction. The mere fact that the indictment charges the words, "while in her official capacity," and "operating her official police vehicle," are wholly insufficient as a matter of law to constitute an allegation of official misconduct.
Appellee's motion to dismiss was denied, and the jury subsequently found her guilty as charged.
Appellee raised the jurisdictional issue again on appeal, and the Fourteenth Court of Appeals reversed her conviction on that basis. Hall v. State, 736 S.W.2d 818 (Tex. App.Houston [14th Dist.] 1987, pet. ref'd). Relying in part on Robinson v. State, 470 S.W.2d 697 (Tex.Cr.App.1971), the court of appeals held that the indictments did not allege misdemeanors involving official misconduct. The court of appeals explained that a criminal act involves "official misconduct," for district court jurisdiction purposes, only if that criminal act is "inextricably a function of the official duties of the defendant." Hall, 736 S.W.2d at 821. The court of appeals went on to state that it did "not consider operating a motor vehicle an inextricable function of a police officer's official duties." Id. The court also cautioned the State that "[n]ot every offense committed by a public official involves official misconduct," id. at 820, and that "official misconduct is an offense which cannot be committed by an ordinary citizen," id. at 822.
Despite the holding of the Fourteenth Court, the State did not abandon the prosecution. On August 23, 1989, an assistant district attorney of Harris County filed an information in County Criminal Court at Law Number 10 of that county, charging appellee with the same two counts of criminally negligent homicide. Appellee then filed a motion to dismiss on the basis of the two-year statute of limitations for misdemeanor prosecutions. See Tex.Code Crim. Proc. art. 12.02. The county court granted appellee's motion to dismiss, and the State appealed, arguing that the statute of limitations, Article 12.05,[3] was tolled when the initial indictments were presented in the 228th District Court. The First Court of Appeals, relying principally on Ex parte Ward, 560 S.W.2d 660 (Tex.Cr.App.1978), disagreed with the State and held that the statute of limitations was not tolled under *187 Article 12.05 because the original indictments "were not filed in a court of competent jurisdiction." State v. Hall, 794 S.W.2d 916, 919 (Tex.App.Houston [1st Dist.] 1990).
Before this Court, the State reasserts its claim that the statute of limitations was tolled upon the presentment of the original indictments in the district court, which, the State argues, was a "court of competent jurisdiction." The State argues first that the district court was a court of competent jurisdiction because Article 4.05 grants district courts jurisdiction of all misdemeanors involving official misconduct and "the [original] indictments [in this case] alleged misdemeanors involving official misconduct." The State, citing Studer v. State, 799 S.W.2d 263 (Tex.Cr.App.1990), argues second that the district court was a court of competent jurisdiction because, under Article V, § 12(b), of the Texas Constitution, the presentment of an indictment to a court invests that court with jurisdiction to try the case.[4]
Appellee argues in response that the statute of limitations was not tolled upon presentment of the original indictments to the district court. Appellee contends, as she did below, that the district court was not a court of competent jurisdiction because the original indictments did not allege misdemeanors involving official misconduct. Appellee does not respond to the State's constitutional argument.
We turn first to the State's argument that the district court was a court of competent jurisdiction because the indictments presented therein alleged misdemeanors involving official misconduct. We held in Ex parte Ward, 560 S.W.2d 660 (Tex.Cr.App.1978), that, for the purposes of Article 12.05, a court of competent jurisdiction is a court with jurisdiction to try the case. Since that interpretation has not been legislatively overruled in the many years following Ward, we are confident that it is correct. See Lockhart v. State, 150 Tex. Crim. 230, 200 S.W.2d 164,167-168 (1947) (prolonged legislative silence following judicial interpretation of statute implies approval of interpretation). Under Ward and Article 4.05, then, the district court was a court of competent jurisdiction only if the indictments alleged misdemeanors involving official misconduct.
Twice in recent years we have had occasion to discuss the meaning of the phrase, "official misconduct," as used in Article 4.05. In Robinson v. State, 470 S.W.2d 697, 699 (Tex.Cr.App.1971), we held that official misconduct, for the purposes of that article, was defined in Tex.Rev.Civ. Stat. art. 5973.[5] Article 5973, still in effect at the time of appellee's trial in 1985, defined "official misconduct" as
any unlawful behavior in relation to the duties of his office, wilful in its character, of any officer intrusted in any manner with the administration of justice, or the execution of the law; and includes any wilful[6] or corrupt failure, refusal or neglect of an officer to perform any duty enjoined on him by law.
(Footnote and emphasis added.) Although this statutory definition includes the term, *188 "wilful neglect," we do not construe that term to include negligence. Rather, "wilful neglect" refers to "the intentional disregard of a plain or manifest duty." Black's Law Dictionary 1600 (6th ed. 1991).
More recently, in Gallagher v. State, 690 S.W.2d 587 (Tex.Cr.App.1985), we again discussed, at considerable length, the meaning of official misconduct within the context of Article 4.05 and again concluded that for a criminal act to constitute official misconduct, it must be both wilful and related to the duties of the defendant's office. See also Emerson v. State, 727 S.W.2d 267 (Tex.Cr.App.1987). And, again, because our holdings in Robinson and Gallagher have not been legislatively overturned, although many years have passed, we are confident that they are correct.
Given the established legal definition of "official misconduct," it is apparent that the original indictments in this case did not allege misdemeanors involving official misconduct. The indictments alleged neither "wilful" misconduct nor misconduct "related to the duties" of appellee's office. We thus conclude that the district court wherein the original indictments against appellee were presented was not a court of competent jurisdiction under Article 4.05. Compare Ex parte Slavin, 554 S.W.2d 691 (Tex.Cr.App.1977) (invalid indictment tolled statute of limitations, but trial court there had subject matter jurisdiction of offense charged).
We turn next to the State's contention that the district court was a court of competent jurisdiction by virtue of the last sentence in Tex. Const, art. V, § 12(b). Although the language cited by the State is apparently sweeping, we recognized in Stutter that the original understanding of this language was that it would only overrule "the line of cases [from this Court] holding that a fundamental error in a charging instrument deprives the [trial] court of jurisdiction of the case." Studer, 799 S.W.2d at 269 (quoting Texas Legislative Council report). We went on to note that the extensive legislative history showed that "the perceived evil [the Texas Legislature was] correcting was the raising of indictment defects for the first time after a trial and conviction and the subsequent reversal of that conviction because of that defect." Id. at 270-271. There is nothing in the legislative history of Article V, § 12(b), suggesting that it was believed that that article would automatically vest subject matter jurisdiction in any court in which an indictment was presented, thereby effectively abrogating Chapter 4 of the Texas Code of Criminal Procedure.[7] As a member of this Court recently observed,
a literal reading of article V, § 12(b) could lead to absurd results. If the mere presentment of an indictment could vest jurisdiction in any court, then ... a capital murder case could be properly tried in a county court. I cannot believe that such a result was the legislature's or the voters' intent.
DeDonato v. State, 819 S.W.2d 164, 168 (Tex.Cr.App.1991) (Maloney, J., concurring). We conclude, therefore, that the district court wherein the original indictments against appellee were presented was not a court of competent jurisdiction by way of Article V, § 12(b).[8]
Having determined that the district court was not a court of competent jurisdiction, we hold that the statute of limitations was not tolled. The judgment of the court of appeals is therefore AFFIRMED.
MILLER, J., concurs in the result.
CLINTON, Judge, concurring.
In the first decision giving rise to this contretemps, Hall v. State, 736 S.W.2d 818 (Tex.App.Houston [14th] 1987), PDR refused, the appellate court determined that the district court lacked jurisdiction over two pending indictments alleging essential *189 ly criminally negligent nomicme proscriDea by V.T.C.A. Penal Code, § 19.07, pursuant to Article 21.15 V.A.C.C.P. In its opinion in the instant cause another appellate court applied the "law of the ease" doctrine to adopt that prior holding, viz: "that the two indictments purporting to charge appellee with criminally negligent homicide involving official misconduct, did not confer jurisdiction on the district court." State v. Hall, 794 S.W.2d 916, at 918 (Tex. App. Houston [1st] 1990).[1] In my judgment both courts are basically right, albeit they looked primarily to the definition of "official misconduct" pertaining to removal proceedings involving county officers without taking into consideration "official misconduct" as delineated in V.T.C.A. Penal Code, § 39.01, and for other matters about to be developed.
While there continues to be "a close relationship between `removal official misconduct' and `criminal official misconduct,'" Talamantez v. State, 829 S.W.2d 174 (Tex. Cr.App., delivered this day), my underlying thesis is that with enactment of the Penal Code in 1973, effective January 1, 1974, the Legislature made a rather clean break with past formulations when in V.T.C.A. Penal Code, § 39.01 it created a single offense of "criminal official misconduct," and thus provided new meaning to the terms "all misdemeanors involving official misconduct" as used in Article V, former § 8, and Article 4.05, V.A.C.C.P. (jurisdiction of district court), and "official misconduct" as used in Article V, § 24 (removal of county officers).
Having lately experienced arbitrary governance approaching tyranny, apparently the Framers deemed meaning of the term "official misconduct" so commonly understood that they felt no need to define it in §§ 4 and 24, or elsewhere in the Constitution. See Gallagher v. State, 690 S.W.2d 587, at 592 (Tex.Cr.App.1985); also id. at 595 (dissenting opinion), and Emerson v. State, 727 S.W.2d 267 (Tex.Cr.App. 1987) (dissenting opinion at 269 ff).
Thereafter revisers included in revised civil statutes of 1879 the definition of "officiai misconduct appncame in civil removal proceedings involving county officers only; that definition and other provisions for removal proceedings were carried forward in every revision of civil statutes and are now found in V.T.C.A. Local Government Code, Title 3, Chapter 87, Subchapters B 87.011 ff. Talamantez v. State, supra.
Meanwhile the Legislature was proscribing certain conduct in penal codes, so that contemporaneous with civil statutes authorizing removal of county officers there were numerous criminal statutes which applied to violations of specifically prescribed duties and functions of particular state and county officers of government. This sort of statutory hodgepodge continued to challenge the bench and bar until 1974. See, e.g., cases discussed and cited in Talamantez v. State, supra; Gallagher v. State, supra; Emerson v. State, supra (dissenting opinion).
In 1973 the Legislature confronted its jumbled creations headon in an evident effort to resolve recurring problems manifested through litigation. Knowledgeable commentators close to its endeavors explained the changes and consequences in § 39.01. Official Misconduct, viz:
"This section replaces a large number of Texas statutes, most of which applied to violations of specific duties by specified public servants, e.g., Penal Code arts. 87 (misapplication of public money), 416 (neglect in drawing juries), 397 (commissioner failing to attend court), 422 (officer refusing to give data). It proscribes generally misfeasance and nonfeasance in public office, but only when the public servant intends to benefit himself or harm another, and it provides a uniform mens rea requirement and penalty structure.
******
This sections broadens the coverage of prior law to embrace the comprehensive category of public servant, which includes, in addition to officers and employees *190 of government, [others identified in V.T.C.A. Penal Code, § 1.07(a)(30) ].
The five subdivisions of this section describe the different ways in which the offense may be committed. The public servant is responsible for unauthorized exercise of his power, acts beyond his power, failure to perform a mandatory duty, violation of law relating to his office, and theft of public property under his control."
Practice Commentary.[2]
Because § 39.01 specifically defined those acts constituting "criminal official misconduct" by public servants, for the bench and bar to continue to resort to a definition of "removal official misconduct" on the part of county officers would appear to be contrary to expressed legislative intent.
On or about June 27, 1985, when she allegedly committed criminally negligent homicide, appellant was a deputy sheriff, at best a "public servant," rather than a "county officer" within the meaning of then effective Article 5973. See former article 5970, R.C.S.1925, namely:
"All district and county attorneys, county judges, commissioners, clerk of the district and county courts and single clerks in counties where one clerk discharges the duties of district and county clerk, county treasurer, sheriff, county surveyor, assessor, collector, constable, cattle and hide inspector, justice of the peace and all county officers now or hereafter existing by authority either of the Constitution or laws, may be removed from office by the judge of the district court for ... official misconduct[.]"
Notice that each named officer occupies an elected office. See now a similar enumeration of offices in V.T.C.A. Local Government Code, § 87.012.
Furthermore, by then former § 39.01 had been reduced to simpler terms, viz:
"(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm another, he intentionally or knowingly:
(1) violates a law relating to his office or employment; or
(2) misapplies any thing of value belonging to the government that has come into his custody or possession by virtue of his office or employment.
(b) An offense under Subsection (a)(1) of this section is a Class A misdemeanor.
(c) An offense under Subsection (a)(2) is [a class of misdemeanor or degree of felony according to `the value of the use of the thing misapplied' ]."
The criminally negligent conduct appellant allegedly engaged in may not be converted to "official misconduct" under § 39.01 by the further allegations that she operated a motor vehicle "in her official capacity as a Harris County Sheriff's Office Deputy" and then describing it as "negligently" operating "her official police vehicle" while she "was not responding to an emergency call." See majority opinion, at 1. The requisite specific intent "to obtain a benefit or ... to harm another," is not alleged, nor do the acts that are alleged "violate[] a law relating to [her] office or employment," or tend to show she "misapplie[d] any thing of value belonging to the government[.]"
For those reasons then I agree with the courts of appeals "that the two indictments purporting to charge appellee with criminally negligent homicide involving official misconduct, did not confer jurisdiction on the district court." Similarly, I also agree *191 with the majority here that the district court was not a court of competent jurisdiction under Article V, § 8 and Article 4.05, and for the reasons given by the majority I further agree that it was not under Article V, § 12(b).[3]
Accordingly, I concur in the judgment of the Court.
McCORMICK, P.J., joins.
NOTES
[1] Article 4.05 provides:
District courts and criminal district courts shall have original jurisdiction in criminal cases of the grade of felony, of all misdemeanors involving official misconduct, and of misdemeanor cases transferred to the district court under Article 4.17 of this code.
In 1985, Article 4.07 provided:
The county courts shall have original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed shall exceed two hundred dollars.
[2] Unless otherwise noted, all articles cited in this opinion are in the Texas Code of Criminal Procedure.
[3] Article 12.05 provides in relevant part:
(b) The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.
(c) The term "during the pendency," as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason.
(Emphasis added.)
[4] Texas Constitution art. V, § 12(b), provides:
An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and informations, including their contents, amendments, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.
(Emphasis added.)
[5] Article 5973 was repealed in 1987 and recodified as Tex.Loc.Gov't Code §§ 21.002(b)(2) and 87.011(3). These new statutes substitute "intentional" for "wilful." See generally State v. Williams, 780 S.W.2d 891 (Tex.App.San Antonio 1989, no pet.).
[6] Conduct is "wilful" if it is intentional, as distinguished from negligent, and if it is done in bad faith or without reasonable ground for believing it to be lawful. Brown v. State, 167 Tex. Crim. 621, 322 S.W.2d 626, 627-628 (1959); Rankin v. State, 139 Tex. Crim. 247, 139 S.W.2d 811, 812 (1940); Elmore v. State, 126 Tex. Crim. 519, 73 S.W.2d 107, 108 (1934); see also R. Perkins & R. Boyce, Criminal Law 875 (3rd ed. 1982).
[7] Chapter four delineates the criminal subject matter jurisdiction of Texas courts.
[8] Also worth noting is the fact that, unlike the defendant in Studer, appellee lodged a cornplaintregarding the indictment in the trial court. Thus, there was no waiver of a substance defect under Article 1.14(b), as there was in Studer.
[1] All emphasis here and throughout this opinion is mine unless otherwise indicated.
[2] In § 39.02, the Legislature also created the offense of "official oppression," one not contained in prior law. There were, however, specific penal statutes prohibiting certain oppressive activities, mostly relating to law enforcement. This section replaces "these ad hoc statutes with a general offense of official oppression that applies to all public servants." Practice Commentary.
This Court has determined that "official oppression" is "within the ambit of the phrase `official misconduct' as that term is used in Article V, [former] § 8 of the Texas Constitution and Article 4.05, V.A.C.C.P.," meaning that it is "a misdemeanor involving official misconduct" over which a district court has jurisdiction. Gallagher and Emerson, both supra. We are not concerned here with such an offense, and thus do not address that jurisdictional matter.
[3] Demostrated once again that not every broad statement of law is always inclusive nor free of ambiguity, That "presentment of [a charging instrument] inversts the court with jurisdiction of the cause, "id. 12(v). overlooks a basic proopositionn in our jurisprudence, and other common law jursdictins: jurisdiction of a trial court depends on other elements as swell, viz. general, personal. subject matter, and power to enter the paticlur judgment, Garcia. v. Dial, 596. S.W.2d 524. at 527-528 (Tex.Cr.App.1980). Hultom v. State, 171 Tex. Cr.R. 425, 351 S.W.2d 248. at 255 (1961); Morrow v. Corvin 122 Tex 553, 62 S.W.2d 641, at 644-645 (1933) Cleveland v. Ward, 116 Tex 1, 285 S;W.1063 AT 1069 (1926) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575754/ | 308 S.W.3d 596 (2009)
2009 Ark. 255
Ledell LEE, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 08-160.
Supreme Court of Arkansas.
May 7, 2009.
*599 Durrett & Coleman, by: Gerald A. Coleman; and Ford, Glover and Roberts, by: Danny W. Glover, Wynn, West Memphis, for appellant.
Dustin McDaniel, Att'y Gen., by: Lauren Elizabeth Heil, Ass't Att'y Gen., for appellee.
ROBERT L. BROWN, Justice.
On February 9, 1993, twenty-six year-old Debra Reese was found murdered. She had been beaten approximately thirty-six times with a tire thumper and strangled. The appellant, Ledell Lee, was arrested and charged with capital murder. His first trial ended in a mistrial in 1994 *600 because the jury could not reach a unanimous verdict. The State then tried Lee again, and a jury found him guilty of capital murder on October 12, 1995, and sentenced him to death by lethal injection on October 16, 1995. This court affirmed the conviction and sentence on direct appeal. Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997) (Lee I).
Lee subsequently filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37 in which he alleged that his trial attorneys had rendered ineffective assistance of counsel during the guilt and penalty phases of his second trial. The circuit court held two separate hearings on the matter, on January 20 and 21, 1999, and on March 30, 31 and April 1, 1999. Following these hearings, the circuit judge denied Lee's petition, and this court affirmed. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001) (Lee II). Petitions for habeas corpus relief in federal court then followed, which culminated in a stay of those proceedings until an issue related to impairment of counsel at the first Rule 37 hearings in 1999 could be resolved by state courts.
On August 30, 2005, Lee moved this court to recall the mandate in Lee II on grounds that his attorney in the postconviction proceedings rendered ineffective assistance of counsel. Lee maintained, and this court later found, that his postconviction attorney suffered from a substance-abuse problem and had been intoxicated during the initial Rule 37 proceedings in 1999. As a result, this court granted Lee's motion to recall the mandate and remanded the matter to the circuit judge for further proceedings. Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006) (Lee III).
After this court's decision in Lee III, Lee filed an amended petition for postconviction relief under Arkansas Rule of Criminal Procedure 37. The circuit judge held another hearing on August 28, 2007, and subsequently denied Lee's petition and entered findings of fact and conclusions of law on November 21, 2007. It is from these findings that Lee now appeals.[1]
It is well established that the right to counsel, guaranteed by the Sixth Amendment to the United States Constitution, is "the right to effective assistance of counsel." See, e.g., Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The United States Supreme Court has held that the question in determining whether an attorney rendered constitutionally ineffective assistance of counsel is "whether the counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. Therefore, to prove a right to postconviction relief based on a claim of ineffective assistance of counsel, a petitioner must show (1) that "counsel's representation fell below an objective standard of reasonableness," and (2) that counsel's particular errors "actually had an effect on the defense." Id. at 688, 693, 104 S. Ct. 2052.
It is also well settled that there is a strong presumption that the trial counsel's representation falls within the wide range of reasonable professional assistance. See Wainwright v. State, 307 Ark. 569, 574, 823 S.W.2d 449, 451 (1992). The *601 appellant has the burden of overcoming the presumption by identifying specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. According to the second prong of the Strickland test, even if counsel's conduct is shown to be professionally unreasonable, the judgment will stand unless the petitioner can demonstrate that the error had an actual prejudicial effect on the outcome of the proceeding. Strickland, 466 U.S. at 691, 104 S. Ct. 2052. In short, the appellant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2052.
On review, this court will not reverse a denial of postconviction relief unless the circuit court's findings are clearly erroneous or clearly against the preponderance of the evidence. See, e.g., Gaye v. State, 2009 Ark. 201, 307 S.W.3d 1. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
As a preliminary matter, we note that the State urges this court to apply the doctrine of law of the case to a number of Lee's arguments on appeal. The State specifically contends that Lee makes the same arguments as were made in Lee II, and the evidence before this court is materially the same as what we considered in Lee II. The doctrine of law of the case provides that "the decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review." See, e.g., Zawodniak v. State, 339 Ark. 66, 68, 3 S.W.3d 292, 294 (1999). Law of the case does not apply in the instant appeal because this court recalled the mandate of Lee II in Lee III and reopened Lee's postconviction proceeding based on our determination that Lee had not had the benefit of effective counsel at the Rule 37 proceedings in 1999. We reject the State's argument on this point.
I. The Guilt Phase
Lee was represented during the guilt phase of his trial by William Simpson, Chief Public Defender for the Sixth Judicial District, and Bret Qualls, an attorney with the State Trial Public Defender's Office.
A. Conflict of Interest[2]
Lee claims initially on appeal that the circuit judge erred in finding that he failed to show that his attorneys' performance *602 was affected by an actual conflict and that he had waived any conflict that may have existed.
The surrounding facts for this point are these. After Lee was charged with capital murder for the death of Debra Reese, he became a suspect in several other crimes a second capital murder case and three rape cases for which he was later charged.[3] The Reese murder was assigned to Pulaski County Circuit Court, Second Division, while the second capital murder case was assigned to the Seventh Division, and the three rape cases were assigned to the First Division. Simpson and Qualls were appointed to represent Lee in all five cases.
As already noted, in 1994, the first trial in the Reese murder ended in a mistrial because of a hung jury. During that time, the other four cases against Lee were pending. In early February 1995, Lee, acting pro se, moved First Division Judge Marion Humphrey to relieve Simpson and Qualls as counsel in the rape cases based on an alleged conflict of interest. After a hearing on the pro se motion, on February 17, 1995, Judge Humphrey, without stating his reasons, found that a conflict existed and granted Lee's request to have Simpson and Qualls relieved as counsel in the rape cases. Judge Humphrey then appointed Dale Adams to represent Lee in those cases.[4]
Following Judge Humphrey's decision, Simpson and Qualls sought a hearing in Second Division to determine the status of the public defender's office in the Reese murder case. On February 22, 1995, Judge Chris Piazza heard the matter and stated that the conflict in the First Division did not govern the issue. He said: "Judge Humphrey can't declare there is a conflict up there and have any bearing on this case."[5] On March 8, 1995, Judge Piazza found that there was no conflict between Lee and his attorneys and again refused to relieve Simpson and Qualls.
Judge Piazza held two other hearings during which Simpson and Qualls requested that they be relieved as counsel, and in both cases, Judge Piazza refused their requests.[6] Simpson then filed a petition for writ of certiorari with this court on April 25, 1995, in which he alleged that there was "an intolerable conflict between himself and [Lee]." He asked this court to relieve Qualls and him as counsel in the Reese murder case. This court denied the petition and declined to hold that Judge Piazza "committed a plain, manifest, clear, great, or gross abuse of discretion in refusing to relieve the public defender." Simpson v. Pulaski County Cir. Ct., 320 Ark. 468, 899 S.W.2d 50 (1995).
*603 On appeal, a criminal appellant is entitled to a presumption of prejudice only when he demonstrates that an actual conflict of interest adversely affected his lawyer's performance. See Sheridan v. State, 331 Ark. 1, 4, 959 S.W.2d 29, 31 (1998) (citing Strickland, 466 U.S. 668, 104 S. Ct. 2052). The petitioner has the burden of proving a conflict of interest and of showing its adverse effects. Id. (citing Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988)). The prejudice must be real and have some demonstrable detrimental effect and not merely have some abstract or theoretical effect. Id.
Lee argues that there was a conflict of interest in the instant case that entitles him to "automatic relief." It is Lee's specific contention in this appeal that, in circumstances in which a criminal defendant or his lawyer alleged a conflict of interest before trial or at trial, the circuit judge must relieve counsel and appoint separate counsel or take adequate steps to ascertain whether the risk of an actual conflict of interest is too remote to warrant appointment of separate counsel. Lee relies on the United States Supreme Court's holding in Holloway v. Arkansas for that proposition. 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).
Lee's reliance on Holloway is misplaced. The Holloway case involved an alleged conflict of interest arising from defense counsel's being forced to represent codefendants over a timely objection.[7] In the case at hand, Lee does not assert that there was a conflict of interest because his attorneys were forced to represent a codefendant. Rather, he asserts that his trial counsel and he had a breakdown of trust.
The United States Supreme Court has since expounded further on the Holloway automatic-reversal rule. See Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). This court applied Mickens in a case with facts analogous to those at hand. See Townsend v. State, 350 Ark. 129, 85 S.W.3d 526 (2002) (Townsend asserted a conflict of interest when he sued his attorney while he was representing him in a criminal case). In Townsend, this court said:
In Mickens, the Court rejected the argument that automatic reversal is required whenever a trial court neglects a duty to inquire into a potential conflict. Instead, the Court held that an "actual conflict of interest" means "a conflict that affected counsel's performance, as opposed to a mere theoretical division of loyalties." ... Until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance. Thus, in the absence of an "actual conflict," a defendant alleging counsel's performance was deficient due to a conflict must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." In other words, an analysis of a conflict of interest under Mickens requires the same kind of analysis and the same kind of demonstration of prejudice that is required under Strickland v. Washington, as opposed to the presumption of prejudice (and the consequent automatic reversal) that was explained in Holloway.
*604 Id. at 134-35, 85 S.W.3d at 528-29 (internal citations omitted).
In the instant case, Lee has not shown a conflict of interest that actually affected his attorneys' performance. He has also failed to show that any conflict between his attorneys and him had an actual, demonstrable, detrimental effect on their representation of him. Sheridan, 331 Ark. at 4, 959 S.W.2d at 31. In sum, Lee was required to show that there was a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. He has not done so.
B. Waiver
Lee also contends that the circuit judge erred in finding that he waived any claim to relief based on an alleged conflict of interest. He asserts, and testified at the August 2007 hearing, that he was misled into telling the judge that he wanted to waive any conflict-of-interest claim. Lee further urges that, under Sixth Amendment jurisprudence, any waiver he may have made is no longer valid because he reasserted his conflict-of-interest claim just before the second trial, which was five months after he allegedly waived it.
We decline to reach the merits of this point because we conclude that it is unnecessary. Lee has not shown that the conflict of interest he raises had anything but an "abstract or theoretical" effect on his defense. See Sheridan, 331 Ark. at 5, 959 S.W.2d at 31. Because he makes no showing of an adverse impact on his trial, it is not relevant to the disposition of the instant appeal whether he effectively waived any claim regarding a conflict of interest.
C. Alibi Witnesses
For his next point, Lee claims that Simpson and Qualls rendered him ineffective assistance of counsel because they did not call certain alibi witnesses in the second trial in 1995, which resulted in the conviction and the death penalty. Lee asserts that the following were alibi witnesses at the first trial in 1994, which ended in a mistrial, and that they were available and willing to testify during the second trial: Stella Young, Lee's mother; Howard Lewis Young, Lee's brother; Patricia Young, Lee's sister; and Corey Briscoe, a family friend. According to Lee, Sandra Smith, his cousin, was also available and willing to be an alibi witness for him during the second trial, even though she did not testify in the first trial. Lee testified at the August 2007 hearing that he asked Simpson and Qualls to call the alibi witnesses during the second trial.
The State responds that Lee's trial attorneys did not render ineffective assistance of counsel in failing to call these witnesses at the second trial. Simpson testified at the August 2007 hearing that Qualls and he determined that the witnesses were inconsistent and not credible and that they did not believe the witnesses had been helpful to Lee in the first trial. Simpson also testified that Qualls and he had discussed all witnesses with Lee, who agreed with their recommendation not to call them in the second trial. Qualls added that Simpson and he had believed that the State's case was weaker during the second trial and that had factored into their decision not to call the alibi witnesses. Qualls testified that "we didn't feel like the State's witnesses had come across as good in the second trial as the first trial. We wanted to stay on the attack and attack their witnesses, not give them anything to attack."
At the conclusion of the State's case during the guilt phase of the second trial, the following colloquy took place between the court and Lee:
*605 THE COURT: Mr. Lee, Mr. Qualls has stated that he and Mr. Simpson and Mr. Adams had conversed with you and your family and that you had concurred in the decision that y'all would rest at the conclusion of the State's case; is that correct?
LEE: Yes, sir. That's correct.
In rejecting Lee's argument that Simpson and Qualls rendered ineffective assistance of counsel on this point, the circuit court found that "the decision not to call any of the alibi witnesses in the guilt phase at the second trial was a reasoned, strategic decision of counsel, with which the defendant agreed."
It is well settled that an attorney's decision not to call a particular witness is largely a matter of professional judgment, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not, in itself, proof of counsel's ineffectiveness. See, e.g., Dumond, 294 Ark. at 387, 743 S.W.2d at 783. In the instant case, evidence procured at the August 2007 hearing substantiates that Lee's attorneys made a strategic decision that it was in his best interest not to call the alibi witnesses at the second trial. This decision was based on their determination that the witnesses had presented conflicting testimony during the first trial and that the State's case in the second trial was weaker. Furthermore, the record reflects that, at the time the decision was made to rest after the State's case, without presenting witnesses, Lee agreed with his attorneys' decision.
Under these circumstances, in order to find that Lee's counsel rendered ineffective assistance of counsel by failing to call the alibi witnesses, this court would have to rely on the "distorting effects of hindsight" that the Supreme Court has cautioned against. Strickland, 466 U.S. at 694, 104 S. Ct. 2052. We hold that it was not clearly against the preponderance of the evidence for the circuit judge to find that Lee's "allegation of ineffective assistance of counsel for failure to call the alibi witnesses is without merit."
Lee also argues that it was ineffective not to call these alibi witnesses because his attorneys told the jury in opening statement that they would be called. Lee cites authority from other jurisdictions for the proposition that this amounted to ineffective assistance of counsel. Lee, however, did not include this argument in his amended Rule 37 petition, and the circuit judge did not address it in his findings of fact and conclusions of law. Thus, the issue is not preserved for review on appeal. Fisher v. State, 364 Ark. 216, 223, 217 S.W.3d 117, 123 (2005) (this court was precluded from considering an issue for the first time on appeal where it was not raised in the Rule 37 petition).
II. Penalty Phase
As already referenced, Dale Adams, an attorney who practices in Little Rock, was asked by the circuit judge to represent Lee during the penalty phase of his second capital murder trial, which he agreed to do. Lee now raises several issues of ineffective counsel relating to the penalty phase.
A. Mitigation Specialist
Lee first contends that Adams rendered ineffective assistance of counsel by failing to secure a mitigation specialist as part of the defense team. In doing so, he relies heavily on guidelines and comments in The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases ("ABA Guidelines"). These guidelines, he points out, conclude that "a mitigation specialist is also an indispensable *606 member of the defense team throughout all capital proceedings." ABA Guidelines 4.1A cmt. Lee, however, does not tell the court that the guidelines, and specifically section 4.1A, underwent a comprehensive revision, and the current version was adopted in 2003.
Adams testified at the August 2007 hearing that he did not have a mitigation specialist, as the term is now understood, during Lee's trial. He also made it clear, though, that no one at that time was trained as a mitigation specialist. Adams testified that he did employ a former state trooper, who worked for the Death Penalty Resources Center and "was quite experienced in death penalty cases," as a mitigation fact investigator.
In reviewing an attorney's conduct in light of challenges to the sufficiency of representation, this court will "evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S. Ct. 2052. While Adams testified that he would do certain things differently now, it was not ineffective assistance of counsel to fail to engage the services of a mitigation specialist, where Adams testified that no one was trained in that way at the time.
The State also emphasizes that Lee must fail on this point on appeal because he has failed to show how he was prejudiced by Adams's failure to hire a mitigation specialist. The State is correct. Lee does not point to any evidence that would have been discovered by a mitigation specialist that was not discovered by the mitigation fact investigator Adams hired. Even if this court determined that it was unreasonable and ineffective for Adams not to hire a mitigation specialist, Lee would have to show that there "is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695, 104 S. Ct. 2052. Lee has not done so.
B. Mitigation Witnesses
Lee next urges that Adams rendered ineffective assistance of counsel because he did not present essential mitigation evidence. Lee specifically argues that Adams failed to call his mother, Stella Young, and his sister, Lynn Williams, to testify as mitigation witnesses; that he failed to prepare his uncle, Charles Booker, and his aunt, Shelby Smith, properly for their mitigation testimony; and that Adams failed to offer physical evidence in the penalty phase that might "humanize" him. He again relies on the ABA Guidelines, which were significantly revised in 2003, many years after his trial.
Stella Young and Lynn Williams both testified at the August 2007 hearing that they were not asked to testify at the penalty phase of the second trial but would have been willing to do so. Stella Young testified further that Adams had not asked her for any photos or videos of Lee. Adams testified at the August 2007 hearing that he would now offer that sort of physical evidence in a death penalty case. He said that he "do[es] a lot of things differently today in mitigation."
With respect to Lee's argument that Adams should have called his mother, Stella Young, to testify as a mitigation witness, the record reflects that Adams was instructed by Lee not to do so. Regarding the other testimony and evidence that Lee argues should have been presented to the jury during the penalty phase, Lee fails to show how he was prejudiced by the lack of that evidence. In his brief before this court, Lee makes the conclusory statement that "[a] heart-felt, moving plea from grieving family members might have *607 caused some juror to spare Lee's life." Lee also contends that proper preparation "could have perhaps" caused his aunt and uncle to give such testimony. However, the Strickland test required Lee to show that, but for the alleged error in Adams's representation, there was a reasonable probability that the jury "would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." 466 U.S. at 695, 104 S. Ct. 2052.
The guarantee of effective assistance of counsel clearly encompasses the penalty phase of a criminal trial, and this court has recognized that the failure to present any testimony during the mitigation phase of the trial fails to pass constitutional muster. See, e.g., State v. Smith, 368 Ark. 620, 622-23, 249 S.W.3d 119, 121-22 (2007) (citing Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)). However, this court has further held that the decision not to offer certain mitigating evidence is a matter of trial strategy where the decision is made after a full investigation of the facts. See Wooten v. State, 351 Ark. 241, 245-46, 91 S.W.3d 63, 66 (2002).
In the instant case, the circuit judge, following the Rule 37 hearing in 2007, noted that Adams called Lee's aunt and uncle, friends and acquaintances of Lee, and an expert witness during the penalty phase of the trial. These witnesses, according to the judge, gave testimony that Lee did not deserve to die, that he was not a violent person but one who "never got into trouble growing up," that he "was an excellent worker who was nice and got along with his fellow workers," and that he was born to an unwed teenage mother and did not have a father figure at home, among other things. Furthermore, the record reflects that Lee asked Adams not to call his mother in the penalty phase. Adams also testified that he hired a mitigation fact investigator who had experience with death penalty cases, and there were family members who gave mitigation evidence.
Under these circumstances, we hold that the circuit court did not err in finding that Adams "was not ineffective in his preparation and presentation of the penalty phase of the trial."
C. Sheila Dodson
Lee further contends that it was ineffective assistance of counsel for Adams not to call Sheila Dodson as a witness in the penalty phase of the trial. The State relied on the testimony of a woman, J.P., who had been brutally raped, as an aggravating circumstance. The State, in addition, introduced the testimony of Vernadean Brazear of the Pulaski County Circuit Clerk's office, that Lee had been tried and convicted for that rape. Sheila Dodson testified as an alibi witness for Lee at the rape trial and related to the jury that she had spoken to Lee on the telephone during the evening that J.P. was raped. Lee contends that Adams erred in not calling Dodson as an alibi witness in the penalty phase of the trial to refute the State's evidence that Lee raped J.P.
Adams testified at the August 2007 hearing that he decided not to call Dodson as a witness during the penalty phase of the Reese murder trial because he "had an experience with her in a previous case [J.P.'s rape trial], and it was not a good experience." Adams further testified that he "made a strategic decision not to use her." Given that the decision about whether to call a certain witness is largely a matter of professional judgment, the circuit court did not err in finding that "Adams'[s] decision not to call Dodson to rebut the defendant's guilt of crimes for which he had been convicted, was a matter of trial strategy." Dumond, 294 Ark. at 387, 743 S.W.2d at 783.
*608 D. Closing Argument
During the prosecutor's closing argument in the penalty phase of the trial, she said Lee "is a hunter. This is his habitat. And his prey were the people of Jacksonville from 1990 to 1993. And the people of Jacksonville didn't even know they were being hunted." In his closing argument, Lee's counsel asked the jury "who are we then to say that we are going to kill Ledell Lee?" In her rebuttal, the prosecutor said, "I will tell you who we are. We are the hunted." Adams did not object to these statements. On appeal, Lee claims that the prosecutor's statements were "grossly improper and inflammatory" and "were deliberately calculated to create intense fear in the mind of each and every juror." Lee asks this court to grant him a new sentencing trial.
At the August 2007 hearing, Adams acknowledged that he did not hear the prosecutor's statements and said that he "just missed it." The circuit court found that the prosecutor's statements were improper, and "an objection would in all likelihood have been sustained." The judge found further, however, that the statements were not "so egregious and inflammatory that the defendant was denied a fair trial."
The failure to object during closing statements generally falls within the wide range of permissible professional legal conduct because "experienced advocates differ about when, or if, objections are called for." See Cothren v. State, 344 Ark. 697, 710, 42 S.W.3d 543, 552 (2001) (quoting Sasser v. State, 338 Ark. 375, 391, 993 S.W.2d 901, 910 (1999)). But even if it was error for Adams to fail to object to the prosecutor's statements, before Lee can prevail, he must show, under Strickland, that there is a reasonable probability that the jury would have imposed a different sentence if the prosecutor had not made the statements. Id. at 710, 42 S.W.3d at 552.
Adams's failure to object was clearly not part of his strategy because he testified at the August 2007 hearing that he "just missed it." The jury, however, heard testimony of the violent nature of the Reese murder during the penalty phase and also heard testimony that Lee had raped three different women in Jacksonville.[8] Under these circumstances, we conclude that Lee has not met his burden to show that there is a reasonable probability that the jury would have imposed a different sentence if Adams had objected to the prosecutor's statements.
E. In-court Identification
As part of the penalty phase, the State called A.S. to testify that she had been raped and to tell the jury about the circumstances of the attack. Charges were pending against Lee at the time for the rape of A.S. Prior to her testimony during Lee's penalty phase, A.S. had not been able to identify Lee as her rapist. On cross-examination, Adams asked A.S. if she could identify her attacker. She responded, "I think I would know him if I saw him." During redirect examination, A.S. identified Lee as the man who had raped her. Lee maintains that Adams opened the door for A.S. to identify him, and the error amounted to ineffective assistance of counsel. The State responds that it was reasonable trial strategy for Adams to highlight to the jury that A.S. *609 had never been able to identify her attacker.
Adams testified at the August 2007 hearing that, in retrospect, it was a mistake to ask A.S. if she could identify her attacker and that he asked her "one too many questions." The circuit judge found that Adams's question was "intended to point out to the jury that [A.S.] could not identify the defendant as her attacker." The circuit judge found that the strategy "backfired" but that A.S.'s "surprise identification" of Lee did not amount to ineffective assistance of counsel.
Given that there is a strong presumption that an attorney's conduct "might be considered sound trial strategy," we affirm the circuit judge on this point. Strickland, 466 U.S. at 690, 104 S. Ct. 2052. It was not unreasonable for Adams to attempt to educate the jury that A.S. had never been able to identify Lee as her attacker, even if the strategy "backfired," as the circuit judge found. Furthermore, Lee has not shown a reasonable probability that the jury would have imposed a different sentence if Adams had not elicited an identification by A.S.
F. DNA Testing
As already discussed, during the penalty phase of the trial, the State presented evidence to the effect that Lee had raped three women. To support that aggravating evidence, the State offered the expert testimony of Hal Deadman of the Federal Bureau of Investigations ("FBI"). Deadman testified about DNA samples that were taken from the rape victims and told the jury that the samples taken from the victims matched samples taken from Lee. Lee now urges that Adams rendered ineffective assistance of counsel by not seeking to have the samples tested at an independent laboratory. The State responds that Lee has failed to show that an independent test of the DNA samples would have resulted in exculpatory evidence.
At the August 2007 hearing, Adams testified that he did not have the DNA tested by an independent entity because he did not believe that there was such a place, other than the FBI, to have DNA samples tested at that time. Adams testified that he did hire an expert to look into the FBI's protocol. According to Adams's testimony, the expert did not discover any problems with the FBI's procedures. The circuit judge found that Lee had not presented proof that the samples could have been independently tested at the time of trial and that it was not ineffective assistance of counsel for Adams to fail to do so. The circuit judge did not err in this regard because an attorney's effectiveness is judged based on his perspective at the time of the trial. Strickland, 466 U.S. at 689, 104 S. Ct. 2052.
Affirmed.
NOTES
[1] Lee's current appeal has been delayed by an additional five months because his counsel twice submitted deficient briefs that did not conform to this court's rules. This court issued two per curiam opinions, which ordered rebriefing by Lee. Lee v. State, 375 Ark. 421, 291 S.W.3d 188 (2009) (per curiam); Lee v. State, 375 Ark. 124, 289 S.W.3d 61 (2008) (per curiam).
[2] Lee argued before the circuit judge at the August 2007 hearing that Judge Piazza was engaged in a personal relationship with deputy prosecuting attorney, Melody Larue, during the second trial and that Simpson and Qualls rendered ineffective assistance of counsel because they did not seek the recusal of Judge Piazza based on that alleged relationship. In the alternative, Lee argued that the State violated his right to due process and a fair trial by failing to disclose the relationship to defense counsel. The circuit judge found that Lee failed to present evidence that there was an improper relationship between Judge Piazza and Larue at the time of Lee's second trial.
In the brief on appeal in the instant case, Lee's attorney wrote that Lee wished to appeal the circuit judge's findings on this point but that he, the attorney, "determined that said argument is not one that should be pursued." Lee's attorney suggested, in the brief, that he would petition this court to withdraw as counsel, so that new counsel could file an amended and substituted brief, which would argue this point on appeal. However, Lee's counsel did not petition to withdraw as counsel, and no amended and substituted brief was filed with this court. Therefore, this argument was not made to this court, and we decline to address it.
[3] Lee was charged with capital murder for the murder of Christine Lewis; his trial ended in a hung jury; a mistrial was declared; and the case was nolle prossed in 1997. Lee was charged with raping J.P. and was convicted and sentenced to 60 years in prison. Lee was charged with raping L.D. and was convicted and sentenced to life in prison. Lee was charged with raping A.S., and the case was nolle prossed after Lee received the death penalty in the instant case.
[4] Adams also represented Lee during the penalty phase of the Reese trial, the instant matter.
[5] Judge Piazza also said that he would "give Mr. Lee a chance to file his brief" and set another hearing date.
[6] On March 23, 1995, Simpson argued that he would have a problem of inconsistent strategies if he were required to continue to represent Lee in the Reese murder case. On April 21, 1995, Simpson alerted the court that he had received a copy of a document, which was purportedly a civil lawsuit against him by Lee. Simpson also told Judge Piazza that Lee would not discuss the case or cooperate with him or Qualls. Lee told Judge Piazza that he did not trust Simpson or Qualls.
[7] In Holloway, the defense counsel expressed his concern to the trial judge that he would be unable to adequately represent the interests of each defendant because he had received confidential information from each of them. Specifically, the attorney was concerned that one of the defendants could testify in a way that would harm another defendant's interest, and the attorney would be unable to represent both defendants in such a situation.
[8] Lee had been convicted of raping J.P. on September 21, 1995, the month before the Reese murder trial. Lee was convicted of raping L.D. on October 19, 1995, three days after the jury sentenced him to death for the Reese murder. The case against Lee for the rape of A.S. was nolle prossed after Lee was found guilty and sentenced to death in the Reese murder. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918333/ | 730 So. 2d 485 (1999)
STATE of Louisiana
v.
Michael WRIGHT
No. 98 KA 0601.
Court of Appeal of Louisiana, First Circuit.
February 19, 1999.
*486 Walter P. Reed, District Attorney, Covington, LA, and Dorothy Pendergrast, Metairie, LA, for appellee State of Louisiana.
Frank Sloan, Covington, LA, for defendant-appellant Michael Wright.
BEFORE: FOIL, KUHN, and WEIMER, JJ.
WEIMER, J.
The defendant, Michael Wright, and his sister, Helen Burns (hereinafter referred to as "Burns"), were charged by grand jury indictment # 255875 with one count of second degree murder, a violation of LSA-R.S. 14:30.1, for the shooting death of Conway Burns, Burns' husband. Wright pled not guilty.[1] Originally, only Burns was indicted for the offense under grand jury indictment # 245264, but that indictment was nolle prosequi.
After a jury trial with Burns as co-defendant, Wright was found guilty as charged. Wright's motions for post-verdict judgment of acquittal and for new trial were denied. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals, designating two assignments of error.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number one, Wright contends the circumstantial evidence was insufficient to support the verdict against him.
The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, which states in part, "assuming every fact to be proved that the evidence tends to prove," every reasonable hypothesis of innocence is excluded. LSA-R.S. 15:438. State v. Huls, 95-0541, p. 25 (La.App. 1 Cir. 5/29/96), 676 So. 2d 160, 176, writ denied, 96-1734 (La. 1/6/97), 685 So. 2d 126. Where the key issue is the defendant's identity as the perpetrator, rather than whether or not the crime was committed, the *487 State is required to negate any reasonable probability of misidentification. Positive identification by only one witness may be sufficient to support the defendant's conviction. State v. Parfait, 96-1814, p. 17 (La. App. 1 Cir. 5/9/97), 693 So. 2d 1232, 1242, writ denied, 97-1347 (La. 10/31/97), 703 So. 2d 20.
When a conviction is based on both direct and circumstantial evidence, the reviewing court 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 the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Huls, 95-0541 at 25, 676 So. 2d at 176-177.
The applicable definition of second degree murder in the instant case is the killing of a human being "[w]hen the offender has a specific intent to kill or to inflict great bodily harm." LSA-R.S. 14:30.1(A)(1). Specific criminal intent is "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." LSA-R.S. 14:10(1). Intent is a question of fact. Nevertheless, the intent at issue in this case, specific criminal intent, may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant's actions or facts depicting the circumstances. State v. Seals, 95-0305, p. 6 (La. 11/25/96), 684 So. 2d 368, 373, cert. denied, 520 U.S. 1558, 117 S. Ct. 1558, 137 L. Ed. 2d 705 (1997). Specific intent is an ultimate legal conclusion to be resolved by the fact finder. State v. Buchanan, 95-0625, p. 4 (La.App. 1 Cir. 5/10/96), 673 So. 2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So. 2d 923. Specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. Seals, supra. All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principles. LSA-R.S. 14:24.
Wright and Burns were tried jointly, and the following evidence was presented to the jury. Martha Burghardt testified that on June 23, 1995, at approximately noon, she was at her home on Highway 36 cleaning dishes at the kitchen sink. She looked up after hearing a noise, which at first she thought was a car accident. She saw two people fighting near a white van and a "little red car." She then saw one of the individuals go to the red car and retrieve a gun. The person held the gun "like halfway out the car door" and fired. She commented, "Boy, he really wants that person dead." She had no telephone, so after waiting for the shooter to leave, she flagged-down a pickup truck and asked the driver to alert an ambulance and the police. She did not see the faces of the two people and could not determine their skin color. When asked if she had seen Michael Wright at the crime scene, she answered "No." She testified before the grand jury that she thought the two persons were male because they were dressed in jeans, but conceded that it could have been a man and a woman in jeans or two women in jeans. The only times that she had seen Burns was before the grand jury and in the courtroom during trial.
Robbie Anthony testified that on the date in question, he was at his desk in his business located on Highway 59, at the red light in Abita Springs. He looked out of the window after hearing a gunshot. He saw a white van with a "little red car" behind it "with a person out the window." He saw an anxious and nervous African-American male driving the van and an African-American male in the red car pointing a gun towards the van. The driver of the van turned left and stopped near an Abita police officer, but then drove off. While Mr. Anthony saw the faces of both drivers, he could not identify Michael Wright as being the person in the red vehicle.
On redirect examination, the State asked Mr. Anthony whether he was saying that Wright was not the man in the red vehicle or whether he was saying that he could not say whether Wright was or was not the man in *488 the red vehicle. Mr. Anthony answered that he could not say whether Wright was or was not the man in the red vehicle.
Zachary Sloan testified that on June 23, 1995, at approximately noon, he was driving home on Highway 36 to have lunch. As he parked in his driveway, he noticed a white van parked sideways in the middle of the road. Two men were struggling on the side of the van. One of the men got up. He was a black man, 5'11"-6' tall, wearing a white sleeveless T-shirt and blue sweat pants. As Mr. Sloan was closing his gate, he looked over at the man and saw his arms go out, saw the man hunch over, and heard five gunshots. Mr. Sloan turned to run into his house to call the police. As he turned, he saw two people come around the back of the van and get into "a little red foreign car." Mr. Sloan did not see anyone's face, did not see the weapon, and his entire view of the incident lasted approximately fifteen seconds.
Approximately fifteen minutes after the police arrived and approximately thirty minutes after the shooting, Mr. Sloan saw someone matching the description of the shooter "coming down the street" from about two blocks away. The person was coming from the same neighborhood that Mr. Sloan "believed" the red car had turned into. He identified Michael Wright as the person matching the description, commenting that he had gone to school with Wright and had played football with him in the eighth grade.
Mr. Sloan testified that Wright looked like the shooter to him because of Wright's physical appearance, but he could not say for sure because he never saw the shooter's face. He also testified that he could not be certain of the shooter's gender because he never saw that person from the front. When questioned by the State regarding whether his feelings about Wright's identity as the shooter were different at the time of his grand jury testimony, Mr. Sloan replied:
No, my feelings have never changed as to what I saw. And to the physical appearance of the person that I saw and that it looked like the same person to me. But I couldn't tell you for sure because I never saw their face. That would be the, in my mind, the only positive identifying factor to make it one hundred percent.
On cross-examination, Mr. Sloan conceded that he could not identify Wright as the shooter, that the shirt the shooter had worn was "fairly popular or common," and that the sweat pants the shooter had worn "you could get at Wal-Mart any time." He also agreed that when he "bumped into" Wright on two occasions after the day of the shooting, he neither threatened nor seemed antagonistic towards him.
In addition to Mr. Sloan's testimony at trial, the State also relied upon Mr. Sloan's testimony before the grand jury to prove Wright's identity as the shooter. Mr. Sloan's grand jury testimony was placed into evidence by counsel for Burns, but was also used by counsel for both Wright and the State. The portions of Mr. Sloan's grand jury testimony relied upon by the State were as follows:
The witness: The only way I can identify this individual was the fact that I had seen him out there in front of the van, and then he caught my eye when he was coming back down the street later and that I had gone to school with him. And that's the only way I can place him; otherwise I wouldn't have any idea who he was.
. . . .
Q. You said that you knew Michael Wright from school. What grade approximatelystarting from what grade on?
A. Second grade.
Q. Second grade on?
A. Correct.
Q. You're now 34?
A. Yes.
Q. So, for close to 30 years
A. Second grade, andI don't know whenthen he dropped out of school sometime. I played on a football team my mom and dad had gotten up so I could play football. It was a city team that they developed, and he was on that team. He'd help my mom out a good bit with the team, you know, with the equipment and playing and everything. And I was really surprised to see what I saw.
*489 Q. Is there any doubt in your mind that the person you saw was Michael Wright?
A. No doubt.
Grand Juror: So Michael was walking up the street toward the deal with another guy?
The witness: Correct. But the only person that I saw, other than the guy that got shot, out there in front of thaton the other side of that van was the individual I described to you that I believe to be Michael Wright. Believe me, I thought long and hard about coming up here and saying something like this.
Mr. Sloan's grand jury testimony qualifies as non-hearsay pursuant to LSA-C.E. art. 801(D)(1)(c), as a statement "of identification of a person made after perceiving the person." There has been little state jurisprudence concerning LSA-C.E. art. 801(D)(1)(c). However, in State v. Harper, 27,278 (La.App. 2 Cir. 8/23/95), 660 So. 2d 537, writ denied, 95-2318 (La. 1/12/96), 666 So. 2d 320, the court addressed whether testimony at trial from two police officers concerning a witness' prior identification of the defendant was admissible where, at trial, the witness testified she could not identify the defendant. The court held that pursuant to LSA-C.E. art. 801(D)(1)(c), the testimony concerning the prior identification was non-hearsay and any discrepancy between that identification and the in-court identification testimony was a matter for the jury to weigh. Harper, 27,278 at 13, 660 So. 2d at 545.
Louisiana Code of Evidence article 801(D)(1)(c) was originally modeled upon, and later amended to conform with, Fed. R.Evid. 801(d)(1)(C).[2]See LSA-C.E. art. 801(D)(1) official comment (c); LSA-C.E. art. 801(D)(1)(c); 1995 La.Acts No. 1300, § 1; Fed.R.Evid. 801(d)(1)(C). Thus, the federal legislative intent in enacting Fed. R.Evid. 801(d)(1)(C) and the federal jurisprudence interpreting the rule are highly instructive.
The Supreme Court has recognized that with Fed.R.Evid. 801(d)(1)(C), Congress made a decision to favor more contemporaneous identification testimony over courtroom identifications on the theory that "[a]s time goes by, a witness' memory will fade and his identification will become less reliable[.]" United States v. Owens, 484 U.S. 554, 562, 108 S. Ct. 838, 844, 98 L. Ed. 2d 951 (1988), citing H.R.Rep. No. 94-355, P. 3 (1975). Additionally, the Second Circuit has recognized that Fed.R.Evid. 801(d)(1)(C) was enacted "to permit the introduction of identifications made by a witness when memory was fresher and there had been less opportunity for influence to be exerted upon him." United States v. Marchand, 564 F.2d 983, 996 (2d Cir.1977), cert. denied, 434 U.S. 1015, 98 S. Ct. 732, 54 L. Ed. 2d 760 (1978). That same circuit has specifically interpreted Fed.R.Evid. 801(d)(1)(C) to allow into evidence an out-of-court identification that was inconsistent with an in-court identification. United States v. Lewis, 565 F.2d 1248, 1252 (2d Cir.1977), cert. denied, 435 U.S. 973, 98 S. Ct. 1618, 56 L. Ed. 2d 66 (1978). That was also the interpretation of the Seventh Circuit in United States v. O'Malley, 796 F.2d 891, 899 (7th Cir.1986). Further, multiple federal circuits have held that previous identification testimony admitted into evidence pursuant to Fed.R.Evid. 801(d)(1)(C) is available not simply for impeachment, but as substantive evidence. O'Malley, 796 F.2d at 899; Marchand, 564 F.2d at 985.
In the instant case, we note that the State suggested to the jury, and the jury apparently accepted, that Mr. Sloan had "back[ed] off a little bit" from his identification of Michael Wright as the shooter since testifying before the grand jury because of fear of reprisal. The State pointed out that Mr. Sloan knew *490 that Wright was aware of where he (Mr. Sloan) lived because he had been unhooking his gate at the time of the offense. The State also pointed out that Mr. Sloan had encountered Wright on at least two occasions prior to trial after he (Mr. Sloan) had "fingered" Wright for murder before the grand jury.
Abita Springs Police Department Sergeant Scott Meyer also testified. On June 23, 1995, at approximately noon, he was working an accident on Highway 36 near the red light in Abita when he heard a gunshot. He "ducked," but then continued to write-up the accident. Approximately forty-five seconds later, one of the persons involved in the accident advised Sergeant Meyer that a vehicle had stopped behind him and that its driver was trying to attract his attention. Sergeant Meyer turned and saw that the vehicle was a white van. The white van drove off followed by a small red car. Sergeant Meyer did not see the occupants of either vehicle. Approximately thirty seconds to a minute later, Sergeant Meyer was advised by radio of a shooting on Highway 36. Sergeant Meyer went to the scene of the shooting, which was approximately half-amile from his then location. He spoke to Robbie Anthony, a witness to the incident, and transported him to the sheriffs office upon learning that he had information concerning the shooting.
Reverend L. Stephen Holzhalb testified that on June 23, 1995, he and his wife were driving from Covington to Abita when a white van pulled in front of them as if to make a left turn. A person, which to the best of Reverend Holzhalb's recollection was an African-American man, exited the van and moved towards a small red car behind the van. The Reverend did not see any of the occupants of the car. He then heard three or four gunshots, and while his wife telephoned police, he put his vehicle in reverse, backed into a driveway, and left the scene.
St. Tammany Parish Sheriff's Office Deputy Barney Tyrney testified that he responded to the shooting on Highway 36 on June 23, 1995, at approximately noon. He found a white Ford van blocking both lanes of travel on Highway 36 and a black male lying shot approximately 20 or thirty feet from the van. He secured the scene and spoke to Martha Burghardt, who reported that the perpetrator had been a black male. He was also notified of another witness, Robbie Anthony, who had reported that someone in a red car had shot at the white van.
Deputy Tyrney saw Michael Wright at the scene approximately eight to ten minutes after he arrived and approximately ten to twelve minutes after the shooting. According to Deputy Tyrney, Wright was accompanied by his brother, Eric, and he (Wright) was "extremely upset and irate." He kept yelling, "You don't understand. He whipped my sister's ass this morning. You don't understand." Deputy Tyrney indicated that Wright calmed down after being threatened with arrest.
Deputy Tyrney saw Burns when he went back to the police station. She had minor swelling to one of her eyes and minor irritation to her lip. Deputy Tyrney identified State Exhibits 12-15 as photographs fairly and accurately depicting Burns' face as it appeared when he observed her. Those photographs corroborate Deputy Tyrney's observations.
Covington Police Department Detective Melvin Crockett testified that on June 23, 1995, at approximately noon, he was dispatched to the hospital to discover the identity of the victim of the offense. Subsequently, he went to the St. Tammany Parish Sheriff's office after receiving a radio message that the person involved in the shooting was at that location. When he exited his vehicle at the Sheriffs office, he saw Michael Wright and his brother, Eric, sitting in a vehicle. Detective Crockett had known Wright since childhood. Wright got out of the vehicle and stated, "Magic, tell my sister, Helen, to come on out of there."[3] When asked about Wright's demeanor as he made the statement, Detective Crockett answered, *491 "He was pissed off for some unknown reason." Detective Crockett went into the detective division, found Burns and her mother, and told them that Wright "wanted them outside." Detective Crockett identified State Exhibits 12-15 as photographs accurately depicting Burns' appearance on June 23, 1995.
Detective Crockett also testified that he was present during Burns' interview. He identified State Exhibit 16 as the statement/waiver of Miranda rights form given to Burns by Detective Hall and signed by Burns at the beginning of the interview. He also identified State Exhibit 17 as the statement/waiver of Miranda rights form given to Burns by Detective Hall and signed by Burns at the beginning of her taped statement.
Jefferson Parish Coroner's Office Forensic Pathologist Fraser Mackenzie testified regarding the autopsy he performed on the victim. He indicated the cause of death was two gunshot wounds that perforated the victim's heart, liver and kidney.
St. Tammany Parish Sheriffs Office Sergeant Otto Stubbs testified about his role in the investigation. He indicated he had ten years experience in "firearms identification," which he defined as determining whether a certain bullet was fired from, or whether a certain cartridge case was fired by, a particular weapon. He identified State Exhibit 32 as the model 15 Smith and Wesson .38 caliber revolver which Detective Blackwell submitted to him with five fired cartridge cases. He also identified State Exhibit 34 as the two fired .38 caliber bullets Dr. Mackenzie removed from the victim's body in his presence. Sergeant Stubbs' tests revealed that the two bullets were fired by the .38 caliber revolver. Sergeant Stubbs also identified State Exhibits 35 and 36 as photographs of Burns that he had taken on the day of the offense. He testified that the photographs showed cuts to Burns' upper and lower lips. Those photographs corroborate Sergeant Stubbs' observations.
Lisa Armstrong Holmes testified that on the day in question, she was working at the Covington branch of Enterprise Car Rental. She identified State Exhibit 37 as a rental agreement between Enterprise Car Rental and Burns renting a red Metro on June 23 at 10:05 a.m. for one day to be driven in-state. She described the person who rented the vehicle as a black lady with short hair. She noticed nothing unusual about her and noticed no unusual markings on her. She testified that a driver's license was required of anyone wishing to rent a vehicle, and that the person identified as Helen Burns had presented her with a driver's license on this occasion. The vehicle was returned on June 24 at 11:50 a.m. by two men. Ms. Holmes thought this strange because the men were not authorized to drive the vehicle.
Robert Rowe testified that on June 23, 1995, at approximately noon, he was on Highway 36 coming back from lunch. He was stopped by a woman travelling the opposite direction, who told him that a man was lying face down in the street. Mr. Rowe went to the scene to see if he could help. He saw the victim lying face-down on the ground behind a white van which was parked in the middle of the highway at an angle. He did not see Michael Wright at the scene when he arrived, but did see him later after the police and the EMTs arrived. At that time, Wright was wearing a white shirt, but Rowe could not remember whether it was a T-shirt or a tank top.
St. Tammany Parish Sheriffs Office Detective James Davis testified that he responded to the scene of the shooting on June 23, 1995, at approximately noon. He recognized Eric Wright at the scene. He described Eric Wright as a 6' black male with dreadlocks. Eric Wright was with a black male who was 5'11" to 6', with a short haircut and a medium to dark complexion. The man with Eric Wright was hostile at the crime scene, but Eric Wright was calm. Detective Davis also testified that the murder weapon was not found at the scene.
St. Tammany Parish Sheriff's Office Detective James Blackwell testified that on June 23, 1995, he was a member of the criminal patrol division. On that date, he went to the Covington Police Department and recovered a weapon from Hattie Wright, Michael Wright's mother. He immediately placed *492 the weapon into an evidence bag, and eventually turned the weapon over to Sergeant Stubbs. Detective Blackwell identified State Exhibit 32 as the weapon that Mrs. Wright surrendered to him.
In an effort to establish Burns' motive, the State presented the testimony of Robert L. Bailey, III, attorney-at-law. On May 12, 1995, Mr. Bailey finalized drafting the victim's will. He testified that the victim did not approve the initial draft of his will, explaining that it had not been acceptable to his wife, and made changes to leave his wife more under the will. Mr. Bailey found it unusual that the victim's wife never appeared to have her will drafted because in his experience young married couples usually appeared and made wills together. Mr. Bailey identified State Exhibit 38 as the final will of the victim.
St. Tammany Parish Sheriffs Office Detective David Hall testified that Burns surrendered herself to him on June 23, 1995, at the jail facility of the sheriffs complex. At that time, Burns had redness around her right eye, a blood bruise within the eye itself, and injuries inside and outside of her lips. In response to questioning, Detective Hall indicated that Burns did not complain of any injuries to her arms or her fingers, and that he did not see any swelling or bruising to either her fingers, her legs, or her torso. Detective Hall identified State Exhibit 16 as the statement/waiver of Miranda rights form given to and signed by Burns after he met her. He read the form to Burns and she claimed to understand her rights. Burns made an initial statement which was not recorded. Thereafter, Detective Hall asked Burns whether she would give a recorded statement and she voiced no objection. Detective Hall then recorded Burns' statement, again advising her of her Miranda rights at the beginning of the recording.
Detective Hall identified State Exhibit 10[4] as the statement/waiver of Miranda rights form that Burns signed at the beginning of the recording. He identified State Exhibit 39 as a Panasonic tape containing Burns' taped statement. He identified State Exhibit 40 as an accurate transcript of the statement. Over the objection of counsel for Burns, the taped statement was played for the jury.
In the taped statement, Burns confessed to shooting her husband. Her version of the events surrounding the shooting was as follows. On the morning of the offense she woke up her child and began giving her a bath. The child cried because she did not want to be awakened so early. The victim began cursing Burns concerning the child being in the bathtub and crying. Burns told the victim that she was getting ready to get the child out of the bathtub after she finished the child's bath. The victim immediately reached over Burns and lifted the child out of the bathtub and told Burns to get the child a towel and dry her off. Burns told the victim that he had taken the child out of the bathtub, so he should get a towel and dry the child off. The victim struck Burns in the face. Burns told the child to go in the bedroom, put her panties on, and wait. The victim began to beat Burns. Burns escaped down the hall, but the victim pushed her against the wall and punched her in the face. Burns fought with the victim, stopped to pick up the child, and attempted to get her keys, but the victim grabbed her hand and tried to break her fingers by pulling them back. The victim took away Burns' keys, but Burns had a spare set of car keys in her shoe. The victim continued to beat Burns and she continued to fight to get away. As Burns was making her way through the front room, the victim struck her and she fell on the sofa. The victim punched her while she was on the floor, striking her in her face, her head, her stomach, and "everywhere his fist [could] go."
The victim struck her again as she grabbed for the door. The victim dragged Burns down the steps and into the grass, constantly hitting, kicking, and punching her. Burns heard her neighbor's door across the street close and assumed that the victim also heard this because he stopped beating her *493 after calling her some names and kicking her. Burns went to her vehicle. She did not feel dressed because she was only wearing shorts, a shirt, and tennis shoes. She did not go back for the child because she "couldn't go back in there." She warmed up her car, a white Chrysler Newport, drove down the dirt road, parked, and cried. She wanted to telephone her boss, but felt unable to do so because her face was "messed up." She drove around for a while and decided to change clothes because her clothes were hot, sweaty, and bloody. Due to the time, Burns suspected that the victim had probably gone to work and so she returned to the home.
When she did not see her van at her home, she felt that it was safe to enter the home. However, she did not have her keys, so she broke a window to gain entry into the home. She changed clothes. She tried to think of somewhere to go take a bath, before beginning to look for sunglasses to cover her face. She rode around, got a cup of ice for her lip, and then waited across the street from where the victim worked.
After she saw the victim pass on his way home for lunch, she began following him. He was driving a white 1993 Aerostar van. The victim noticed Burns and sped up. Eventually, the victim slammed on his brakes in the middle of the road and jumped out of the van. Burns tried to put her vehicle into park, roll up her window, and get out of her vehicle, but the victim approached and reached through her open window. Burns tried to get out of the vehicle, and managed to get a leg out, but the victim pushed the door towards her leg. Burns reached over to a seat and retrieved a gun. She held the gun so that it was visible to the victim, but he did not retreat. She then reached out the window and fired the gun, but the victim kept coming. She then shot the victim, but he still kept coming. She shot the victim again and he fell to the ground. She left in her vehicle, went to her mother's house, and told her mother what had happened. She showed her mother the gun and told her that she (Burns) was going to the police station. Her mother went with her to the police station.
In response to Detective Hall's questioning, Burns added the following to her account. She indicated that when she went back to her house, her child was not there. She retrieved the gun, which belonged to the victim, when she went back to the house. She then loaded the weapon. According to Burns, she fired the weapon "maybe two or three times," but did not know how many times she hit the victim. After the victim fell to the ground, he threatened to kill her. When asked about the clothes she was wearing when she was beaten, she indicated that she left a green shirt and a white towel, which she had used to wipe her mouth, in her vehicle.
Detective Hall asked Burns whether she had picked up the gun when she went back to the house because she intended to find her husband and shoot him, and she answered, "I intended on hurting him like he hurted [sic] me." When Detective Hall asked Burns whether she intended to hurt the victim when she parked across from where he worked, she answered, "I intended to hurt him like he hurt me."
Detective Hall testified that Burns' mother never produced the clothing that Burns had alleged was in her vehicle, claiming that she (Burns' mother) was unable to find the clothing. Additionally, he identified State Exhibits 12 - 15 and 35 and 36 as photographs accurately depicting Burns' condition when he encountered her. He also testified that he spoke to the owner and two employees of Cross Incorporated, the victim's place of employment, and verified that the victim had worked there and had been at work on the day of the offense. He also learned that some individuals from Burns' family had come to talk to the victim at his place of employment prior to the shooting on the day of the offense.
Beverly Sylve, the victim's mother, testified that she last saw the victim alive on the Sunday before his death, which was Father's Day. The victim did not mention anything about planning to go to Florida with Burns. Ms. Sylve testified that if the victim would have had such plans, he would have mentioned them to her. This testimony, coupled with testimony that Burns and the victim owned a van, casts suspicion on testimony *494 that the small red rental car was leased for a vacation trip to Florida.
Certain defense witnesses also provided testimony pertinent to the State's case against Wright and Burns. Retired school teacher Christella Flot testified. She had been Michael Wright's sixth grade teacher and had known him for 25-30 years. On June 23, 1995, she was in the vicinity of Highway 36 when she heard an ambulance. She followed the ambulance to the crime scene. When she arrived at the scene, she saw a body lying on the highway. A few minutes later, she saw Wright drive up with his brother, Eric, in a gold colored vehicle. Ms. Flot spoke to Wright and he did not act any differently than on other occasions when she had spoken with him.
Marnisha Sandifer testified that on June 23, 1995, at approximately noon, she was in the vicinity of Highway 36. When she arrived at the crime scene, an ambulance was already there. Approximately five minutes after she arrived, she saw Michael Wright pull-up in a gold colored vehicle with his brother. He was wearing blue jeans, a hat, and a short sleeved shirt. On cross-examination by the State, Ms. Sandifer revealed that her roommate was Wright's girlfriend.
Hattie Wright testified that on the morning of June 23, 1995, she was at home with her two sons, Michael and Eric. She expected to see her daughter, Helen Burns, later in the morning because Burns customarily brought her baby to Mrs. Wright so that Burns could work. When Burns did not arrive with the baby as expected, Mrs. Wright persuaded Michael to drive her to Burns' home. Mrs. Wright explained that she was diabetic and had been feeling weak that particular morning.
When Mrs. Wright and Michael arrived at Burns' home, Burns was not there, but her child was walking in the front room. The victim was in the bathroom. He appeared "mad" and did not want to come out of the bathroom. Mrs. Wright asked where Burns was, and the victim answered, "Oh, she's gone." Mrs. Wright told the victim that she was "going to take the baby," and he responded, "Okay."
After Mrs. Wright and Michael returned home, she received a telephone call from the victim's cousin, Cheryl McGee. Ms. McGee told Mrs. Wright, "Ms. Hattie, it's unusual for Helenwe can't find her. She usually come to work, you know, because today is payday. Ms. Hattie, if I was you, I would try to find Helen." Mrs. Wright decided to ask the victim "if [Burns] was throwed [sic] in a ditch or [if] he had her hid somewhere." Mrs. Wright, the child, and Michael then drove to the victim's place of employment to speak to him. When Mrs. Wright asked the victim where Burns was, he answered, "No, ma'am, I ain't throwed her in no ditch. I don't know where she at [sic]." After the victim played with the child and kissed her, Mrs. Wright, the child, and Michael returned home.
At approximately lunchtime, Burns appeared at her mother's home with a gun in her hand. Mrs. Wright asked Burns, "Girl, what's wrong with you?" Upon hearing this, Michael jumped up, and Eric came out of his room. Burns responded, "I just shot my husband, Conway." When Burns was asked where she had shot the victim, she answered, "in Abita." According to Mrs. Wright, her daughter was "beaten up in the face and everything." Mrs. Wright drove her daughter to the Covington Police Department. Michael and Eric left with the baby to check on the victim. Mrs. Wright told Eric to take the baby to someone "to keep for [her]." Mrs. Wright indicated that she did not take the weapon with her when she went to the police department, but told the police of its presence at her home. Subsequently, upon request of the police, she retrieved the weapon and brought it to the police department.
Mrs. Wright testified that she knew of no animosity, bad feeling, or bad blood existing between the victim and Michael; that Michael never said that he was going to get the victim for doing "this" to his sister; and that Michael "didn't really know nothing about Helen and Conway having fights and stuff." When asked what kind of car her daughter had, Mrs. Wright answered, "She had a brown Dodge I think it was. A light car. The kind she have now." Subsequently, Mrs. Wright conceded that her daughter's *495 car was at Enterprise Leasing at the time in question, and that she (Burns) had been driving a red rental car at that time. Mrs. Wright claimed that her daughter had told her that she (Burns) had the car because "[t]hey was going to go on vacation."
On cross-examination, the State accused Mrs. Wright of "concocting" the story about going to her daughter's home to explain away the fact that her daughter came by her home and conspired with Michael to kill the victim. Mrs. Wright denied the State's accusations. She conceded, however, that she had not mentioned the telephone call from Cheryl McGee when she testified before the grand jury, but explained that she had informed counsel for the State of the call at his office. She also conceded that she testified before the grand jury that when she initially questioned the victim concerning her daughter's whereabouts, he stated that he had just beaten her.
Eric Wright also testified. On the morning of June 23, 1995, he was at his mother's house where he lived. His brother Michael also lived in the home. Eric awoke between 6:00 a.m. and 7:00 a.m. after hearing his brother loudly protesting having to wake up and drive his mother to Abita "to see about Helen." His mother and brother returned with his sister's child.
Later that morning, Eric was told that his mother and brother were going to the victim's place of employment. According to Eric, his brother came back from the victim's place of employment upset. When asked what his brother was upset about, Eric answered: "He had heard that Helen had got beaten up and then he didn't want to get up that morning, my mom wanted him to get up and go with her and he just didn't want to get up. So he was just upset."
Eric saw his sister at approximately noon when she came to the house "with a hat on and some shades and a gun in her hand." Mrs. Wright calmed Burns down and took her to the police. Eric and Michael took the baby to their cousin's home. After dropping the child off, Eric and Michael went to Abita to see what had occurred. They traveled in Eric's gold colored Acura Legend automobile. They knew where to go because they had overheard their sister's conversation with their mother. Eric acknowledged that Michael was outraged and yelling when they got to the scene, but explained that this was because of their sister getting beaten up. When asked whether his brother could have been gone from the house for an extended period without his (Eric's) knowledge, he answered, "No." However, he did concede that he was in his room asleep when his mother and Michael brought the child home, and thus, he did not know whether Michael drove off again.
On cross-examination, Eric guessed that his mother and Michael were gone for about half-an-hour. He conceded that he had seen his sister's red rental car on the day of the offense, but denied taking it to Enterprise with Michael. In response to questioning on re-direct examination, Eric stated that although Michael was upset at the scene, he was not "in a fighting rage."
Earl Penn testified that he saw Michael Wright on June 23, 1995, in his (Wright's) yard between approximately 10:30 a.m. and 11:00 a.m. Mr. Penn spoke with Wright for approximately ten minutes concerning Wright's work in the yard. Wright was not upset, yelling, screaming, or in a rage. Mr. Penn also remembered seeing Wright's mother when she came out to speak to Wright briefly. Mr. Penn conceded that he was Wright's good friend, but added that he had also been the victim's good friend.
Joseph Nathaniel Davidson testified that on the date in question, the victim passed by him driving a white van. After Mr. Davidson made a turn and traveled approximately a half block, he heard gunshots and ran to the corner. He saw a man getting into a red car and "taking off." He could not determine the race of the man. He did not know whether or not the man who jumped into the red car was Wright. He also did not know whether or not anyone else was in the vehicle. When asked if the "man" could have been a female in male clothing, Mr. Davidson responded, "If it was a female in man [sic] clothing, she had no humps or bumps nowhere on, you know what I am saying."
*496 Gary Andrews also testified. On June 23, 1995, he was working nights and would have arrived home from work between 6:30 a.m. and 7:00 a.m. He lived across the street from Burns and the victim. When he was getting out of his vehicle in his yard after coming back from work on June 23, 1995, he heard a noise across the street. He described the noise as sounding like something being hit or dropped. He looked, but saw nothing. He went into his home and closed the door. However, he then heard another noise, looked out, and this time saw the victim's trailer door open. He walked to the back of his vehicle and saw the victim standing over Burns telling her something. Burns got up and walked to her "big white car" with her head down. Her face appeared swollen. The victim went back into his home, and Mr. Andrews went back into his home. When Mr. Andrews next looked out, Burns' vehicle had gone. Mr. Andrews did not see a red Geo Metro vehicle at Burns' home. He conceded that he was a distant cousin of the Wright family.
Derrick Arnez Sams testified that he worked with the victim at Cross Incorporated, a pallet company located approximately five to six miles from Highway 36. On June 23, 1995, he remembered Michael Wright, an older lady, and an infant coming to visit the victim at approximately 12:00 p.m. The victim spoke with the Wrights for five to ten minutes. Mr. Sams could not tell if any of the conversation was "heated." The victim left after the Wrights left.
After a thorough review of the record, we are convinced the evidence presented herein, viewed in the light most favorable to the State, proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of the offense of second degree murder and Wright's identity as a perpetrator of the offense. It is clear that on the date of the shooting, Burns rented a red Metro. On that same day, two people were seen in a small red car following the victim in his van. Witnesses testified that one of the occupants of the red car deliberately aimed a pistol at the victim and fired shots, which resulted in the victim's death. Furthermore, Wright was positively identified as the perpetrator by Mr. Sloan, who had known Wright since childhood. Accordingly, this assignment of error is without merit.
ADVICE OF PRESCRIPTIVE PERIOD FOR POST-CONVICTION RELIEF
In assignment of error number two, Wright contends the trial judge failed to properly advise him of the prescriptive period for filing for post-conviction relief. The State concedes that the defendant was misinformed of the period.
The record reflects that after imposing sentence, the trial court advised the defendant of the prescriptive period for filing for post-conviction relief as follows: "he has three years from this date to file any petition for post conviction relief under Code of Criminal Procedure Article 930.8."
Louisiana Code of Criminal Procedure article 930.8(A), in pertinent part, provides that no post conviction relief application will be considered "if it is filed more than three years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922." However, the trial court's failure to properly advise the defendant of the delay as required by article 930.8(C) has no bearing on the sentence and is not grounds to reverse the sentence or remand the case for resentencing. See State v. Lewis, 94-2145, p. 8 (La.App. 1 Cir. 11/9/95), 665 So. 2d 38, 43. The trial court is directed to give the defendant written notice of the prescriptive period for applying for post-conviction relief within ten days of the rendition of this opinion and to file written proof in the record of the proceedings that the defendant has received notice.
DECREE
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.
NOTES
[1] Helen Burns has a separate appeal pending before this Court arising from her conviction for this offense. See State v. Burns, 98 KA 0602 (La.App. 1 Cir. 2/19/99), ___ So.2d ___, also rendered this date.
[2] Prior to the amendment by 1995 La.Acts No. 1300, § 1, LSA-C.E. art. 801(D)(1)(c) provided as follows:
D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The 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 him, and which confirms the testimony of the declarant that he had made an identification, except that in cases of amnesia resulting from physical injury from the criminal act, any other person may testify to an out of court identification.
[3] Although not specifically indicated in the record, it is apparent that Wright directed this comment to Detective Crockett.
[4] The State apparently misspoke in identifying this exhibit as State Exhibit 10, rather than State Exhibit 17. Detective Hall's testimony makes clear that State Exhibit 17, rather than State Exhibit 10, was actually presented to him for identification. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918339/ | 730 So. 2d 288 (1998)
Roderick D. CLARK, Appellant,
v.
L. & A. CONTRACTING COMPANY, Appellee.
No. 98-338.
District Court of Appeal of Florida, Third District.
December 9, 1998.
Rehearing Denied April 14, 1999.
Cone & Cone, West Palm Beach; Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel S. Perwin, Miami, for Appellant.
Merritt, Sikes & Leach, Miami, for Appellee.
BEFORE: NESBITT, GODERICH, and SHEVIN, JJ.
PER CURIAM.
Affirmed. See Metropolitan Dade County v. Colina, 456 So. 2d 1233 (Fla. 3d DCA 1984).
NESBITT and GODERICH, JJ., concur.
SHEVIN, J. (dissenting).
I respectfully dissent. I would reverse the summary judgment.
Mr. Clark was injured in a car accident in an I-95 construction area. L & A Contracting Company, the general contractor on the I-95 road-widening project, eliminated the normal entrance lane and replaced it with a temporary on-ramp that ended at an intersection with I-95. As a result, there was no acceleration/merge lane, and there were no signs warning motorists that the merge lane had been eliminated. The accident ensued when a car driven by Mr. Bermudez rearended a car on the on-ramp causing that car to careen across the road and collide with the van in which Mr. Clark was a passenger.
Mr. Clark filed an action against L & A and others, alleging that L & A negligently created an unreasonably dangerous condition at the on-ramp by eliminating the merge lane and failing to warn motorists of the elimination of the lane. L & A's summary judgment motion asserts that the accident was caused solely by the subsequent intervening negligence of others including Mr. Bermudez. In opposition to the motion, Mr. Clark submitted expert testimony that in the absence of an acceleration lane rear-end collisions on the on-ramp were a foreseeable result of the improper ramp configuration and the lack of proper warning signs.
I disagree with the majority's apparent conclusion that Mr. Bermudez's action constituted "the active and efficient intervening cause" of the accident. Gibson v. Avis Rent-A-Car Sys., Inc., 386 So. 2d 520, 522 (Fla. 1980). Where as here, "an intervening cause was foreseen or reasonably might have been foreseen by the wrongdoer, his negligence may be considered the proximate cause of an injury.... In such case, the intervention of the independent intervening cause does not break the causal connection if the intervention itself was foreseeable." Schmelz v. Sheriff of Monroe County, 624 So. 2d 298, 298 *289 (Fla. 3d DCA 1993), review denied, 634 So. 2d 627 (Fla.1994).
The majority's reliance on Metropolitan Dade County v. Colina, 456 So. 2d 1233 (Fla. 3d DCA 1984), review denied, 464 So. 2d 554 (Fla.1985), is misplaced. Unlike Colina, the record in this case does not demonstrate as a matter of law that the drivers were acting in disregard of their own safety and that of others. The plaintiff-driver in Colina observed the nonfunctioning traffic light, appreciated the danger, and stopped his car. That action broke the chain of causation. After stopping, he proceeded to attempt to cross the intersection when it was not reasonably safe to do so. In the case before us, there were no adequate warning signs which would alert a driver to the hazardous condition attending the ramp traffic. In the absence of a DOT-mandated warning sign or a no-acceleration lane warning sign, Mr. Bermudez did not appreciate the danger caused by the ramp configuration: the cars on the ramp would come to a complete stop. Because there is no other event here which would break the chain of causation, L & A is not relieved of liability as a matter of law. As stated in Palm Beach County Bd. of County Comm'rs v. Salas, 511 So. 2d 544 (Fla.1987),
[defendant] could have easily foreseen that [its actions left] motorists with no guidance [and, thus] personal injury to someone was not a remote possibility. [The driver's] actions were not so unforeseeable that [defendant] should be relieved, as a matter of law and policy, of all liability.... The fact that [the driver] was negligent ... does not render her action so bizarre, unusual or outside the realm of the reasonably foreseeable that [defendant's] actions did not also proximately cause [plaintiff's] injuries.
Salas, 511 So.2d at 547. As the record before the court reveals disputed issues of fact as to proximate causation and the foreseeability of Mr. Bermudez' asserted intervening negligence, summary judgment is inappropriate. See Springtree Properties, Inc. v. Hammond, 692 So. 2d 164 (Fla.1997); McCain v. Florida Power Corp., 593 So. 2d 500 (Fla.1992); Salas; McDonald v. Florida Dep't of Transp., 655 So. 2d 1164 (Fla. 4th DCA 1995); Schmelz; State Dep't of Transp. v. Brown, 497 So. 2d 678 (Fla. 4th DCA 1986), review denied, 504 So. 2d 766 (Fla.1987).
Based on the foregoing, I would reverse the summary judgment and remand for trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4184961/ | FILED
NOT FOR PUBLICATION
JUL 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL TATE, No. 15-56087
Plaintiff-Appellant, D.C. No.
2:14-cv-08738-SJO-MRW
v.
FAMILY AUTO GROUP, INC., a MEMORANDUM*
California corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted February 6, 2017**
Pasadena, California
Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
We vacate the district court’s dismissal of this action, and we remand for
reconsideration in light of Karczewski v. DCH Mission Valley, LLC, No.
15-55633.
VACATED and REMANDED. Costs on appeal awarded to Plaintiff.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
FILED
Tate v. Family Auto Grp., Inc., No. 15-56087
JUL 10 2017
BYBEE, Circuit Judge, acquiescing dubitante: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I acquiesce dubitante for the reasons articulated in my separate opinion in
Karczewski v. DCH Mission Valley, LLC, No. 15-55633. | 01-03-2023 | 07-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1495773/ | 766 S.W.2d 861 (1989)
HELLENIC INVESTMENT, INC., Pasadena Associates and Equity Fund Advisors, Inc., Appellants,
v.
The KROGER COMPANY, Appellee.
No. 01-88-00886-CV.
Court of Appeals of Texas, Houston (1st Dist.).
March 1, 1989.
*862 Michael Maness, Houston, for appellants.
Mark E. Lowes, Charlotte C. Orr, Braccewell & Patterson, Houston, for appellee.
Before EVANS, C.J., and COHEN and SAM BASS, JJ.
OPINION
EVANS, Chief Justice.
This is an appeal from a permanent injunction enjoining the operation of a "night club" in a shopping center.
The shopping center, situated in Pasadena, Texas, is owned by appellant, Pasadena Associates, and managed by the appellant, Equity Fund Advisors, Inc. Pasadena Associates leased space in the center to the appellee, the Kroger Company, to operate a grocery store. Under the terms of that lease, Pasadena Associates agreed it would not lease any other premises in the center for a "bar," "night club," or "other business of like nature." Pasadena Associates then leased space to appellant, Hellenic Investment, Inc., which opened an establishment named "Hallabaloo." Under the terms of Hellenic's lease agreement, it was permitted to use the lease premises for a "restaurant" or "dining facility" ... "with the sale of alcoholic beverages, dancing, games, and related facilities and activities."[1] In an "Addendum" to the lease *863 agreement, Hellenic acknowledged that Kroger was the major anchor in the shopping center and that Kroger's lease prohibited Pasadena Associates from leasing center premises to a "night club"; Hellenic also warranted that it was not a "night club." The Addendum further provided that if Pasadena Associates received any complaints or threats of litigation, Hellenic would either alter its operation to satisfy the complaints or pay any legal fees, expenses, and damages incurred by Pasadena Associates.[2]
In February 1988, Hellenic opened the Hallabaloo as a "supper club," investing approximately $150,000 in renovating the premises. This new business venture was a huge success, and it immediately attracted large crowds of customers. As a result, the shopping center parking lot was often congested with customers' vehicles, particularly on weekends, and sometimes Kroger's customers could not find parking space in the center parking lot. There were also complaints of an "inordinate amount of trash on the parking lot" on weekends, and some complaints of harrassment of Kroger's customers by Hellenic's patrons. Both Hellenic and Kroger tried to solve these problems by hiring additional security, valet parking, and clean-up services. But those remedial measures were only partially successful.
In April 1988, Kroger sought and obtained a temporary injunction against Hellenic, Pasadena Associates, and the center manager, Equity Fund, Inc., which enjoined the continued operation of Hallabaloo as a "bar," "night club," or "other business of like nature." On appeal, this Court ordered the temporary injunction dissolved, concluding that the injunctive order did not set forth in reasonable detail the nature of the acts prohibited. See Hellenic Investment, Inc. v. The Kroger Co., 01-88-349-CV, 1988 WL 59936 (Tex.App.Houston [1st Dist.] June 3, 1988) (ordered not published).
In August 1988, after a non-jury trial, the trial court permanently enjoined Hellenic from operating, and Pasadena Associates and Equity Fund from leasing, the leased premises as a "night club." The injunctive order defines the term "night club" as an operation selling "alcoholic beverages while also, in combination, playing loud volume dance music, providing a space for dancing, and allowing its patrons to dance, so long as its gross food sales make up less than 70% of its gross sales of all sources."
In separate findings of fact and conclusions of law, the trial court found, among other things, that the "Hallabaloo" business was an establishment selling food and alcoholic beverages; that it permitted its customers to dance to recorded dance music played at high volumes and to play various coin-operated games, and that its advertisements over local-western radio stations emphasized "cash scrambles, free local give-a-ways and ladies night." The court also found that Hallabaloo had never provided live entertainment, and that it has a kitchen and provides a limited menu. It found that Hallabaloo frequently "gives away" food by providing free buffets and complimentary alcoholic beverages; that it is open from 4:00 p.m. until 2:00 a.m. Sunday through Thursday, and from 4:00 p.m. until 4:00 a.m. on Fridays and Saturdays, although alcoholic beverage sales cease at 2:00 a.m.; that breakfast is served from 2:00 a.m. until 4:00 a.m. on Fridays and Saturdays; and that it charges an admission *864 fee of $2 to single men on Friday and Saturday nights.
The court further found that Hallabaloo's food sales accounted for only a small percentage of its revenues and that most of its revenues came from the sale of alcoholic beverages. Finally, the court found that Hallabaloo was operated as a night club, as that term was generally understood in the food and beverage service industry, and that at no time had it been operated as a restaurant. In conclusion, the court surmised in its findings, that there "may be a fine line between a restaurant and a night club in some circumstances but such is not the case here." Concluding that Hallabaloo's operation "in its present form" inflicted intangible, non-economic harm on Kroger by altering the character of the center and threatened the loss of Kroger's customers who "have negative perceptions" about grocery stores in shopping centers that are also occupied by businesses similar to Hallabaloo, the court determined that injunctive relief was appropriate. All three appellants complain of the trial court's injunctive order.
In 10 points of error, the appellants contend: (1) that the trial court erred, as a matter of law, in concluding that Kroger was entitled to relief against Hellenic as a third party beneficiary under the Hellenic lease addendum; (2) and (3) that there were no fact findings nor any evidence to support that conclusion; (4) and (5) that the trial court erred, as a matter of law, in concluding that the term "night club" was sufficiently clear and unambiguous to be enforceable, and that there was no legal basis for the definition of "night club"; (6), (7), and (8), that the trial court erred in concluding that Kroger's lease had been breached by Hellenic's lease, or because of a denial of Kroger's right of uninterrupted access to its loading area and docks, or because of the congestion and littering of the parking area, and that there was no evidence that Equity Fund was a party to the Kroger lease or otherwise responsible for asserted breaches of it; (9) that the trial court abused its discretion in permanently enjoining the playing of dance music at "loud" volumes because such term was not sufficiently specific to constitute a legal basis for injunctive relief; and (10) that the trial court erred in awarding attorney's fees to Kroger.
We first consider Hellenic's contentions, advanced in points of error one through three, in which it asserts that Kroger is not entitled to injunctive relief as a third-party beneficiary under the Hellenic lease addendum. Hellenic argues that even though a contract provision may incidentally benefit a third party, and the parties to the contract may have intended such incidental benefit, a third-party beneficiary relationship does not arise unless it "clearly appears" that the contract was formed "primarily" for the benefit of the third party and that the parties intended to give the third party a right of action for its breach. In support of this contention, Hellenic cites Republic National Bank v. National Bankers Life Ins. Co., 427 S.W.2d 76, 81 (Tex.Civ.App.Dallas 1968, writ ref'd n.r.e.) and Briercroft Sav. & Loan Ass'n v. Foster Financial Corp., 533 S.W.2d 898, 901 (Tex.Civ.App.Eastland 1976, writ ref'd n.r.e.).
Hellenic further argues that the status of a third-party beneficiary cannot "rest on implication," citing Exchange Bank & Trust v. Lone Star Life Ins. Co., 546 S.W.2d 948, 952 (Tex.Civ.App.Dallas 1977, no writ), and that "any doubt should be resolved" against a finding of such status. See Texas Bank & Trust v. Lone Star Life Ins. Co., 565 S.W.2d 353, 357 (Tex.Civ.App.Tyler 1978, no writ).
Hellenic correctly asserts that because Kroger was not a party to the lease between Pasadena and Hellenic, and since Hellenic was not a party to the lease between Pasadena and Kroger, Kroger cannot enforce the Hellenic addendum without third-party beneficiary status.
A party suing as a third-party beneficiary must demonstrate that (1) it is not privy to the written agreement, (2) the contract was actually made for its benefit and (3) that the contracting parties intended that it benefit by it. Republic Nat'l Bank v. National Bankers Life Ins. Co., *865 427 S.W.2d 76 (Tex.Civ.App.Dallas 1968, writ ref'd n.r.e.). The intention of the contracting parties has controlling significance for determining whether a third party may enforce a contract provision. Corpus Christi Bank and Trust v. Smith, 525 S.W.2d 501, 503 (Tex.1975). In determining intent, courts must begin with the presumption that parties contract for themselves, and a contract will not be construed as having been made for the benefit of a third party unless it clearly appears that the contracting parties intended such. Id.
Mickey Altman, a representative of Pasadena Associates, testified that the addendum was included because he "did not want to violate the Kroger lease and [he] wanted to make certain that whoever operated a facility in that space knew what the Kroger lease had in it insofar as that particular provision was concerned." The addendum was included to "make sure they could use it for a restaurant but not a nightclub." Karl Mangrum, the leasing agent for Equity Fund, testified that the parties discussed the need to "indemnify ourselves in case there was a future problem" with Kroger's prohibition against a nightclub.
Hellenic contends that this testimony proves that the purpose of the Addendum was to insure that a "nightclub" would not be operated on the leased premises and through an indemnification clause, to protect Pasadena and Equity Fund from claims asserted by Kroger not to give Kroger the right to sue Hellenic for a breach of the Hellenic lease.
In order for Kroger to obtain protection as a third-party beneficiary under the Hellenic lease addendum, it simply was required to show it was not a party to the contract, that the contract was made for its direct benefit, and that the contracting parties intended that it so benefit. Dairyland County Mut. Ins. Co. v. Childress, 650 S.W.2d 770, 775 (Tex.1983); Republic Nat'l Bank v. National Bankers Life Ins. Co., 427 S.W.2d at 79.
The Hellenic lease addendum expressly restricts Hellenic's use of the premises, and it confirms Hellenic's acknowledgement that such restricted use is compelled by the terms of its landlord's lease with the anchor lessee, Kroger. The lease addendum clearly evidences the parties' intent and understanding that Kroger is to be a primary beneficiary of the restrictive use provision. Therefore, Kroger, as a third-party beneficiary of this contractual agreement, was entitled to seek injunctive relief to protect itself against a violation of the restrictive use covenant. See Fort Worth Driving Club v. Fort Worth Fair Ass'n, 103 Tex. 24, 122 S.W. 254 (1909); 125 Hempstead Turnpike Corp. v. Tracco Hempstead, Inc., 14 Misc. 2d 554, 177 N.Y. S.2d 778 (1958); Handfinger v. Stevelaw Realty Corp., 102 N.Y.S.2d 688 (1950); 51C C.J.S. Landlord and Tenant, sec. 343, p. 874 (1968). We accordingly overrule the first three points of error.
We move to the next two points of error, points four and five, which assert that the term "night club" is so ambiguous that it cannot support the injunctive decree. Under these points, Hellenic argues that there is no commonly understood distinction between a "night club," on the one hand, and a "restaurant" or "dining facility" that serves alcoholic beverages and permits dancing. Hellenic points out that it is allowed, under the express terms of its lease, to sell alcoholic beverages and to permit its patrons to dance.
Kroger, in reliance on the testimony of its witness, Dr. Waskey, a professor of hotel and restaurant management at the University of Houston, contends that a "night club" has certain characteristics that distinguish it from a restaurant. Dr. Waskey testified that a "night club" has four key characteristics: (1) food and alcoholic beverages are sold, and entertainment is provided; (2) dancing is the main form of entertainment, with patrons dancing on "shuttering floors to recorded music played by disc jockeys at deafening volumes"; (3) special effects, strobe lights, fog-making machines, mirror balls, and bar tables and bar stools; and, (4) alcoholic beverages accounting for more than 75% of gross revenue. By comparison, Dr. Waskey testified *866 that a restaurant's food sales account for more than 80% of its gross sales.
Dr. Waskey also testified that the two primary activities at Hallabaloo are dancing and drinking alcoholic beverages. According to Dr. Waskey, Hallabaloo has recorded music played by a disc jockey at deafening volumes. Its patrons dance on three dance floors and drink alcoholic beverages at three bars. It has fog machines, strobe lights, and mirror balls. It sometimes has a cover charge and sometimes offers a free food buffet. There are no normal restaurant tables, just bar tables and bar stools. Radio advertisements include "dash-for-cash" and "back-to-the-beach" contests, ladies night, and free food buffets. In Dr. Waskey's expert opinion, Hallabaloo was operated as a "night club."
As a general rule, parties are presumed to contract in reference to the usage or custom prevailing in the particular trade or business to which the contract relates, and evidence of custom or usage, which tends to explain the intent of the parties regarding an ambiguous contract term, is generally admissible to assist the factfinder in ascertaining the parties' true intent. See City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968); Dwyer v. City of Brenham, 70 Tex. 30, 7 S.W. 598, 599 (1888); Rosenstock v. Wheeler, 310 S.W.2d 350, 354 (Tex.Civ.App. Houston 1958, writ ref'd). The testimony of Dr. Waskey was admissible evidence to explain the meaning of the term "night club" as used in the lease agreement.
Under the terms of the Hellenic lease, Hellenic was permitted to operate a restaurant or dining facility, with attendant liquor and dancing privileges, but was not allowed to operate a "bar" or "night club." Based on the evidence before it, the trial court could properly have found that Hellenic was operating a "night club" facility, as that term is used in the Hellenic lease agreement.
But our determination of that question is not dispositive of the appeal. The ultimate question is whether, under established principles of equity, the trial court's injunctive decree is enforceable under the facts of this case. Thus, we must decide whether Hellenic can be prevented from operating a legitimate business enterprise, if and whenever its gross food sales do not make up more than 70% of its total gross sales.
Kroger does not complain about Hellenic's sale of alcoholic beverages, nor about Hellenic's allowing its customers to dance. Neither does Kroger object to any other "night club" aspects of Hellenic's operation, such as the use of strobe lights and special effects, which, according to Dr. Waskey's testimony are indicia of a "night club" operation. Moreover, while Kroger did complain about "loud" dance music and about the congestion and littering of the center's parking area, it sought no specific relief regarding those complaints.
Kroger's principal complaint, here and in the trial court, focuses on the ratio between Hellenic's food and alcoholic beverage sales. This ratio of food to alcoholic beverage sales, Kroger contends, results in a loud and boisterous crowd of undesirable persons frequenting the center parking lot at a time when many of Kroger's customers are using its grocery store.
We recognize the general rule that an injunctive decree should inform a defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing. See Fort Worth Acid Works v. Fort Worth, 248 S.W. 822, 824-825 (Tex.Civ.App.Fort Worth) aff'd, 259 S.W. 919 (Tex.Comm.App.1922). But an injunctive decree should not be framed so broadly as to prohibit the enjoyment of lawful rights. Rubin v. Gilmore, 561 S.W.2d 231 (Tex.Civ.App.Houston [1st Dist.] 1977, no writ); Seline v. Baker, 536 S.W.2d 631 (Tex.Civ.App.Houston [1st Dist.] 1976, no writ); City of Wichita Falls v. Jensen, 221 S.W.2d 1015 (Tex.Civ.App. Fort Worth 1949, no writ); Dincans v. Keeran, 192 S.W. 603 (Tex.Civ.App.San Antonio 1917, no writ). Thus, it has been held that a business lessee should not be prohibited from pursuing a lawful enterprise, *867 except upon evidence showing a clear violation of the lease terms or that the conduct of the business constitutes a nuisance. See Block v. Fertitta, 165 S.W. 504, 506 (Tex.Civ.App.Galveston 1914, no writ) (sublessee conducting business alleged to be noisy but not a nuisance); see also Dilts v. Faulkner, 289 S.W. 131, 132 (Tex.Civ.App.Dallas 1926, no writ).
Moreover, where a party's acts are divisible, and some acts are permissible and some are not, an injunctive decree should not issue to restrain actions that are legal or about which there is no asserted complaint. See Southern Traffic Bureau v. Thompson, 232 S.W.2d 742, 750 (Tex.Civ. App.San Antonio, 1950, writ ref'd n.r.e.). Thus, the entry of an injunctive decree that enjoins lawful, as well as unlawful acts, may constitute an abuse of discretion. Id.
We conclude that, under the particular circumstances shown by the record in this case, the trial court's injunctive decree cannot be enforced as written. Although the court's decree recognizes Hellenic's right to sell alcoholic beverages and to allow dancing on its premises, the decree prohibits the exercise of those lawful acts in the event that the ratio of Hellenic's food to alcoholic beverage sales falls below a certain percentage figure. Thus, the court's decree makes Hellenic's food/alcoholic beverage sales ratio the controlling factor in determining whether Hellenic's "combination" of lawful uses constitutes the operation of an impermissible "night club."
We hold that the trial court's decree is unenforceable to the extent that it compels Hellenic, under threat of contempt, to manage its internal business operations in such a way that its food and alcoholic beverage sales are within the specified percentage ratio. We therefore sustain the appellants' contentions advanced under points of error five, six, seven, and eight, and in view of our disposition of these points, we need not consider the remaining points of error.
Our ruling on this appeal is entered without prejudice to Kroger's right, in this or any subsequent proceedings, to seek injunctive or other relief regarding its specific claims that it is being denied lawful access to its grocery store, that its customers are being subjected to harrassment, or that its parking lot rights are being violated by Hellenic's actions.
The trial court's judgment is reversed, the injunction is dissolved, and the cause is remanded for further proceedings consistent with this opinion. Costs of appeal are divided equally between the parties.
NOTES
[1] PERMITTED USE: The demised premises shall be used for a restaurant or dining facility with the sale of alcoholic beverages, dancing, games, and related facilities and activities. Tenant shall, at all times during the term of this lease, maintain a full and complete service kitchen during the hours of 8:00 p.m. through and including 1:00 a.m. on all of Tenant's business days. Tenant shall serve food which may include, but not be limited to, ribs, hamburgers, hot dogs, nachos, chicken fingers, fajitas, cold roast beef and ham sandwiches. Tenant may not serve any of the following: barbeque, pizza, Italian food, Chinese food, Continental food, ice cream (other than for dessert), fried chicken, steaks or seafood. Tenant shall not maintain or operate more than ten electronic games at the premises nor shall Tenant maintain or operate more than four pool tables at the premises. It is the intent of both Landlord and Tenant that the premises be operated so as not to disturb the quiet enjoyment of other Tenants at the Shopping Center.
[2] Tenant acknowledges Landlord's major anchor in the Shopping Center [is] The Kroger Company. Tenant further acknowledges Kroger's lease with Landlord prohibits leasing to a nightclub in the Shopping Center. Tenant hereby warrants it is not a night club. In the event, subsequent to the opening, Landlord receives complaints or threats of litigation from Kroger, Tenant will either alter its operation to satisfy Kroger's allegations or will pay all legal fees, expenses and awards, both its own and Landlord's to defend any action brought by Kroger. In the event Tenant loses said litigations, Tenant will terminate its lease and vacate the premises holding Landlord completely harmless from any damage from Kroger [or] Tenant or any other party. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575820/ | 17 So. 3d 706 (2009)
THE FLORIDA BAR
v.
RODRIGUEZ (JORGE).
No. SC09-1315.
Supreme Court of Florida.
August 13, 2009.
Decision without published opinion disbarred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575802/ | 829 S.W.2d 787 (1992)
James Howard WARD, Appellant,
v.
The STATE of Texas, Appellee.
No. 207-91.
Court of Criminal Appeals of Texas, En Banc.
March 18, 1992.
Rehearing Denied May 20, 1992.
*788 R.K. Weaver, on appeal only, Dallas, for appellant.
John Vance, Dist. Atty., and Patricia Poppoff Noble and Mark Nancarrow, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
MILLER, Judge.
Appellant was convicted in a bench trial of burglary of a building. V.T.C.A. Penal Code § 30.02. Appellant pled "true" to the two enhancement allegations in the indictment, and the trial judge sentenced appellant to 25 years confinement in the Texas Department of Corrections.[1] The court of appeals overruled appellant's sole point of error, challenging the sufficiency of the evidence, and affirmed the conviction. Ward v. State, 804 S.W.2d 204 (Tex.App. Texarkana 1991). We granted the appellant's petition for discretionary review on three grounds to determine whether the court of appeals erred in holding: (1) that the evidence was sufficient to support the verdict; (2) that appellant failed to preserve the issue of sufficiency of the evidence for appellate review; and (3) that appellant was challenging the propriety of the attempted amendment of the indictment in this cause. We will reverse the judgment of the court of appeals.
The indictment in this cause alleged, in pertinent part, that appellant did
unlawfully, knowingly and intentionally enter a building not then and there open to the public, without the effective consent of SETH HALLER, the owner thereof, with the intent to commit theft[.]
On August 17, 1989, the day of trial, the State filed a motion to amend the indictment, pursuant to Art. 28.10, V.A.C.C.P., to change the name of the complaining witness from "Seth Haller" to "Steve Scott." Appellant objected that allowing the amendment caused the indictment to charge him with a "new or different or additional" offense as prohibited by Art. 28.10(c). The trial judge overruled the objection and granted the State's motion. The motion reflects the desired change in the complainant's name and incorporates the trial judge's order granting the State's motion. The order simply states "[t]he foregoing Motion is hereby granted and the indictment is hereby amended." In spite of the language of the court's order, no interlineation regarding the complainant's name was made on the grand jury's indictment. After ruling on several defense motions, the trial judge proceeded to the trial on the merits.
Briefly, the evidence showed that appellant and two cohorts burglarized the Radio Shack store in the Richardson Heights shopping center in Dallas County. Steve *789 Scott testified that he was the manager of the Richardson Heights store at the time of the offense, and that Seth Haller was the manager of the Radio Shack store at the Campbell Road center. At the conclusion of the State's case-in-chief, appellant moved for a verdict of acquittal, arguing the State failed to prove he entered the Radio Shack store at a time when it was not open to the public. No argument was made regarding the evidence to support the complaining witness allegation. The trial court obviously denied the motion and subsequently found the appellant guilty.
On direct appeal to the court of appeals, appellant contended the evidence was insufficient to sustain his conviction because the State failed to prove that he did not have the permission of the named complainant, Seth Haller, to enter the Radio Shack store. Appellant argued that although the State "sought and received permission to amend the indictment[,] ... it did not in fact make the permitted amendment." Appellant's brief at p. 4. Citing old caselaw[2], appellant asserted the record must affirmatively show that an actual physical amendment was made on the face of the indictment by the State, and that the trial court's order in this cause was insufficient for that purpose. Under Art. 28.11, V.A.C.C.P., appellant contended, amendments to indictments are not made by the trial court, but rather are made "with leave of court and under its direction." (emphasis added). According to appellant, the State thus proceeded to trial on the indictment handed down by the grand jury, which alleged Seth Haller as the complainant, resulting in a fatal variance between the State's pleading and its proof.
The court of appeals affirmed appellant's conviction, holding the indictment was amended and that appellant failed to preserve for review a claim concerning any defect in the indictment. Ward, 804 S.W.2d at 205. The court of appeals concluded the trial court's order, providing "the indictment is hereby amended," was sufficient record of the amendment. In so concluding, the appellate court distinguished Robins, Cox, and Turner as requiring that the record reflect an amendment, and not as providing requirements for the amendment itself. The court determined these three cases were not inconsistent with its holding that the record in this cause showed the indictment was amended. Ward, 804 S.W.2d at 206. The court also distinguished two apparently conflicting decisions from the Fifth Court of Appeals[3] as holding that a defendant does not have notice of an amendment to the indictment until the charging instrument is physically altered or the court's order granting the motion to amend, or some other formal order setting out the substance of the amendment, appears in the record. Id. In neither Bartley, Rent, nor this cause was there any physical change or interlineation on the face of the charging instrument.[4] However, the court found dispositive in this case that the trial court's order was written on the same instrument which asked that the complaining witness's name be changed in the indictment, and this "constituted a sufficient order memorializing the substance of the amendment. The indictment *790 was effectively amended."[5]Ward, 804 S.W.2d at 206.
Appellant also argued in the court of appeals that Art. 28.11, V.A.C.C.P., prohibited the trial court from actually amending the indictment, i.e., that the trial court's order granting the State's motion to amend was ineffective as an "amendment." Relying on Cuesta v. State, 763 S.W.2d 547, 549-550 (Tex.App.Amarillo 1988, no pet.), and Etchieson v. State, 653 S.W.2d 930, 934-35 (Tex.App.Dallas 1983, pet. ref'd.), and without further analysis, the court of appeals concluded the trial court itself can amend an indictment. Ward, 804 S.W.2d at 206. The court also stated, however, that even if it were incorrect in this holding, it would affirm appellant's conviction because he failed to preserve his claim that the indictment was defective under Studer v. State, 799 S.W.2d 263 (Tex.Crim.App. 1990), and Art. 1.14(b), V.A.C.C.P. Id. at 206-207.
As noted supra, we granted the appellant's petition for discretionary review on three grounds: whether the court of appeals erred in holding (1) that the evidence was sufficient; (2) that appellant failed to preserve for review the issue of sufficiency of the evidence; and (3) that appellant was challenging the propriety of the amendment since the only issue raised on direct appeal was the sufficiency of the evidence. The three grounds for review are interrelated, and appellant has consolidated in his brief his arguments and authorities in support of these grounds.
The Meaning of the Term "Amend"
Appellant's first ground for review asserts "the court of appeals erred in holding that the evidence is insufficient [sic] to support the instant verdict since the instant indictment was not in fact amended." This ground for review requires this Court to interpret the provisions of Arts. 28.10 and 28.11, V.A.C.C.P., and determine precisely when an indictment is "amended" as that term is used in the statutes. The two statutes provide in full:
Art. 28.10. Amendment of Indictment or Information
(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.
(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.
(c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.
Art. 28.11. How Amended
All amendments of an indictment or information shall be made with the leave of the court and under its direction.
In interpreting statutes, this Court attempts to effectuate the collective intent or purpose of the legislature. Dillehey v. State, 815 S.W.2d 623 (Tex.Crim. App. 1991), citing Patterson v. State, 769 S.W.2d 938, 941 (Tex.Crim.App.1989) (most common rule of statutory construction is for judiciary to attempt to effectuate intent of legislature). We are also mindful of the statutory construction aids provided in § 311.023 of the Government Code[6] for our *791 interpretive analysis. Moreover, in determining the meaning of a word employed in a statute, "the inquiry is not as to its abstract meaning, but as to the sense in which it is used when the legislative purpose so requires." Camacho v. State, 765 S.W.2d 431, 433 (Tex.Crim.App.1989). Typically, a word is construed according to its plain meaning, but a word may be given a broader or a narrower meaning than that which it has in ordinary usage. Id., citing Baldridge v. State, 167 Tex. Crim. 519, 321 S.W.2d 309, 310 (1959). The principal rule is that a statute, when susceptible to more than one construction, will be interpreted so as to secure the purpose or benefit intended. Id.
Appellant asserts that the plain meaning of the word "amend," as used in Art. 28.10, supports his contention that the indictment was not in fact amended by the trial court's order granting the State's motion to amend. In its common and ordinary usage, "amend" means "to put right; specif: to make emendations in (as a text) ... to change or modify for the better ... to alter esp. in phraseology; specif: to alter formally by modification, deletion, or addition ..." Webster's New Collegiate Dictionary, G. & C. Merriam Company, (1977). In legal terminology "amend" has substantially the same meaning, viz: "To improve. To change for the better by removing defects or faults. To change, correct, revise." (citations omitted). Black's Law Dictionary, West Publishing Company, 4th Ed. Thus, according to appellant, an indictment is amended only by "actually altering, changing, correcting or improving" it. Appellant's brief at p. 10.
The legislative history of the amendment to Art. 28.10 provides little insight into the precise meaning the legislature attached to the word "amend."[7] Tape recordings of the Senate Criminal Justice Committee hearings on Senate Bill 169 and the House Criminal Jurisprudence Committee hearings on House Bill 366 reveal our legislators had several concerns with the proposed changes in criminal pleadings practice.[8] Germane to the issue in this petition, Senator Glasgow queried whether there were "any constitutional problems in this bill authorizing a district attorney and a judge to amend an indictment as a matter of substance, as that would conflict with the route of a grand jury." The witness, Ralph Petty, an Assistant District Attorney in Bell County, responded:
[Y]es, obviously, yes. Except that with the companion bill to this, for a constitutional amendment [SJR 16], allowing the courts to do just exactly that. And without that companion bill there is going to be no amendment to the substance of an indictment because it is no longer an act of the grand jury but is an act of the prosecutor or the court amending the bill. So you have to have this SJR 16, or else you are not going to be able to contemplate any change in that indictment. You can delete therefrom, you can strike surplusage, but you can never *792 add to an indictment. And the bill contemplates adding an element of the offense when you drop one. And that brings up another issue.
Senator Brown commented later that SJR 16 was intended to give the courts jurisdiction over the contents of an indictment, otherwise the enabling legislation would have no effect. Senator Harris echoed this statement, that SJR 16 gave the courts jurisdiction to make amendments, when urging its passage before the full senate.
Some of the most illuminating testimony, during the house committee hearing, came from Steve Cheney, who testified that the purpose of HB 366 was to allow a trial judge to correct errors in an indictment before trial by allowing the State to either amend the indictment or reindict the accused. When asked by Representative Schoolcraft whether "a judge can just amend an indictment or do you have to send it back to the grand jury[,]" Cheney responded:
I wish I knew more about that subject. That's one I have problems with. There has to be some type of flexibility, either by a bill of particulars or the way this [HB 366] says, and how you define substance was a very good question. You can't simply thwart the will of the grand jury by coming up in the amendment process by coming up [sic] with a new offense. How you draft that legislation, I haven't figured it out yet. I've thought about it, but I don't know that I have the answer.
In testifying against the bill, Arch McColl, a Dallas defense lawyer, argued that HB 366 would give prosecutors a "blank check" and allow them to add or change any matter of form or substance in the indictment.[9]
From reading the transcripts of the hearings, we find that the legislators' primary concern can be fairly summarized as follows: What type substantive errors could be corrected in an indictment without thwarting the will of the grand jury or violating an accused's constitutional right to grand jury indictment in a felony cause? Although there were references to a court or prosecutor amending a charging instrument, there was no testimony regarding the actual physical mechanics of making an amendment to a charging instrument. This lack of testimony indicates to us the legislature did not attach any technical or particular meaning to the term "amend," and thus we will not frustrate legislative intent by applying a hypertechnical interpretation to the term.
We find further guidance as to the meaning of "amend" from Art. 28.11 which addresses how a charging instrument is amended. Although this Court has not recently addressed the requisites of Art. 28.11, two courts of appeals have. In Etchieson v. State, 653 S.W.2d 930 (Tex.App Dallas 1983, pet. ref'd.), the trial court quashed the first of two enhancement paragraphs pursuant to appellant's motion. The State then moved to strike certain words[10] from the second enhancement paragraph, and the trial judge granted that motion. The trial judge then instructed the prosecutor to singularize the second enhancement paragraph so that it made no reference to the first. The appellant contended on appeal that the trial judge's instruction to omit reference to the first enhancement paragraph violated Art. 28.11 and Art. I, § 10, Tex. Const., because it was done without a motion indicating the changes to be made. Etchieson, 653 S.W.2d at 933. The court of appeals, assuming arguendo the deletions were "amendments" under Art. 28.10[11], found no violation because "the record is clear that the trial court closely monitored the changes made after the motion to strike, and that the deletions were those of the *793 judge and not those of the State." Id. at 933-934.
In Cuesta v. State, 763 S.W.2d 547 (Tex. App.Amarillo 1988, no pet.), the State moved to amend the sexual assault indictment, and the indictment was in fact amended by the substitution of the words "sexual organ" for "vagina" and the addition of the phrase "and [the victim] believed that said defendant had the present ability to execute said threats[.]" On appeal, the appellant contended, inter alia, Arts. 28.10 and 28.11 were unconstitutional in violation of the separation of powers provision of Art. II, § 1, Tex. Const. The court of appeals noted that according to Art. V, § 12(b), Tex. Const., the practice and procedures relating to the amendment of indictments are "as provided by law."[12]Cuesta, 763 S.W.2d at 549. Thus, the court concluded that the legislature, through enactment of Arts. 28.10 and 28.11. had "adopted a procedure by which one tribunal of the judicial branch, the trial court, may amend an indictment originally returned by another tribunal of the judicial branch, the grand jury." Id. at 549-550. The court of appeals in the case at bar relied upon both Etchieson and Cuesta in concluding that pursuant to Art. 28.11 the trial court itself can amend an indictment. See Ward, 804 S.W.2d at 206. In so concluding, the court of appeals rejected appellant's argument that the trial court could not amend the indictment with its order granting the State's motion. Our reading of Art. 28.11 leads us to agree with appellant's position.
Article 28.11 tells us how charging instruments are amended; that is, "with leave of the court and under its direction." This article, which must be considered in this interpretative analysis of Art. 28.10, uses a phrase which has acquired a particular meaning in legalese and provides us with insight as to how a charging instrument is in fact amended. According to the Black's Law Dictionary, "leave of court" means:
[Permission obtained from a court to take some action which, without such permission, would not be allowable; as, to sue a receiver, to file an amended pleading, to plead several pleas, [citation omitted]
According to Art. 28.11, then, as we read it, if the State wishes to amend a pleading it must first request permission of the trial court. A "motion for leave to amend" is an appropriate vehicle to use to accomplish this task. However, it is merely the vehicle which puts the amending process in motion. By delineating in the motion the changes it desires to make to the charging instrument, the State apprises the trial judge of the proposed change, allowing the judge to determine whether the proposed amendment is proper under Art. 28.10[13], and, if so, he may grant the State the permission to amend. In this sense, the amendment is done with leave of the court (i.e. the trial judge's permission) and under its direction (i.e. the trial judge's knowledge of the specific changes to be made, and the manner of making them, which he has deemed proper under the law). Neither the motion itself nor the trial judge's granting thereof is the amendment; rather the two comprise the authorization for the eventual amendment of the charging instrument pursuant to Art. 28.10. The amendment, then, is the actual alteration of the charging instrument.[14]
This interpretation of Art. 28.11 is consistent with Flores v. State, 82 Tex. Crim. 107, 198 S.W. 575 (1917), an early case discussing that statute[15], where this Court found no error in the trial judge allowing an amendment to an indictment. In response *794 to the defendant's motion to quash in that case, the district attorney moved for leave to amend the indictment to reflect the date on which prohibition went into effect.[16] Under the direction of the trial court, the prosecutor was permitted to amend the indictment by inserting the effective date. After this amendment by the State, the trial judge overruled the motion to quash, and this Court found no error in "[a]ll this action by the court[.]" 198 S.W. at 577.
More importantly, our holding that "amend" means an actual alteration in the charging instrument itself is also consistent with state constitutional guarantees. Article I, § 10 of the Texas Constitution guarantees an accused the right to be informed of the nature and cause of the accusation against him in a criminal prosecution. It has long been held that this information must come from the face of the indictment. See e.g. Benoit v. State, 561 S.W.2d 810, 813 (Tex.Crim.App.1977), citing Wilson v. State, 520 S.W.2d 377 (Tex.Crim.App. 1975), and Voelkel v. State, 501 S.W.2d 313 (Tex.Crim.App.1973). Indeed, the accused is not required to look elsewhere. Baker v. State, 123 Tex. Crim. 209, 58 S.W.2d 534 (1933). When writing on this notice requirement, former Presiding Judge Onion stated for the Court:
It is, of course, not sufficient to say that the accused knew with what offense he was charged, but the inquiry must be whether the charge in writing furnished that information in plain and intelligible language. Wilson v. State, supra; Moore v. State, 473 S.W.2d 523 (Tex.Cr. App.1971).
Benoit, 561 S.W.2d at 813. This fundamental guarantee enables the accused to learn in advance of trial and with reasonable certainty with what he is being charged so that he can properly prepare his defense. Wilson, 520 S.W.2d at 379. Certainly, the motion to amend and the trial judge's order granting it serve as notice to the accused of what changes will be made to the pleadings. However, that is not notice of the charge against him. Thus, concluding that "amendment" means an actual alteration to the document charging an offense ensures the accused of his constitutional right to be informed, from the face of the charging instrument, of the nature and cause of the accusation against him.
Reaching this conclusion, we conclude the court of appeals erred in holding the trial court's order granting the State's motion to amend was an amendment of the indictment as that term is used in Arts. 28.10 and 28.11. Specifically, the appellate court stated:
[T]he trial court's order on the motion sufficiently apprised the defendant about that which he was charged, and constituted a sufficient order memorializing the substance of the amendment. The indictment was effectively amended.
Ward, 804 S.W.2d at 206. We have no quarrel with the court of appeals' statement that the motion sufficiently memorialized the substance of the proposed amendment. The document sets out in writing the substantive allegation to be changed, viz: "change complainant from `Seth Haller' to `Steve Scott'." While the motion apprised appellant of the proposed change to the indictment, knowledge necessary so that appellant may make a valid objection under Art. 28.10, the motion itself does not sufficiently apprise him of that with which he is charged. It merely tells him who the State now wishes to plead as the complaining witness. Even if the motion sufficiently apprised appellant of the accusation against him, it would be insufficient under state constitutional provisions. See discussion supra at pp. 793-794. It is well-established in this state that the notice must come from the face of the charging instrument, not a motion or trial court order attached thereto. The State's motion and the trial court's order satisfied the requisites of Art. 28.11, but the document[17] itself does not constitute the actual amendment. The indictment in this cause was *795 not altered by interlineation to allege "Steve Scott" as the complaining witness. There being no alteration to the face of the indictment, we hold the indictment was never in fact amended. The court of appeals erred in holding otherwise.
Appellant's first ground for review, the sufficiency of the evidence question, may now be addressed. As we indicated supra in footnote 5, resolution of the sufficiency question turned solely on resolution of the amendment issue. We held the indictment was not in fact amended in this cause. Consequently, the State's proof that the owner of the burglarized building was Steve Scott was insufficient to prove the owner was Seth Haller as alleged in the indictment. The evidence is therefore insufficient to support appellant's conviction. Appellant's first ground for review is sustained.
Substance Defects v. Amendments
As to appellant's third ground for review [18], we first note that the court of appeals did not expressly hold that appellant challenged the propriety of the amendment on appeal, but rather held that appellant failed to preserve for review his claim that the indictment was defective, Ward, 804 S.W.2d at 206, and his claim that changing the name of the complaining witness violated Art. 28.10(c). Id. at 207. In this case, challenging the propriety of the amendment and challenging the validity of the indictment present different issues under different procedural statutes.
The court of appeals concluded appellant failed to preserve his claim of a defective indictment under the principles enunciated in Studer, 799 S.W.2d 263, a case which interpreted the newly amended provisions of Art. V, § 12, Tex. Const, and Art. 1.14, V.A.C.C.P. The record reveals appellant did not make any objection before trial, or any time thereafter, that there was a "defect, error, or irregularity of form or substance" within the indictment pursuant to Art. 1.14(b).[19] Under Studer any such claim of deficiency would be waived. We find, however, that the only "error" in this indictment was the State's mistake in alleging "Seth Haller" as the owner of the Radio Shack store. Recognizing its error, the State moved, expressly pursuant to the provisions of Art. 28.10, to correct its pleading error by amending the indictment to reflect the correct name of the complaining witness. Appellant's only objection regarding this indictment came in response to the State's motion to amend the indictment, which objection also expressly invoked the provisions of Art. 28.10(c).[20] Although the State moved to amend a matter of substance in the indictment, viz: the owner of the building, appellant's only objection was to the actual amending of the indictment under Art. 28.10, and not to any pleading defect of form or substance within the indictment under Art. 1.14. The court of appeals' reliance on Studer and Art. 1.14 in this case was misplaced, and consequently its rationale was erroneous.
The record reflects appellant's only challenge to the indictment was his objection to the propriety of the amendment under Art. 28.10(c). Nevertheless, any claim by appellant on appeal that the amendment of the indictment was improper under Art. 28.-10(c) would be barred because appellant, although objecting on that ground pretrial, did not raise the issue on direct appeal. The court of appeals so noted appellant had waived this claim. See Ward, 804 S.W.2d at 207-208. The court made no express holding that appellant was challenging the propriety of the amendment, but rather only concluded in dicta that appellant had not raised this claim, and therefore any *796 claim of impropriety was waived. Appellant's third ground for review is overruled.
As for appellant's second ground for review, we now find that our decision to grant appellant's petition for discretionary review on this ground was improvident. Tex.R.App.Proc. 202(k). That part of appellant's petition is therefore dismissed.
Having sustained appellant's first ground for review, we reverse the judgment of the court of appeals and remand this cause to the trial court for the entry of a judgment of acquittal.[21]
McCORMICK, P.J., and WHITE, J., concur in the result.
NOTES
[1] Now called the Texas Department of Criminal JusticeInstitutional Division.
[2] Robins v. State, 9 Cr.R. 666 (1880); Turner v. State, 7 Cr.R. 596 (1880); and Cox v. State, 7 Cr.R. 495 (1879).
[3] Bartley v. State, 789 S.W.2d 288 (Tex.App. Dallas 1990, no pet.), and Rent v. State, 771 S.W.2d 723 (Tex.App.Dallas 1989). We granted the State's petition for discretionary review in Rent, and affirmed the court of appeals' judgment in a per curiam opinion. See Rent v. State, 1990 WL 130491 (Tex.Crim.App. No. 1090-89 delivered September 12, 1990), aff'd. on reh'g., (Tex.Crim.App. No. 1090-89 delivered this day) (Opinion on State's Motion for Rehearing).
[4] In Rent, no interlineation was made at the time the trial judge granted the State's motion to amend, but the indictment was later physically amended by the State, under the trial court's direction, at a pretrial hearing held approximately six weeks after the trial court granted the State's motion.
In Bartley, the trial court granted the State's oral motion to amend the indictment. No interlineation was made on the indictment, and only the original indictment was included in the transcript.
[5] By holding the indictment was "amended," the court of appeals implicitly concluded the evidence was sufficient to support appellant's conviction; however, there is no express holding as to the sufficiency of the evidence, appellant's sole point of error, in the court of appeals' opinion. See Ward, 804 S.W.2d 204.
[6] Section 311.023, Statute Construction Aids, provides:
In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:
(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
(4) common law or former statutory provisions, including laws on the same or similar subjects;
(5) consequences of a particular construction;
(6) administrative construction of the statute; and
(7) title (caption), preamble, and emergency provision.
[7] The amendments to Arts. 1.14, 28.09, and 28.10 of the Code of Criminal Procedure were provided for in Senate Bill No. 169, which was the implementing legislation for the constitutional amendment to Art. V, § 12 of the Texas Constitution. See Acts 1985, 69th Leg., ch. 577. The provisions of this amendatory act state the change in law takes effect December 1, 1985, only if the constitutional amendment to Art. V, § 12 is approved by the voters, which approval came on November 5, 1985. The changes in Arts. 1.14, 28.09, and 28.10 apply only to an indictment or information presented to the court on or after the effective date of the amendatory act.
[8] For example, legislators and witnesses at the hearing expressed concerns about the constitutionality of allowing a matter of substance to be amended as a conflict with the grand jury's function, whether the bill abolished the grand jury system, whether amending a matter of substance meant charging a different statutory offense, the difference between a matter of form and a matter of substance, and the time period allowed for trial preparation after amendment.
[9] This same concern was expressed by Dain Whitworth during the Senate committee hearings.
[10] The words, which were illogically placed in the enhancement paragraph, were the defendant's name and "the said."
[11] The court of appeals had initially determined the deletions were not amendments which invoked the provisions of Art. 28.10. 653 S.W.2d at 932-933. This decision was rendered under Art. 28.10 prior to its amendment in 1985 and is not dispositive of this case in any way.
[12] See footnote 7, supra.
[13] Article 28.10(a) does provide for amendment over a defendant's objection, while Section (b) allows for amendment if the defendant does not object at all. State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim.App.1991). Section (c) also allows amendment if the defendant does not object.
[14] By, for example, handwriting, typing, interlining, striking out, etc.
[15] The Flores case addressed the issue under Art. 599, V.A.C.C.P. (1911), a predecessor to Art. 28.11. The statute has remained unchanged by revision or otherwise since at least 1895.
[16] The defendant was convicted of the unlawful sale of intoxicating liquor in territory where the sale thereof was prohibited. Flores, 198 S.W. at 576.
[17] The motion and the order were incorporated in a one-page document.
[18] In this ground appellant asserts the court of appeals erred in holding that he was challenging the propriety of the attempted amendment of the indictment in this cause.
[19] See Arts. 21.01 and 21.21, V.A.C.C.P., for requisites of indictments and informations; Arts. 27.08, 27.09, and 21.23, V.A.C.C.P., for exceptions to matters of form and substance in indictments and informations.
[20] The trial judge recited on the record that "[djefense counsel has entered an objection this constitutes a new or different or additional defense [sic] under 2810(c) [sic] of the Code of Criminal Procedure."
[21] In its brief, the State contends we should apply a harm analysis to trial court error committed under Art. 28.10. (See State's brief at pp. 793-794). We note the issue in this case is the sufficiency of the evidence, and a harm analysis is inapplicable in this context. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575819/ | 35 S.W.3d 399 (2000)
LENETTE REALTY & INVESTMENT COMPANY, Respondent/Cross-Appellant,
v.
CITY OF CHESTERFIELD, Appellant/Cross-Respondent.
No. ED 76404.
Missouri Court of Appeals, Eastern District, Division One.
October 17, 2000.
Motion for Rehearing and/or Transfer Denied January 9, 2001.
Application for Transfer Denied February 13, 2001.
*401 Douglas R. Beach, Robert M. Heggie, Patrick I. Chavez, Beach, Stewart, Heggie & Mittleman, L.L.C., St. Louis, for appellant.
Mary M. Bonacorsi, John S. Farmer, Thompson Coburn LLP, St. Louis, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied January 9, 2001.
JAMES R. DOWD, Judge.
The City of Chesterfield appeals from the trial court's Order and Judgment finding that it acted arbitrarily and unreasonably in denying Lenette Realty & Investment Company's petition requesting the rezoning of three adjoining tracts of land. Lenette cross-appeals, arguing that the trial court should have imposed Lenette's rezoning plan on the City and awarded damages for the delay in rezoning. We affirm.
FACTS
We view the evidence in the light most favorable to the city council's decision.
*402 Village Lutheran Church v. City of Ladue, 935 S.W.2d 720, 722 (Mo.App. E.D.1996). Lenette owns a 0.80 acre parcel of land (Tract 1) at the Southwest corner of Clayton and Baxter Roads in the City of Chesterfield. The other three corners of the intersection are commercial. The Northeast corner has a supermarket and a strip mall and there are gas stations on both the Northwest and Southeast corners. Tract 1 was originally zoned "C-2" commercial by St. Louis County in the 1960's under a Conditional Use Permit, which allowed the operation of a service station. Lenette operated a service station on Tract 1 until 1993, when the widening of Clayton and Baxter Roads took a portion of the land and restricted access to the station. Lenette alleged that this made the parcel's use, as a service station, no longer economically feasible.
In 1988, Lenette entered into negotiations to buy the land immediately south of Tract 1. That land consists of a 2.97 acre parcel (Tract 2) and a 0.43 acre parcel (Tract 3), both owned by NationsBank.[1] Tract 2 is zoned as a "C-8" planned commercial district allowing only the operation of a bank with drive-through lanes. A branch office of the bank has been operated on Tract 2 since 1974. Bank officials testified that the building on the site is one of the ten smallest facilities of NationsBank's 700 banks in the Midwest, and only one-third the size of a commercially viable modern equivalent. Consequently, NationsBank plans to close it. Tract 3 is a small undeveloped parcel immediately west of tract 3 zoned "R-2" residential.
In 1990, Lenette entered into a contract with NationsBank to purchase Tracts 2 and 3, subject to the City's approval of a rezoning plan. Lenette planned to build a Walgreens drug store and several small specialty retail shops on the site. Lenette supported its offer to buy the tracts with $25,000 in earnest money deposited in an escrow account. As part of the sale contract, NationsBank agreed to lease a portion of the property for continued operation of a new and more accommodating bank facility. In March 1990, Lenette submitted its first petition to the City requesting that the entire property be rezoned to "C-8." Lenette's plan proposed a total of 31,000 square feet of retail and office space and was approved by the City Department of Planning and Economic Development (Planning Department) subject to several conditions. Lenette complied with the conditions and made changes to the proposed development plan, although certain issues remained unresolved, including the number of street entrances to the bank. Both the Planning Department and the Planning Commission ultimately recommended approval of Lenette's plan to the City Council, but before the City Council voted Lenette withdrew its petition to resolve the street entrance issue with the bank.
On April 9, 1996, NationsBank and Lenette entered into another sale and leaseback contract for Tracts 2 and 3, again contingent upon the City's rezoning. In December 1996, Lenette submitted its second petition for rezoning to the City with its proposal for a Walgreens, bank, and specialty shops. This new proposal reduced the total building area to approximately 29,920 square feet, consisting of two freestanding buildings and an ATM. The buildings were to stand on Tracts 2 and 3, with Tract 1 used to provide the required on-site storm water detention basin. In addition, the plan complied with several concerns raised by owners of six single-family homes located near the proposed development, just west of the Chesterfield City limits in Ballwin. Additional conditions imposed on behalf of these homeowners included the preservation and construction of more "green space," increased *403 building setbacks from the western property line, the erection of a ten foot high masonry fence and several other aesthetic improvements; all of which Lenette agreed to and incorporated into the development plan.
On February 24, 1997, the City Planning Commission conducted a public hearing on Lenette's petition. During review of the petition, city staff requested that Lenette employ a traffic consultant to analyze the potential impact of the development on the Baxter and Clayton Road traffic flow. Lenette hired a traffic consultant, whose final report concluded the proposed development would have no discernable impact on traffic conditions. The City then asked St. Louis County and the Missouri Department of Transportation to review the traffic report. Both agencies concurred with the traffic report, but recommended that several road improvements, including additional turn lanes, should be incorporated into the plan. Lenette agreed to perform the road improvements at its own expense.
On April 28, 1997, the city Planning Department issued its report advising the Planning Commission that Lenette's plan was consistent with the City's overall Comprehensive Plan and recommending that Lenette's petition for rezoning be approved, subject to several conditions attached to the report. These conditions included use restrictions, building area and height requirements, landscaping and fencing criteria, setback conditions, parking requirements, road improvements, and signage restrictions. Lenette agreed to comply fully with every condition recommended by the Planning Department's report and modified its site plan accordingly. Moreover, at the City's urging, Lenette organized meetings with area residents to gain input for making the plan more appealing to the surrounding area.
On May 12, 1997, despite the Planning Department's recommendation for approval, the Planning Commission voted 5-2 to deny Lenette's petition for rezoning. The Commission gave no reason for its denial, although the Commission's letter informing the City Council of its decision stated Lenette's proposed use was "too dense and too intense." In an attempt to appease the Commission, Lenette submitted a revised plan on August 1, 1997, reducing the total building area by an additional 10% to 26,893 square feet. Nevertheless, the City Council's Planning and Zoning Committee voted 3-0 to deny the petition. On August 18, 1997, Lenette's petition went before the entire City Council and was defeated unanimously.
On September 18, 1997, unable to secure the necessary zoning changes from the City, Lenette terminated its contract with NationsBank for the sale of Tracts 2 and 3. The earnest money remained in escrow. On February 16, 1998, representatives of Lenette and NationsBank executed Amendment 6 to the original contract, which revoked the prior termination of the contract and extended the contingency period so that the contract would remain in full force and effect. The next day, February 17, 1998, Lenette filed suit in equity against the City of Chesterfield requesting that the trial court declare the City's zoning ordinance unconstitutional, order the City to rezone Tracts 1, 2 and 3 according to Lenette's petition, and award damages. NationsBank was not a party to the suit.
During trial, Lenette presented uncontroverted expert testimony that under the existing zoning the property was worth $450,000 and that if rezoned according to Lenette's proposal, it would be worth $2,450,000. The appraiser also testified that he conducted a study of the density of surrounding developments as measured by the land-to-building ratio. The typical density of comparable neighborhood retail centers had a land-to-building ratio of 4.5 square feet of land for every 1 square foot of building, or 4.5:1. Of the twenty-eight developments surveyed, Lenette's proposal had the lowest density at 6.8:1. Chesterfield retail centers in the immediate vicinity of Baxter and Clayton roads had densities far higher than that proposed by *404 Lenette. In addition, the appraiser testified that the highest and best use of the subject property that the market would bear would be a commercial development of 40,750 square feet with a density of around 4.5:1.
Lenette also presented expert testimony that the proposed development would have no significant traffic impact on the Clayton and Baxter intersection. Lenette called City's Assistant Director of Planning, who testified that the City had no traffic experts on its staff and that both St. Louis County and the Missouri Department of Transportation reviewed and confirmed Lenette's original traffic study.
A City councilman testified that the City had recently approved neighborhood retail centers, adjacent to residential areas, with densities far in excess of Lenette's proposed site plan. The two City council members testified that their concern over increased traffic was based only on speculation and that they had no way of knowing whether their concerns were valid. Moreover, council members testified that one of the reasons they denied Lenette's petition was to protect adjacent property owners.
Lenette also presented evidence that during the City's review of Lenette's petition, neighboring retailers, including the owner of a nearby pharmacy, launched an orchestrated campaign against Lenette's proposed development. The councilman testified that the City Council received hundreds of pre-printed postcards stating that Lenette's proposed development would adversely affect local merchants.
On May 20, 1999, after three days of trial, the court entered its Judgment and Order finding that the present zoning as applied to the subject property is arbitrary, capricious and unreasonable, stating:
The detriment to plaintiff as a result of the continuance of Chesterfield's current zoning on the Site is substantial and significant as reflected in plaintiff's financial loss which would be realized if the zoning is not changed. There is no public benefit to be derived by continuance of Chesterfield's present zoning of the Site. Chesterfield presented no evidence at trial suggesting any public benefit that would outweigh the private detriment plaintiff would suffer under a continuance of the current zoning. In fact, the record reveals that the action of the Council was fueled by concerns for competitors on the adjoining commercial sites and not by legitimate concerns. Indeed it appears that the council members applied personal subjective standards instead of legal objective standards.
The trial court declared the current zoning null and void and ordered the City "to place a reasonable zoning classification on the properties ..." The court did not provide a deadline for the imposition of the new zoning nor did it order City to approve Lenette's zoning proposal. On June 2, 1999, Lenette filed its Motion to Alter and Amend Judgment, requesting that the trial court require the City to rezone the subject property in accordance with Lenette's petition within thirty days. The court denied Lenette's motion on June 21, 1999. The City filed its Notice of Appeal on June 24, 1999, and Lenette filed its Notice of Cross Appeal on July 14, 1999.
I. Standing
Initially, Chesterfield contends the trial court erred in failing to dismiss Lenette's petition for lack of standing. The City argues that because Lenette terminated its contract with NationsBank for the sale of tracts 2 and 3 on September 16, 1997, it had no interest in tracts 2 and 3 and therefore lacked standing to bring suit to have those tracts rezoned. Lenette maintains that at the time the City denied its petition for rezoning, it had a viable contract for the sale of parcels 2 and 3 and amendment six to that contract conferred an identical property interest before suit *405 was filed, giving Lenette a sufficient protectable interest to confer standing.
In order to have standing to attach an administrative zoning decision, a plaintiff must demonstrate a specific and legally cognizable interest in the subject matter of the decision and show that the decision will have a direct and substantial impact on plaintiff's personal or property rights or interests. Citizens for Safe Waste Management v. St. Louis County, 810 S.W.2d 635, 639 (Mo.App. E.D.1991). Missouri courts do not require that a party challenging a zoning decision own the subject property or an adjacent property in order to assert standing; it is enough that the party has a contractual right to buy the subject property. State ex rel. Westside Development Co., Inc. v. Weatherby Lake, 935 S.W.2d 634, 637 (Mo.App. W.D. 1996); Waites v. St. Louis County, 484 S.W.2d 245, 247-248 (Mo. banc 1972). To confer standing, the zoning decision must act more distinctly and directly on the interest of the person claiming standing than on the public generally. Weatherby Lake, 935 S.W.2d at 637.
It is undisputed that Lenette, as the owner of Tract 1, had standing to challenge the City's denial of its proposed rezoning plan for Tract 1. If Lenette had a valid contract to purchase Tracts 2 and 3 when it challenged the Commission's denial, it follows that it had standing to file suit to protect its right to develop all three tracts. Lenette concedes that the contract for Tracts 2 and 3 terminated on September 16, 1997, but contends that amendment six voided that termination before suit was filed. Amendment six purports to rescind the prior notice of termination of the contract between Lenette and NationsBank and extend the contingency period to encompass the time period from their original request for rezoning through the present. It is a valid and binding contract, supported by $25,000 in earnest money, which the record reflects both Lenette and NationsBank signed prior to filing suit. Importantly, amendment six is a writing that expresses NationsBank's intent to sell and Lenette's intent to purchase Tracts 2 and 3 if Chesterfield approved Lenette's proposed rezoning plan. Without the City's approval, the sale of the two tracts would not take place. This option to buy in order to develop was a protectable interest in real estate, giving Lenette the right to sue in an effort to accomplish the rezoning that would allow them to consummate the contract. At the time the zoning was denied, Lenette had a protectable interest in the real estate in question and at the time suit was filed they again, by virtue of amendment six, had a protectable interest in the same real estate. Chesterfield cites no authority for its claim that amendment six should be ineffective, nor does it claim that amendment six was executed for an improper purpose. Point denied.
II. Private Detriment
In its second point on appeal, Chesterfield claims the trial court erred in denying its motion to dismiss because the trial court improperly relied on the economic "highest and best use" standard rather than the "reasonable use" standard in showing private detriment. Since zoning and refusal to rezone are legislative acts, we review de novo any challenges to their validity, with deference to the trial court's ability to assess the credibility of witnesses. Wells & Highway 21 Corp. v. Yates, 897 S.W.2d 56, 60 (Mo.App. E.D. 1995).
Zoning ordinances are presumed to be valid and the challenging party bears the burden of proving the unreasonableness of maintaining the existing zoning. J.R. Green Properties, Inc. v. City of Bridgeton, 825 S.W.2d 684, 686 (Mo.App. E.D.1992). Any uncertainty about the reasonableness of a zoning regulation must be resolved in the government's favor. Id. Determining the validity of a zoning provision involves a two-step analysis. First, the court determines whether the challenging party has presented sufficient evidence *406 to rebut the presumption that the present zoning is reasonable. Then, if the presumption has been rebutted, the court determines whether the government's evidence establishes that the reasonableness of the zoning is "fairly debatable." Yates, 897 S.W.2d at 61.
The initial determination of whether plaintiff has set forth sufficient evidence to rebut the presumption of validity is made by balancing the private detriment to the challenging party against the public interest in retaining the existing zoning. Elam v. City of St. Ann, 784 S.W.2d 330, 334-35 (Mo.App. E.D.1990). Plaintiff must show that the private costs of failure to rezone outweigh the benefit the general public enjoys by retaining the existing zoning designation. Id. Factors considered by the court in establishing plaintiffs' detriment include the adaptability of the subject property to its zoned use and the effect of zoning on property value. Id. While not the only factor, "the value of the subject property has regularly reflected the property's unadaptability to its zoned use." Id. at 336.
The City claims the trial court erred in considering the "highest and best" economic use of the property when it weighed the private detriment against the public's interest in maintaining the current zoning. The City contends the trial court should have used a "reasonable" use standard. According to the City, this would mean that because Lenette could have put the subject property to a "reasonable" use, it cannot show private detriment. We disagree.
The City is correct in its assertion that the "highest and best" use, or the use that affords the property owner the highest economic value, should not be the controlling factor in the court's determination of private detriment. The very nature of zoning ordinances is to restrict the use of land. If courts employed a "highest and best" use standard, any landowner whose property was in any way diminished in value owing to a zoning restriction could overturn the zoning ordinance. This would clearly circumvent the beneficent principles at work in a comprehensive zoning scheme. Courts, therefore, consider a property's reasonable use in measuring an owner's private detriment. Although the trial court used the words "highest and best use" in its order, Lenette's proposed use of the property was a reasonable commercial use, consistent with the uses to which the surrounding properties at that intersection are put. And a reasonable use is a sufficient showing to support the judgment. Interestingly, the expert testimony established that the "highest and best" commercial use of the subject property was actually a 40,750 square foot development, well above the 26,893 square foot plan proposed by Lenette. We find Lenette's plan to be reasonable.
The uncontroverted evidence at trial indicates that Tracts 1, 2 and 3 would be worth $2,000,000 less without the proposed rezoning. The City offers no evidence disputing this figure, but instead asserts the trial court erred in considering such economic disparity in determining Lenette's private detriment. Missouri courts have always allowed evidence of disparity in value in determining whether there is a private detriment. See Huttig v. City of Richmond Heights, 372 S.W.2d 833, 840 (Mo. banc 1963); Loomstein v. St. Louis County, 609 S.W.2d 443, 447 (Mo. App. E.D.1980); Herman Glick Realty Co. v. St. Louis County, 545 S.W.2d 320, 324 (Mo.App.1977); Elam, 784 S.W.2d at 335-336; and Wells, 897 S.W.2d at 61. The undisputed evidence also established that the existing branch and abandoned service station are outdated and ill suited to further use on the property.
The City claims Lenette could have found reasonable uses for Tracts 1, 2 and 3 under the current zoning designation. But the city never addresses how the property's current use is reasonable nor the uncontroverted evidence that a modest development conforming to the surrounding *407 commercial environment would add an additional $2,000,000 to its value.
Finally, the City claims Lenette failed to show a private detriment because they failed to call a "land use expert" to testify that the land's current use was unreasonable. The City cites no authority for the proposition that a "land use expert" is necessary to make a submissible challenge in a zoning case. Lenette called a real estate appraiser and a real estate developer, both qualified experts, to testify to Lenette's private detriment. In addition, a NationsBank officer testified to the current bank's lack of commercial viability. All of this testimony shows that the use of the property under the existing zoning is unreasonable. We find that Lenette adequately demonstrated that it suffers substantial private detriment under the existing zoning. Point denied.
III. Public Interest
In its third point, the City asserts that the trial court erred in denying its motion to dismiss because Lenette failed to show that its private detriment outweighs the public's interest in maintaining the existing zoning. As stated above, in order to rebut the presumptive validity of the City's zoning ordinances, Lenette must initially pass a balancing test. It is not enough that Lenette prove its private detriment. It must also show that the detriment it suffers outweighs the public's interest in maintaining the existing zoning. Huttig, 372 S.W.2d at 842.
The express reason the City gave for denying Lenette's petition for rezoning was that the proposed development was "too dense and too intense." The City offered no explanation of what this means or how it applies to a proposed development with a density well below that of other approved developments. The City never articulates what public interest motivated their decision to deny Lenette's petition. The City mentions traffic reasons as one of the factors it considered in denying the petition, yet council members conceded at trial that their traffic concerns were lacking a factual basis. More importantly, the independent traffic study, reviewed and approved by St. Louis County and the Missouri Department of Transportation, concluded there would be no discernible increase in traffic as a result of Lenette's proposed development. There was, in sum, no evidence to justify a conclusion that traffic flow is here a valid public interest concern warranting denial of the requested rezoning change.
The City next argues the interest of adjacent homeowners, all of whom apparently live in Ballwin, as support for its public interest argument. Curiously, the City never states how these neighbors will be negatively affected by Lenette's proposed development. In fact, the record reflects that Lenette made several changes in its site plan to accommodate these homeowners, including landscaping, setback provisions, green space improvements and the construction of a ten-foot masonry privacy wall. Furthermore, Missouri case law is clear that the interests of a few neighboring homeowners do not constitute the public interest as a whole. Huttig, 372 S.W.2d at 843; Loomstein, 609 S.W.2d at 450. In Huttig, the Missouri Supreme Court was faced with the concerns of four homeowners who were displeased at the notion of adjacent land being rezoned for commercial development. In referring to those homeowners, the Court stated: "They, alone, do not constitute the public, and their collective interests are not that `public interest' which must be weighed in any such zoning problem." Huttig, 372 S.W.2d at 843.
We conclude, as the trial court did, that the real interest involved in the City's decision was that of neighboring business owners opposed to competitors entering their market. The City wisely avoids any express reliance on these competitive interests, as municipalities are strictly prohibited from taking competitive considerations into account in zoning decisions. *408 "[A]dministrative tribunals vested with power and authority to implement zoning laws may not use such power and authority as a ruse to regulate business and restrict competition." Technical & Professional Services, Inc. v. Board of Zoning Adjustment of Jackson County, 558 S.W.2d 798, 801 (Mo.App.1977). Given the lack of any plausible public interest and the orchestrated campaign against the zoning change, it is reasonable to infer that City officials were swayed by the anti-competitive outcry of area business owners.
After a thorough review of the transcript, legal file and briefs in this case, it is apparent that the alleged public interests advanced by the City are purely pretextual and that there is little, if any, viable public interest that militates against Lenette's proposed development. We therefore agree with the trial court that Lenette demonstrated that its private detriment far exceeds any public interest. Point denied.
IV. Fairly Debatable
The City, in its fourth and final point on appeal, insists that the trial court erred in denying its motion to dismiss because the City's failure to rezone was "fairly debatable." Once a plaintiff has rebutted the presumptive validity of a zoning ordinance, as we hold Lenette has, a reviewing court must then determine whether the government's evidence establishes that the reasonableness of continuing the present zoning is a fairly debatable issue. Wells, 897 S.W.2d at 61. If the issue is at least fairly debatable, the reviewing court may not substitute its opinion for that of the zoning authority that enacted the challenged ordinance. Elam, 784 S.W.2d at 335. If the government can offer no evidence that the current zoning serves a valid public interest, there is no debatable issue. Home Bldg. Co. v. City of Kansas City, 609 S.W.2d 168, 173 (Mo. App. W.D.1980).
The evidence presented at trial establishes Lenette's detriment and the property's unadaptability to its current zoning. The City has offered no evidence to controvert these findings nor has the City advanced any public interest that would militate against granting Lenette's petition for rezoning. The City has, therefore, failed to carry its burden of establishing that its decision to deny the petition was "fairly debatable." Point denied.
V. Lenette's Cross-Appeal
Lenette raises three points of error in its cross-appeal. First, Lenette claims that the trial court erred by failing to impose a deadline on the City to comply with its order. Neither party disputes that the trial court has the inherent authority to enforce its judgments. Lake Thunderbird Property Owners Association, Inc. v. Lake Thunderbird, Inc., 680 S.W.2d 761 (Mo.App. E.D.1984). Implicit in the trial court's order is that the City will adopt a reasonable zoning classification for the subject property within a reasonable time. Absent any evidence in the record suggesting the City has failed to abide by the trial court's decree, this court will not impose a deadline on the trial court's order. Should the City unnecessarily delay the imposition of the rezoning, Lenette may petition the trial court for enforcement of its order. Point denied.
Lenette's second point claims the trial court erred in failing to order the City to adopt Lenette's proposed plan for rezoning. We have been unable to find, and Lenette does not cite any Missouri law for a court to dictate to a municipal body how to zone property within its boundaries. Any such judicial command to a legislative body raises serious questions regarding the constitutionally mandated distinction between the legislative and judicial branches of this state's government. The Supreme Court addressed this issue in Huttig. There, as here, property owners sought the Court's power to order adoption and enforcement of a new zoning restriction *409 after the court determined that the existing zoning restriction was invalid. The Court's resolution of that issue is instructive: "It is not our function to prescribe what commercial use shall be permitted on this property, especially since no specific plan or proposal has been filed." Huttig, 372 S.W.2d at 844. In this case, the trial court ordered the City "to place a reasonable zoning classification on the properties ..." While we are mindful that Lenette, unlike the property owner in Huttig, has set forth a detailed plan for rezoning which complies with all of the conditions mandated by the Planning Department and the Planning Commission we decline Lenette's invitation to reverse the trial court and order adoption of Lenette's proposed development. Point denied.
In its third point Lenette claims the court erred in failing to award Lenette two million dollars in damages as well as the attorney's fees expended because of the City's denial of Lenette's petition to rezone. The only authority Lenette cites in support of their claim is Robinson v. City of Raytown, 606 S.W.2d 460 (Mo.App. 1980). Robinson was an appeal from the trial court's dismissal of a landowners' claim for damages and attorneys' fees under 42 U.S.C. § 1983. At trial the landowners successfully attacked the validity of an ordinance passed by the Board of Aldermen of the City of Raytown rezoning certain property they owned. The court of appeals affirmed the trial court's dismissal of the landowners' claim for damages and attorneys' fees because the landowners failed to plead facts sufficient to state a claim under 42 U.S.C. § 1983. Id. at 465-66. Here the trial court did not dismiss Lenette's claim for failure to state a claim, it ruled against Lenette. Robinson thus provides no support for the claim that Lenette was entitled to a judgment in its favor on the issues of damages and attorneys' fees. Bound as we are by the standard of review in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), we affirm the trial court's denial of monetary damages and attorneys' fees.
The judgment of the trial court is affirmed on all points.
GARY M. GAERTNER, P.J., and SIMON, J., concur.
NOTES
[1] Since the filing of this lawsuit, NationsBank, formerly Boatmen's Bank, merged with and assumed the name "Bank of America." For simplicity, we will refer to Bank of America as NationsBank because most of the evidence in the record uses the name NationsBank. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575825/ | 35 S.W.3d 90 (2000)
COASTAL CHEM, INC., Appellant,
v.
John BROWN, a Division of Trafalgar House, Inc., and Davy McKee Corporation, now known as Kvaerner John Brown, a Division of Kvaerner U.S., Inc., Appellees.
No. 14-99-00045-CV.
Court of Appeals of Texas, Houston (14th Dist.).
November 16, 2000.
Rehearing Overruled January 18, 2001.
*92 Andrew Wooley, James Andrew Freeman, Everard A. Marseglia, Houston, for appellants.
Richard W. Avery, Louis B. Paine, Sandra S. Hall, Houston, for appellees.
*93 Panel consists of Justices MAURICE E. AMIDEI, ANDERSON, and FROST.
OPINION
MAURICE E. AMIDEI, Justice.
Coastal Chem, Inc. ("Coastal") appeals the judgment entered in favor of John Brown, a Division of Trafalgar House, Inc., and Davy McKee Corporation, now known as Kvaerner John Brown, a Division of Kvaerner U.S., Inc. (collectively, "John Brown"), in an action for breach of a construction contract. We affirm.
I. Factual Background
In 1990, Coastal and John Brown[1] entered into a contract for the construction of a Methyl Tertiary Butyl Ether ("MTBE") plant for Coastal in Cheyenne, Wyoming. The contract consists of two parts. The first is the Master Contract under which John Brown agreed to provide services for engineering, design, procurement, construction of, and start-up assistance with, designated Coastal projects and operations. The second is the Assignment, which provided for the design, engineering, and construction of the MTBE plant.
The contract provides that John Brown would be entitled to an early-completion bonus if the plant were substantially complete eighteen months from August 27, 1990. On that early-completion target date (February 29, 1992), Coastal accepted the plant as substantially complete. After Coastal's acceptance, several problems arose with the plant. Coastal claims these problems prevented the plant from being substantially complete on February 29, 1992. Instead, Coastal claims, the plant was substantially complete on January 6, 1993. The early-completion bonus, if earned, was payable when the plant was finally complete, an event which Coastal stipulated occurred on November 15, 1993. Coastal refused to pay John Brown the early-completion bonus.
John Brown sued Coastal for breach of the construction contract for failure to pay (1) the early-completion bonus and (2) amounts owed for removing and replacing two boilers as change or extra work under the contract. John Brown also brought a claim for the breach of a second contract to share in insurance proceeds Coastal sought in connection with the repair of the plant's steam active reforming technology ("STAR") unit, which sustained damage in an attempted start-up of the plant. John Brown further asserted a claim for quantum meruit for services provided outside the scope of the contract in connection with the STAR unit. Coastal brought a counterclaim, asserting that John Brown failed to complete construction of the plant on time and, therefore, Coastal was entitled to a delay penalty under the contract. Coastal sought other damages for John Brown's failure to complete certain assigned work and for Coastal's costs of having to replace the two boilers.
Before trial, Coastal admitted to owing John Brown $1.3 million in insurance proceeds for the repair of the STAR unit received from the settlement of a lawsuit Coastal brought against the insurance carriers. Coastal and John Brown stipulated to, depending on the jury's finding on the substantial completion date, a maximum bonus of $4,301,890 and a maximum penalty of $2,150,945.
The jury found that: (1) the plant was substantially complete on February 29, 1992; (2) the work John Brown performed on the boilers was change or extra work; (3) John Brown performed $2,004,173 in compensable work outside the scope of the contract on the STAR unit; (4) John Brown and Coastal agreed that John Brown would be reimbursed $1.3 million in insurance proceeds for John Brown's work *94 on the STAR unit; and (5) John Brown failed to comply with the contract with respect to various components of assigned work.
The trial court entered final judgment in favor of John Brown in the amount of $4,301,890 as an early-completion bonus, $1,914,648 as extra work under the contract, and $2,004,173 as work performed outside the scope of the contract, plus prejudgment interest. The trial court also entered final judgment in favor of Coastal in the amount of $697,492 for John Brown's failure to complete certain assigned work under the contract, plus prejudgment interest. Coastal's award was to be credited against John Brown's $1,914,648 recovery for extra work.
II. Analysis of Issues Presented
A. Date of Substantial Completion
In its first issue, Coastal contends there is no evidence to support the jury's finding that the plant was substantially complete as of February 29, 1992. When reviewing the legal sufficiency of the evidence, we consider only the evidence and inferences tending to support the trial court's finding, and disregard all contrary evidence and inferences. See Southwestern Bell Mobile Sys. v. Franco, 971 S.W.2d 52, 54 (Tex.1998) (per curiam). We will sustain a no evidence point if there is no more than a scintilla of evidence to support the finding. See General Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex.1999).
Coastal also claims that the evidence establishes as matter of law that the plant was not substantially complete until January 6, 1993. In addressing this issue, we must first examine the record for evidence supporting the jury's finding, while ignoring all evidence to the contrary. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). Then, if there is no evidence to support the fact finder's answer, we examine the entire record to determine if the contrary proposition is established as a matter of law. See id.
1. Meaning of "Substantially Complete" Under the Contract
Coastal contends "substantially complete" means that the plant actually had to function and be ready for safe start-up. John Brown, on the other hand, claims that "substantially complete" required only successful installation, not a fully-operational plant.
When construing a contract, we must give effect to the true intentions of the parties as expressed in the written instrument. See Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex.1996). We must read the contract as a whole, rather than by isolating a certain phrase, sentence, or section of the contract. See State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995). We are to give the language of the parties' agreement its plain grammatical meaning unless doing so would defeat the parties' intent. See DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex.1999).
With respect to substantial completion, Article 2.19 of Exhibit D to the Assignment states:
"SUBSTANTIALLY COMPLETE" shall mean that all ASSIGNED WORK has been completed consistent with the ASSIGNMENT DOCUMENTS, including Exhibit A.5, excluding only PUNCH LIST ITEMS.
Attachment A.5 to Exhibit A of the Assignment further provides:
b. Prepared for Start-up. The date when the Plant is "Substantially Complete" (or mechanically complete or ready for commissioning, i.e., initial operation) occurs when the plant, unit or facility has been erected in accordance with the Contract and applicable codes and all work necessary for safe start-up has been completed, excluding non-essential punch list work such as *95 painting, insulation and incidental construction, and pre-commissioning activities have been completed by [JOHN BROWN] as detailed in Sections 3 and 4.
c. Start-up. Basically, start-up (or commissioning, i.e., initial operation) activities are associated with the actual running or operating of the plant and are OWNERS [sic] responsibilities unless specifically directed otherwise by the CONTRACT.
Start up by OWNER follows mechanical completion of pre-commissioning activities performed by [JOHN BROWN]. During start-up, OWNER makes operating adjustments required before the plant may be satisfactorily operated, and immediately commences operation of the plant, performing any further adjustments, settings, etc., that may be required for downstream performance testing.
(Emphasis added).
A plain reading of the contract leads to the conclusion that "substantially complete" means an erected structure, with all work necessary for safe start up completed. It does not mean an operating plant. The contract specifically provides for precommissioning activities to take place after substantial completion, but prior to start-up of the plant. Precommissioning activities are the "non-operating adjustments and cold alignment checks" conducted by John Brown. The contract specifically provides that, following substantial completion, Coastal is responsible for start-up activities of the plant, which are "associated with the actual running or operating of the plant," unless provided otherwise. The contract provides that John Brown's responsibility in connection with the start-up activities was to coordinate and advise plant start-up from substantial completion to final completion, resolve plant and equipment design or operation problems, and assist Coastal in obtaining warranted performance of plant equipment.
Article 6.3 of the Master Contract, which sets forth the procedure by which John Brown was to notify Coastal of substantial completion, states:
When [JOHN BROWN] considers that a TASK, or separable portion thereof, is SUBSTANTIALLY COMPLETE, [JOHN BROWN] may so inform OWNER in writing, and such TASK or portion shall be considered SUBSTANTIALLY COMPLETE unless within the following five (5) business DAYS OWNER notifies [JOHN BROWN] in writing in reasonable detail of the valid reasons why such TASK or portion is not SUBSTANTIALLY COMPLETE, upon which [JOHN BROWN] shall remedy such matters in accordance with the ASSIGNMENT and this CONTRACT and the above procedure shall be repeated. If OWNER agrees that a TASK or portion is SUBSTANTIALLY COMPLETE as of the time [JOHN BROWN] first gave such notice to OWNER, the effective date thereof shall be deemed to be the date on which [JOHN BROWN] first gave notice to OWNER that the TASK or portion was SUBSTANTIALLY COMPLETE. OWNER shall be deemed to have accepted the risk of loss and the responsibility for the care, custody, control and maintenance of the TASK or portion when it is SUBSTANTIALLY COMPLETE.
Upon achieving substantial completion of any part of the plant, John Brown was to notify Coastal in writing. If Coastal did not respond within five business days with valid objections to John's Brown's notification, then the task would be considered substantially complete. If Coastal agreed that a task or portion was substantially complete, then the effective date of substantial completion was the date on which John Brown first gave written notice to Coastal.
2. Latent Defects
Coastal asserts that any acceptances of John Brown's work do not override the *96 requirement for a fully-operational plant. Coastal claims that it was asked to accept the plant as substantially complete on February 29, 1992, when it was not possible to know that latent defects prevented the plant from being substantially complete on that date. In support of this argument, Coastal relies on Article 7.1 of Exhibit D to the Assignment, which states:
[JOHN BROWN's] Continuing Responsibility. Neither the inspection, approval or payment, including final payment, under the ASSIGNMENT DOCUMENTS shall be construed to be an acceptance of defective material or workmanship or shall be an admission of [JOHN BROWN's] satisfactory performance of the ASSIGNED WORK and shall not relieve [JOHN BROWN] of any of its obligations under the ASSIGNMENT DOCUMENTS.
Coastal further relies on the documents John Brown tendered to Coastal in connection with obtaining Coastal's acceptance of John's Brown's notice of substantial completion. These documents plainly state "this turnover document does not relieve either party of any agreement or responsibilities outlined in the contract or attachments to the contract." The contract further provides: "[T]he failure of either party to insist upon the other party's compliance with its obligations under this Contract in any one or more instances shall not operate to relieve such other party from its duty to comply with such obligation in all other instances."
Article. 7.1 of the Master Contract provides for John Brown's warranty obligation to Coastal for its work performed in the design and construction of the plant:
... [JOHN BROWN] warrants all design, engineering and construction work performed by [JOHN BROWN] against defects in design and workmanship for a period of twelve (12) months after a particular ASSIGNMENT is FINALLY COMPLETE in accordance with ARTICLE 6.3 ("WARRANTY PERIOD"); however, to the extent an ASSIGNMENT comprises construction, the WARRANTY PERIOD shall be either eighteen (18) months after installation of the work or twelve (12) months after OWNER has accepted the responsibility for the care, custody, control and maintenance of the TASK or portion thereof in accordance with ARTICLE 6.3, whichever period expires first.
While Coastal is correct that its acceptance of substantial completion did not relieve John Brown of its obligation to comply with all provisions of the contract, Coastal's assertion that the existence of any latent defects, not discovered until after the acceptance of substantial completion, vitiates substantial completion is incorrect. Once Coastal accepted John Brown's work as substantially complete, any claims of defective workmanship did not invalidate the achievement of substantial completion. Instead, Coastal's remedy for any defective workmanship was in John Brown's continuing obligations under the warranty provision. The warranty period commenced upon installation or when the owner accepted responsibility for the care, custody, control, and maintenance, i.e., substantial completion or mechanical completion of the plant or portion thereof.
Furthermore, final completion occurs, in part, after John Brown's completion of "pre-commissioning work and correction of items discovered after mechanical completion." Therefore, by the terms of the contract, any warranty work necessarily would arise after substantial completion. Consequently, work performed under the warranty for defective items found after substantial completion might delay final completion, but it does not vitiate substantial completion.
3. Failure to Perform Assigned Work
The jury found that John Brown had failed to comply with the agreement in certain respects. Specifically, in response to Question No. 11, the jury found that John Brown had failed to complete twelve *97 components of work assigned by Coastal. Coastal contends that John Brown's failure to finish this work prevented substantial completion on February 29, 1992. However, the items the jury found in answer to Question No. 11 consisted entirely of warranty obligations. The existence of items that constitute warranty work would not affect the achievement of substantial completion. Substantial completion is a one-time event. John Brown's Article 7.1 warranty obligations did not commence until substantial completion. The fact that John Brown failed to perform warranty work does not undo substantial completion.
4. Defective Boilers
Coastal also argues that the installation of two defective boilers prevented substantial completion on February 29, 1992. The plant required boilers to produce the steam, which, in turn, was necessary to produce the MTBE. Under the contract, John Brown was to share in the cost savings resulting from the utilization of used equipment in the design and construction of the MTBE plant. Coastal located two used boilers for installation in the plant. John Brown inspected and acquired those boilers on behalf of Coastal. At some point after February 29, 1992 (the date of substantial completion), it was determined that the used boilers were operating below specification levels. Consequently, the boilers had to be removed and new boilers had to be installed in their place.
Under the contract, John Brown's duties with respect to the boilers were to erect them in accordance with all applicable engineering standards and government codes, make non-operating pressure tests in accordance with applicable codes, inspect the installation of the boilers, and make non-operating pre-firing tests. Coastal acknowledged that John Brown had completed these duties. Thus, at that point in time, John Brown's sole responsibility under the contract with respect to the defective boilers was to pass through any vendor warranties and assist Coastal in enforcing those warranties. Article 7.2 of the Master Contract provides:
[JOHN BROWN] assumes no responsibility or liability for any materials or equipment, whether new or used, furnished by OWNER for incorporation into the work. As part of [JOHN BROWN's] procurement services, [JOHN BROWN] shall secure, for the benefit of OWNER, available warranties of third party vendors and suppliers running directly to OWNER or assignable by [JOHN BROWN] to OWNER, with respect to the materials, equipment and work performed or furnished by such vendors and suppliers, warranting against defects in workmanship, design and material.... [JOHN BROWN's] liability regarding such materials, equipment and work shall be limited to using all reasonable efforts, short of litigation, to enforce third party warranties on behalf of OWNER until the TASK is FINALLY COMPLETE pursuant to Article 6.3 hereof.
Coastal, however, contends that Article 7.2 cannot create substantial completion if the plant was not, in fact, substantially complete. With respect to equipment such as the boilers, John Brown's only contractual obligation after Coastal's acceptance of substantial completion was enforcement of the vendor warranties "short of litigation." Article 7.2 states that such warranty enforcement efforts are to take place until the task is finally complete; therefore, such efforts will necessarily take place after substantial completion, and the enforcement of the vendor warranty on the boilers does not override substantial completion.
5. Admission of Expert Testimony
Also in its first issue, Coastal complains that the trial court erred in allowing John Brown's expert witness, Gary Markham, to testify about the safe start-up of the plant without properly functioning boilers because such testimony was not the proper subject for expert testimony. The admission *98 or exclusion of evidence rests within the sound discretion of the trial court. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995). To obtain reversal of a judgment based upon error in the admission or exclusion of evidence, the appellant must show that: (1) the trial court did, in fact, commit error, and (2) the error was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. See Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989).
Rule 702 of the Texas Rules of Evidence permits a witness qualified as an expert by knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the testimony would assist the trier of fact in understanding the evidence or in determining a fact issue. See Tex.R.Evid. 702; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998). It is error, however, to admit expert testimony on an issue if no specialized or technical knowledge is necessary. See GTE Southwest, Inc. v. Bruce, 956 S.W.2d 636, 640 (Tex.App.-Texarkana 1997), aff'd, 998 S.W.2d 605 (Tex.1999); Story Servs., Inc. v. Ramirez, 863 S.W.2d 491, 499 (Tex. App.-El Paso 1993, writ denied). The erroneous admission of expert testimony, however, may amount to no more than harmless error. See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex.1999).
Coastal, in its Amended Motion in Limine, informed the trial court that both parties had retained experts to "opine on certain ultimate issues," but that "[u]pon reflection, however, it is apparent that none of the issues upon which the experts are opining are the proper subject for expert testimony." John Brown, in its Second Amended Motion in Limine, moved to exclude the testimony of Coastal's expert on the basis that Coastal had conceded that the none of the issues on which Coastal's expert was to opine were the proper subject for expert testimony. At a pretrial hearing, John Brown argued that it had designated Markham to testify about John Brown's compliance with the standard of care for the engineering profession in connection with its work on the plant. The trial court denied both motions in limine, but instructed the parties to inform the court when the experts would be called. When John Brown called Markham to testify, Coastal reminded the trial court of Coastal's objection to Markham.
Coastal now complains about the following testimony by Markham:
Okay. I guess my opinion is that Coastal located these boilers, they bought them, they put money down on them. They represented to John Brown that that was what they wanted in the way of the boilers and that they would be refurbished to their satisfaction to meet the requirement of the project and John Brown's spec. They then coerced someone coerced John Brown to accept the assignment of the purchase of these boilers and continue paying for them.
Coastal objected to this testimony. The trial court sustained the objection, and reminded John Brown that Markham was not permitted to testify so as to bolster the facts of the case, but that Markham could give opinions of an expert nature. The trial court instructed the jury to disregard that testimony.
Coastal also complains of Markham's subsequent testimony:
The reason they didn't start up after substantial performance was thatthey were attempted to start-up, and it was determined that there were latent defects in the boilers supplied by Midwest Steel and work done by Southern Mechanical. These were hidden defects that were not discovered by John Brown nor by Coastal nor by third-party inspectors hired by Coastal.
In addition, Coastal complains that Markham was allowed to testify about when substantial completion occurred, the scope of the warranties covering the boilers, and *99 Coastal's intent in utilizing used equipment as provided in the contract. Coastal, however, did not object to any of this testimony at the time it was presented. Coastal's failure to object to Markham's testimony waives any error on appellate review. See Tex.R.App.P. 33.1.
Even if Coastal had not waived any error, the admission of this evidence would not provide grounds for reversal. The complained of testimony is merely cumulative of the testimony of Bill Godley, John Brown's Project Director for the construction of the MTBE plant. The erroneous admission of evidence that is merely cumulative and does not concern a material issue dispositive of the case is harmless error. See GTE Southwest, Inc., 998 S.W.2d at 620; McInnes v. Yamaha Motor Corp. U.S.A., 673 S.W.2d 185, 188 (Tex. 1984). Moreover, as previously determined, the installation of the used boilers did not invalidate substantial completion of the plant because this equipment fell within the Article 7.2 warranty. Coastal's first issue is overruled.
B. Uncompleted Assigned Work and Warranty Obligations
In its second issue, Coastal contends the jury's finding that substantial completion occurred on February 29, 1992, was rendered immaterial by the jury's finding that John Brown failed to complete certain components of the assigned work. A jury finding is immaterial only if the question should not have been submitted to the jury or if the question, even though properly submitted, was rendered immaterial by other findings. See Salinas v. Rafati, 948 S.W.2d 286, 288 (Tex.1997). As noted in our discussion of the first issue, the items the jury found to be uncompleted assigned work are subject to John Brown's warranty, which commenced at substantial completion, and do not affect the date of substantial completion. Therefore, the jury's finding on substantial completion was not rendered immaterial by its finding on uncompleted assigned work. Coastal's second issue is overruled.
In its third issue, Coastal claims the jury's finding that the plant was substantially complete on February 29, 1992, fatally and irreconcilably conflicts with the jury's finding that John Brown failed to complete the assigned work. Jury answers are in fatal conflict if one of the answers claimed to be in conflict would require a judgment in favor of the plaintiff, and the other answer would require a judgment in favor of the defendant. See Lee v. Huntsville Livestock Servs., Inc., 934 S.W.2d 158, 160 (Tex.App.-Houston [14th Dist.] 1996, no writ) (citing Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991 (1949)). Coastal, however, failed to preserve error on this issue when it failed to object to the purported conflict before the jury was discharged. See City of Port Isabel v. Shiba, 976 S.W.2d 856, 860 (Tex.App.-Corpus Christi 1998, pet. denied); Torres v. Caterpillar, Inc., 928 S.W.2d 233, 244 (Tex. App.-San Antonio 1996, writ denied); Ciba-Geigy Corp. v. Stephens, 871 S.W.2d 317, 324 (Tex.App.-Eastland 1994, writ denied); see also Tex.R.Civ.P. 295 (providing that when jury answers are in conflict, the trial court, in writing, shall instruct the jury in open court of the nature of the conflict, provide the jury with such additional instructions as may be proper, and retire the jury for further deliberations). Even if Coastal had not waived error, there could be no finding that the answers are in conflict because the items the jury found to be uncompleted assigned work were subject to John Brown's warranty and, therefore, did not override substantial completion on February 29, 1992. Coastal's third issue is overruled.
C. Insurance Proceeds
In its fourth issue, Coastal contends the jury's finding that the plant was substantially complete on February 29, 1992, is rendered immaterial by the jury's finding that John Brown was entitled to be reimbursed *100 from the insurance proceeds. On July 24, 1992, during an attempted start-up of the plant, the STAR unit sustained substantial physical damage, the cause of which was not determined. John Brown agreed to perform repairs to the STAR unit. With John Brown's assistance, Coastal submitted a proof of loss with respect to the STAR unit to Coastal's insurance carrier. This proof of loss included John Brown's costs of approximately $2 million, at that time. When Coastal's carrier refused the claim, Coastal sued the carrier. Coastal and its carrier settled the lawsuit for $15 million. Coastal, however, refused to pay John Brown its share of the insurance settlement. Coastal initially denied the existence of any agreement with John Brown to divide the insurance proceeds, but prior to trial, Coastal admitted that it owed John Brown $1.3 million of the insurance proceeds.
Coastal argues that John Brown's claim to the insurance proceeds is an admission that John Brown had a property interest under the insurance policy, which John Brown could not have had if care, custody, and control had passed to Coastal prior to July 24, 1992, the date of the insurable event. Therefore, according to Coastal, John Brown's insurance claim is inconsistent with its position that substantial completion occurred on February 29, 1992.
Coastal misconstrues the nature of John Brown's claim with respect to the insurance proceeds. The property interest in the plant had shifted to Coastal after the turnover. Coastal was then the only named insured with standing to pursue the claim. John Brown, no longer having an insurable interest and unable to recover its costs directly from the insurance carrier, made an agreement with Coastal regarding the sharing of the insurance proceeds. Therefore, the jury's finding that substantial completion occurred on February 29, 1992, was not rendered immaterial by its finding that John Brown was entitled to reimbursement from the insurance proceeds. Coastal's fourth issue is overruled.
In its fifth issue, Coastal asserts the jury's finding that the plant was substantially complete on February 29, 1992, is in fatal conflict with the jury's finding that John Brown was entitled to reimbursement from the insurance proceeds. Coastal waived any conflict in the jury's answer by failing to object to the alleged conflict before the jury was discharged. See City of Port Isabel, 976 S.W.2d at 860; Torres, 928 S.W.2d at 244; Ciba-Geigy Corp., 871 S.W.2d at 324. In any event, even if Coastal had not waived this complaint for appellate review, John Brown's agreement with Coastal to share in the insurance proceeds is not inconsistent with John Brown having turned care, custody, and control of the plant over to Coastal on February 29, 1992. Coastal's fifth issue is overruled.
D. Extra Work
In its sixth issue, Coastal claims there is no evidence to support the jury's finding that the removal of the defective boilers and installation of the new boilers constituted change or extra work. Coastal also contends the evidence established as a matter of law that such work was assigned work under the contract. In its seventh issue, Coastal asserts the jury's finding that the removal of the defective boilers and the installation of the new boilers qualified as change or extra work is rendered immaterial by evidence conclusively establishing that such work was part of the assigned work and did not qualify as change or extra work under the contract.
With respect to change or extra work, the contract provides that changes had to be approved by Coastal in writing. Coastal maintains that there is no evidence that John Brown complied with the contractual provisions governing changes or extra work with respect to the boilers. Specifically, Coastal did not sign off on the change order request for the boiler work. *101 However, Bill Godley, John Brown's project director, testified that all of the work represented by the change orders in connection with the boilers was performed at Coastal's request. He further testified that John Brown put Coastal on notice that it was change order work and that Coastal never objected to the boiler work being treated as change order work. We find there is more than a scintilla of evidence to support the jury's finding that the work John Brown performed in connection with the removal of the used boilers and the installation of the new boilers was change or extra work under the contract.
Moreover, the jury was specifically asked to determine whether the work John Brown performed in connection with the used and new boilers constituted extra work under the contract. The jury was not asked to determine whether John Brown had complied with any contractual provision requiring Coastal's written approval of change or extra work. Therefore, Coastal waived its complaint that John Brown failed to obtain Coastal's written approval by not raising this issue in the jury charge. See Tex.R.Civ.P. 274. Coastal's sixth and seventh issues are overruled.
E. Quantum Meruit
In its eighth issue, Coastal contends the jury's finding that John Brown performed compensable work outside the scope of the contract in connection with the STAR unit is rendered immaterial by the jury's finding that John Brown was entitled to be reimbursed from the insurance proceeds. In its ninth issue, Coastal claims the trial court erred in awarding John Brown recovery for its work on the STAR unit under quantum meruit in light of the existence of an express agreement covering the disbursement of the insurance proceeds.
Quantum meruit is an equitable theory of recovery that is based on an implied agreement to pay for benefits received. See Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). To recover under quantum meruit, the claimant must establish that: (1) valuable services and/or materials were furnished, (2) to the party sought to be charged, (3) which were accepted by the party sought to be charged, and (4) under such circumstances as reasonably notified the recipient that the claimant, in performing, expected to be paid by the recipient. See id. It is well-established that a party may recover under quantum meruit only when there is no express contract covering the services or materials furnished. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex.1990); Jackson v. Houston Indep. Sch. Dist., 994 S.W.2d 396, 401 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Economy Forms Corp. v. Williams Bros. Constr. Co., 754 S.W.2d 451, 458 (Tex.App.-Houston [14th Dist.] 1988, no writ). The existence of an express contract, however, does not preclude recovery in quantum meruit for the reasonable value of services rendered and accepted which are not covered by the contract. See Black Lake Pipe Line Co. v. Union Constr. Co., 538 S.W.2d 80, 86 (Tex. 1976).
In its pretrial pleading, at the charge conference, and during closing argument, Coastal admitted that John Brown was entitled to $1.3 million of the insurance proceeds. Coastal explained to the jury how it calculated the $1.3 million figure. Coastal settled its lawsuit against the insurance carrier for 65 percent of the amount of the claim it had submitted. At the time Coastal submitted the claim to the carrier, John Brown claimed it had expended approximately $2 million in connection with the repairs to the STAR unit. Therefore, applying Coastal's 65 percent formula, John Brown would be entitled to only $1.3 million of the insurance proceeds.[2]
*102 In response to Question No. 4, the jury found John Brown had performed compensable work in connection with the STAR unit outside the scope of the contract in the amount of $2,004,173. The jury was further asked in Question No. 5: "What amount of John Brown's costs did Coastal and John Brown, agree that John Brown would be reimbursed from any insurance proceeds received from the Builder's Risk insurance carriers?" (Emphasis added). The jury answered "$1.3 million." The trial court awarded John Brown the entire $2,004,713 under quantum meruit for its work performed outside the scope of the contract. Coastal contends the existence of the agreement concerning the arrangement to share the insurance proceeds precludes the recovery of the additional $704,173, i.e., the difference between $2,004,173 and $1.3 million, by John Brown under quantum meruit and, therefore, John Brown's recovery should be limited to $1.3 million. John Brown, on the other hand, contends that Coastal's admission of the existence of the agreement regarding the insurance proceeds does not preclude its recovery of the $704,173 shortfall under quantum meruit.
Here, there was no finding by the jury that the parties agreed that John Brown would look solely to the insurance proceeds for payment of its work on the STAR unit. Therefore, the $704,173 shortfall for the STAR unit work was not covered by the agreement that John Brown would be reimbursed $1.3 million from the insurance proceeds, as found by the jury, or by any other express agreement between John Brown and Coastal. This is demonstrated by the following exchange, which took place between the trial court and Coastal's counsel during the charge conference:
THE COURT: ... Coastal concedes, agrees, what-have-you that that there was an agreement between the parties that with the exception of any potential shortfall that John Brown would recover costs in connection with the STAR project out of the insurance proceeds received from the builders' [sic] risk insurance carriers, is that right?
MR. FOGLER: Subject only to the proviso that the parties did not agree as to any specific amount of John Brown's entitlement to recovery from the insurance proceeds but yes, that is correct.
Whether John Brown performed work outside the scope of the contract and the amount John Brown and Coastal had agreed that John Brown would receive from the insurance proceeds are entirely separate matters. Consequently, the agreement that John Brown was to recover a portion of the insurance proceeds does not preclude its recovery in quantum meruit for the $704,173 shortfall for the work performed in connection with the STAR unit. Coastal's eighth and ninth issues are overruled.
F. Assigned Work
In its tenth issue, Coastal contends the evidence conclusively establishes that John Brown failed to perform the assigned work regarding the defective boilers, and that the jury's failure to find that John Brown did not perform the assigned work regarding the boilers is against the great weight and preponderance of the evidence.[3] In its eleventh issue, Coastal asserts the jury's failure to find that John Brown did not perform the assigned work regarding the boilers prior to substantial completion is rendered immaterial as a *103 matter of law under a proper legal construction of "assigned work" under the contract.
Coastal paid $3,076,421 to lease and purchase two new boilers after it was determined that the original boilers could not be used. Coastal contends that John Brown took the risk on all equipment necessary to a fully-operational plant, without an increase in the agreed lump-sum, fixed price. The used boilers, however, were subject to the Article 7.2 vendor warranty provision. Under this warranty, "[John Brown] assume[d] no responsibility or liability for any materials or equipment, whether new or used, furnished by OWNER for incorporation into the WORK." Instead, John Brown's liability for the vendor's work was limited to "using all reasonable efforts, short of litigation, to enforce third party warranties on behalf of OWNER." Relying on this warranty provision, Coastal asked John Brown to "take the lead in pursuing the warranties." Coastal does not claim that John Brown did not discharge its obligations to pursue the vendor's warranty on the boilers.
We find the evidence does not conclusively establish that John Brown failed to perform its assigned work with respect to the boilers; the jury's finding that John Brown did not fail to perform its assigned work is not against the great weight and preponderance of the evidence; and the jury's failure to find that John Brown did not perform the assigned work regarding the boilers prior to substantial completion is not rendered immaterial. Coastal's tenth and eleventh issues are overruled.
Having overruled each of Coastal's issues, we, accordingly, affirm the judgment of the trial court.
NOTES
[1] Davy McKee Corporation signed the contract. John Brown succeeded to the interests of Davy McKee.
[2] During its closing argument, John Brown responded that it was entitled to $2,875,000 of the insurance proceeds.
[3] In its challenge to the factual sufficiency of the evidence, Coastal must show that the adverse finding is against the great weight and preponderance of the evidence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). We examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. See id. We will set aside the finding only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust or erroneous. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304532/ | SNODGRASS, J.
The bill in this cause was filed against the Building Committee of the Oakwood Methodist Church, its trustees and against the Fidelity Trust Company and its trustees M. D. Arnold and J. Harry Price; also the Board of Home Missions and Church Extension of the Methodist Episcopal Church. Its object was *628to collect a balance of $857.73 claimed as a balance due the com tractor complainant Lynn A. Hayes for the building’ and completion of the cliurcli, under a contract with its building Committee. The defendant Home Missions had a previous mortgage on the church, lot, etc. which had been made subordinate to that of the Fidelity Trust Company which had advanced money for the completion of the church, and had taken a mortgage or trust deed securing the same dated June 9, 1926, and disbursed the funds in payment to the contractor and in the settlement of bills—for materials, etc. etc.
The contract for the construction of the house was made on May 26, 1926.
The bill alleged that the house was completed and turned over and accepted by the building committee on January 5, 1927 — except for installation of plumbing and heating plant. The contract price was $19,850 — providing terms for extras and changes which might affect it and the bill set out items aggregating the sum sued for as cost of changes, extras, etc., and as balance still, it was alleged, due and unpaid, and it sought to enforce a lien upon the property, that was described in the bill, which it alleged existed, the other parties being made parties as having mortgages against the property' — and praying for attachment which was issued.
There was a joint answer of the building committee and trustees of the church.' It admitted the relationship of the parties as alleged; the contract for the building of the church according to plans and specifications for the price alleged and that the church was completed and turned over as alleged — ‘the answer continued:
“It is true that there were a number of minor changes made from time to time in the plans and specifications by virtue of which in some instances extras or additions were added to the original contract and in other instances some amounts were deducted from the original contract for said changes.” But it was insisted that “The contract and specifications under which complainant was working provided that all work done and labor furnished was subject to inspection and control of the architect in charge and that all changes were to be made with the knowledge and approval and consent of said architect. ’ ’
It was admitted that it might be true that there was a small balance of upwards of $48.74 due under the original contract price as averred in the original bill, but it was denied that there was a bill of $39.35 for additions to the church steps — as it was insisted the specific plans and specifications called for the steps as completed^
It was admitted that there was a small change made in the pulpit as averred in chapter 5 subsection 3, probably amounting to $20.31.
*629It was admitted that there was a change made in the installment of a toilet on the second floor and that complainant probably used ten extra pieces of timber as averred in chapter 5 of the original bill subsection D.
It was denied that there was anything due for tearing out of closets in the vestibule of said church adding six feet to its width as claimed in subsection E 5, in sum of $8.74. They claimed to be not advised as to the claim of $35 for changing location of electric meter as fixed by the plans and specifications as indicated in section P, and neither admitted nor denied the same.
It was denied that they were indebted as claimed in subsec. H of Chapter 5, being an item of $41 for placing of an extra roof on tower not called for or specified in the plans including material and labor.
And it was denied that complainant was indebted in the sum of $629 or in any other amount for placing of art glass in the main auditorium of the Church as alleged.
Regarding this latter it was insisted that the plans and specifications which were submitted to complainant prior to the execution of the contract and on which complainant made his bid on said work — • provided for glass in the auditorium of said church to cost $1.50 per square foot, which, it was averred, was the cost of a good grade of art glass and it was represented that complainant breached and violated his contract touching the installment of said glass and that respondents had only recently been advised and learned that the glass installed by complainant in said church was not of the grade, class or price provided for in said plans or specifications and that complainant instead of furnishing the glass at $1.50 per square foot as called for in the plans and specifications furnished a cheaper inferior grade of glass which cost complainant $1 per square foot and it was claimed that complainant did not come into court with clean hands — on a contract which he himself had breached and that complainant is in reality and in justice and equity indebted to respondent trustees of said church for the difference in the value of the glass furnished and the glass called for in said plans and specifications; and that the amount of which was far in excess of the minor extras and the balance due to said complainant, and respondents plead said matters as a set-off against any claim whatsoever which might be due for alterations, changes, additions or the small balance on said original contract.
It ivas also claimed that complainant had already receipted the Fidelity Trust Company in full for labor, claims and material and had precluded and estopped himself and was now precluded and estopped from averring that there is any indebtedness due to complainant on any account from these respondents, and it was denied *630that the changes were made on the knowledge and consent of the Building Committee, and it was averred that all changes which were made were made under the supervision of the architect.
It was denied that complainant in submitting his bill figured only art glass in the transoms near the pulpit as averred and it was insisted that the plans and specifications from which .complainant figured his said bill provided for $1.50 per square foot for said glass as already shown, and it was denied that they were indebted for roof on the'tower — and it was averred that they were entitled to several credits on account of the changes made and the right was reserved to show what credits respondents would have in any event.
It was admitted that the Board of Home Missions and Church Extension held a valid mortgage for $25,000 against the property, which had been subordinated to the indebtedness of the Fidelity Trust Co. and it was averred that complainant on closing said loan said last named Company executed a release and receipt in full against said property and had thus precluded and estopped himself and was now precluded and estopped to assert any lien against said property in any event.
It was admitted that the trust deed to Arnold & Price Trustees had been executed as alleged and it was claimed that complainant had been paid in full from the proceeds of the loan, and it was denied that complainant had any lien against the property. The allegations o¥ chapter 10 were denied as were all other allegations not admitted, modified or denied.
The answer of the Board of Home Missions and Church Extension of the Methodist Episcopal Church was filed claiming the benefit of its mortgage, which it says had been subordinated to that of the Fidelity Trust Company, and denying that Complainant had any rights superior to those claimed by it.
The answer of the Trust Company admitted the contract of Complainant and the trustees of the church but denied that Complainant had any rights or liens against said property for labor or materials furnished for said building; except according to its information it was admitted that there was due a balance of approximately $48.71 on the contract price. It was denied that the complainant had any lien against said property to secure any other or further sum; and it was denied that complainant’s lien to secure this sum had priority or was superior to the trust deed to defendants Arnold and Price, trustees of the trust company. In which connection it was averred that at the time of the execution of the contract or during the prosecution of the work the complainant executed in writing a waiver of all liens against said property in favor of these defendants for the protection of this said trust deed, which was plead as an estoppel against him to assert any superior claims and further it was claimed that pay*631ments from time to time were made through the office of the Fidelity Trust Co. and by said defendant; that said Beauman & Beauman, the architects in charge, presented a final estimate for settlement with complainant Lynn A. Hayes, which estimate was OK’d by the Building Committee of the church and endorsed as is customary in such cases by the complainant Lynn A. Ilayes, and that said Lynn A. Hayes had thus precluded and estopped himself and was now precluded and estopped to say that there is any other or further sum than $48.71 due to him on account of said work; whereupon all other allegations of the original bill not already admitted modified or denied were then generally denied. Such were the issues upon which proof ivas taken and the cause heard before his honor; who in his decree made a finding of fact, as follows: (omitting only the description of the property which is likewise described in the bill).
“This cause came on to be further and finally heard upon this 26th day of February, 1929, upon the original bill, the answers of the defendants, the proof on file and the entire record at large, from a consideration of all of which the court is of the opinion and doth find and decree as follows:
“1. That on the 26th day of May, 1926, the complainant entered into a written contract with the defendants, J. B. Cox, W. R. Anderson, P. P. Mynatt, M. A. Scarborough and A. C. Lewis, who composed the Building Committee of the defendant Oakwood Methodist Episcopal Church, by the terms of which the complainant undertook to erect a church edifice upon the lot owned by said church, the title to which is in the name of B. D. Lewis, W. H. Russell, Henry Dowell, P. P. Mynatt, H. L. Beeler and G. W. McDaniel, as Trustees of said church, who are the legal custodians of all the real estate and property of said church congregation under and by the terms of the laws and discipline of said church. The lot upon which said church building was to b,e erected is described as follows: .. . .
“2. That complainant, pursuant to said contract, entered upon the prosecution of said building and completed the same in strict accordance wifh the terms of said contract and the specifications and details incorporated therein, completing said building on or about January 5, 1927, and said building was accepted and occupied by the defendant owners.
“3. By the terms of said written contract the complainant was to be paid the sum of $19,850 for the completion of said church edifice. In the course of the construction, this contract price was increased by $650, which represented the cost of installing an iron beam in said edifice, which was not specified and required in the plans and specifications and contract aforesaid. Complainant has been paid the sum of $20,451.29 *632on account of the original contract price and said extra aforesaid, leaving a balance due him of $48.71.
“4. In the presecution of the building of said church edifice, the complainant, with the knowledge of the members of said building committee and of the trustees of said church, installed and erected in said church edifice a number of changes and additions not provided for in the plans and specifications and contract therefor, these changes and extras, and the actual cost thereof to the complainant, being as follows:
“ (a) An addition to the entrance steps of said church edifice, including the erection of buttresses and a concrete walkway from the church steps through the yard to the property 1- e, costing the complainant the sum of $94.36.
“(b) Additional work and material required to be used in a change in the pulpit of said church, costing the complainant the sum of $20.31.
“(c) Additional material and labor required in changing the second floor preparatory to installing a toilet, costing the complainant the sum of $16.15.
“(d) Change and addition incident to tearing out of closets in the vestibule, thereby adding to the width of said vestibule, and requiring additional labor and material, costing complainant $8.74.
“(e) ' Material and labor required in changing location of water meter from the place fixed in the plans, specifications and contract, costing complainant the sum of $35.
“(f) Material and labor used in placing an extra roof on the tower of said church edifice, costing complainant the sum of $41.
“(g) Cost of art glass used in the main auditorium of said church building, costing the complainant the sum of $600.
“The total actual cost of said extras and additions to the complainant was $864.27 ($815.56).
“5. That in the installing of said changes and extras, there was a saving to the defendants — that is, the complainant was not required to do certain work originally contracted for, these items and the reasonable cost thereof and the credit to which the defendants are entitled to on account thereof, being as follows:
“(a) Reasonable cost of two closets required by the plans, specifications and contract to be installed in the vestibule of said church, which were not- installed, $39.10.
“(b) 1500 feet of lumber saved in placing the roof on said church edifice, $30.
“(c) Cost of double strength American sheet glass provided in the specifications to be installed in the main auditorium, but which was not used, $20.
*633“(d) Cost of art glass to be used in transoms, which was not used, $12.
“These credits amounting to $109.
“The court further finds that the reasonable charge by way of profit for supervising and overseeing the installation of the foregoing extras and alterations is ten per cent of the actual cost of .the complainant of installing and erecting said extras and alterations.
“6. The court further finds that under the terms of said contract it is provided that “no work shall be considered as extra unless a separate estimate, in writing, for the same shall have been submitted by the contractor to the architects and the owner, and their signatures obtained thereto,” and that said contract provides further as follows:
“It is also further agreed that the said parties of the first part may make any alterations by adding, omitting or deviating from the aforesaid plans, drawings and specifications, or either of them, which they shall deem proper, and the said architect, shall advise, without impairing the validity of this contract; but the difference shall be added to or deducted from the amount of the contract, as the' case may be, by a fair and reasonable valuation, herein agreed to, but should any dispute arise respecting the true value of any extra work, or works omitted by the contractor, the same shall be valued by two competent persons, one employed by the proprietor and the other by the contractor, and these two shall have the power to name an umpire, whose decision shall be binding on both parties. It is further agreed that in case any différence of opinion shall arise between said parties in relation to the contract, the work to be performed under it, or in relation to the plans, drawings anc ''specifications hereto altered, the decision of Albert B. Bau-ma \ Architect, shall be final and binding on all parties hereto.”
“In respect to all the additions and alterations sued for in this case, the court finds that no estimate in writing was submitted by the contractor and the signatures of the architect and the owners obtained thereto. In regard to the item claimed for art glass used in the auditorium, the court finds that the architect ordered the complainant to install art glass, and that complainant did so under protest.
“All the other changes and alterations were made by complainant, with the consent, acquiescence, and upon the request of some member of the Building Committee of said church or the pastor thereof.
• ‘ ‘ The court is of the opinion that the decision of the architect in requiring the complainant to use art glass, and in *634declining to certify and allow the complainant the reasonable cost of the extras and alterations installed in said church edifice is final, and is not subject to review by the courts.
“7. It is therefore ordered, adjudged and decreed by the court that the complainant, Lynn A. Hayes, have and recover of the defendants, A. C. Lewis, J. B. Cox, W. R. Anderson, P. P. Mynatt and M. A. Scarborough, consistuting the Building Committee of the Oakwood Methodist Episcopal Church of Knoxville, Tennessee, and of B. D. Lewis, W. H. Russell, Henry Dowell, P. P. Mynatt, H. L. Beeler and G. W. McDaniel, as trustees of said church, the sum of $48.71, together with all the costs of this cause, for which let execution issue.
“Said judgment is hereby declared to be a lien upon the real estate described herein, and it is further ordered that, unless the judgment herein allowed complainant is paid within thirty days from the entry of this decree, the Clerk and Master of this court will sell said property, after advertising the same according to law, to the highest and best bidder, upon the terms of one-fourth cash, and the balance at six, 12 and 18 months, taking notes for the deferred payments with personal endorsements approved by the Clerk and Master, and retaining a lien upon said real estate to further secure the said deferred payments. Said sale will be made subject, however, to a mortgage executed about September 7, 1923, securing to the defendant, Board of Home Missions and Church Extension of the Methodist Episcopal Church, the sum of $25,000, and also subject to a deed of trust executed to the defendants, M. D. Arnold and J. Harry Price, trustees, securing an indebtedness to the defendant Fidelity Trust Company of $22,000.
“The Clerk and Master will report his action in the premises as soon as practicable, and until the incoming of said report, all other matters are reserved.
“To the action of the court in not allowing a recovery of the full amount sued for, the complainant Lynn A. Hayes excepted, and now excepts and prays an appeal to the next term of the Court of Appeals sitting at Knoxville, which appeal is granted, at this stage of the proceeding, the court exercising its discretion in that regard, and complainant is allowed ten days within which to perfect said appeal by giving an appeal bond or otherwise complying with the law.
“In case said appeal is perfected, the Clerk and Master will transmit all exhibits to the appellate court in their original form, without copying the same into the transcript.
“On motion of Kennerly & Key, solicitors for complainant a lien is declared in their favor upon the aforesaid recovery to secure their reasonable fees for services rendered herein.
*635Perfecting bis appeal the complainant has made four assignments of error as follows:
1. “That the chancellor erred in not awarding- complainant a decree for the full amount sued for, to-wit: $857.83, together with interest 'thereon since January 5, 1927,- and decreeing that complainant was entitled' to a lien upon said church building and the lot of ground upon which it stands to secure the payment of said decree.
2. ‘ ‘ The chancellor erred in holding, adjudging and decreeing that the decision of the architect in failing and refusing to allow and certify for payment to the complainant the reasonable cost of the extras and alterations' installed by the complainant in said church edifice, was final and not subject to review by the courts, and in disallowing the complainant a recovery upon that ground.
3. “The chancellor erred in not decreeing that the lien of the complainant for the balance due him for the erection of said church edifice was prior and superior to the deeds of trust in favor of the defendants Fidelity Trust Company and Board of Home Missions and Church Extension of the Methodist Episcopal Church.
4. “The chancellor erred in not granting the alternative relief prayed for in the bill and permitting the complainant to remove from said premises enough, of the material and supplies used by him in the construction of said church edifice to satisfy the recovery sought in this case.”
We cannot agree entirely with the learned chancellor’s disposition of the case. "While it may be true that had the contract been lit.erally pursued, and the defense shaped with a view to interposing any. technical defenses to the just disposition of the case the view taken by the chancellor denying a recovery for all meritorious claims save one, might have been supported. But the parties have not themselves so dealt either with the contract or the pleadings as would prevent the disposition of the ease on its merits. While the chancellor found in favor of practically all the claims asserted by the bill, he yet found an insuperable barrier in the contract against a recovery for all save one, and that was a confessed liability for $48 due under the original contract, notwithstanding complainant had endorsed the certificate ex. no. 8 to Price’s deposition with a statement that it was a settlement in full.
It was known to all that it was not a settlement in full; that at least the sum conceded was still due and it must also have been known that complainant had not been paid for the changes that had been ordered or at least made at the direction of some one in authority; for it is not to be presumed, that work put up, and partly finished, and not complained of as out of harmony with the *636plans and specifications would have been deliberately torn down and replaced with changes and other construction at the great expense of complainant. Indeed while another item of change and expense that of $20.31 for extending the stage or pulpit was admitted by counsel for defendants as a proper change that had not been settled for, there was no sincere or tenable defense offered to any other item unless indeed it was as to a change of $41 for roofing the floor of the belfry. We are not satisfied that complainant was entitled to charge for this item, for whether it be called a roof or merely a protection against the rain, it appears from the testimony of the architect that a workman-like job, to protect the building against the damage from rain beating in, “would have been a general specification covering the protection of such an exposed portion against leakage resulting in damage. We are not at all impressed however with the right asserted by the architect to interpret or construe specifications, directly contrary to the terms in which they were written. While, however, divergence of opinion, under the terms of the contract was to be finally determined by the honest judgment of the architect, in all matters presented to him, the contract gave him no power to change its material terms; nor can •it be held, like the laws of the Medes and Persians unalterable. It was perfectly competent for the parties during the progress of the work to waive any preliminary route to liability and effect changes by agreement and this is what they really did; that every one of these changes as the chancellor found was made with the knowledge and asquiesence of those in authority and at their instance cannot be doubted.
It would therefore operate fraudulently to allow them to receive the benefits of such changes, and claim'immunity because the contract had not been strictly or formally observed in arriving at agreements respecting such changes. 'To prevent that the court will give the contract such construction as the parties have given it and estop them from asserting otherwise. The architect’s attempt to force a contribution of something like $600 in requiring complainant to put in art glass, where the specifications in more than one detail indicated a different and cheaper glass upon which complainant figured in making his bid smacks more of an effort to protect himself in his own mistake in draughting the plans and specifications than otherwise, whether the mistake was made by him or some one in his office.
If it was a mistake, it was made and an unambiguous specification written in and cannot now be corrected by any construction to the detriment of the complainant nor do we think he is at all estopped by whatever he may have said to Lewis (not Mynatt) regarding his agreement to stand for art glass if others had bid on the contract with the understanding that it was to be art glass. If he *637had such conversation with Mr. Lewis, it was at a time when the liability had already been increased and being without consideration was not binding- upon him; nor was his endorsement of the last certificate (no. 8) paid by Price with the statement "in full” indicating a final settlement binding for the same reason; nor, effecting no injury or producing no change to any one’s detriment, could it estop him from claiming that there-was more due if in fact it was due.
We are of opinion that the pleadings were set for a disposition of the case on the merits; nor has any fact intervened” that would prevent that result. The decree denying the recovery for the other items claimed, except as to the $41 for roofing, will be reversed and a decree will be entered here embracing them, with said excepttion. The item for glass will be $600, instead of $629 as claimed, the $29 being included as a contribution by the merchants. The aggregate sum will be credited by the $190, as saving, and the ten per cent will be calculated upon the sum after so giving the credits and minus also the $48.71 due under the original contract.
A lien will be declared upon the property subject to the mortgages as the chancellor found for the amount recovered here and the property will be sold to satisfy same as provided in his decree with the modifications indicated, and the cause remanded for such purpose.
Defendants trustees for the church will pay the costs accruing in this court and remainder as adjudg'ed by the chancellor.
Portrum and Thompson, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/311051/ | 478 F.2d 1178
UNITED STATES of America, Plaintiff-Appellee,v.Joan CLEMENS, aka Joan Shipp et al., Defendants-Appellees.
No. 72-2051.
United States Court of Appeals,Fifth Circuit.
May 15, 1973.
Hilary J. Gaudin, New Orleans, La., court appointed, for Wyble.
Gerald J. Gallinghouse, U. S. Atty., Robert L. Livingston, Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
Before COLEMAN, MORGAN and RONEY, Circuit Judges.
PER CURIAM:
1
Appellants were convicted in the District Court for the Eastern District of Louisiana of a violation of 18 U.S.C. Sec. 2422, commonly known as the Mann Act. In this appeal appellants alleged that certain items introduced in evidence against them were seized in a search conducted under an invalid warrant. We are compelled to agree with appellants' contentions and remand the case for a new trial.
2
These appellants, Brouillette, Clemens and Wyble, were allegedly responsible, at least in part, for causing a number of prostitutes to travel in interstate commerce from New Orleans, Louisiana, to St. Louis, Missouri. These appellants are allegedly the operators of a prostitution ring headquartered in Metairie, Louisiana. The instant prosecution results from the "supplying" of several of their "girls" to a group holding a convention in St. Louis. An earlier jury trial resulted in an acquittal of the corporation officials responsible for providing the "entertainment". In this prosecution, the defendant-appellants seem to admit that they had indeed operated in the prostitution business, but they challenge the existence of a federal violation and question the propriety of a search warrant executed against them.
3
The search warrant in question is fully set out in the companion case of United States of America v. Brouillette and Clemens, 5 Cir., 478 F.2d 1171 No. 72-2456 (this day rendered). Evidence obtained under the search warrant considered by this court in that case was also introduced against these appellants in this trial. Factually, the two cases involve separate trips by prostitutes allegedly under the control of these appellants. Additionally, Wanda Wyble was not a defendant in that case but is in this one. Finally, this case is brought under provisions of the Mann Act while the other case was brought under 18 U.S.C. Sec. 1952.
4
This court held in No. 72-2456 that the search warrant was invalid as the supporting affidavit did not present sufficient facts for a finding of probable cause that a federal crime had been committed. Of course, it is well settled that the fruits of an illegal search are inadmissible at a subsequent trial. We, therefore, hold that the admission of various items seized in the execution of this invalid warrant was error and that this cause must be remanded to the district court for a new trial.
5
Reversed and remanded.
RONEY, Circuit Judge (dissenting):
6
I would sustain the search warrant issued in this case on the ground that the statement in the Affidavit for Search Warrant that the property sought had been used "to promote and conduct prostitution activities through interstate travel" was sufficient, when considered with the other facts set forth in the Affidavit, to establish probable cause that a federal crime had been committed and that the address books, convention books, and financial records contained evidence of interstate criminal transactions. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1575835/ | 35 S.W.3d 393 (2000)
STATE of Missouri, Respondent,
v.
Billy HAHN, Appellant.
No. ED 76783.
Missouri Court of Appeals, Eastern District, Division Two.
August 22, 2000.
Motion for Rehearing and/or Transfer Denied January 17, 2001.
Application for Transfer Denied February 13, 2001.
*394 Nancy L. Vincent, Jennifer S. Walsh, Asst. Public Defenders, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea L. Mazza, Asst. Atty. Gen., Jefferson City, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied January 17, 2001.
CLIFFORD H. AHRENS, Presiding Judge.
Billy Hahn ("Defendant") appeals a judgment on a conviction after a jury verdict finding him guilty of one count of sodomy, section 566.060 RSMo (1986), and one count of first-degree sexual abuse, section 566.100 RSMo (1986). After a habeas corpus proceeding and a finding defendant was effectively abandoned by counsel by a failure to file a timely notice of appeal, State ex rel. Hahn v. Stubblefield, 996 S.W.2d 103, 108 (Mo.App.1999), defendant was sentenced to concurrent terms of seven years' imprisonment and five years' imprisonment, respectively. On appeal, defendant argues the trial court erred in entering judgment on the sexual abuse count as there was no evidence defendant touched victim's anus. The defendant also contends the trial court erred in entering judgment on both counts as the state failed to show with evidence other than defendant's statement that he touched victim. Finally, defendant complains the trial court abused its discretion in allowing the state to introduce the victim to the jury. We reverse in part and affirm in part.
On the evening of July 3, 1994, victim's mother ("mother") and victim's father ("father") returned to their home after attending *395 an all-day Fourth of July picnic. Defendant, mother's uncle, had spent the day with mother and father and returned to their home with them in order to view fireworks. While mother was searching for fireworks, she noticed defendant had disappeared. In her attempt to locate defendant, mother noticed victim's bedroom door was closed. Mother opened the door and heard the rustle of the plastic mattress protector. She discovered defendant lying on the bed next to victim who remained asleep. Victim's panties had been removed, and her nightgown had been pulled up to her chest. Defendant's pants were unbuttoned and pulled down to his groin.
Defendant excused himself and, covering his stomach, proceeded into the bathroom, complaining of sickness. Mother summoned father while defendant remained in the bathroom. Defendant eventually fled through the front door. He spent the night sleeping in his automobile and the next day walking around a wild life preserve. Defendant was later questioned by police and admitted that "he just rubbed her butt after he pulled down her pants" and that "[a]ll [he] did was rub her [vagina]." In a written statement, defendant confessed he had rubbed victim's "butt" but had had no intentions of having sex with her.
Defendant was found guilty of both sodomy and first-degree sexual abuse. Originally, he was sentenced to concurrent terms of twenty years' imprisonment for the sodomy count and five years' imprisonment for the sexual abuse count. Due to abandonment of counsel, this court vacated defendant's sentences in State ex rel. Hahn v. Stubblefield, 996 S.W.2d 103 (Mo. App.1999) and ordered resentencing. On August 27, 1999, defendant was resentenced to concurrent terms of seven and five years' imprisonment on the respective counts. This appeal follows.
In his first point on appeal, defendant argues the trial court erred in entering judgment against him on the count of first-degree sexual abuse. The state concedes the evidence was insufficient to support the conviction as it failed to prove defendant touched the anus of victim. We agree the trial court erred.
A person commits the crime of sexual abuse if he subjects another person to whom he is not married to sexual contact without that person's consent by the use of forcible compulsion. Section 566.100.1(1) RSMo (1986).[1] "Sexual contact" means any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person. Section 566.010.1(3) RSMo (1986). "Anus" is defined as "the posterior opening of the alimentary canal." State v. Strughold, 973 S.W.2d 876, 883 (Mo.App. 1998) "Butt" is defined as "buttocks." Id. A "buttock" is defined as "either of the rounded parts at the back of the hips; either half of the rump." WEBSTER'S NEW TWENTIETH CENTURY DICTIONARY 248 (2 nd ed.1977). Evidence that a defendant touched a victim's "butt" or "buttocks" is insufficient to show the defendant touched victim's "anus." Strughold, 973 S.W.2d at 883-84. As defendant confessed he merely touched victim's "butt" and the state did not present other evidence showing defendant specifically touched victim's "anus," the conviction on the count of first-degree sexual abuse cannot stand.
In his second point on appeal, defendant contends the trial court erred in entering judgment against him as the state failed to establish the corpus delicti for the commission of both crimes. Defendant argues because the state failed to show with evidence other than his confession that he touched the victim, his convictions cannot *396 stand. Because defendant's conviction on the count of first-degree sexual abuse is reversed, we consider this point only as it applies to defendant's conviction on the count of sodomy.
It is axiomatic that the state has the burden of proving the corpus delicti, i.e. the substantive elements of the charged offense. State v. Duvall, 787 S.W.2d 798, 800 (Mo.App.1990). Unless there is independent proof, either circumstantial or direct, of the essential elements of the corpus delicti, extrajudicial admissions, statements or confessions of the accused are not admissible in evidence. State v. Girdley, 957 S.W.2d 520, 522 (Mo. App.1997). In order for defendant's statement to be admissible, absolute proof that a crime was committed independent of his or her statement is not required. Id. at 523. All that is required is evidence of circumstances tending to prove the corpus delicti corresponding with the confession. Id. Slight corroborating facts are sufficient to establish the corpus delicti. Id.
At trial, mother testified she found defendant lying in bed with victim. Mother testified victim, who normally slept while wearing underwear, was found with her panties off and her nightshirt pulled up to her chest. In addition, mother testified that defendant's pants were unbuttoned and pulled down below his groin. We find this evidence sufficiently corroborates defendant's statements as to establish the corpus delicti. See Girdley, 957 S.W.2d at 523 (defendant's presence next to wrecked automobile with slurred speech, a flushed face, and strong smell of intoxicants on his breath constituted sufficient independent proof that defendant was intoxicated at time of accident so as to allow introduction of his inculpatory statements into evidence). Point denied.
In his final point on appeal, defendant contends the trial court abused its discretion in allowing the prosecutor to introduce the victim to the jury. Defendant argues since the four year-old victim remembered nothing of the incident and since her age and identity were not in dispute, the introduction of the victim had no legal or logical relevance. He contends the sole purpose of the introduction was to inflame the passions of the jury and to invoke prejudice against him.
Demonstrative evidence is admissible if it establishes a fact at issue, throws light on the issue, or aids the jury in any way in arriving at the correct verdict. State v. Nyhuis, 906 S.W.2d 405, 409 (Mo. App.1995). The state's right to offer relevant evidence and have it received is not extinguished by a defendant's stipulation of fact. State v. Shaw, 839 S.W.2d 30, 35 (Mo.App.1992). The admission of demonstrative evidence lies largely within the trial court's discretion and will be overturned only for an abuse of that discretion. Nyhuis, 906 S.W.2d at 408-09.
The trial court may have found introducing victim to the jury was relevant to show victim was under fourteen years of age, a requirement of sodomy. See section 566.060.3 RSMo (1986). In addition, images of the victims of crimes have been admitted by courts without the prejudicial effect outweighing the probative value. See State v. Reynolds, 837 S.W.2d 542, 546 (Mo.App.1992). According to the record, the state merely brought victim into the courtroom, read the stipulated facts concerning her age and residence, and resumed the testimony of another witness. At any rate, we cannot say the trial court abused its discretion in allowing victim to be presented to the jury.
The judgment on count I, sodomy, is affirmed. The judgment on count II, first-degree sexual abuse, is reversed.
WILLIAM H. CRANDALL Jr., J., concurs.
JAMES R. DOWD, J., concurs.
NOTES
[1] Defendant is governed by the statute in effect at the time he acted. State v. Gillespie, 944 S.W.2d 268, 271 (Mo.App.1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/999743/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4857
JACK SHERMAN WYATT,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-98-224-WMN)
Submitted: June 30, 1999
Decided: September 24, 1999
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James S. Salkin, SALKIN & SHOCKETT, P.A., Baltimore, Mary-
land, for Appellant. Lynne A. Battaglia, United States Attorney, Tarra
DeShields-Minnis, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jack Sherman Wyatt appeals his conviction for possession of a fire-
arm by a convicted felon in violation of 18 U.S.C.§ 922(g) (1994).
On appeal, Wyatt challenges the sufficiency of the evidence used to
convict him and contends that the district court erred in denying his
motion pursuant to Fed. R. Crim. P. 33. Finding no merit to either of
his assignments of error on appeal, we affirm Wyatt's conviction and
sentence.
Considering the evidence in the light most favorable to the Govern-
ment, as we must, we have no difficulty concluding that the evidence
was "sufficient for a rational trier of fact to have found the essential
elements of the crime beyond a reasonable doubt." United States v.
Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993); see also Glasser v. United
States, 315 U.S. 60, 80 (1942). Wyatt's contrary assertions go to the
credibility of the witnesses and the weight of the evidence, rather than
its sufficiency. See United States v. Saunders , 886 F.2d 56, 60 (4th
Cir. 1989). Moreover, we find no abuse of discretion on the part of
the district court in declining to order a new trial as a result of Wyatt's
allegations of juror misconduct. See United States v. Dorsey, 45 F.3d
809, 817 (4th Cir. 1995); Fed. R. Evid. 606(b); see also Tanner v.
United States, 483 U.S. 107, 121 (1987).
Accordingly, we affirm Wyatt's conviction and sentence. We dis-
pense 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
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544388/ | 24 N.J. 488 (1957)
132 A.2d 779
ELIZABETH FEDERAL SAVINGS AND LOAN ASSOCIATION, ETC., ET AL., APPELLANTS,
v.
CHARLES R. HOWELL, COMMISSIONER OF BANKING AND INSURANCE OF THE STATE OF NEW JERSEY, COLONIAL SAVINGS AND LOAN ASSOCIATION, ETC., ET ANO., RESPONDENTS.
CITY FEDERAL SAVINGS AND LOAN ASSOCIATION, ETC., APPELLANTS,
v.
CHARLES R. HOWELL, COMMISSIONER OF BANKING AND INSURANCE OF THE STATE OF NEW JERSEY, COLONIAL SAVINGS AND LOAN ASSOCIATION, ETC., ET ANO., RESPONDENTS.
UNION COUNTY TRUST COMPANY, A BANKING CORPORATION OF THE STATE OF NEW JERSEY, APPELLANT,
v.
CHARLES R. HOWELL, COMMISSIONER OF BANKING AND INSURANCE OF THE STATE OF NEW JERSEY, COLONIAL SAVINGS AND LOAN ASSOCIATION, ETC., ET ANO., RESPONDENTS.
The Supreme Court of New Jersey.
Argued March 25, 1957.
Decided June 10, 1957.
*492 Mr. Frank K. Sauer argued the cause for the appellants Elizabeth Federal Savings and Loan Association, Emerald Savings and Loan Association, Union County Savings Bank, and Central Home Trust Company (Messrs. Sauer & Wojcik, attorneys).
Mr. Fred G. Stickel, Jr., argued the cause for the appellant City Federal Savings and Loan Association (Messrs. Stickel & Stickel, attorneys; Mr. Fred Stickel, III, on the brief).
Mr. Alan V. Lowenstein argued the cause for the appellant Union County Trust Company (Messrs. Lowenstein, Del Tufo, Callahan & Kean, attorneys; Mr. Aaron Kaufman, of counsel; Mr. Richard M. Sandler, on the brief).
Mr. David D. Furman, Deputy Attorney-General argued the cause for the respondent Commissioner of Banking and Insurance (Mr. Grover C. Richman, Jr., Attorney-General of New Jersey, attorney).
Mr. Richard V. Stein argued the cause for the respondent Colonial Savings and Loan Association (Messrs. Stein, Stein and Hughes, attorneys).
The opinion of the court was delivered by VANDERBILT, C.J.
The case before us involves the application of sub-section B of section 21 of the "Savings and Loan Act," L. 1946, c. 56 (N.J.S.A. 17:12A-1 et seq.) as amended by L. 1952, c. 204. Under the authority of that subsection the Commissioner of Banking and Insurance granted permission to the Colonial Savings and Loan Association of Roselle Park to establish a branch office in the City of Elizabeth through the purchase of the Excelsior Building and Loan Association in Elizabeth and move it to a substitute location. The appellants a savings bank, *493 two trust companies with savings departments, two saving and loan associations chartered under federal law, and one similar association organized under the state banking laws objected to any such approval and by these proceedings seek to review the Commissioner's determination.
THE FACTS
The Colonial Savings and Loan Association has its principal office in Roselle Park, N.J. where it has done business since 1904. At the end of 1955 it had 3,139 savings members and 1,029 borrowing members. About three miles away in the City of Elizabeth, the Excelsior Building and Loan Association maintained its office at No. 715 Elizabeth Avenue. It has been in business since 1887 and at its present location, an upper floor in an office building, for upwards of 25 years. It has about 358 savings members and 54 borrowers. These associations entered into an agreement, providing in essence for the purchase by Colonial of all of the assets of Excelsior and for a transfer of the principal office of Excelsior, presumably under N.J.S.A. 17:12A-24, to a new location to be selected by Colonial, or for an application by Colonial to the Commissioner of Banking and Insurance for permission to change the location of the office of Excelsior to a "suitable substitute" to be selected by Colonial and to maintain that new office as a branch office of Colonial, under N.J.S.A. 17:12A-21, subd. B. The agreement was made contingent upon the approval by the Commissioner of the changed location. Colonial chose the second alternative and applied to the Commissioner for permission to establish a branch office at 29 Broad Street, Elizabeth, as a "suitable substitute" for the office of Excelsior at No. 715 Elizabeth Avenue. The proposed location is about 8/10ths of a mile away from Excelsior's principal office and in the midst of the establishments maintained by Elizabeth Federal Savings and Loan Association, Emerald Savings and Loan Association, Union County Savings Bank, Central Home Trust Company, City Federal Savings and Loan *494 Association and Union County Trust Company, the appellants herein.
No notice of Colonial's application was given to any of the appellants. When they learned of it, however, they wrote to the Commissioner indicating their objections to the proposed action and asked to be heard. The Commissioner took the position that nothing in subsection B of section 21 of the act, N.J.S.A. 17:12A-21, required that notice of an application for approval of a branch office in connection with a merger or bulk purchase of assets be given to any other institutions, and that there was no statutory basis for a formal hearing. Nevertheless, without recognizing them as "parties," he afforded the objectants an opportunity to present whatever evidence and argument they had in opposition to the application of Colonial. These proceedings, however, could by no means be characterized as a full hearing in the true sense of the word. While the objectants were given every opportunity to present their own evidence, they were in substantial respects denied the opportunity to meet the evidence on the other side of the case and that relied upon by the Commissioner. Some of the evidence was furnished ex parte by Colonial to the Commissioner and not made available to the objectants. The Commissioner in reaching his conclusion also considered data available in the files of the Department of Banking and Insurance and furnished by a departmental investigation of Colonial's application and by a survey of the territory in question, but not made part of the hearing record.
In granting the application by Colonial the Commissioner found:
"* * * that the maintenance by `Colonial' of a branch at 29 Broad Street, Elizabeth, will be in the public interest; that it will be of benefit to the area to be served, and that it will be beneficial to the members of both `Colonial' and `Excelsior,' and permission is hereby given to the establishment and maintenance of said branch by the `Colonial.'"
The objecting institutions, asserting a right to a review of the Commissioner's determination on the ground that *495 they were aggrieved parties, since the determination made it possible for Colonial to compete directly with them for savings and thrift deposits in their area, appealed under R.R. 4:88-8 to the Appellate Division of the Superior Court in three separate groups. Colonial then moved to dismiss all the proceedings on the ground that the appellants had no standing to appeal. Decision on that question was reserved until final argument and the appeals were consolidated. We then certified the matters on our own motion pursuant to R.R. 1:10-1(a), and the argument of all the parties and of all issues has been conducted before this court.
The case presents these questions: (1) whether the appellants have any standing to seek judicial review of the action of the Commissioner; (2) whether the objecting institutions were entitled to notice and a full hearing on Colonial's application for the Commissioner's approval, and if so, whether the hearing afforded was sufficient in the circumstances; and (3) whether the Commissioner properly discharged the power delegated to him.
THE STATUTES
Savings and loan associations and building and loan associations organized under the laws of this State are now controlled by the "Savings and Loan Act," supra, N.J.S.A. 17:12A-1 et seq. Subsection A of section 21 of that act, N.J.S.A. 17:12A-21, provides that if the capital, reserve and undivided profit requirements therein set forth are met, an association may establish a branch office in the municipality in which it has its main or principal office, or it may establish a branch office in any other municipality in the county of its principal office, but that no such branch office may be established in another municipality if any other state or federal association has its principal office or a branch office in operation there. Application to and approval by the Commissioner of Banking and Insurance is made a requirement of such action by subsection A(4) of section 21:
"Before any branch office shall be established, the association shall file written application with the commissioner for his approval. *496 Before approving such application, the commissioner shall determine that the maintenance of such branch office is in the public interest and will be of benefit to the area served by such branch office, and that it may be established without undue injury to any other association or Federal association in the area in which it is proposed to locate such branch office and that conditions in the area to be served, afford reasonable promise of successful operation.
Within ten days after the submission of any such application to the commissioner, the applying association shall give notice by mail of such application to all associations and Federal associations, having offices within the municipality in which it is proposed to locate the branch office and outside of such municipality if within five miles of the place where it is proposed to locate such branch office. The notice shall be in a form approved by the commissioner, and shall include the name of the applying association and the street address and municipality where such branch office is to be located. Upon the request of the applying association, the commissioner shall furnish a written list showing the names and street addresses of all State chartered associations to which such notice must be sent. The commissioner shall conduct such investigation or hearing or both, as he may deem to be advisable.
Not less than thirty days after mailing of the aforementioned notice and within ninety days thereafter, the commissioner shall announce his decision upon such application and file in his office, a written memorandum stating the reasons therefore, which shall be open to public inspection." (Emphasis supplied.)
The absence from subsection B of section 21 of any express reference to a hearing or to notice on an application for approval of the establishment of a branch office through purchase of another association or merger, particularly since express provisions for notice or hearing are made with respect to applications for approval in related cases under subsections A and C, gives rise to the conflict in this case. Subsection B provides:
"B. Notwithstanding any of the other provisions or limitations of this section, any association into which another association has been merged or which has acquired, by purchase, reorganization, or in any other manner, all or a substantial portion of the assets of another association, may, with the permission of the commissioner, and under such terms and conditions as he may prescribe, maintain the office previously maintained by such other association, or a suitable substitute therefor, as a branch office; provided, however, that the commissioner shall first determine that the maintenance of such branch is in the public interest and will be of benefit to the area served by such branch and to the members of the association."
*497 Subsection C provides:
"C. A branch office may be removed from one location to another upon application to, and approval by the commissioner, provided that the proposed new location is within the area prescribed for a new branch office. Within ten days after filing such application, the association shall give the same notice as that required in connection with an application for a new branch office and the commissioner shall render his decision within the time limits prescribed in connection with the application for a new branch office." (Emphasis supplied.)
Closely related to the problem presented by the instant case are the provisions of section 24 of the act, as amended by L. 1953, c. 136, N.J.S.A. 17:12A-24. That section provides that:
"Any association may change the location of its principal office to a new location but, where the office is to be removed from one municipality to another, such change shall take place only after application to and the written approval of the commissioner of such change of location. Within ten days after the submission of any such application, the commissioner shall give written notice by mail to the association of a time and place designated by him for a hearing on such application. The time designated for such hearing shall be not less than six weeks nor more than eight weeks after the date upon which the commissioner mails such notice. The association shall thereupon give notice by mail of such application and of the time and place designated by the commissioner for a hearing thereon at least three weeks prior to the date of such hearing to all associations located within the municipality in which it is proposed to locate the office of the association.
Upon the request of the association, the commissioner shall furnish a written list showing the names and street addresses of all associations to which such notice must be sent.
The notice shall set forth the name of the association, the street address and municipality from which its location is to be changed and the street address and municipality to which its location is to be changed. Within thirty days after the close of the hearing, the commissioner shall announce his decision upon such application and file in his office a written memorandum stating the reasons therefor, which shall be open to public inspection.
If the commissioner shall find that
(a) the proposed change of location is in the public interest, and
(b) will be of benefit to the area to which it is proposed to remove such office, and
(c) that the removal of such office will not result in undue injury to any other association or Federal association in the area to which it is proposed to remove such office, and
*498 (d) the association will have a reasonable prospect of success in the proposed new location, he shall approve such application.
The commissioner may, in his discretion, dispense with such hearing in the event that (a) there is no association located in the municipality in which the applicant association intends to locate its office or (b) all associations in such municipality consent thereto in writing." (Emphasis supplied.)
In the absence of a specified procedure to be followed on applications for the approval of the Commissioner, section 99 of the Savings and Loan Act, supra, as amended by L. 1953, c. 17, p. 200, sec. 66, N.J.S.A. 17:12A-99 provides:
"(4) Applications for commissioner's approval. In all cases where the commissioner's approval is required and no procedure for obtaining the same is specified, application therefor shall be made in writing and the commissioner shall, within thirty days after receipt of such application, give written notice to the association either approving such application, when the same may be properly disposed of ex parte, or designating a time and place when and where the commissioner will afford, to the association and to any party in interest who requests it, an opportunity to be heard. The commissioner may grant reasonable adjournments of such hearing. Within thirty days after such hearing, or after the date designated therefor, if no one appears to be heard, the commissioner shall give written notice to the association of his determination, which notice shall state the reasons therefor, if the application is denied.
If the commissioner fails to give any such notice within the time prescribed therefor, such failure shall be construed as his approval of such application." (Emphasis supplied.)
The same section of the act expressly gives a right to a review of the Commissioner's determination:
"(1) Review of commissioner's determination. Except as herein otherwise provided, any association or member aggrieved by any determination, decision or order of the commissioner or by any failure of the commissioner to make any such determination, decision or order, may, within thirty days thereafter, institute an action in the Superior Court for a review thereof. The court may proceed in the action in a summary manner or otherwise. It shall determine de novo all questions, both of fact and of law, touching upon the legality and the reasonableness of such determination, decision or order, and render such judgment and make such orders as shall be equitable and just." (Emphasis supplied.)
*499 I.
The question of standing to seek judicial review of official action must first be considered. It should not be confused with the right to be heard initially on the subject of the determination of the administrative agency; matters germane to the right to be heard are discussed later in this opinion. We are here concerned solely with the question of the status of the appellants to call on the courts to review the propriety of the Commissioner's approval of the application of Colonial to establish a branch office in the manner provided under section 21, subd. B.
We start with the basic principle that an administrative officer is a creature of legislation who must act only within the bounds of the authority delegated to him, and that the courts in the exercise of their judicial power are permitted to review the ultimate application of the law which has been entrusted to the administrative officer when necessary for the protection of the rights of persons or property against an abuse of the power delegated, 3 Sutherland, Statutory Construction, chapter 66. "The responsibility of determining the limits of statutory grants of authority in such instances," says Mr. Justice Reed in Stark v. Wickard, 321 U.S. 288, 310, 64 S.Ct. 559, 571, 88 L.Ed. 733, 738 (1944), "is a judicial function entrusted to the Courts * * *." We condition the right to invoke the judicial power, however, by the requirement that there be some interest to be protected beyond a mere abstraction; but yet, in cases involving substantial public interest, the courts have held that "but slight private interest, added to and harmonizing with the public interest" is sufficient to give standing, Hudson Bergen, etc., Ass'n v. Board of Com'rs of City of Hoboken, 135 N.J.L. 502, 510 (E. & A. 1947); Greenspan v. Division of Alcoholic Beverage Control, 12 N.J. 456, 459 (1953); Al Walker, Inc. v. Borough of Stanhope, 23 N.J. 657 (March 25, 1957). Moreover, this right to seek judicial review of administrative decisions inheres not only in those who are direct parties to the initial proceedings *500 before an administrative agency (a fact which is here recognized and expressed in the act, N.J.S.A. 17:12A-99(1)) but also belongs to all persons who are directly affected by and aggrieved as a result of the particular action sought to be brought before the courts for review. In Carls v. Civil Service Commission of New Jersey, 17 N.J. 215 (1955), where examiners in the Department of Banking and Insurance were reclassified by the Civil Service Commission, the court, while disposing of the meritorious issue against the plaintiffs' contentions, recognized that they had standing to challenge the Commission's action. There the court said:
"Our rules governing procedure in lieu of prerogative writs contain comprehensive provisions which are well designed to afford simple and expeditious modes of reviewing determinations by state administrative agencies such as the Civil Service Commission. * * *
The Commission's action clearly fell within the broad orbit of Rule 3:81 (now R.R. 4:88) which prescribed the simplest and most effective available mode for its judicial review;" (17 N.J., at pages 218, 219).
In the recent case of Al Walker, Inc., v. Borough of Stanhope, supra, 23 N.J. 657 (March 25, 1957), where a dealer in trailer homes who was not a property owner or even a resident of the Borough of Stanhope was held to have standing to maintain an action in lieu of prerogative writ attacking the validity of an ordinance restricting the use of trailers as residences, we said:
"Unlike the Federal Constitution, there is no express language in our State Constitution which may be said to confine the exercise of our judicial power to actual cases and controversies. * * * In passing upon a plaintiff's standing the court is properly required to balance conflicting considerations and weigh questions of remoteness and degree."
Early in our judicial history the courts of this State in almost every respect took a more liberal view of the province of the prerogative writ of certiorari than the courts of any other state, Goodnow, "The Writ of Certiorari," 6 Pol. Sc. Q. 493, 510, 526 (1891). New Jersey courts extended the scope of certiorari far beyond its limited use *501 at common law to review judicial acts, so as to include quasi-judicial, quasi-legislative, administrative and municipal action. Notwithstanding this liberal tradition, this form of protecton against improper official action was further broadened by the Constitution of 1947, Art. VI, Sec. V, par. 4, to make its relief available as a matter of right and not only as a matter of discretion, Ward v. Keenan, 3 N.J. 298, 302-309 (1949).
The respondent Colonial urges that the appellants have no standing to initiate review proceedings because they "have nothing more to serve in their objection to the Commissioner's determination than their own self-interest." "They are merely competitors," it says, and as such "have neither a direct and certainly not a substantial interest in the Commissioner's Order."
But it may very well be that the establishment of a new branch at the location in question will substantially prejudice the existing banking institutions, with resulting adverse effects upon the public in general through other similar institutions in the area. For, if one banking institution should fail in the community as the result of an ill-advised burdening of the existing competitive environment, other financial institutions do not continue unaffected. Some elements of public distrust and lack of faith are inevitably transmitted to them, cf. Delaware County National Bank v. Campbell, 378 Pa. 311, 106 A.2d 416 (Sup. Ct. 1954). Many will still remember the unfortunate incidents attaching to the granting of some charters in the boom days of a quarter of a century ago. Competing banking institutions may be the only persons with sufficient private interest in harmony with the public concern for the safety of savings and bank deposits to bring the attention of the courts to errors of law in an administrative action granting a license to establish a branch contrary to the standards set by the statute delegating authority to so act. If such banking institutions do not have the necessary standing, who then is there who can or will challenge an administrative decision favorable to the applicant? Without standing in *502 the appellants to invoke the power of judicial review, the Commissioner's action favorable to Colonial, right or wrong, proper or arbitrary, takes on a conclusive character to the possible great detriment of the people as a whole.
As stated in 9 Administrative Law Bulletin, 122 (March, 1957) by Professor Bernard Schwartz, its editor, in crtically reviewing Home Gas Co. v. Federal Power Commission, 97 U.S. App. D.C. 300, 231 F.2d 253 (D.C. Ct. App. 1956) as one of the authorities taking a narrow approach to the question of standing:
"* * * there is a tendency in the opinion to confuse the question of whether petitioner is aggrieved (i.e., the question of standing) with that of whether it is entitled to prevail on the merits. Insofar as the court holds that petitioner is not aggrieved by the grant of a license to a competitor, its decision is both unreal and contrary to much of the case-law. It is recognized that there are cases denying the standing of a competitor. See, e.g., 8 Ad. L. Bull. 75. To hold that a competitor is not aggrieved in such a case is, however, to rely on the kind of formalistic fiction that has so often brought the law into disrepute.
* * * * * * * *
The courts, in holding, as they sometimes do, that someone like a competitor or a consumer has no standing, have lost sight of the overriding need in our system to make sure that someone shall in fact be able to secure review of administrative action. It is only if this need is satisfied that the principle of administrative legality can truly be enforced. It is in the interest of the community as a whole that illegal agency action be not left untouched. It is for the judiciary to vindicate this interest by ensuring that there are no unnecessary obstacles in the path of those seeking to challenge the legality of administrative action. To construe the standing requirement as our courts sometimes do is to place an unnecessary obstruction on the road of justice."
See also Atchison, Topeka & Santa Fe Ry. Co. v. Summerfield, 97 U.S. App. D.C. 203, 229 F.2d 777 (D.C. Ct. App. 1955); Granik v. Federal Communications Commission, 98 U.S. App. D.C. 247, 234 F.2d 682 (D.C. Ct. App. 1956); City of Pittsburgh v. Federal Power Commission, 99 U.S. App. D.C. 113, 237 F.2d 741 (D.C. Ct. App. 1956).
Moreover, had the Commissioner refused to hear the appellants, his action would unquestionably be reviewable by *503 this court, R.R. 4:88-8. His action is no less reviewable because he permitted them to be heard.
The appellants have demonstrated sufficient interest in the action which they challenge to have standing to maintain this action for review, Al Walker, Inc., v. Borough of Stanhope, supra, 23 N.J. 657 (March 25, 1957); Neiden Bar and Grill v. Municipal Bd., etc., of the City of Newark, 40 N.J. Super. 24 (App. Div. 1956); Florence Methodist Church v. Township Committee of Florence Township, 38 N.J. Super. 85 (App. Div. 1955). Even though that interest be slight, when coupled with the substantial public interest here involved, it removes their endeavor from the realm of a mere attempt to vindicate a general public interest in maintaining the rule of law, and gives them standing to invoke the judicial power of review, Greenspan v. Division of Alcoholic Beverage Control, supra, 12 N.J. 456 (1953); Hudson Bergen, etc., Ass'n v. Board of Com'rs of City of Hoboken, supra, 135 N.J.L. 502 (E. & A. 1947).
The banking laws are regulatory in nature, enacted for the protection of the public, and are in no way designed to give exclusive benefits to institutions who have been granted license to conduct the business of banking. But if the appellants are denied status to check an abusive act of the Commissioner, the interest of the public sought to be protected may suffer. No matter of such importance to the economic welfare of the community and the interest of the public generally should be insulated from judicial review. There are, of course, areas of unregulated discretion, but they exist only with respect to minor matters, Freund, The Police Power, section 644 (1904), and Freund, Administrative Powers Over Persons and Property, section 49 (1928). Matters of such far-reaching importance as banking facilities in many locations fall into an entirely different category and it is unthinkable that any public official should be given unreviewable discretion to grant or deny relief in these matters.
We are not unaware that our decision here appears to conflict with Public Service, etc., Transp. v. Newark-Elizabeth, *504 etc., Ass'n, 3 N.J. 118 (1949), where this court held that competitors of the Public Service Coordinated Transport had no standing to attack the constitutionality of a statute under which the Board of Public Utility Commissioners were empowered to approve the substitution of autobuses on any line where trolley buses had previously been authorized or to question the action taken thereunder. That case presents a factual situation altogether different from the one confronting us here. While the fact that the parties were mere competitors was there looked upon as making them strangers to the action taken, the majority of the court undertook to point out that:
"The record discloses no evidence that the appellants have been or will be adversely affected, or that any usurpation or trespass upon their rights has resulted or will result in futuro as a consequence of the challenged statute and proceedings thereunder. The uncontroverted evidence shows that respondent Public Service Coordinated Transport, has been authorized to substitute 35 autobuses for a similar number of trolley buses in its operation over the route in question. It is true that respondent's bus line runs parallel with the bus lines of the appellants over a part of the route, but that condition previously existed and has not been changed by the challenged proceedings. It does not appear how the substitution of the same number of autobuses for trolley buses, operating over exactly the same route, could have an adverse effect upon the existing business of the appellants. The absence of proof of real injury has been held to be fatal to one endeavoring to attack the validity of an enactment. Bowers v. [Board of Chosen Freeholders] Middlesex County, 127 N.J.L. 471 (Sup. Ct. 1941)."
In that case, while there may have been some slight private interest in the action, there was not the slightest public interest to harmonize with it. The practical effect of that decision, however, was to grant standing to the competitors, because the court disposed of the issues with respect to constitutionality of the statute on the merits.
II.
This brings us to a consideration of the second question, relating to the hearing before the Commissioner.
*505 As pointed out above, a competitor may in the public interest attack the administrative action here involved. As such, a competitor may urge the question whether the Commissioner's action exceeded his power or constituted an arbitrary exercise of it. The objecting institutions, however, urge they are entitled to notice of hearing and the status of a party to the proceeding with the broader review which that status would afford. There is no constitutional basis for this further claim; if it exists, it is only because of a statutory provision for it.
It is urged that subsection B of section 21, N.J.S.A. 17:12A-21, supra, involves the same policy matters with which subsections A and C are concerned and hence we should read into subsection B the same notice and hearing provision which appears in subsections A and C. We need not consider the nature of the hearing which the latter subsections require. It is provided with respect to them that "The commissioner shall conduct such investigation or hearing or both, as he may deem to be advisable." Assuming the cited provision has the full import the objecting institutions attribute to it, yet we cannot conclude the Legislature intended it to apply to subsection B notwithstanding the patent omission of it. Subsection B plainly excludes "any of the other provisions or limitations of this section."
Nor are the objecting institutions aided by N.J.S.A. 17:12A-99(4), for excluded from its purview is any application which "may be properly disposed of ex parte" and an application under subsection B falls within the exclusion.
The practical problem here presented is how the objecting institutions may bring before the reviewing court the entire record upon which the Commissioner acted to the end that the issue of excess or arbitrary exercise of power may be reviewed. These institutions were free to apply for an order for disposition under R.R. 4:88-9 and upon that application an order might appropriately have been made directing the further record to be made before the Commissioner himself, Bailey v. Council of the Div. of Planning, *506 etc., State of New Jersey, 22 N.J. 366 (1956), cf. Family Finance Corp. v. Gough, 10 N.J. Super. 13, 25-26 (App. Div. 1950). It may be observed that since upon review the matter would be handled as just indicated, the course of litigation would be expedited if the Commissioner permitted all appearing objectors to be heard fully in the first instance, not because they are entitled to the status of parties to the proceeding before him, but because upon the attack they can make, they will ultimately be accorded the same opportunity to attack the sufficiency of the proof under the standard of review described above.
The objecting institutions were not given full opportunity to inquire into the essential facts of the petition made by Colonial. The record indicates that "considerable information" was supplied to the Department by Colonial ex parte and not disclosed to the objectors. Furthermore, the proceedings indicate that the Commissioner relied in his determination on factual material in the files of his department and developed specifically for the purpose of deciding the pending application of Colonial, without divulging the substance of his material and giving the objectors the opportunity to explore it.
The determination of the Commissioner cannot be made to rest upon information outside the record in the case before him which the parties have not had the opportunity to meet. This principle of exclusiveness of the record was discussed in Mazza v. Cavicchia, 15 N.J. 498 (1954) and was held there to be established law in this state. We said in that case, 15 N.J., at page 514:
"In any proceeding that is judicial in nature, whether in a court or in an administrative agency, the process of decision must be governed by the basic principle of the exclusiveness of the record. `Where a hearing is prescribed by statute, nothing must be taken into account by the administrative tribunal in arriving at its determination that has not been introduced in some manner into the record of the hearing.' Benjamin, Administrative Adjudication in New York, 207 (1942). Unless this principle is observed, the right to a hearing itself becomes meaningless. Of what real worth is the right to present evidence and to argue its significance at a formal hearing, if the one who decides the case may stray at will *507 from the record in reaching his decision? Or consult another's findings of fact, or conclusions of law, or recommendations, or even hold conferences with him?"
Beyond question the use of expert knowledge gained by the Department is a desirable attribute of the administrative process, but it need not be applied in a manner which is unfair. By taking appropriate official notice of such material and making such facts part of the record and giving the parties fair opportunity to meet, explain or refute it, the Commissioner can satisfy the requirements of fairness and adequately protect the interests of all concerned. As stated in Pennsylvania Railroad Co. v. Department of Public Utilities, 14 N.J. 411, 427 (1954):
"In this fashion the board may stay within the record and rest thereon its order accompanied by adequate findings which determine the basic facts and the conclusions therefrom. In recent years this court has been called upon frequently to point out that such findings are of the utmost importance not only in insuring a responsible and just determination by the board but also in according a proper basis for the judicial review which is expressly afforded by statute and rules."
III.
Turning to the final question, relating to the propriety of the Commissioner's action, it has been argued that under subsection B of section 21 the Commissioner has no authority to approve the establishment of a branch office of Colonial at a location outside the immediate area in which the principal office of Excelsior is located, and that therefore the application must be dismissed without regard to any deficiencies in the proceedings. But we must assume that the over-all purpose and policy of the Savings and Loan Act, supra, L. 1946, c. 56, as amended, N.J.S.A. 17:12A-1 et seq., was to provide a consistent pattern of control and that what is not capable of accomplishment under one section will not be capable of accomplishment indirectly under some other section. Component parts of the act cannot be isolated and construed in a vacuum, for to do so distorts their true meaning and fosters results not contemplated by the enactment, *508 Horwitz v. Reichenstein, 15 N.J. 6, 8 (1954), 2 Sutherland, Statutory Construction (3d ed.), sections 4703-4. Under the construction of subsection B espoused by the plaintiffs, what they claim the Commissioner was powerless to do could be easily accomplished by combining a change of location by Excelsior from 715 Elizabeth Avenue to a new location in the immediate area of 29 Broad Street under the authority of N.J.S.A. 17:12A-24 and without the necessity of approval by the Commissioner, with an application by Colonial under subsection B to establish such new office of Excelsior or a "suitable substitute" as a branch. It is axiomatic that constructions calling for unreasonable results will be avoided where reasonable results consistent with the indicated purpose of the act as a whole are equally possible, Pine v. Okzewski, 112 N.J.L. 429, 433 (E. & A. 1933); State v. Clark, 29 N.J.L. 96, 99 (Sup. Ct. 1860). Certainly, it could not have been intended to withhold from the Commissioner the authority to approve a substitute location for the proposed branch office of Colonial in a different part of Elizabeth, but give him authority to approve, in effect, the same application made after a change in location by Excelsior. We can but conclude that there is no merit to this assertion of lack of authority.
Judicial review of the substantive propriety of the Commissioner's determination should only be undertaken on a complete record, Bailey v. Council of the Div. of Planning, etc., State of New Jersey, supra, 22 N.J. 366, 374-375 (1956). Since the objectors were denied appropriate contact with the record, fairness dictates that they be given that opportunity, Mazza v. Cavicchia, supra, 15 N.J. 498 (1954); Family Finance Corp. v. Gough, supra, 10 N.J. Super. 13, 25-26 (App. Div. 1950).
The objecting institutions here misconceived the nature and scope of the review to which they are entitled. On appeal they have the burden of overcoming the presumption of reasonableness which attaches to the Commissioner's action, State Board of Milk Control v. Newark Milk Co., 118 N.J. Eq. 504, 523 (E. & A. 1935), Dutcher v. Department *509 of Civil Service, 7 N.J. Super. 156, 162 (App. Div. 1950). In the interest of justice, therefore, the cause will be returned to the Commissioner for completion of the record and such further findings and determination as the Commissioner may make. Remanded.
BURLING, J. (dissenting).
The Colonial Savings and Loan Association of Roselle Park has contracted to purchase the assets of the Excelsior Building and Loan Association of Elizabeth. Performance is conditioned upon the approval of the Commissioner of Banking and Insurance of the establishment of a branch office by Colonial in Elizabeth in an entirely different area of that city than where the Excelsior office has been doing business for 25 years. Colonial applied to the Commissioner for approval pursuant to N.J.S.A. 17:12A-21, subd. B which provides:
"Notwithstanding any of the other provisions or limitations of this section, any association into which another association has been merged or which has acquired, by purchase, reorganization, or in any other manner, all or a substantial portion of the assets of another association, may, with the permission of the commissioner, and under such terms and conditions as he may prescribe, maintain the office previously maintained by such other association, or a suitable substitute therefor, as a branch office; provided, however, that the commissioner shall first determine that the maintenance of such branch is in the public interest and will be of benefit to the area served by such branch and to the members of the association." (Emphasis supplied.)
I deem it unnecessary to determine whether the competing institutions are entitled to a full hearing as the majority holds, for as I view the facts of the instant case and the applicable law, the Commissioner has no statutory authority to grant Colonial's application for a branch office at a location completely divorced from the immediate area where the Excelsior office is presently maintained in Elizabeth.
In all situations where a hearing is expressly required (which would exclude subsection B) the Commissioner is obliged to determine, as a condition precedent to the approval of the application, that the proposed office "will not result in undue injury to any other association or Federal association *510 in the area" where it is proposed to locate the office. This finding must precede the approval of (1) a new savings and loan association (N.J.S.A. 17:12A-16.1); (2) the independent establishment of a branch office in the same municipality as the principal office is located (N.J.S.A. 17:12A-21, subd. A); (3) the independent establishment of a branch office in another municipality of the same county wherein the principal office is located (N.J.S.A. 17:12A-21, subd A) (in this situation a branch may not be established where a principal or branch office of another association is already operating in the municipality, but offices outside the municipality and not more than five miles distant from the situs of the proposed branch are recognized as parties in interest); (4) where a principal office is removed from one municipality to another (N.J.S.A. 17:12A-24); (5) where a branch office is moved from one location to another (N.J.S.A. 17:12A-21, subd. C) (sub-section C incorporates the procedural and substantive requirements of subsection A).
Significantly, subsection B omits the required finding of an absence of "undue injury" and only requires "that the commissioner shall first determine that the maintenance of such branch is in the public interest and will be of benefit to the area served by such branch and to the members of the association."
Geographic location within the municipality is a major factor in the competitive combat between savings and loan associations. Practical proof of this observation is found in the instant case where Colonial seeks a more strategic competitive situs, nearly a mile from the location of Excelsior's present headquarters. Statutory cognizance of this significant factor is evidenced by the agency determination of absence of "undue injury" to other associations in the area which is required in all instances of new offices established or old offices relocated, except under subsection B and also where a principal office is relocated within the same municipality (N.J.S.A. 17:12A-24). Where a finding of "undue injury" is required to be made it clearly anticipates *511 that other associations maintaining offices in the immediate area are to be recognized as parties in interest.
There was a calculated intention on the part of the Legislature in omitting this required finding in subsection B. That section permits an association which merges with or acquires the assets of another to "maintain the office previously maintained by such other association, or a suitable substitute therefor, as a branch office," upon approval of the Commissioner. The meaning of the omission is appreciated if it once be acknowledged that subsection B anticipates a branch office conducted at the same locational situs as the previous office, and "suitable substitute" connotes no more than a branch office in the same immediate area as the office formerly maintained. If so construed it is clear that competitive associations have no recognized interest in the operation of a branch office in the same immediate area where another office was formerly maintained. The status quo ante is unchanged.
The legislative history of the treatment accorded branch offices bears out the restrictive interpretation advanced. The initial statutory treatment (accorded generally to savings and loan associations) was merely "An act to encourage the establishment of mutual loan and building associations," enacted February 28, 1849 (Laws of 1849, p. 227). By 1903 the need for comprehensive regulatory legislation (Warren, New Jersey Building and Loan History, Records 1936) resulted in L. 1903, c. 218. Section 16 of that enactment prohibited the establishment of branch offices. The prohibition was continued in 1925 by a further comprehensive enactment which displaced the 1903 legislation. L. 1925, c. 65, sec. 17. Indeed, not until 1952 was the prohibition against the independent establishment of branch offices removed, L. 1952, c. 204, sec. 1, and even then it was strictly circumscribed. N.J.S.A. 17:12A-21, subd. A.
The first merger provision (which would be the statutory antecedent of the present subsection B, N.J.S.A. 17:12A-21, subd. B) appears in L. 1932, c. 94, sec. 1, and this provided that a branch office might be conducted for a period "not to exceed two years" "in the place or places in which the affairs *512 of such merging or consolidating association * * * has been conducted." The Commissioner's approval was required. By L. 1942, c. 163, sec. 1, the time limitation was removed, but there is no persuading indication that the branch office arising from the merger might be located other than where the affairs of the former association had been conducted. The descriptive phrase "suitable substitute" first appeared in L. 1946, c. 56, sec. 21, and by the parity of reasoning advanced heretofore it cannot be persuasively contended that this phrase contemplates the relocation into an entirely new area which Colonial seeks here.
The legislative policy is clear. Branch offices are not to be established at random. The aim is to hit the evil at its source and the legislative endeavor must be construed in this light. Lynch v. Borough of Edgewater, 8 N.J. 279, 286 (1951). And once the purpose and design is recognized the statute should not be construed to permit a subversion of the policy, Grogan v. DeSapio, 11 N.J. 308, 322 (1953), either directly or indirectly. In the instant situation Excelsior was selling out. It had no intention whatever of changing its principal office to a new area of the city to continue or enlarge its operation. There was no apparent justification in view of the small size of the association for it to incur obligations of considerably enlarged rental charges incident to the central business portion of the city, and furnishings and embellishments of quarters appropriate thereto for full-time operation. The contract of purchase itself provided that if the purchaser Colonial so directed, Excelsior was to cause a transfer of its principal office to a location selected by Colonial. Thereafter Excelsior would pass out of existence; Colonial would have a branch office.
I would reverse the agency determination and direct a dismissal of the application.
For remandment Chief Justice VANDERBILT, and Justices OLIPHANT, JACOBS and WEINTRAUB 4.
For affirmance Justices HEHER and WACHENFELD 2.
For reversal Justice BURLING 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1006816/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4025
DEREK O. PENDELTON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-00-248)
Submitted: January 30, 2002
Decided: February 25, 2002
Before WIDENER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James E. Joyner, Forest Heights, Maryland, for Appellant. Thomas
M. DiBiagio, United States Attorney, Steven M. Dettelbach, Assistant
United States Attorney, James M. Trusty, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PENDELTON
OPINION
PER CURIAM:
Derek Owen Pendelton was convicted by a jury of possession with
intent to distribute cocaine base, 21 U.S.C.A. § 841 (West 1999 &
Supp. 2001), felon in possession of a firearm, 18 U.S.C.A.
§ 922(g)(1) (West 2001), and possession of a firearm in furtherance
of a drug trafficking crime, 18 U.S.C.A. § 924(c) (1994). Pendelton
appeals his conviction. We affirm.
Pendelton asserts error in the district court’s denial of his motion
to suppress the fruits of an search pursuant to a search warrant that
he claims was not supported by probable cause. The affidavit pre-
sented in support of the warrant application was supported by proba-
ble cause. The reliance of the requesting agent on information pro-
vided by a confidential informant was not misplaced, and the
confidential informant’s testimony at Pendelton’s trial further sup-
ported the district court’s finding that the magistrate judge had proba-
ble cause to issue the warrant. Illinois v. Gates, 462 U.S. 213, 236
(1983); United States v. Han, 74 F.3d 537, 539 (4th Cir. 1996).
Pendelton also contends on appeal that the district court erred in
denying his motion for mistrial when evidence was admitted that he
possessed a gun prior to the date of the charged criminal activity.
"[E]vidence of uncharged conduct is not considered other crimes evi-
dence if it arose out of the same . . . series of transactions as the
charged offense, . . . or if it is necessary to complete the story of the
crime (on) trial." United States v. Kennedy, 32 F.3d 876, 885 (4th Cir.
1994) (internal quotation marks omitted). Further, "the mere fact that
the evidence involved activities occurring before the charged time
frame of the conspiracy does not automatically transform that evi-
dence into ‘other crimes’ evidence." Id. Here, the testimony and state-
ments at issue helped to explain the crime and rebutted the testimony
of one of Pendelton’s witnesses. The district court’s denial of Pendel-
ton’s motion for a mistrial was not error.
Accordingly, we affirm Pendelton’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
UNITED STATES v. PENDELTON 3
are adequately presented in the materials before the court and argu-
ment will not aid in the decisional process.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1006817/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-7403
EMMETT MADISON GRAHAM, JR.,
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-97-98, CA-00-206-7-F)
Submitted: January 31, 2002
Decided: February 25, 2002
Before LUTTIG, TRAXLER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Emmett Madison Graham, Jr., Appellant Pro Se. Paul Martin Newby,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GRAHAM
OPINION
PER CURIAM:
Emmett Madison Graham, Jr., seeks to appeal the district court’s
order denying in part and granting in part his motion filed under 28
U.S.C.A. § 2255 (West Supp. 2001). We have reviewed the record
and the district court’s opinion and find no reversible error. In his
informal brief, Graham attempts to make several new claims of error
regarding the district court’s jurisdiction over the original criminal
offenses. Because he failed to raise these claims in his 28 U.S.C.A.
§ 2255 motion before the district court, this court may not now con-
sider their merits. See United States v. One 1971 Mercedes Benz, 542
F.2d 912, 915 (4th Cir. 1976). Because Graham does not raise any
claims in his informal brief that he raised below he has waived review
of the claims. See 4th Cir. R. 34(b) (claims raised in the district court
but not addressed in the brief on appeal are waived for review). To
the extent that Graham’s informal brief can be construed as attacking
his conviction and sentence under Apprendi v. New Jersey, 530 U.S.
466 (2000), the district court correctly found that the claims are
barred by our decision in United States v. Sanders, 247 F.3d 139 (4th
Cir.), cert denied, 70 U.S.L.W. 3339 (U.S. Nov. 13, 2001) (No. 01-
6715). Accordingly, we deny a certificate of appealability, deny Gra-
ham’s motion for appointment of counsel, and dismiss the appeal. 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.
DISMISSED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4195322/ | Citation Nr: 1725229
Decision Date: 06/30/17 Archive Date: 07/10/17
DOCKET NO. 08-25 173 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for skin disability claimed as psoriasis, to include psoriatic arthritis.
2. Entitlement to service connection for a right foot disability, to include residuals of a fracture of the right great toe.
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Andrew Mack, Counsel
INTRODUCTION
The Veteran served on active duty from September 1976 to September 1998.
This appeal is before the Board of Veterans' Appeals (Board) from a September 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2010, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript is included in the claims file. The Board remanded the matters on appeal in March 2010 and March 2016.
The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
In a May 2017 letter, the Board informed the Veteran that the VLJ who conducted his March 2010 hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing. In June 2017, the Veteran responded that he wanted another in-person Board hearing at his local RO. The Veteran should therefore be afforded the requested hearing. See 38 U.S.C.A § 7107(c); 38 C.F.R. §§ 19.3(b), 20.700, 20.707.
Accordingly, the case is REMANDED for the following action:
Schedule the Veteran for an in-person Board hearing before a Veterans Law Judge at his local VA Regional Office.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
_________________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016). | 01-03-2023 | 08-11-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4515700/ | Filed 3/11/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
LORI FOWLER et al.,
Plaintiffs and Appellants, A156525
(Contra Costa County
v. Super. Ct. No. MSN162322)
ORDER MODIFYING OPINION;
CITY OF LAFAYETTE, AND DENYING PETITION FOR
REHEARING
Defendant and Respondent.
[NO CHANGE IN JUDGMENT]
THE COURT:
Appellants’ petition for rehearing, filed February 25, 2020, is denied.
It is ordered that the opinion filed February 10, 2020, be modified as
follows:
1. On page 2 of the opinion, revise the third sentence of the first
paragraph to read:
In March 2015, they applied through their architect for approval of the
project.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts I.D, II, and III
of the Discussion section.
1
2. On page 14 of the opinion: Delete the last sentence of footnote 3
(carried over from page 13), beginning “We note that . . .”
3. On page 14, replace the first full sentence of the second
paragraph with: “Relatedly, plaintiffs’ claim for nullification fails because
they have not shown prejudice from the Brown Act violation here.”
4. On page 15, after the cite to Galbiso, begin a new paragraph that
replaces the last sentence of the first paragraph on page 15:
Plaintiffs also argue that the language of Section 54960.1
forecloses a prejudice requirement, but we disagree. The statute sets
forth five circumstances in which a challenged action “shall not be
determined to be null and void” (section 54960.1, subd. (d)), but this
language does not imply the converse—that a challenged action must
be set aside, even without a showing of prejudice, unless one of these
enumerated circumstances prevails. Had the Legislature intended that
result, we assume it would have chosen different language. (See, e.g.,
section 54957 [action taken in violation of statute “shall be null and
void”]; Bell v. Vista Unified School Dist. (82 Cal. App. 4th 672, 682).
Plaintiffs thus give us no reason to repudiate the rule that an action
will not be invalidated for violation of the Brown Act absent a showing
of prejudice.
5. On page 16 of the opinion, replace the first sentence of the first
full paragraph and the initial words of second sentence of the same
paragraph with the following:
In an effort to show prejudice, plaintiffs argue that had they
known the litigation threat was being discussed in closed session, they
could have distinguished the issues in this matter from those in
another matter the City Council was considering in the closed session,
2
in which Bowie also represented the applicant. But there is nothing to
suggest that the City Council did not understand or differentiate the
issues before it in the two matters, and we will not indulge in such
speculation. And even if appellants had known that the City Council
was discussing Bowie’s litigation threats, they would not have been
privy to, or in a position to rebut, comments made in closed session.
Plaintiffs also argue that they might have achieved . . .
6. On page 17 of the opinion, replace the first full paragraph with
the following:
Here, where the challenged action was taken in open session
after the merits and demerits of the project had been exhaustively
debated in multiple City Council meetings, and where there is no basis
to assume the closed sessions were themselves improper or that the
City Council failed to understand the issues raised in them, we see no
basis for inferring prejudice from the City’s failure to disclose in the
meeting packet the applicant’s litigation threat.
7. On page 25 of the opinion, after the words, “The judgment is
affirmed,” add:
The parties shall bear their own costs on appeal.
There is no change in the judgment.
Dated: _________________________
POLLAK, P.J.
Fowler v. City of Lafayette (A156525)
3
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Edward G. Weil
Counsel for Appellants: Larson O’Brien LLP, Scott A. Sommer;
and Gary S. Garfinkle
Counsel for Respondent: Keker, Van Nest & Peters LLP, Benedict
Y. Hur, Justina Sessions, and
Neha Mehta
4
Filed 2/10/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
LORI FOWLER et al.,
Plaintiffs and Appellants,
A156525
v.
CITY OF LAFAYETTE, (Contra Costa County
Super. Ct. No. MSN162322)
Defendant and Respondent.
The City of Lafayette (the City) approved an application to build a
tennis cabaña on a residential property. Lori Fowler, Scott and Jeanne
Sommer, Val and Rob Davidson, and Avon and George Wilson (collectively,
plaintiffs), all residents of the City, brought this action challenging the
approval on the grounds that the City improperly considered the application
in closed sessions in violation of the Ralph M. Brown Act (Gov. Code, § 54950
et seq.)1 and violated their right to a fair hearing. They appeal after the trial
court ruled against them. In the published portion of the opinion, we agree
with plaintiffs that the City violated the Brown Act but conclude there was
no prejudice. We also reject plaintiffs’ other contentions, and shall affirm the
judgment.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts I.D, II, and III
of the Discussion section.
1 All undesignated statutory references are to the Government Code.
1
FACTUAL AND PROCEDURAL BACKGROUND
The owners of the property, Michael and Diane Archer (the applicants),
sought to build what they called a tennis cabaña (the project) next to a tennis
court on their 2.38-acre property. As initially proposed, the 1,199-square-foot
cabaña would have included a pavilion with a kitchen for entertaining and a
guest room with a full bathroom. In March 2015, they applied for approval of
the project. Through the course of the design review, the applicants made
changes that eliminated the need for a setback variance and removed the
kitchen from the proposed building. The City’s Design Review Commission
(DRC) approved the project, with conditions of approval requiring the
applicants to record a landscape maintenance agreement and a deed
restriction preventing the cabaña from being used as a secondary dwelling
unit.
Plaintiffs are neighbors of the applicants who objected that the tennis
cabaña was inconsistent with the neighborhood and too close to an adjacent
home, such that it would subject the occupants to noise and loss of privacy.
They appealed the DRC’s action to the City’s Planning Commission, asserting
a number of objections to the project: that it was an illegal second unit; that
it violated a landscape condition of approval imposed in 1990, when the
tennis court was approved; that the building was too large, too close to
neighboring residences, and inconsistent with the City’s general plan and
municipal code; and that the notices of DRC hearings were inadequate and
violated the Brown Act. A supporting letter also raised the concern that the
applicants had an unfair advantage in the review process because their
architect was a member of the Planning Commission.
The City’s Planning Commission considered the matter at four
meetings between December 2015 and May 2016. During the course of those
2
meetings, the applicants made additional changes to the project, shaving its
size to 1,100 square feet and decreasing its height, while increasing the
distance from the cabaña to a neighboring project, and improving
landscaping. The Planning Commission approved the project subject to
conditions of approval including the landscape agreement and the prohibition
on use as a secondary dwelling unit.
Plaintiffs appealed the matter to the City Council. They argued that
the project violated the 1990 landscape condition of approval; that it
improperly expanded the use of the tennis court, which they asserted was a
nonconforming use under the City’s ordinances; that it was an illegal second
unit; that the restrictions on use would not bind future owners of the
property; and that consideration should be given to locating the cabaña on
another portion of the applicants’ property, farther from neighbors’ homes.
The City Council considered the appeal at four meetings: July 11, July
25, September 26, and October 11, 2016. At the final meeting, the City
Council denied the appeal and upheld the Planning Commission’s approval of
the application, subject to conditions, on a four-to-one vote.
While approval was pending, the applicants’ attorney threatened to sue
the City if it denied the project, and the City Council discussed the threat of
litigation during closed sessions held before the July 25, September 26, and
October 11, 2016 meetings. An entry in the “Notes” field in the City’s
“Application Database” for the project—between notations indicating that the
appeal to the City Council had been received and that the appeal was
scheduled for a July 11 hearing—states: “On multiple occasions now, on the
phone D. Bowie [David Bowie, the applicant’s counsel] indicated he would
take the matter to court if the City denied the project. M. Canales [Megan
3
Canales, an assistant planner who worked on the application] informed M.
Subramanian [Mala Subramanian, City Attorney] of litigation threat.”
Subramanian notified the City Council of the litigation threat orally,
rather than in written form, in the July 25, 2016 closed session. That a
threat of litigation had been made with respect to this specific project was not
noted in the agenda for any of the public meetings, and there was no mention
of it in any of the packets of information—including staff reports and agenda
attachments—that were made available to the public for inspection in city
offices and on-line before the meetings. The agendas simply record that the
City Council would confer with legal counsel in closed session about one case
of anticipated litigation, without identifying the case. In order to see the
notation regarding the threat of litigation in this matter, a member of the
public would have to visit the City’s “planning counter,” speak with a
planner, and ask to see the project’s “notes field.” The computer network that
included that information was password-protected, and there was no
indication the notes in the project’s application database were printed out
until after the City Council reached its decision.
Plaintiffs did not learn that Bowie had threatened litigation or that the
City Council had discussed the matter in closed sessions until November
2016, after the project had been approved.
Plaintiffs brought a petition for writ of mandate (Code Civ. Proc.,
§ 1085) and complaint for injunctive and declaratory relief challenging the
City’s decision. The operative second amended petition alleges the City
violated the Brown Act by discussing the application in closed hearings, and
that plaintiffs were deprived of their right to a fair hearing.
The trial court rejected all of plaintiffs’ claims, denied the petition, and
entered judgment for the City.
4
DISCUSSION
I. Brown Act Violation
A. General Standards
Plaintiffs contend the City violated the Brown Act by failing to
announce or make available for public inspection Bowie’s statement
threatening litigation and by conducting unauthorized and overbroad
discussions in closed sessions. Where the facts are undisputed, our review of
this challenge is de novo. (San Diegans for Open Government v. City of
Oceanside (2016) 4 Cal.App.5th 637, 642; Castaic Lake Water Agency v.
Newhall County Water Dist. (2015) 238 Cal. App. 4th 1196, 1204.) However, to
the extent the trial court drew factual inferences, we defer to those inferences
if they are supported by substantial evidence. (Shapiro v. Board of Directors
(2005) 134 Cal. App. 4th 170, 178–179.)
The Brown Act requires most meetings of a local agency’s legislative
body to be open and public. (§ 54953, subd. (a); Los Angeles Times
Communications v. Los Angeles County Bd. of Supervisors (2003) 112
Cal. App. 4th 1313, 1321.) It “is intended to ensure the public’s right to attend
the meetings of public agencies. [Citation.] To achieve this aim, the Act
requires, inter alia, that an agenda be posted at least 72 hours before a
regular meeting and forbids action on any item not on that agenda.
[Citations.] The Act thus serves to facilitate public participation in all phases
of local government decisionmaking and to curb misuse of the democratic
process by secret legislation by public bodies.” (Golightly v. Molina (2014)
229 Cal. App. 4th 1501, 1511.) The Brown Act is “ ‘construed liberally so as to
accomplish its purpose.’ ” (Olson v. Hornbrook Community Services Dist.
(2019) 33 Cal.App.5th 502, 525 (Olson).)
5
B. Closed Sessions Concerning Pending Litigation
One of the exceptions to the Brown Act’s open meeting requirements
allows closed sessions for an agency to “confer with, or receive advice from, its
legal counsel regarding pending litigation when discussion in open session
concerning those matters would prejudice the position of the local agency in
the litigation.” (§ 54956.9, subd. (a).) Resolution of the question of whether
the City Council gave adequate notice that it was discussing the project in
closed session requires a close examination of the statutory provisions
regarding pending litigation.
Litigation is considered pending when, inter alia, “[a] point has been
reached where, in the opinion of the legislative body of the local agency on the
advice of its legal counsel, based on existing facts and circumstances, there is
a significant exposure to litigation against the local agency.” (§ 54956.9,
subd. (d)(2).) Subdivision (e) of the same statute limits “existing facts and
circumstances” in this context to five scenarios, two of which are pertinent to
our inquiry: “(2) Facts and circumstances, including, but not limited to, an
accident, disaster, incident, or transactional occurrence that might result in
litigation against the agency and that are known to a potential plaintiff or
plaintiffs, which facts or circumstances shall be publicly stated on the agenda
or announced,” and “(5) A statement threatening litigation made by a person
outside an open and public meeting on a specific matter within the
responsibility of the legislative body so long as the official or employee of the
local agency receiving knowledge of the threat makes a contemporaneous or
other record of the statement prior to the meeting, which record shall be
available for public inspection pursuant to Section 54957.5 . . . .” (§ 54956.9,
subd. (e)(2) & (5), italics added.)
6
The first question we must decide is whether subdivision (e)(2) or (e)(5)
of section 54956.9 applies to this case. This question is significant because of
the different requirements for notifying the public of a litigation threat:
there is no dispute that the threat was not publicly stated on the record, as
would be required if subdivision (e)(2) governed; but the parties dispute
vigorously whether the City’s actions in including the threat in the project’s
Notes field satisfied subdivision (e)(5)’s requirement that a record of a
litigation threat be made available for public inspection pursuant to section
54957.5. Plaintiffs contend that the threat of litigation fell not only within
subdivision (e)(5) of section 54956.9, but also within subdivision (e)(2)’s broad
enumeration of “[f]acts and circumstances, including, but not limited to, . . .
[a] transactional occurrence that might result in litigation . . . ,” and that the
City was therefore obligated to publicize when it would be discussing
potential litigation over the project.
On this point, the City has the better of the argument. On its face,
section 54956.9, subdivision (e)(2) appears to apply to events that might
themselves give rise to litigation, such as “an accident” or “disaster,” or a
“transactional occurrence that might result in litigation.” But even assuming
this language could be stretched to include a threat of litigation based on a
pending application, we must bear in mind the well-established rule of
statutory construction that “ ‘ “[a] specific provision relating to a particular
subject will govern in respect to that subject, as against a general provision,
although the latter, standing alone, would be broad enough to include the
subject to which the more particular provision relates.” ’ ” (Miller v. Superior
Court (1999) 21 Cal. 4th 883, 895; accord, Elliott v. Workers’ Comp. Appeals.
Bd. (2010) 182 Cal. App. 4th 355, 365.) Subdivision (e)(5) of section 54956.9
specifically addresses a public agency’s obligations when a person has
7
threatened litigation outside a public meeting. Like the trial court, we
conclude this provision, and not subdivision (e)(2), applies here.
We next ask whether the City complied with its obligation under
section 54956.9, subdivision (e)(5) to “make[] a contemporaneous or other
record of the statement prior to the meeting, which record shall be available
for public inspection pursuant to section 54957.5.” Plaintiffs contend the
record of the threat was not created until November 2016—after the project
was approved—pointing out that the printed copy of the Notes field from the
“Application Database” for the project (referred to by the parties as the
“Bowie Statement”) states at the bottom, “Copied from Database on 11/3/16
by M. Canales for S. Sommer,” and the metadata for the entry does not
reflect an earlier date. The trial court concluded, however, that the
November 3, 2016 date merely reflects the date the Notes field was printed in
response to a request by one of the plaintiffs, not the time each item in the
Notes field was entered. This conclusion is reasonable, and the location of
the Bowie statement in the database—between notes of the appeal to the City
Council and of the scheduled July 11, 2016 date for the appeal to be heard—
suggests the note was most likely entered before July 11, 2016.
C. Availability of Agendas and Other Writings
So far, we have agreed with the trial court. We depart from it,
however, on whether the City met its duty to make the record of the
statement threatening litigation “available for public inspection pursuant to
Section 54957.5.” (§ 54956.9, subd. (e)(5), italics added.) Section 54957.5
directs public agencies to disclose agendas of public meetings and other
writings that are distributed to members of a local agency in connection with
open meetings. Specifically, subdivision (a) dictates that such agendas and
writings are disclosable public records that must be made available on
8
request without delay. And subdivision (b) requires that, if the writing is
distributed less than 72 hours before the meeting, it must be made available
at a location specified in the agenda or be posted on the agency’s web site.2
The City argues it complied with these provisions by making the Bowie
statement available for public inspection when it entered it in the Notes
section of the Application Database, which any member of the public could
inspect by going to the Planning Department and asking to see the project
notes. The City contends its obligation was limited to making the Bowie
statement available for public inspection at city offices, not to distributing it
in the agenda packet where, as here, it was not distributed in written form to
the City Council.
This argument is unconvincing. Where litigation has been threatened
outside a public meeting, it may be discussed in closed session under section
54956.9, subdivision (e)(5) only if a record of the threat is made before the
meeting, which record must be made available for public inspection pursuant
2
Section 54957.5, subdivision (a), provides that “agendas of public meetings and
any other writings, when distributed to all, or a majority of all, of the members of a
legislative body of a local agency by any person in connection with a matter subject to
discussion or consideration at an open meeting of the body, are disclosable public records
. . . and shall be made available upon request without delay.”
Subdivision (b)(1) provides: “If a writing that is a public record under subdivision
(a), and that relates to an agenda item for an open session of a regular meeting of the
legislative body of a local agency, is distributed less than 72 hours prior to that meeting,
the writing shall be made available for public inspection pursuant to paragraph (2) at the
time the writing is distributed to all, or a majority of all, of the members of the body.”
Under subdivision (b)(2), “A local agency shall make any writing described in
paragraph (1) available for public inspection at a public office or location that the agency
shall designate for this purpose. Each local agency shall list the address of this office or
location on the agendas for all meetings of the legislative body of that agency. The local
agency also may post the writing on the local agency’s Internet Web site in a position and
manner that makes it clear that the writing relates to an agenda item for an upcoming
meeting.”
9
to section 54957.5. (§ 54956.9, subd. (e)(5).) The clear import of section
54957.5 is that agendas and other writings that the legislative body receives
in connection with a meeting should be available to the public upon request.
Mostly, these are documents relating to agenda items for the open session of
the meeting (e.g., § 54957.5, subd. (b)(1)), but section 54956.9, subdivision
(e)(5) requires the same for documented threats associated with an agenda
item for the closed session as well. The only reasonable inference is that a
record of a litigation threat to be discussed in closed session must be included
in the agenda packet made available upon request before a meeting. (See
Citizens for a Green San Mateo v. San Mateo County Community College Dist.
(2014) 226 Cal. App. 4th 1572, 1596 & fn. 5 [§ 54957.5 requires agenda packet
to be made available to the public].)
Section 54957.5 does not explicitly address the situation we face here,
in which an electronic record of the litigation threat was made but not
distributed in written form to the legislative body. The City appears to take
the position it can avoid its responsibility to include a record of the threat in
the agenda packet by the simple expedient of conveying the threat to the
legislative body orally, rather than in writing. But the statutory scheme does
not allow an agency to thwart its duty of public disclosure in this manner.
Read together, sections 54956.9 and 54757.5 contemplate that a litigation
threat will be reduced to writing and included in the agenda materials
available to the public upon request. The threat here was entered in the
City’s computer system, and it was conveyed to the City Council as the basis
for a closed session. Under sections 54956.9, subdivision (e)(5) and 54957.5, a
record of the threat should have been included in the agenda packet made
available at City offices.
10
The City disputes this conclusion, contending the notation regarding
the threat was available for inspection in City offices upon request. But this
availability is illusory if an interested person would not know the question to
ask. We reiterate that the Brown Act is intended to “facilitate public
participation in all phases of local government decisionmaking” (Golightly v.
Molina, supra, 229 Cal.App.4th at p. 1511), and that we must construe it
liberally to accomplish its purpose (Olson, supra, 33 Cal.App.5th at p. 525).
Members of the public are entitled to rely on the agenda and packet made
available upon request (see § 54957.5, subd. (a)), and the City has drawn our
attention to no authority suggesting an interested citizen must, in addition,
go to the planning counter, speak to a planner, and ask the planner to pull up
the Notes field of an application file in a password-protected computer system
to determine whether the legislative body has received a litigation threat that
might properly be the basis of a closed session.
The City also suggests that it was not required to make the litigation
threat available as part of the agenda materials because the threat related
only to the closed session, not to an item discussed in open session.
(§ 54957.5, subds. (a) & (b).) This point fails. First, a threat to sue if an
agency does not approve a project being considered at an open session may
reasonably be understood to relate to or be made in connection with the open
session’s agenda item. Second, the express language of section 54956.9,
subdivision (e)(5) requires a record of the threat to be made “prior to the
meeting” where it will be discussed and then made “available for public
inspection pursuant to Section 54957.5.” That the record is not otherwise
subject to disclosure under section 54957.5 is immaterial. Read together,
sections 54956.9, subdivision (e)(5) and 54957.5 require public agencies to
11
include with the agenda materials litigation threats to be discussed in closed
session.
D. Other Brown Act Challenges
Plaintiffs’ other substantive Brown Act challenges are unpersuasive,
and, in light of our conclusion that the City violated the Brown Act in its
treatment of the litigation threat, we will discuss them only briefly.
Plaintiffs argue the evidence does not show Bowie threatened litigation
in a manner that would justify a closed session, a conclusion they reach only
by focusing on other statements Bowie made. Greg Wolff, an assistant
planning director, testified that he had spoken with Bowie many times, and
that Bowie had “hint[ed] or insinuate[ed]” he would take the matter to court
if the City denied the application. Rather than saying directly that he would
sue the City, according to Wolff, Bowie said he would “do whatever it takes to
[e]nsure his client’s rights are respected.” But it was Canales, the assistant
planner who worked on the application, and not Wolff, that reported Bowie
had threatened litigation on multiple phone calls and informed the City
Attorney of the threat, and Bowie may have taken a more aggressive line
with her. In any event, even if the only words at issue were those reported by
Wolff, the City and its counsel could reasonably construe them as a threat of
litigation. (See Sutter Sensible Planning, Inc. v. Board of Supervisors (1981)
122 Cal. App. 3d 813, 824 [board could properly hold closed session to receive
legal advice regarding implied threat of litigation].)
Plaintiffs also argue that the closed session discussions were
impermissibly broad. They point to the declaration of Guy Atwood, who
stated that he spoke regularly with councilmember Mark Mitchell about
governmental affairs in the City. Mitchell told Atwood the City Council
would be scheduling a closed session on the threat of litigation that Bowie
12
had made, and then in October and November of 2016, told Atwood the City
Council had discussed the land use project in the closed sessions, and that
councilmembers had asked questions about the project and were given
answers by the City Attorney and planning staff. Mitchell did not report to
Atwood having discussed the litigation threat specifically. As the trial court
found, this declaration does not show the City’s discussions of the project
were broader than necessary to consider the strength and merits of any
threatened litigation. (See California Alliance for Utility etc. Education v.
City of San Diego (1997) 56 Cal. App. 4th 1024, 1030 [Brown Act
accommodates “the practical need public agencies have for confidentiality
when attempting to make rational decisions about the legal strength of
arguments asserted by an actual or probable adversary”].)
Plaintiffs also contend that public disclosure of Bowie’s threat of
litigation would not prejudice the City for purposes of section 54956.9,
subdivision (a). To the extent plaintiff’s argument is that the City was
required to make the threat known to the public upon request, we agree, for
the reasons we have already stated.
E. Nullification of Agency Action
Our conclusion that the City violated the Brown Act does not end the
matter. Section 54960.1 authorizes a court to find null and void an action
taken in violation of specified portions of the Brown Act—sections 54953,
54954.2, 54954.5, 54954.6, 54956, or 54956.53—and plaintiffs urge that the
project approval is null and void under this provision.
3These statutes involve the Brown Act’s requirements for open
meetings (§ 54953), posting agendas (§ 54954.2), closed session item
descriptions (§ 54954.5), meetings regarding new or increased taxes or
assessments (§ 54954.6), special meetings (§ 54956), and emergency meetings
13
We are not persuaded. Plaintiffs’ complaint is that they were not
informed that Bowie had threatened litigation before the City Council
discussed the threat in closed session. But the action they seek to nullify is
the approval of the cabaña, which occurred not in closed session, but in an
open session that was properly noticed and at which the City Council
considered the matter fully after hearing from all interested parties. Thus,
this matter does not fall within the terms of section 54960.1, which
authorizes nullification only of “an action taken . . . in violation of [the
specified statutes.]” (§ 54960.1, subd. (a).)
Plaintiffs’ claim for nullification fails for a second reason as well. We
do not set aside an agency’s action unless the appellants show the violation
caused prejudice. (Olson, supra, 33 Cal.App.5th at p. 522; San Lorenzo
Valley Community Advocates for Responsible Education v. San Lorenzo
Valley Unified School Dist. (2006) 139 Cal. App. 4th 1356, 1410.) This rule has
been consistently stated in cases construing the Brown Act and analogous
law. (See Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal. App. 4th 652,
670–671 (Galbiso) [“in light of the long history of this assessment dispute and
litigation in which both parties were well aware of the other side’s position
and arguments, no prejudice is apparent”]; Cohan v. City of Thousand Oaks
(1994) 30 Cal. App. 4th 547, 556 (Cohan) [“highly unlikely” more people would
have attended hearing to support appellant’s position if matter had been
properly placed on agenda]; see also North Pacifica LLC v. California Coastal
Com. (2008) 166 Cal. App. 4th 1416, 1433–1434 [considering failure to comply
with 10-day advance notice requirement of analogous Bagley-Keene Open
Meeting Act, § 11120 et seq.].)
(§ 54956.5). We note that section 54956.9, subdivision (e)(5), which the City
violated, is not among the statutes enumerated in section 54960.1.
14
Plaintiffs argue that the language in these cases is mere dictum and
should be disregarded. Not so. The court in Cohan found a Brown Act
violation, noted the requirement of prejudice to invalidate a decision, and
explained the reasons that there was no showing of prejudice. (Cohan, supra,
30 Cal.App.4th at p. 556.) In Galbiso, the lack of prejudice was an alternate
basis for the court’s decision. (Galbiso, supra, 182 Cal.App.4th at p. 670; see
Steinfeld v. Foote-Goldman Proctologic Medical Group, Inc. (1996) 50
Cal. App. 4th 1542, 1549 [where two independent reasons are given for
decision, neither is considered mere dictum].) In any case, California courts
have consistently stated that a decision will not be invalidated for violation of
the Brown Act absent a showing of prejudice, and plaintiffs give us no reason
to repudiate this rule.
There has been no showing of prejudice here. The application was
thoroughly considered at four open meetings at which the City Council
considered plaintiffs’ appeal. The minutes of the discussion at the July 11,
2016 meeting devote more than 20 pages, representing more than an hour
and a half of meeting time, to this issue. The minutes record there was a
staff summary of the project; questions by the mayor and councilmembers
and responses by staff and the City Attorney; comments by applicant Michael
Archer and attorney Bowie in support of the project; extensive comments in
opposition to the project by Lori Fowler and Scott Sommer, two of the
plaintiffs; public comments by other neighbors opposed to the project; and
discussion among the mayor and members of the City Council. The
discussion at the July 25, 2016 hearing covered more than 25 pages of the
meeting’s minutes and was again exhaustive, as were the discussions at the
September 26 and October 11, 2016 hearings. There is no reasonable
argument that plaintiffs lacked a fair opportunity to present their case, that
15
the City failed to consider it fully, or that plaintiffs would have achieved a
more favorable result if they had known the City Council was also
considering the litigation threat in closed session.
In an effort to show prejudice, plaintiffs complain they were deprived of
knowledge that the litigation threat was being discussed in closed session,
but they suggest no particular manner in which they would have proceeded
differently had they known of the threat. They also argue that they might
have achieved a more favorable result from newly elected City Council
members who took office a few weeks after the project was approved. But
speculation about what future council members might have done if the
matter had been delayed is irrelevant to whether plaintiffs were prejudiced
by the Brown Act violation that actually occurred.
Plaintiffs argue that the rule that we reverse only for prejudicial Brown
Act violations is strictly limited to minor technical violations, such as, for
instance, a city council’s action in “ ‘amending’ ” an agenda at a meeting to
consider a new item. (Cohan, supra, 30 Cal.App.4th at p. 555.) But the
surest way to distinguish what might be called minor or technical violations
from violations that require us to nullify an official act is to examine whether
a party has been prejudiced. (Compare Cohan, supra, 30 Cal.App.4th at
p. 556, with Sounhein v. City of San Dimas (1992) 11 Cal. App. 4th 1255,
1260–1261 [failure to provide notice and public hearing when considering
adoption of zoning ordinance not harmless as “mere minor technical defect,”
but deprived residents affected by ordinance of opportunity to have concerns
and welfare considered].) Thus, Horn v. County of Ventura (1979) 24 Cal. 3d
605 (Horn), on which plaintiffs rely, requires notice and a hearing to
neighboring landowners only where a city’s land use decisions “result in
‘significant’ or ‘substantial’ deprivations of property.” (Id. at p. 616.)
16
Here, where there is no basis to conclude the closed sessions were
themselves improper, where the merits and demerits of the project were
exhaustively debated in multiple City Council meetings, and where there is
no indication of how the plaintiffs would have proceeded differently if they
had known of the threat, we see no basis for inferring even the possibility of
prejudice from the City’s failure to disclose in the meeting packet the
applicant’s litigation threat.
II. Due Process Challenges
A. Background
Plaintiffs contend they were deprived of their right to due process and a
fair hearing. Their primary challenge here centers on the role of the
applicant’s architect, J. Allen Sayles, who was also a member of the City’s
Planning Commission, and, ex officio, a non-voting member of the DRC when
these bodies considered the project. The application lists Sayles as the
architect. When the DRC considered the application, Sayles recused himself
and presented the project to the DRC. At the December 7, 2015 Planning
Commission meeting, at which it heard plaintiffs’ appeal from the DRC’s
approval of the project, Sayles recused himself from participating in the
matter and left the Commission meeting for the remainder of the evening.
The City Attorney issued an advisory memorandum on May 10, 2016,
regarding the conflicts of interest that might arise for architects who are
members of the Planning Commission or the DRC. The memorandum
explained that such an architect may prepare plans or drawings that will be
subject to the commission’s review and approval, but the architect may not
appear before his or her own commission, or before another commission if the
matter might be reviewed by the member’s own commission. Thus, a
member of the Planning Commission may not appear before the DRC because
17
the matter may be appealed to the Planning Commission. Furthermore, with
certain exceptions, the member is not allowed to contact planning staff
regarding a specific project. These restrictions apply equally to ex officio
members of a commission.
In light of this opinion, Sayles resigned from the Planning Commission,
effective May 17, 2016, explaining that his architectural office was small, he
sometimes needed to represent his clients at the design review and town
council levels, and he could “no longer serve on the planning commission and
remain in compliance with these guidelines.”
Scott Sommer, one of the plaintiffs who had by then appealed the
matter to the City Council, sent a letter to the mayor and City Council on
June 20, 2016, explaining that Sayles, while a sitting member of the
Planning Commission, submitted applications for the cabaña, had multiple
contacts with planning staff members regarding the project, and appeared
personally before the DRC to present the applications. Sommer took the
position that these actions violated the Political Reform Act of 1974 (§ 81000
et seq.), under which, in pertinent part, a public official may not “participate
in making or in any way attempt to use his official position to influence a
governmental decision in which he knows or has reason to know he has a
financial interest.” (§ 87100).
The City Attorney then sent a letter to the Fair Political Practices
Commission (FPPC) asking for advice on whether the City Council could
properly vote on a development project that it reviewed de novo if a planning
commissioner with a conflict of interest had participated in a prior stage of
the application. The FPPC responded that the Political Reform Act’s conflict-
of-interest provisions did not preclude a city council from deliberating and
voting on a matter in these circumstances.
18
Sayles did not participate in and was not present at the hearings before
the City Council.
Based on these facts, and on evidence said to show bias on the part of
the City Attorney and City staff, plaintiffs contend they were deprived of
their right to due process and a fair hearing before an unbiased decision
maker. They seek a writ of mandate compelling the City to vacate the
resolution approving the application (Code Civ. Proc., § 1085), as well as a
declaration that the City violated their right to due process (Code Civ. Proc.,
§ 1060).
B. Discussion
Plaintiffs brought their causes of action for a writ of mandate under
Code of Civil Procedure section 1085, which is “a method for compelling a
public entity to perform a legal and usually ministerial duty.” (Klajic v.
Castaic Lake Water Agency (2001) 90 Cal. App. 4th 987, 995.) To obtain writ
relief under this provision, a party “must show there is no other plain,
speedy, and adequate remedy; the respondent has a clear, present, and
ministerial duty to act in a particular way; and the petitioner has a clear,
present and beneficial right to performance of that duty.” (County of San
Diego v. State of California (2008) 164 Cal. App. 4th 580, 593 (County of San
Diego).)
“When a party seeks review of an administrative decision pursuant to
Code of Civil Procedure section 1085, judicial review is limited to examining
the agency proceedings to ascertain whether the agency’s action has been
arbitrary, capricious or lacking entirely in evidentiary support, or whether
the agency failed to follow the proper procedure and give notices required by
law.” (Ideal Boat & Camper Storage v. County of Alameda (2012) 208
Cal. App. 4th 301, 311.) In reviewing a trial court’s decision in an action for
19
ordinary mandate, we review legal issues independently, but, to the extent
facts are disputed, we review the trial court’s findings for substantial
evidence, viewing the evidence in the light most favorable to the prevailing
party and resolving all conflicts in its favor. (McIntyre v. Sonoma Valley
Unified School Dist. (2012) 206 Cal. App. 4th 170, 179; Munroe v. Los Angeles
County Civil Service Com. (2009) 173 Cal. App. 4th 1295, 1301.)
Plaintiffs argue the City deprived them of due process when it
considered evidence in closed hearings of which they had no notice and when
the City Attorney and City staff members, who plaintiffs contend appeared
biased in favor of the applicants as a result of Sayles’s involvement,
participated in the proceedings. As a result, they contend, they were
deprived of their due process right to reasonable notice and an opportunity to
be heard by an unbiased decision maker on a matter that affected their
property interests. (See Cohan, supra, 30 Cal.App.4th at pp. 554–555; Scott
v. City of Indian Wells (1972) 6 Cal. 3d 541, 549; Horn, supra, 24 Cal.3d at
p. 616; Morongo Band of Mission Indians v. State Water Resources Control
Bd. (2009) 45 Cal. 4th 731, 737 (Morongo).) The trial court rejected these
contentions, as do we.
First, the trial court found the evidence did not support an inference
that the City Council improperly used the closed sessions to debate the
merits of the project. We have already agreed with the trial court on this
point. In addition, as the City points out, this claim is essentially that the
City violated the Brown Act, which provides an adequate remedy. (See
County of San Diego, supra, 164 Cal.App.4th at p. 593 [relief under Code Civ.
Proc., § 1085 available only where there is no other plain, speedy, and
adequate remedy].)
20
We are equally unpersuaded by plaintiffs’ second contention that the
proceedings were infected by the bias of staff members and the City Attorney.
To prevail on a claim that a decision maker’s bias violated the right to a fair
hearing, a party must show “ ‘ “an unacceptable probability of actual bias on
the part of those who have actual decisionmaking power over their claims.” ’
[Citation.] A party seeking to show bias or prejudice on the part of an
administrative decision maker is required to prove the same ‘with concrete
facts: “ ‘[b]ias and prejudice are never implied and must be established by
clear averments.’ ” ’ ” (Nasha v. City of Los Angeles (2004) 125 Cal. App. 4th
470, 483.) A “mere suggestion of bias is not sufficient to overcome the
presumption of integrity and honesty.” (BreakZone Billiards v. City of
Torrance (2000) 81 Cal. App. 4th 1205, 1236.)
This case comes far from meeting that standard. Plaintiffs argue that
staff and the City Attorney allowed Sayles to “criminally violate the Political
Reform Act” by advocating for this and other projects before the DRC and by
meeting privately with City staff in support of the project; that they tried to
“cover up” these violations by describing them incompletely to the City
Council; that staff reports minimized the extent of a conflict between the
project and the 1990 landscaping condition of approval; that staff and the
City Attorney ignored or downplayed various problems with the application
(e.g., the project’s potential to become an illegal second unit through the later
addition of kitchen appliances, the alleged fact that the tennis court by the
proposed cabaña was a nonconforming use, and the possibility of an
alternative location for the cabaña); that the City Attorney’s office provided
only a “sanitized” version of facts to the FPPC; and that the City failed to
investigate the role of Sayles and staff on the application.
21
These claims all fail because they do not show “ ‘ “an unacceptable
probability of actual bias on the part of those who have actual
decisionmaking power over their claims.” ’ ” (Nasha, supra, 125 Cal.App.4th
at p. 483.) The City Council, not staff members or the City Attorney, was the
decision maker, and nothing shows the City Council was infected with bias.
For that matter, as the trial court found, the evidence would not support a
conclusion that members of the City’s staff or its City Attorney were biased.
In that regard, this case is readily distinguishable from those upon
which plaintiffs rely. They place greatest weight on Nightlife Partners, Ltd.
v. City of Beverly Hills (2003) 108 Cal. App. 4th 81. The petitioners there filed
a petition for a writ of administrate mandate challenging a city’s denial of an
application for renewal of a permit for an adult entertainment establishment.
The hearing officer was assisted by an assistant city attorney who had
represented the city in its initial denial of the permit renewal application and
was also litigating a federal lawsuit brought by the petitioners against the
city relating to its regulation of adult entertainment. (Id. at pp. 84–85.)
Under these circumstances—in which the same person appeared both as an
advocate of the city’s position and as an advisor to a supposedly neutral
decision maker—there was “a clear appearance of unfairness and bias” that
supported a ruling that the petitioners’ due process rights had been violated.
(Id. at pp. 86, 94.) There are no similarly egregious facts here. No one on the
City’s staff, and no advisor to the City Council, advocated on behalf of the
applicants, so there is no unacceptable probability that staff bias tainted the
City Council’s decision. And before the City Council took up the project,
architect Sayles had resigned from the Planning Commission, and the City
Council was informed about the reasons for his resignation and his
involvement at earlier stages of the approval process.
22
The other cases upon which plaintiffs rely do not lead to a different
result. In Quintero v. City of Santa Ana (2003) 114 Cal. App. 4th 810, 812,
816, disapproved on another point in Morongo, supra, 45 Cal.4th at page 740,
footnote 2, a deputy city attorney who represented the defendant city before a
personnel board had also acted as counsel for the board, creating an
appearance of bias and unfairness. In Golden Day Schools, Inc. v. State Dept.
of Education (2000) 83 Cal. App. 4th 695, 710, one of the members of the board
deciding an administrative appeal had headed the agency that initially ruled
against the petitioner and had been involved in making the original decision.
In Nasha, supra, 125 Cal.App.4th at pages 476–477, 483–484, a member of
the planning commission hearing an application for a project had written an
article attacking the project. No similar facts indicating a blurring of the
lines between advocate and decision maker, hostility to a project, or a
predetermined decision appear here.
We accordingly reject plaintiffs’ contention that they were deprived of
their right to a fair hearing before an unbiased decision maker.
C. Exclusion of Evidence
In a related challenge, plaintiffs contend the trial court erred in
excluding evidence that Sayles and other commissioners had made illegal
appearances on behalf of other clients in the preceding years, and that in
2008 the FPPC fined a DRC member for making a governmental decision
regarding a development project in which he had a financial interest.
Plaintiffs contend the evidence is relevant to show that staff and the City
Attorney allowed and participated in such violations, therefore supporting an
inference of bias; that some of the commissioners participating in the DRC
approval of the application in this case had violated the Political Reform Act,
thus undermining the credibility of the decisions they made; that City staff
23
had multiple meetings with Sayles in which he violated the Political Reform
Act; and as impeachment of the City Attorney’s credibility. In excluding the
evidence, the trial court explained that the extent to which commissioners
had a practice of improperly representing their clients before the City “had
little or nothing to do with the way in which the project was considered or
with the result” in this case. The court concluded the evidence was thus not
relevant, and if relevant, under Evidence Code section 352 it was not
sufficiently probative to justify the additional time it would consume.
We review a trial court’s ruling on the exclusion of evidence for abuse of
discretion. (People et. rel. Lockyer v. Sun Pacific Farming Co. (2000) 77
Cal. App. 4th 619, 639–640), and we find none here. The trial court could
reasonably conclude that the evidence of commissioners’ practices in other
cases would expand the scope of the issues before the court and have little or
no probative value as the court considered whether in this case, plaintiffs
received a fair hearing.
III. Mootness
Finally, we briefly consider and reject the City’s affirmative defense
that, because the applicants have already completed construction of the
cabaña, the case is moot to the extent it seeks an injunction ordering the City
to vacate and rescind the resolution approving the project or taking any
action based on the hearings. Even when a challenged project has been
completed during the course of litigation, a court may still grant effective
relief where the project may be modified or torn down to restore the property
to its original condition. (Woodward Park Homeowners Assn. v. Garreks, Inc.
(2000) 77 Cal. App. 4th 880, 888–889 [failure to prepare environmental impact
report].) In the circumstances before us, it is appropriate for us to consider
plaintiffs’ contentions on the merits, and we have done so.
24
The City has asked us to take judicial notice of evidence that the
cabaña has passed its inspection and is complete. We deny the request.
DISPOSITION
The judgment is affirmed.
25
_________________________
TUCHER, J.
WE CONCUR:
_________________________
POLLAK, P. J.
_________________________
BROWN, J.
Fowler v. City of Lafayette (A156525)
26
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Edward G. Weil
Counsel for Appellants: Larson O’Brien LLP, Scott A. Sommer;
and Gary S. Garfinkle
Counsel for Respondent: Keker, Van Nest & Peters LLP, Benedict
Y. Hur, Justina Sessions, and Neha
Mehta
27 | 01-03-2023 | 03-12-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1577205/ | 151 S.W.3d 372 (2004)
STATE of Missouri, Respondent,
v.
Steven C. BOTTS, Appellant.
No. WD 62767.
Missouri Court of Appeals, Western District.
October 26, 2004.
Motion for Rehearing and/or Transfer Denied December 21, 2004.
*373 Kent Denzel, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty Gen., Deborah Daniels, Andrea K. Spillars, Leslie E. McNamara, Jefferson City, for Respondent.
Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and EDWIN H. SMITH, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied December 21, 2004.
ROBERT G. ULRICH, Judge.
Steven C. Botts appeals his conviction following a jury trial of possession of a controlled substance with the intent to distribute, section 195.211, RSMo 2000. He was sentenced as a prior and persistent offender to twenty years imprisonment. Mr. Botts asserts three points on appeal. He claims that (1) the State failed to prove beyond a reasonable doubt that he possessed the marijuana found in the master bedroom during the search of his residence, (2) the trial court committed plain error in permitting the chief of police of Eldon to testify that a confidential informant told him that Mr. Botts was selling marijuana from his home, where he kept the controlled substance, and in allowing a law enforcement officer to state that a person present at the home of Mr. Botts when the search was conducted told him that he did not live there, and (3) the trial court abused its discretion in refusing to allow him to cross examine a law enforcement officer about whether he contacted the officer after the incident and whether the officer asked him to make drug buys for him.
The judgment of conviction is reversed.
Trial Evidence Favorable to the Verdict
Eldon Chief of Police Bob Hurtubise received information on May 6, 2002, that Mr. Botts was selling marijuana from his residence and that he maintained a large quantity of the controlled substance there. *374 Chief Hurtubise obtained a search warrant and with two Eldon police officers and Jonathan Lawrence, then a law enforcement officer narcotics investigator with the Lake [Ozark] Area Narcotics Enforcement Group, executed the warrant the same afternoon. Mr. Botts resided in a trailer located within Eldon. The principal entrance to the trailer provided ingress to the living room, with the contiguous kitchen area identified as being to the north of the living room. A hallway permitted access to the rear of the trailer to the south where the large bedroom was located. A second access door to the trailer was located in the master bedroom. The hallway between the living room/kitchen area and the master bedroom provided access to two other rooms and to the single bathroom. One of the rooms served as a bedroom for Mr. Botts' fourteen-year-old daughter and her female cousin who was residing with Mr. Botts and his daughter when the warrant was executed. The second room served as a laundry room and was also used to store items.
Four law enforcement officers executed the search of the trailer where Mr. Botts lived on May 6, 2002. Chief Hurtubise and Jonathan Lawrence were the State's law enforcement witnesses. Their testimony was that when the law enforcement officers knocked at the entrance to the trailer, Mr. Botts opened the door to permit their entry. Which law enforcement officer first entered the trailer and when the remainder of the officers followed are confusing from the record. Officer Lawrence testified that when he entered the trailer, he looked down the hallway of the trailer and observed a man, necessarily Charlie Noland, on the bed in the master bedroom. Chief Hurtubise testified that after he entered, he observed Charlie Noland either standing or sitting on the couch in the living room. Because the testimony of the two state's witnesses may conflict as to Mr. Noland's location when the officers entered the trailer, Officer Lawrence's testimony about where he saw Mr. Noland upon his entry into the trailer is not favorable to the verdict and is rejected. Significant, however, is that Mr. Noland was in the trailer. Officer Lawrence testified that Charlie Noland told him that he did not live in the trailer. Mr. Botts' daughter and niece were in the bathroom when the law enforcement officers entered the trailer, and his daughter was taking a bath. The two girls were ushered into their bedroom to change, after which, all four persons remained in the living room with Chief Hurtubise while the other officers conducted the search.
A large plastic bag was found in the master bedroom that contained six other plastic bags. Four of the six smaller bags contained marijuana, all of which weighed 161.87 grams. Syringes were found in a black bag located under the bed in the master bedroom and a wooden box containing plant seeds was also found on a television stand in the same bedroom. The chemist did not testify about these items. Clothing was observed in the master bedroom that appeared to belong to a man. A smaller bag containing what may have been marijuana was found outside the trailer window of the bedroom Mr. Botts' daughter and her cousin occupied, but the drug chemist who testified for the prosecution did not testify about this substance either.
Mr. Botts was charged by amended information with possession of a controlled substance with intent to distribute. Following a jury trial, Mr. Botts was convicted of the charge and sentenced as a prior and persistent offender to twenty years imprisonment. This appeal followed.
Point One
Mr. Botts claims as his first point on appeal that the trial court erred in overruling *375 his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to prove beyond a reasonable doubt that he possessed the marijuana found in the residence. He asserts that the marijuana was located in the room used by Mr. Noland and that the evidence failed to prove that he knew of its presence and that he exercised control over it.
Standard of Review
In considering a challenge to the sufficiency of the evidence, the reviewing authority accepts as true all evidence and its reasonable inferences in a light most favorable to the verdict and rejects all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc), cert. denied, 510 U.S. 997, 114 S. Ct. 562, 126 L. Ed. 2d 462 (1993) (citation omitted). A determination is made whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt, not whether the verdict was against the weight of the evidence. State v. Smith, 944 S.W.2d 901, 916 (Mo. banc), cert. denied, 522 U.S. 954, 118 S. Ct. 377, 139 L. Ed. 2d 294 (1997); State v. Goddard, 34 S.W.3d 436, 438 (Mo.App. W.D.2000). This same standard of review applies when reviewing a motion for a judgment of acquittal. Goddard, 34 S.W.3d at 438.
Discussion
The elements of the offense of possession of marijuana with intent to distribute, section 195.211, RSMo 2000, require that the State prove that Mr. Botts possessed more than five grams of marijuana and that he knew of its presence and illegal nature. § 195.211, RSMo 2000; State v. Barber, 635 S.W.2d 342, 343 (Mo.1982). To sustain a conviction for possession of a controlled substance, the State must prove that Mr. Botts knowingly and intentionally possessed the proscribed substance. Conscious, intentional possession, either actual or constructive, must be established. Barber, 635 S.W.2d at 343. The State must also show that the defendant was aware of the presence and nature of the substances in question, and both possession and knowledge may be proved by circumstantial evidence. Id. If actual possession has not been shown, "constructive possession will suffice when other facts buttress an inference of defendant's knowledge of the presence of the controlled substance." Id. (quoting State v. West, 559 S.W.2d 282, 284 (Mo.App.1977)). Although exclusive control of the premises where controlled substances are found raises an inference of possession and control of those substances, if the premises are jointly controlled, some further evidence is necessary to connect the accused with the drugs. Id. at 343-44. "The presence of large quantities of a controlled substance may buttress such an inference if consistent with the totality of circumstances." Id. at 344.
Mr. Botts did not have actual possession of the contraband marijuana when law enforcement authorities found the substance on May 6, 2002. Thus, to convict Mr. Botts of the crime of possessing the marijuana for the purpose of distributing it, the prosecution must have presented sufficient evidence for the jury to find that he constructively possessed the substance. Constructive possession may be shown by circumstantial evidence. State v. Booth, 11 S.W.3d 887, 891 (Mo.App. S.D.2000) (quoting State v. Powell, 973 S.W.2d 556, 558 (Mo.App. W.D.1998)). The question, therefore, is whether sufficient evidence was presented by which a reasonable juror could find beyond a reasonable doubt that Mr. Botts constructively possessed the marijuana found in the master bedroom during the May 6, 2002, search of the *376 trailer. To prove constructive possession, however, the State had to prove that he consciously and intentionally possessed the substance.
The Supreme Court of Missouri addressed constructive possession in State v. Purlee, 839 S.W.2d 584, 588 (Mo. banc 1992), and stated:
[P]roof of constructive possession requires, at a minimum, evidence that defendant had access to and control over the premises where the substance was found. Defendant's exclusive control of the premises is enough to raise an inference of possession and control of the substance. Joint control of the premises, however, requires some further evidence or admission connecting the accused with the illegal drugs. It follows that merely being a guest in the premises of another where drugs are found is not sufficient to sustain a conviction for possession of controlled substances. The State must present some incriminating circumstance that implies that the accused knew of the presence of the drugs and that the same were under his control. (Internal citations omitted)
The additional evidence required when joint access by several persons to the location where contraband drugs are found includes such things as: "routine access to an area where controlled substances are found; the presence of large quantities of the substances at the scene where the accused is arrested; conduct and statement made by the accused, and a mixture of defendant's personal belongings with the substance." (Internal citations omitted). State v. Buford, 907 S.W.2d 316, 318 (Mo.App. E.D.1995).
In Buford, the defendant was charged with possessing cocaine (count 1), unlawful use of paraphernalia (count 2), and possession of over 35 grams of marijuana (count 3). The court stated that because the defendant did not have actual possession of any of the items for which he was charged, the State was compelled to prove constructive possession in each of the three counts. Id. at 318-19. The court noted that the defendant was the only person in the apartment when the search warrant was executed that produced the illegal substances for which the defendant was charged. He had routine access to the bedroom where the cocaine was found. The bed in the bedroom appeared as if the defendant had been laying on it, and a TV was turned on. The defendant acknowledged sleeping in the room where the cocaine was found. He admitted to paying rent or at least half the rent for the apartment and the telephone service. His personal belongings were mingled with the cocaine that was found. Various documents with his name on them, including a work I.D. badge, a sportsmanship award, and a receipt were found on the dresser with the cocaine. Id. at 318. The court determined that sufficient evidence was presented from which the trier of fact could determine that the defendant constructively possessed the cocaine. Id.
The court in Buford determined that sufficient evidence was presented to prove constructive possession of the drug paraphernalia charge, too. The drug paraphernalia were found in the sink during the search. The court noted that the defendant had routine access to the kitchen. Id. at 318-19. He acknowledged the presence of the scale under the sink. He had routine access to the living room where agents seized a razor blade with a small piece of crack cocaine and a glass vial. His personal items were mixed with the drug paraphernalia. A cardboard box with clothes on top of it and a glass test tube with crack cocaine residue in it were found in his bedroom closet. He told *377 agents that the test tubes were used to cook crack cocaine. Id. at 319.
Finally, the defendant in Buford was found by the court to have constructively possessed the marijuana found as a result of the search. Although the marijuana was found in a spare room in which a TV was located, the court determined that evidence was presented that the defendant was the only person living in the apartment. He was asked how to contact the person he claimed shared the apartment with him, and he declined to provide the information saying, "It's my apartment. The drugs were found in my house. And there is no need to, you know, hassle him." Id. The court noted that the admission was sufficient by itself to support the conviction regarding the marijuana. Id.
Mr. Botts' first point on appeal includes the assertion that the evidence showed that the contraband was found in the master bedroom, which was used by Mr. Noland, and the State failed to prove that he, Mr. Botts, possessed it. Mr. Botts claim is based in part on the testimony of his daughter that Mr. Noland resided in the trailer and occupied the master bedroom. Testimony from Mr. Botts' daughter was that Mr. Noland was the adult brother of Mr. Botts' best friend, who had been killed circa 1997. She testified that Mr. Noland was residing with the Botts and paying Mr. Botts rent when the search occurred. He had moved into the trailer a week or two before the search, and he occupied the master bedroom, she said. She said that her father kept his clothes in the laundry/storage room and slept in the living room on a mattress that was placed on his daughter's bed in the daytime. She testified that even before Mr. Noland moved into the trailer, her father slept in the living room because the master bedroom was hot and an air conditioner kept the living room cool. Mr. Botts' daughter also testified that Mr. Noland routinely locked the master bedroom door, and he had access to the outside through another door that allowed entry directly into the master bedroom. She also testified that Mr. Noland moved from the trailer the day after Mr. Botts' arrest.
Examining the evidence in the light most favorable to the prosecution requires rejecting the testimony of Mr. Botts' daughter that Mr. Noland lived in the master bedroom as well as Officer Lawrence's testimony that he observed Charlie Noland alone on the bed in the master bedroom, the room in which the marijuana was found, when he entered the trailer. Even disregarding this evidence, however, undisputedly Mr. Noland was present in the trailer when the search occurred, as were Mr. Botts' daughter and her cousin. Thus, three people were present in addition to Mr. Botts. Unlike Buford, Mr. Botts was not the only person living in or occupying the apartment. Joint control of the premises requires additional evidence or admission connecting the accused with the illegal drugs. Purlee, 839 S.W.2d at 588. The State must present some incriminating circumstance that implies that the accused knew of the presence of the drugs and that the same were under his control. Id. Thus, something more than Mr. Botts' ownership of the trailer and his presence in the living room of the trailer when the search occurred was required to prove that he constructively possessed the contraband substance found in the master bedroom.
The evidence upon which the State relies for sustaining the conviction is that men's clothing was found in the master bedroom, Mr. Botts owned the trailer, and he was in the living room of the trailer when the controlled substance was found. Neither witness ever saw Mr. Botts in the master bedroom. To prove that Mr. Botts had constructive possession of the controlled *378 substance found in the master bedroom, the State had to offer evidence that he knew of the presence of the drugs and that the same were under his control. Id. Mr. Botts' ownership of the trailer, the presence of men's clothing in the master bedroom and his presence in the living room, under the circumstances of this case, are insufficient to reasonably infer that the men's clothing found in the master bedroom was his. No evidence was presented to demonstrate that the clothing was Mr. Botts', not even that the size of the clothing was the same worn by Mr. Botts. Neither were personal objects, writings, documents, mail, or any other items that may have been located in the room, which could be shown to belong to Mr. Botts, were offered as evidence that Mr. Botts accessed the master bedroom. Furthermore, the amount of controlled substance (161.87 grams) was not so great that one could reasonably infer from its mere presence that Mr. Botts would know of its presence and, thus, constitute a factor in determining constructive possession of it.
The constructive possession rule requires more evidence than was presented to prove beyond a reasonable doubt that Mr. Botts knowingly possessed the contraband substance constituting the basis for the charge. Points two and three need not be addressed. The judgment of the trial court is reversed.
RONALD R. HOLLIGER, P.J. and EDWIN H. SMITH, J. concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577207/ | 35 So. 3d 910 (2010)
Walter WIESENBERG, Appellant,
v.
COSTA CROCIERE, S.p.A., Appellee.
No. 3D07-555.
District Court of Appeal of Florida, Third District.
February 24, 2010.
Opinion Denying Rehearing and Granting Certification June 2, 2010.
Michael Guilford; Philip D. Parrish, Miami, for appellant.
McAlpin Conroy and Richard J. McAlpin and Gabriela M. Prado, Miami, for appellee.
Before COPE, SHEPHERD and SUAREZ, JJ.
COPE, J.
This is an appeal of an order dismissing Walter Wiesenberg's complaint for personal injuries he sustained as a passenger on a cruise ship. We affirm the dismissal order on the theory that the forum selection clause in the cruise ticket is enforceable. The lawsuit of plaintiff Wiesenberg had to be filed in federal court.
I.
The trial court dismissed the case now before us on the theory that it was barred by res judicata. We respectfully disagree and conclude that there is no res judicata bar.
In December 2003, plaintiff Wiesenberg was a passenger on the Costa Crociere cruise ship Mediterranea. As alleged in his complaint, the plaintiff struck his leg on a misplaced lounge chair, suffering a *911 puncture which eventually required surgery.
On November 8, 2004, the plaintiff filed a complaint against Costa in state court ("the state court action"). The plaintiff accomplished service of process.
On November 9, 2004, the plaintiff filed, but did not serve, a complaint against Costa in federal court ("the 2004 federal action"). The plaintiff states that he filed two complaints because he did not have a copy of his ticket, and was unsure whether the ticket required the suit to be filed in federal court. Both cases were timely filed within the one-year statute of limitations contained in the cruise ticket.
Costa's adjuster contacted the plaintiff's counsel and they discussed the plaintiff's claim. Plaintiff's counsel believed that they had agreed that all litigation would remain in abeyance while the parties attempted to resolve the claim.[1] Various items of correspondence followed.
In March 2005, the federal district court dismissed the 2004 federal action because the plaintiff had not served the defendant within the 120 day period for service of process provided by Federal Rule of Civil Procedure 4(m). The plaintiff did not move for rehearing or file an appeal. Plaintiff's counsel states that he believed he would be allowed to reinstate the federal suit if settlement discussions proved unsuccessful. The case failed to settle.
In March 2006, the plaintiff filed a motion for relief from judgment under Federal Rule of Procedure 60, seeking relief from the dismissal order. That motion was denied. The plaintiff did not appeal.
In June 2006, the plaintiff filed a new complaint for damages in federal court ("the 2006 federal action"). This 2006 action asserted the same claim that the plaintiff had asserted in his 2004 action.
The defendant moved to dismiss the action as being time-barred by the one-year statute of limitations contained in the cruise ticket. The plaintiff argued that Costa should be estopped from raising a limitations defense on account of the alleged agreement between the parties to hold litigation in abeyance while settlement negotiations took place. The federal district court concluded that the elements of estoppel were not met, and dismissed the action.
For present purposes, it is essential to read the terms of the dismissal order. During the proceedings, the federal district court had been made aware that the plaintiff's state court action was pending. The court was also told the plaintiff maintained that the forum selection clause contained in the cruise ticket was invalid. That forum selection clause provided that any suit against the cruise line had to be brought in the United States District Court for the Southern District of Florida.
The federal district court said:
Finally, Plaintiff argues that the forum provision in the carriage agreement is invalid. Whether the forum selection provision is valid is beside the point, however, because the only issue before the Court is the limitations defense. With good reason, Plaintiff does not contend that the one-year limitations period is improper. See Levick [v. Steiner Transocean Ltd.], 377 F.Supp.2d [1251] at 1255 [(S.D.Fla.2005)] ("a shortened one-year limitations period in a cruise ticket contract is permissible."). If Plaintiff believes that the forum clause is invalid, then he can make that argument in his state court action; it is unavailing here.
*912 Wiesenberg v. Costa Crociere, S.p.A, No. 06-60961-Civ-Seitz/McAliley, Order Granting Defendant's Motion to Dismiss at 3 (S.D.Fla. Jan. 23, 2006) (emphasis added). The United States Court of Appeal for the Eleventh Circuit affirmed. Weisenberg[2]v. Costa Crociere, S.p.A., 258 Fed. Appx. 265 (11th Cir.2007).
II.
In the meantime, Costa moved to dismiss the state court action. Costa argued that the federal district court's dismissal of the 2006 federal action on the basis of the statute of limitations was res judicata and compelled dismissal of the 2004 state court action. Costa argued that this result was compelled by this court's decision in Carnival Corp. v. Middleton, 941 So. 2d 421 (Fla. 3d DCA 2006), which in turn followed Allie v. Ionata, 503 So. 2d 1237 (Fla.1987). The trial court accepted Costa's argument and dismissed the action. The plaintiff has appealed. We conclude that the trial court erred in its ruling.
Costa argues that a dismissal based on the statute of limitations constitutes an adjudication on the merits for purposes of res judicata. The Florida Supreme Court in Allie stated the general rule that "[u]nder the federal scheme ... a dismissal on statute of limitations grounds is considered a dismissal on the merits by the operation of the rule [Federal Rule of Civil Procedure 41(b)]." 503 So.2d at 1241; Carnival Corp. v. Middleton, 941 So.2d at 424-25.
There is, however, an exception. "Unless otherwise specifically exempted, a dismissal constitutes adjudication on the merits." Allie, 503 So.2d at 1242 (emphasis added). That exception is applicable here. The federal district court's order dismissing the 2006 federal action expressly stated, "If Plaintiff believes that the forum clause is invalid, then he can make that argument in his state court action...." Order Granting Defendant's Motion to Dismiss at 3. By this language the federal district court explicitly allowed the plaintiff to proceed with his 2004 state court action and argue his claim that the forum selection clause in the cruise ticket was invalid. No such circumstances were present in this court's decision in Carnival Corp. v. Middleton. As the exception applies in this case, rather than the general rule, the action should not have been dismissed on res judicata grounds.
Costa makes the additional argument that when the plaintiff appealed the dismissal of the 2006 federal action to the Eleventh Circuit, he was required to raise in that appeal his claim that the forum selection clause in the cruise ticket was invalid. That argument is without merit. The federal district court's ruling on that issue was favorable to the plaintiff, by allowing the plaintiff to proceed in state court. There is no reason for the plaintiff to appeal a ruling in his favor.
For all of these reasons, the trial court erred in dismissing the state court action on the ground of res judicata.
III.
We find it appropriate to affirm on other grounds. See Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla.1999). During the pendency of this appeal, this court upheld the validity of a forum selection clause like the one involved in this case. Leslie v. Carnival Corp., 22 So. 3d 561 (Fla. 3d DCA 2008), rehearing en banc denied, 22 So. 3d 567 (Fla. 3d DCA 2009); Spivey-Ferguson v. Carnival Corp., 22 So. 3d 567 (Fla. 3d DCA 2008), rehearing denied and question certified 22 So. 3d 567 (Fla. 3d DCA 2009). *913 We therefore affirm the dismissal order now before us.
Affirmed.
On Motion for Rehearing or Certification
COPE, J.
We deny the motion for rehearing but grant the motion for certification of a question of great public importance.
Plaintiff Wiesenberg argues that we should grant rehearing and remand the case to the trial court. The plaintiff argues that it was not established that the plaintiff ever received a ticket, or if he did, which form of ticket he received.
We cannot see that this argument was made below. In response to the defendant Costa's motion to dismiss or for summary judgment, the plaintiff made no claim that he traveled without a ticket. Indeed, the summary judgment record contains a copy of the plaintiff's federal court complaint. In federal court, the plaintiff specifically alleged that Costa had delivered to the plaintiff "a contract ticket or contract of passenger carriage[.]"
The defendant Costa also filed a copy of the standard form ticket it provided to the plaintiff. In the trial court, the plaintiff did not challenge the authenticity or text of the ticket.
The plaintiff also argues that there remains a question whether the forum selection clause adequately communicated (a) the necessity to file suit in federal court, and (b) that in federal court there would be no jury trial. However, those are the issues which divided this court in its denial of rehearing en banc in Leslie v. Carnival Corp., 22 So. 3d 567 (Fla. 3d DCA 2009). Compare id. at 574 (Shepherd, Gersten, Wells, Suarez, and Lagoa, JJ., concurring in denial of rehearing en banc) ("[U]nder federal maritime law, the passengers in these cases received the notice to which they were legally entitled.... There is no requirement under general maritime law that ticket recipients be advised of any unstated ramification of those limitations."), with id. at 585 (Cortiñas, Ramirez, Cope, Rothenberg, and Salter, JJ., dissenting from denial of rehearing en banc) ("[W]e would grant the motion for rehearing en banc and find the federal court portion of the Forum Clause at issue here is unenforceable as it operates to deprive appellants of their constitutional right to a jury trial without notice and without consent."). For the stated reasons, we deny the motion for rehearing.
The forum selection clause in this case states, in part:
(19) CHOICE OF FORUM; NO ARREST
....
(b) For cruises which depart from, return to, or make any port call at a United States port, Passenger further agrees that any suit against CARRIER shall be filed exclusively in the United States District Court for the Southern District of Florida located in Broward County, Florida, and that any such suit shall be based exclusively upon the admiralty jurisdiction of the United States District Court.
The clause now before us differs somewhat from the clause construed in Leslie. In the clause now before us, all passenger suits must be brought in admiralty in the United States District Court for the Southern District of Florida. In Leslie the forum selection clause did not specify the basis for federal jurisdiction, so that a passenger was free to rely on diversity of citizenship (where it exists) as a basis of federal jurisdiction. The difference is that the Leslie clause required some passengers (those who cannot establish diversity of citizenship) to proceed on the admiralty side of the federal district court, whereas *914 in the forum clause now before us, all passenger suits must proceed on the admiralty side of the federal district court.
As stated in our original opinion, we upheld the validity of the just-quoted forum selection clause on authority of Leslie. We certify that we have passed on a question of great public importance:
IS A FORUM SELECTION CLAUSE ENFORCEABLE IN CIRCUMSTANCES WHERE ITS EFFECT IS THAT PASSENGERS WAIVE THE RIGHT TO A JURY TRIAL BUT THE CLAUSE DOES NOT EXPRESSLY SO STATE?
Rehearing denied; question of great public importance certified.[*]
SUAREZ, J., concurs.
SHEPHERD, J., concurring in part, dissenting in part.
I respectfully dissent on granting certification in this case.[1] In my view, this is not a case of great public importance, or even great urgency. As with Leslie v. Carnival Corp., 22 So. 3d 561 (Fla. 3d DCA 2008), rehearing en banc denied, 22 So. 2d 567, the decision in this case accords with ancient concepts of freedom of contract, pursuant to which Mr. Wiesenberg and Costa Crociere have agreed the dispute between them will be resolved in a court which has existed for this purpose for more than 200 years. See Judiciary Act of 1789 Ch. 20 § 9, 1 Stat. 77 (1789); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 1-6 (4th ed.2004).
What constitutes a question of great public importance is not defined. However, we must be mindful that when the provision first appeared in the Florida Constitution in 1957, it was part of a revision and modernization of the Florida appellate structure prompted by the great number of cases reaching the Florida Supreme Court and the consequent delay in the administration of justice. Ansin v. Thurston, 101 So. 2d 808, 810 (Fla.1958). Under this revision, the Florida Supreme Court became charged to serve as a supervisory body, heavily oriented toward the preservation of uniformity of principle and practice. Id. Concomitantly, review by the district courts was thereafter intended "in most instances" to be final and absolute." Id. Undiscriminating certification of matters as being of great public importance thwarts this constitutional scheme. It also inhibits the salutary functioning of the courts of appeal of this state as legal laboratories.
The case before us is a garden variety personal injury case with a contractual twist. As a practical matter, the clause in question affects a narrow class of Costa Crociere cruise ship customersthose with a dispute arising out of their cruise experience. Although the clause is challengeable and remains so in courts outside our jurisdiction, there is no court which has reasoned to a result contrary to the one we have reached here, or in our more fulsomely reasoned decision, Leslie v. Carnival Corporation.[2] Nor is there any reason *915 to believe Mr. Wiesenberg will be mistreated or shortchanged by a judge of the United States District Court absent immediate intervention by our High Court.[3]
This may be a case of some legal panache. However, in my opinion, it is not a case of great public importance. The former, of course, is not a basis for certification.
NOTES
[1] Costa disagrees with the plaintiff's interpretation of the parties' agreement.
[2] The opinion in the federal Eleventh Circuit apparently misspelled the plaintiff's name.
[*] The question is similar, but not identical to, the question that this court certified in Spivey-Ferguson v. Carnival Corp., 22 So. 3d 566 (Fla. 3d DCA 2009). The question is worded differently because the clause is worded differently.
[1] I concur in the majority's denial of the motion for rehearing.
[2] Lest there be any confusion, see supra p. 2, the Leslie panel (and hence the en banc panel) did not have before it the question whether the contractual limitations in the cruise passenger's ticket were "reasonably communicated" to the passenger under federal maritime law. See Leslie, 22 So.3d at 562, n. 2 ("The passengers do not contest that this clause, which was referenced expressly in a bold-faced `Important Notice to Guests' on the first page of the Ticket Contract, was `reasonably communicated' to them as required by federal maritime law."). The sole issue presented in Leslie, and the cases consolidated with Leslie for en banc consideration, was whether the forum selection clause was unenforceable because it deprived some Carnival Cruise Line passengers of an absolute right to have their case decided by a jury in the United States District Court.
[3] Although cast in the idiom of jury sanctity, I deduce this is Mr. Wiesenberg's true concern. However, analyses of empirical data from federal cases compiled by the Administrative Office of the United States Courts strongly suggest otherwise. See, e.g., Theodore Eisenberg, Judicial Decisionmaking in Federal Products Liability Cases, 1978-1997, 49 DePaul L.Rev. 323, 323 (1999) ("The striking difference in trial win rates between judge and jury trials continues. Plaintiffs prevail in over 40% of the judge trials and only about 30% of the jury trials."); Carol J. DeFrances & Marika F.X. Litras, Civil Trial Cases and Verdicts in Large Counties, 1996, Bur. Justice Stats. Bul., Sept. 1999, at 1, 6 ("Plaintiffs were more likely to win in bench trial cases (62%) than in jury trial cases (49%)."); see also Thomas A. Eaton, et al., Another Brick in the Wall: An Empirical Look at Georgia Tort Litigation in the 1990s, 34 Ga. L.Rev. 1049, 1084 (2000). Moreover, Federal Rule of Civil Procedure 39(c) authorizes a claimant, such as Mr. Wiesenberg, to request a jury trial of his claim in admiralty, subject to the consent of Costa Crociere and the federal trial judge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575920/ | 17 So. 3d 1210 (2008)
Richard W. LA TRACE, Sr.
v.
Ray WEBSTER et al.
2061205.
Court of Civil Appeals of Alabama.
October 24, 2008.
Certiorari Denied March 6, 2009 Alabama Supreme Court 1080197.
*1212 Lawrence J. Seiter and Rick A. La Trace of Johnston, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellant.
William H. Atkinson of Fite, Davis, Atkinson, Guyton & Burt, P.C., Hamilton, for appellees.
THOMAS, Judge.
Richard W. La Trace, Sr., appeals from an order of the Marion Circuit Court entering a summary judgment in favor of Ray Webster, Deborah Webster, Bo Webster, and Laura Webster (collectively "the Websters"), the owners and operators of B & B Antiques & Auctions ("B & B"), on all nine claims brought by La Trace arising out of several purchases that La Trace made at a March 2000 auction. We affirm in part, reverse in part, and remand.
La Trace filed a complaint on February 22, 2005, in which he named as defendants "B & B Antiques, Auction & Realty, LLC," the Websters, and several fictitiously named defendants. La Trace claimed that he had attended a B & B auction conducted over several days in March 2000 and had purchased a number of items, including five lamps that were identified at the auction as "Tiffany" lamps and one lamp shade that was also identified at the auction as a "Tiffany" product (hereinafter, the lamps and the lamp shade will be referred to collectively as "the lamps"). La Trace spent a total of $56,200 on the lamps.
La Trace claimed that a B & B brochure had attracted him to the auction. La Trace also claimed that, in August 2003, he had contacted Fontaine's Auction Gallery in Pittsfield, Massachusetts, to inquire about selling the lamps in an auction. La Trace claims that Fontaine's sent Dean Lowry, an expert in Tiffany products, to *1213 examine La Trace's lamps and that Lowry determined that the lamps were not authentic Tiffany products but were, in fact, reproductions. Based on those facts, La Trace presented in his complaint various claims against the defendants, including claims alleging fraudulent suppression, fraudulent misrepresentation, breach of warranty, breach of contract, negligence, wantonness, and a violation of § 8-14-23, Ala.Code 1975. La Trace filed an amended complaint on March 31, 2005, in which he claimed that, before the auction, Willis McKiness had sold, transferred, or consigned to B & B the lamps that La Trace had purchased, and La Trace added McKiness as an additional defendant. The defendants answered the amended complaint on June 6, 2006.
On April 26, 2007, the Websters filed a motion for a summary judgment. The Websters first claimed in their motion for a summary judgment that B & B was not a limited liability company and that the named defendant, "B & B Antiques, Auction & Realty, LLC," was not an existing legal entity. The Websters argued that "B & B Antiques, Auction & Realty, LLC," should be dismissed from the case as a defendant.
The Websters next argued that all La Trace's claims, except for his § 8-14-23 claim, were barred by various disclaimers, warnings, and provisions of which the Websters had made La Trace aware and to which La Trace had explicitly agreed. The Websters attached to their motion for a summary judgment a sample of the brochure that initially attracted La Trace to the auction at issue, and they pointed out that the brochure contained the following statement under the heading "Conditions of Sale":
"1. All property is sold AS IS WHERE IS, and we make NO guarantees, warranties or representations, expressed or implied, with respect to the property or the correctness of the catalog or other description of authenticity of authorship, physical condition, size, quality, rarity, importance, provenance, exhibitions, literature or historical relevance of the property or otherwise. No statement anywhere, whether oral or written, shall be deemed such a guarantee, warranty or representation. Prospective bidders should inspect the property before bidding to determine the condition, size and whether or not it has been repaired or restored and no refunds or credits shall be issued."
(Capitalization in original.)
The Websters also attached to their summary-judgment motion a document entitled "Conditions of Auction," which the Websters claim La Trace signed before the March 2000 auction. That document contained the following provisions, among others:
"1. All property is sold AS IS, WHERE IS, and we make NO guarantees, warranties or representations, expressed or implied, with respect to the merchandise. This includes but is not limited to the correctness of the catalog, authenticity of merchandise as to age, quality, description, rarity, size, importance, provenance, physical description, historical relevance, condition, or authorship of any property. NO statement anywhere, whether oral or written, shall be deemed such a guarantee, warranty or representation.
". . . .
"3. Prospective Bidders should inspect the property before bidding to determine the condition, size, age, provenance, artist, and whether or not merchandise has been repaired or restored. The Bidder is solely responsible for determining the condition of all merchandise to his or her satisfaction. *1214 B & B Antiques & Auctions are not and cannot be held responsible for the determination of the Bidder as to any condition, age or provenance of the merchandise. NO refunds or credits shall be issued."
(Capitalization in original.)
The Websters also attached copies of the individual sales slips/receipts that memorialized the transfer of the merchandise from B & B to La Trace. Those sales slips all contained the following provision: "ALL [MERCHANDISE] SOLD AS IS. ALL GUARANTEES MADE BETWEEN SELLER & BUYER. WE ACT AS AGENTS ONLY." (Capitalization in original.)
In addition, the Websters attached to their motion for a summary judgment the affidavit of Willis McKiness, in which McKiness stated, in part:
"I did, in fact, consign to [B & B] all of the lamps which were signed Tiffany as well as many other signed items. Having dealt with this type of merchandise for many years, I believed all of the goods to be authentic and informed the Websters that I believed the goods, including the lamps, to be authentic."
The Websters argued in their motion for a summary judgment that any oral representations made by the Websters in regard to the quality or authenticity of the lamps contradicted the clearly written conditions of the auction, which disclaim any express or implied warranties regarding merchandise purchased at the auction. The Websters argued that, because La Trace knew of and agreed to those conditions before participating in the auction, those written conditions superseded any oral representations, precluding La Trace from recovering on any of his claims except for the § 8-14-23 claim. As to the § 8-14-23 claim, the Websters argued that § 8-14-23 was simply inapplicable to the present case.
La Trace filed a brief in opposition to the Websters' motion for a summary judgment, in which he argued that his claims were not barred by the conditions of the auction and that § 8-14-23 was applicable to the items he purchased at the auction. La Trace also filed an affidavit in support of his motion. In his affidavit, La Trace acknowledged that he had signed the "Conditions of Auction" document before participating in the auction. La Trace stated that the lamps that he purchased were not available for inspection before the auction. He also stated in his affidavit that when the lamps were brought out, the auctioneer instructed the auction participants not to handle the lamps because they were fragile. La Trace stated that when the lamps were auctioned off, the auctioneer identified the items as "Tiffany" items. La Trace stated that he had bid for and purchased the lamps based on the fact that the lamps had been represented to be Tiffany products. La Trace also stated that, after the auction was over, he had asked either Laura Webster or Deborah Webster whether the lamps he had purchased were authentic and that Laura or Deborah had assured him that the items he had purchased were authentic Tiffany products.
On July 9, 2007, the trial court entered the following judgment:
"This matter coming on or before the Court upon the Motion for Summary Judgment filed by the [Websters], and after consideration of said Motion, Narrative Summary and Exhibits, the opposition Brief and Exhibits of [La Trace], as oral argument by Attorneys for the parties, and the pleadings in this cause, the Court is of the opinion that said Motion for Summary Judgment is well taken and due to be granted.
*1215 ". . . .
"B & B Antiques, Auctions and Realty, LLC, is a nonexistent entity therefore the case against B & B Antiques, Auctions and Realty, LLC is dismissed.
"On January 4, 2006, the Defendant Willis McKiness died in the state of Georgia. A suggestion of death was properly filed on January 11, 2006. No action has been taken by [La Trace] to revive the action against the estate of Willis McKiness; therefore, the case against Willis McKiness is dismissed.
"[La Trace] attended and registered as a bidder at three (3) auctions which were conducted by [the Websters]. At all three auctions, [La Trace] signed and acknowledged the conditions of auction. . . .
"Sales Brochures were distributed at each of the three auctions which contained a half page listing of conditions of sale. . . .
"When [La Trace] purchased items at the second and third auctions he received a sales slip for the items he purchased which stated `all merchandise sold as is, all guarantees made by the seller and buyer. We act as agents only.' [La Trace] was familiar with and fully aware of the conditions of sale. Many items were made available for inspection prior to the auction in question. At no time did [the Websters] represent that they had ever sold authentic Tiffany lamps, had any special knowledge of authentic Tiffany lamps, or had done any investigation to determine whether or not these lamps were authentic. In reviewing the [Websters'] motion the Court has reviewed the record in a light most favorable to [La Trace], the nonmoving party, and has resolved all reasonable doubts concerning the existence of a genuine issue of material fact against the [Websters], the moving party.
"The items auctioned were consigned items. Statements made by the auctioneer were based upon what he or she had been told by the owner of the property. Despite all the warnings printed in the brochure and placed on the bidder agreement, [La Trace] decided to bid on and ultimately purchase the items in question.
"It is the policy of Courts not only to discourage fraud but also to discourage negligence and inattention to one's own interest. [La Trace] knowingly and intelligently acknowledged by signing the bidder form that he had been informed of the possibility that the items were not as represented. [La Trace] had a duty to exercise some measure of precaution to safeguard his interests. The circumstances are such that a reasonable, prudent person who exercised ordinary care would have conducted an independent investigation into the authenticity of the items in question.
"[La Trace] blindly trusted where he should not and closed his eyes when ordinary diligence required him to see.
"It is therefore Ordered, Adjudged and Decreed that there is no genuine issue as to any material fact and that the [Websters] are entitled to a judgment as a matter of law. Accordingly, the [Websters'] Motion for Summary Judgment is hereby granted and this cause is hereby dismissed with prejudice, with costs taxed to . . . [La Trace]."
La Trace timely appealed the trial court's final judgment to the supreme court. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975. On appeal, La Trace argues that the trial court erred in entering a summary judgment on his claims against the Websters.
*1216 Standard of Review
Appellate review of a summary judgment is de novo. Ex parte Ballew, 771 So. 2d 1040 (Ala.2000). A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c)(3); see Lee v. City of Gadsden, 592 So. 2d 1036, 1038 (Ala.1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by `substantial evidence.'" Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989); see § 12-21-12(d), Ala.Code 1975.
The Breach-of-Warranty, Breach-of-Contract, and Fraudulent-Misrepresentation Claims
La Trace first argues that the disclaimers relied upon by the Websters were not effective to bar his breach-of-warranty, breach-of-contract, and fraudulent-misrepresentation claims under §§ 7-2-313 and 7-2-316, Ala.Code 1975, part of Alabama's version of the Uniform Commercial Code ("UCC"). We agree. Although La Trace denominates his breach-of-warranty, breach-of-contract, and fraudulent-misrepresentation claims as distinct claims, for the purposes of this case and as discussed below, the determination of whether the trial court properly entered a summary judgment as to each of those three claims rests on whether the alleged statements by the Websters could have created express warranties under the UCC. Accordingly, we will analyze those three claims together. See Gable v. Boles, 718 So. 2d 68 (Ala. Civ.App.1998) (employing a breach-of-warranty analysis under § 7-2-313 to determine whether a buyer had a valid fraud claim in a dispute over a boat sale).
Sales at auction and the creation and disclaimer of warranties in the sale of goods are governed by the UCC. See §§ 7-2-328, 7-2-313, and 7-2-316, Ala. Code 1975; Travis v. Washington Horse Breeders Ass'n, Inc., 111 Wash.2d 396, 759 P.2d 418 (1988). In Travis, the Supreme Court of Washington held that a statement made at auction that a horse was "healthy and fit for racing and breeding purposes" was an express warranty that was not negated by disclaimers of warranty contained in the "Conditions of Sale" of the auction catalogue. 111 Wash.2d at 404, 759 P.2d at 422. Quoting from the Washington version of § 2-316(1) of the UCC (which is identical to § 7-2-316(1), Ala. Code 1975), the court explained:
"`Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but . . . negation or limitation is inoperative to the extent that such construction is unreasonable.'
". . . .
"See White & Summers, Uniform Commercial Code 430 (2d ed.1980):
"`If the factfinder determines that a seller's statement created an express warranty, words purportedly disclaiming that warranty will have no effect, *1217 for the disclaiming language is inherently inconsistent.'"
111 Wash.2d at 404-05, 759 P.2d at 422.
Section 7-2-313 governs the creation of express warranties in a sale of goods and provides:
"(1) Express warranties by the seller are created as follows:
"(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
"(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
"(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
"(2) It is not necessary to the creation of an express warranty that the seller use formal words such as `warrant' or `guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty."
Section 7-2-316(1) provides that an express warranty cannot be disclaimed by language in a sales contract:
"Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this article on parol or extrinsic evidence (Section 7-2-202) negation or limitation is inoperative to the extent that such construction is unreasonable."
(Emphasis added.)
La Trace alleged in his complaint that the Websters described the lamps that he bought as "Tiffany" products during the auction. Alabama courts have held that statements by a seller that are mere sales talk or "puffery" do not give rise to express warranties. See Gable v. Boles, 718 So. 2d 68 (Ala.Civ.App.1998). Examples of puffery include statements describing an item as "in good shape," Scoggin v. Listerhill Employees Credit Union, 658 So. 2d 376, 377 (Ala.1995), or "in good condition," Pell City Wood, Inc. v. Forke Bros. Auctioneers, Inc., 474 So. 2d 694, 695 (Ala. 1985). On the other hand, as provided in § 7-2-313, representations of fact do give rise to express warranties. Gable, 718 So.2d at 70. This court has held that a statement by a seller of a boat to the effect that the boat was "winterized" was a statement of fact. Id. at 71. Similarly, this court has held that a statement by a seller of a trailer that the trailer was a 2000 model-year trailer was a statement of fact. Terrell v. R & A Mfg. Partners, Ltd., 835 So. 2d 216, 227 (Ala.Civ.App.2002).
The Websters do not dispute that the description of the lamps as "Tiffany" products was an affirmation of fact or a "description of the goods." The Websters claim, however, that the description of the lamps as "Tiffany" products did not become part of the basis of the bargain because La Trace signed the conditions of auction before any potential express warranties could be made, effectively rendering such warranties inoperative. In support of their argument, the Websters cite Pell City Wood, 474 So.2d at 695. However, Pell City Wood is inapposite to the facts of this case.
*1218 In Pell City Wood, James Smith purchased at an auction a truck that later needed significant and expensive repairs. Smith was attracted to the auction by a brochure that listed the truck he ultimately purchased. Smith alleged that the brochure made certain factual assertions concerning the condition of the truck and that the auctioneer made several statements concerning the truck, including that "`the trucks are in good condition'" and that "`the trucks are ready to work tomorrow.'" 474 So.2d at 695. The supreme court held that the statements made by the auctioneer were at best puffery and did not give rise to any express warranties. Id. As to the statements in the brochure that Smith claimed gave rise to express warranties, the supreme court noted that, in the same document, the auction company had included a statement that any descriptions of the items being sold were to be used "only as a guide." Id. at 696. The supreme court held that the descriptions were not presented as being accurate and that those descriptions, therefore, did not give rise to any express warranties. Id. at 695-96.
In this case, however, unlike in Pell City Wood, the alleged representations that the lamps were "Tiffany" products took place during the auction and were not accompanied by any qualifying statements indicating that the authenticity of the lamps was in doubt. Although the disclaimers that appeared in the sales brochure and the "Conditions of Auction" document may have been effective, pursuant to Pell City Wood, to prevent the formation of any express warranties that might otherwise have arisen in those documents, nothing in the language or holding of Pell City Wood indicates that a disclaimer in a document is effective to prevent a seller from making express warranties in the future. In fact, the supreme court, in Pell City Wood, took pains to emphasize that other than the statements of puffery made by the auctioneer, no representations regarding the condition of the truck were made at the auction. Id. at 695.
Further, part of the Official Comment to § 7-2-313, which we find instructive in the present scenario, appears to contradict the Websters' argument:
"No specific intention to make a warranty is necessary if any of these factors is made part of the basis of the bargain. In actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement. Rather, any fact which is to take such affirmations, once made, out of the agreement requires clear affirmative proof. The issue normally is one of fact.
"4. In view of the principle that the whole purpose of the law of warranty is to determine what it is that the seller has in essence agreed to sell, the policy is adopted of those cases which refuse except in unusual circumstances to recognize a material deletion of the seller's obligation. Thus, a contract is normally a contract for a sale of something describable and described. A clause generally disclaiming `all warranties, express or implied' cannot reduce the seller's obligation with respect to such description and therefore cannot be given literal effect under Section 7-2-316."
(Emphasis added.) In Balog v. Center Art Gallery-Hawaii, Inc., 745 F. Supp. 1556, 1563-64 (D.Haw.1990), a federal district court held that a seller's statement that a piece of artwork was produced by Salvador Dali was a "core description" that was "nondisclaimable" under the UCC. The court explained:
*1219 "The foundation of every express warranty provision is the core description. See U.C.C. § 2-313, Comments 1 and 4. `A 1990 Toyota,' `a pair of shoes,' or `a Monet' are all examples of core descriptions. The core description, at base, provides a reference point for the level of performance to which the seller's performance must conform. And, because it is assumed under the Code that the object of every sale regulated by the Code is describable, the core description is nondisclaimable by a seller, being the basic foundation upon which every sales contract is made. Cf., Bill Spreen Toyota, Inc. v. Jenquin, 163 Ga.App. 855, 294 S.E.2d 533 (1982) (disclaimer of warranties ineffective to prevent action for fraud when car purchased was not a Toyota as expressly warranted, but was one-half of such a car welded to one-half of another unidentified vehicle)."
745 F.Supp. at 1563-64. This court can reach no conclusion but that the lamps in this case were sold with the core description of Tiffany products.
The Websters present no other relevant citations that support their argument that the alleged descriptions of the lamps at the auction did not give rise to express warranties concerning the lamps. On the basis of §§ 7-2-313 and 7-2-316, therefore, we conclude that La Trace's allegations regarding the statements made at the auction are sufficient to support his claim that express warranties arose from the Websters' description of the lamps as Tiffany products.
We note that in conjunction with their motion for a summary judgment the Websters did not present any evidence challenging the factual basis of La Trace's claims of breach of warranty, breach of contract, and fraudulent misrepresentation, namely that the Websters actually represented the lamps to be Tiffany products, that they reassured La Trace of the same after the auction, and that the lamps are not, in fact, authentic Tiffany products. The Websters argued at trial and argue on appeal that the affidavit of Willis McKiness constituted evidence indicating that the lamps were authentic Tiffany products. However, McKiness did not assert in his affidavit that the lamps were authentic, only that he "believed" them to be authentic at the time he consigned them to B & B. Because McKiness made no claim in his affidavit that the lamps were authentic, his affidavit does not constitute evidence indicating that the lamps are, in fact, authentic. See Hall v. Harris, 504 So. 2d 271, 273 (Ala.1987) (stating that "[s]peculation and subjective beliefs are not the equivalent of personal knowledge and do not satisfy the requirements of Rule 56(e)[, Ala. R. Civ. P.]").
Because the Websters presented no evidence negating La Trace's factual claims and because we have concluded that the Websters' legal arguments in regard to the breach-of-warranty claim are not well-founded, we must also conclude that the Websters failed to establish a prima facie case that there was no genuine issue of material fact and that they were entitled to a judgment as a matter of law. Accordingly, we reverse the trial court's judgment in regard to La Trace's breach-of-warranty, breach-of-contract, and fraudulent-misrepresentation claims.
The Fraudulent-Suppression Claim
With respect to La Trace's fraudulent-suppression claim, we affirm the trial court's judgment. The elements of a fraudulent-suppression claim are "`(1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; and (4) action by the plaintiff to his or her *1220 injury.'" Freightliner, L.L.C. v. Whatley Contract Carriers, L.L.C., 932 So. 2d 883, 891 (Ala.2005)(quoting Lambert v. Mail Handlers Benefit Plan, 682 So. 2d 61, 63 (Ala.1996)). La Trace argues that the Websters fraudulently concealed the fact that they had never sold Tiffany lamps before the auction in question and, therefore, La Trace says, that they had no experience in determining the authenticity of such lamps. "Silence is not actionable fraud absent a confidential relationship or some special circumstances imposing a duty to disclose." Wilson v. Brown, 496 So. 2d 756, 759 (Ala.1986). La Trace presented no evidence of a confidential relationship or other circumstance imposing upon the Websters a duty to disclose. Therefore, we affirm the trial court's judgment as to La Trace's fraudulent-suppression claim.
The § 8-14-23 Claim
La Trace next argues that the trial court erred in entering a summary judgment on his § 8-14-23 claim. Section § 8-14-23 provides:
"Any person, firm, or corporation selling, disposing of, or offering for sale at public auction any gold, silver, plated ware, precious stones, watches, clocks, jewelry, bric-a-brac, china, or glassware shall be truthful in describing the same with respect to the character, quality, kind, and description of the same, which, for the purpose thereof, shall be considered as warranties."
We note initially that, although La Trace lists his § 8-14-23 claim as a separate cause of action, that statute does not, by itself, appear to give rise to any cause of action. Section 8-14-23 is one of a series of three statutes still in force that were originally enacted in 1923 under the title: "An act to regulate the sale at public auction of gold, silver, plated ware, precious stones, watches, clocks, jewelry, bric a brac, china, glassware, and to provide penalties for the violation thereof." Act No. 522, Ala. Acts 1923 (hereinafter "the 1923 Act"). The portions of the 1923 Act still in force prohibit, in addition to the activities prohibited by § 8-14-23, the use by auctioneers of false bidders, § 8-14-22, Ala.Code 1975, and provide criminal penalties for violations of the provisions of the Act, § 8-14-24, Ala.Code 1975. The record makes clear that La Trace neither seeks to enforce against the Websters the criminal penalties found in § 8-14-24 nor argues that he would have the authority to do so. La Trace fails to cite any authority that recognizes a personal right of action arising out of § 8-14-23. When reviewing a case on appeal, "`it is not the function of this Court to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.' Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala.1994)." Butler v. Town of Argo, 871 So. 2d 1, 20 (Ala.2003); see also Rule 28(a)(10), Ala. R.App. P. Therefore, because La Trace fails to support with relevant authority his § 8-14-23 argument, we affirm the judgment of the trial court insofar as it entered a summary judgment as to any separate claim brought under § 8-14-23.
The Negligence and Wantonness Claims
Finally, La Trace argues that the trial court erred in entering a summary judgment on his negligence and wantonness claims. In their motion for a summary judgment, the Websters presented no argument that they were entitled to a summary judgment as to La Trace's negligence and wantonness claims. In fact, the only reference to those claims in the Websters' summary-judgment motion is found in the following sentence: "Based upon the *1221 documentary evidence, and the affidavits presented in support thereof, there is no dispute of a material fact which would prevent this Court from granting Summary Judgment as to all causes of action stated in [La Trace's] complaint." As this court has explained, "[a] mere general denial, without more, does not automatically entitle a movant to a judgment as a matter of law." Clark v. Hackett, 674 So. 2d 1306, 1309 (Ala.Civ.App.1995). The Websters' summary-judgment motion presents, at best, a general denial of liability for negligence and wantonness arising out of the sale of the lamps, and it fails to establish a prima facie case for a summary judgment on those issues. Accordingly we reverse the trial court's judgment as to La Trace's negligence and wantonness claims.
Because we have reversed the trial court's summary judgment as to La Trace's breach-of-warranty, breach-of-contract, fraudulent-misrepresentation, negligence, and wantonness claims, we remand the case to the trial court for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
THOMAS, J., concurs specially.
THOMAS, Judge, concurring specially.
I concur in the main opinion; however, I further note that, even if the Websters were correct that the alleged statements made during the auction could not have established express warranties, La Trace's allegation that one of the Websters assured him after the auction that the lamps were "the real thing" is sufficient to support a claim that an express warranty was created. Although the alleged statement that the lamps were "the real thing" occurred after the sale, such a statement could have constituted a modification of the contract between La Trace and the Websters that would have added an express warranty that the lamps were indeed "the real thing." Section 7-2-209(1), Ala. Code 1975, a part of Alabama's version of the Uniform Commercial Code ("the UCC") provides that "[a]n agreement modifying a contract within this article needs no consideration to be binding." A portion of the Official Comment to § 7-2-313 provides guidance on this point:
"The precise time when words of description or affirmation are made or samples are shown is not material. The sole question is whether the language or samples or models are fairly to be regarded as part of the contract. If language is used after the closing of the deal (as when the buyer when taking delivery asks and receives an additional assurance), the warranty becomes a modification, and need not be supported by consideration if it is otherwise reasonable and in order (Section 7-2-209)."
(Emphasis added.)
In deciding whether to buy the lamps, La Trace could not have relied on any statements made after the sale; therefore, such statements lend no support for his fraudulent-misrepresentation claim. However, pursuant to the interpretation of §§ 7-2-209 and 7-2-313 found in the above-quoted Official Comment, I conclude that La Trace's allegation that one of the Websters assured him after the auction that the lamps were the "real thing" provides additional support for his breach-of-warranty and breach-of-contract claims. Unlike the reliance element necessary to a common-law fraud claim, "`the determining factor in [a UCC case] is not reliance by the purchaser on the seller's warranty, but whether it is part of the "basis of the bargain."'" Massey-Ferguson, Inc. v. Laird, 432 So. 2d 1259, 1261 (Ala.1983) *1222 (quoting Winston Indus., Inc. v. Stuyvesant Ins. Co., 55 Ala.App. 525, 530, 317 So. 2d 493, 497 (1975)). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575984/ | 743 N.W.2d 554 (2007)
Amber I. GABORIT, Petitioner-Appellant
v.
EMPLOYMENT APPEAL BOARD, and Sabre Communications Corporation, Respondents-Appellees.
No. 07-0773.
Court of Appeals of Iowa.
November 15, 2007.
*555 William J. Niebel of Iowa Legal Aid, Sioux City, for appellant.
Anita M. Garrison, Employment Appeal Board, Des Moines, for appellee.
Sabre Communications Corporation, pro se.
Considered by SACKETT, C.J., and VAITHESWARAN and BAKER, JJ.
BAKER, J.
Amber Gaborit appeals from the district court ruling that upheld the Employment Appeal Board's denial of her claim for unemployment compensation benefits. Because we find her final absence was excused as a matter of law, we reverse.
I. Background and Facts
Amber Gaborit was hired by Sabre Communications Corporation on a part-time basis on May 23, 2005. She became a full-time order entry assistant on September 26, 2005. In both May and September of 2005, she signed an acknowledgment of receipt of Sabre's attendance *556 policy. The policy states in pertinent part that employees are expected to attend work as scheduled, that absences must be reported at least thirty minutes prior to the start of a scheduled shift, and that "[e]xtended absences that last 8 consecutive hours or less cannot be excused unless accompanied by a doctor's note or other form of verification" (although it is unclear from the record whether Sabre in fact regularly required employees to provide a doctor's excuse for such absences to be excused).
Both parties testified that Gaborit was absent from work on several occasions due to illness and various personal reasons, e.g., childcare issues, sick children, moving. No evidence was presented, however, regarding specific dates or reasons for Gaborit's absences. Sabre's Human Resources Manager, Maria Harder, testified that she was unable to provide the exact dates of actual unexcused absences because she did not bring Gaborit's attendance records to the unemployment appeal hearing. Gaborit testified that she sometimes obtained prior approval for these absences, and she admitted that she had received verbal warnings from her manager about her attendance, e.g., she was warned to get a back-up for her childcare.
On April 11, 2006, Gaborit received her first written disciplinary warning, which stated in part, "any unexcused time off in the future may result in additional disciplinary action up to and including termination of employment. All future time off for illness will require a Doctor's note to be considered excused." On May 15, 2006, Gaborit was absent from work due to illness and properly reported her absence to Sabre. Gaborit did not see a doctor. When she returned to work on May 16, she was allowed to work her shift. According to Harder, they "waited until the end of the day to ask Amber whether or not she was able to provide us a doctor's note." Because she did not provide a doctor's note, Gaborit was discharged from employment.
Gaborit filed a claim for unemployment insurance benefits. An Iowa Workforce Development representative found her ineligible because her discharge was for "violation of a known company rule." Gaborit appealed. The administrative law judge found that, although she was absent from work due to illness, she was disqualified for benefits because "she did not provide the medical documentation as stated in the company policy." Gaborit appealed to the Employment Appeal Board (Board), who affirmed the decision of the administrative law judge (with one member dissenting). Gaborit's application to the Board for rehearing was denied. Gaborit filed a petition for judicial review. The district court affirmed. Gaborit appeals, contending she is entitled to unemployment benefits because her final absence was excused as a matter of law and because the agency's determination that she committed work-related misconduct was not supported by substantial evidence.
II. Merits
Our review is governed by the Administrative Procedure Act. Iowa Code ch. 17A (2005); Acuity Ins. v. Foreman, 684 N.W.2d 212, 216 (Iowa 2004). We review the district court's decision by applying the standards of section 17A.19 to agency action to determine if our conclusions are the same as those reached by the district court. Univ. of Iowa Hosps. & Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004). We are bound by the agency's findings of fact if those findings are supported by substantial evidence when the record is reviewed as a whole. Sharp v. Employment Appeal Bd., 479 N.W.2d 280, 282 (Iowa 1991). We are not, however, *557 bound by the agency's legal conclusions; we may correct misapplications of the law. Iowa Code § 17A.19(10)(c). Gaborit contends she is entitled to unemployment benefits because her final absence was excused as a matter of law. We agree.
Unemployment statutes "should be interpreted liberally to achieve the legislative goal of minimizing the burden of involuntary unemployment." Cosper v. Iowa Dep't of Job Serv., 321 N.W.2d 6, 10 (Iowa 1982). Pursuant to Iowa Code section 96.5(2), an individual is disqualified for unemployment compensation benefits if "the individual has been discharged for misconduct in connection with the individual's employment."
"Misconduct" is defined as a deliberate act or omission by a worker which constitutes a material breach of the duties and obligations arising out of such worker's contract of employment. Misconduct [is] limited to conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of employees.
Iowa Admin. Code r. 871-24.32(1).
Excessive unexcused absenteeism is an intentional disregard of the duty owed by the claimant to the employer and shall be considered misconduct except for illness or other reasonable grounds for which the employee was absent and that were properly reported to the employer.
Iowa Admin. Code r. 871-24.32(7) (emphasis added); see also Cosper, 321 N.W.2d 6, 10 (quoting with approval In re Therrien, 132 Vt. 535, 325 A.2d 357, 358 (1974) ("Absences . . . for good cause, with appropriate notice, are not misconduct. They may be grounds for discharge, but not for penalty. Substantial disregard for the employer's interest is not shown, and this is essential to a finding of misconduct.")).
We are bound by the Employment Appeal Board's findings that Gaborit was absent on May 15, 2006, due to illness and that she notified Sabre in advance of her absence. See Sharp, 479 N.W.2d at 282 (noting we are bound by the agency's findings of fact that are supported by substantial evidence). Were it not for the doctor's note requirement, the absence would have been excused for purposes of unemployment benefits.[1]
To determine whether Gaborit's last absence, for which she did not present the required doctor's note, constituted misconduct, we must first determine whether our unemployment laws define "unexcused" or whether the employer may graft additional requirements to define what is "unexcused." We hold that our legislature, through the Iowa Code and the Iowa Administrative Code, defines an unexcused absence for unemployment compensation eligibility purposes.
The issue is not whether Sabre had reasonable grounds for discharging Gaborit. "What constitutes misconduct justifying termination of an employee, and what is misconduct which warrants denial of unemployment benefits are two separate decisions." Brown v. Iowa Dep't of Job Serv., 367 N.W.2d 305, 306 (Iowa Ct.App. 1985). "Misconduct serious enough to warrant the discharge of an employee is not necessarily serious enough to warrant a denial of benefits." Budding v. Iowa Dep't of Job Serv., 337 N.W.2d 219, 222 (Iowa Ct.App.1983). The issue is whether *558 those grounds constituted misconduct in connection with her employment such that she can be denied unemployment benefits. See Beaty v. City of Idaho Falls, 110 Idaho 891, 719 P.2d 1151, 1152 (1986).
Other states have similarly determined that their unemployment statutes, as opposed to the employer's rules, define misconduct. See, e.g., id. (refusing to hold that "any discharge that is reasonably based on the employer's own rules will always result in a denial of . . . employment benefits"); Simmons v. Dep't of Employment, 99 Idaho 290, 581 P.2d 336, 338 (1978) ("Violation of an employer's rule is not, per se, misconduct."); City of Wichita v. Employment Sec. Bd., 13 Kan. App. 2d 729, 779 P.2d 41, 45 (1989) (holding claimant who had one sip of beer while on duty, in violation of employer's work rule, did not commit misconduct within meaning of statute); Cabezas v. Adm'r, Div. of Employment Sec., 557 So. 2d 985, 988 (La.Ct. App.1990) ("Whether a violation of the employer's rule, resulting in discharge warrants the withholding of unemployment compensation benefits must be determined, not by the employer's rules, but by the statute."); Moore v. Maine Dep't of Manpower Affairs, Employment Sec. Comm'n, 388 A.2d 516, 519 (Me.1978) ("denial of benefits based on misconduct should be determined not by the employer's rules, but rather by the provisions of the statute"); Fitzgerald v. Globe-Union, Inc., 35 Wis. 2d 332, 151 N.W.2d 136, 140 (1967) ("While the violation of a work rule may well justify the discharge of an employee, such a violation does not necessarily amount to misconduct for unemployment compensation purposes.").
Because the Iowa Code and the Iowa Administrative Code define unexcused absences for unemployment compensation purposes, our remaining question is whether Gaborit's absence was unexcused within the meaning of the statutes. Because the statutes exclude properly reported absences due to illness from the definition of unexcused absences, and Gaborit was ill and properly reported her absence, we hold that her final absence was excused as a matter of law. Gaborit is not disqualified for benefits due to misconduct.
The Board cites Warrell v. Iowa Dep't of Job Serv., 356 N.W.2d 587, 590 (Iowa Ct. App.1984), to support its contention that the April 11, 2006 written warning "was, in essence, a last chance agreement." In Warrell, we held that, where an employee had been previously warned about misconduct and placed on probation, and the employee did not comply with the conditions of probation, the employee "had long since forfeited rights that a nonprobationary employee has." Warrell, 356 N.W.2d at 590. We disagree with the Board that the same principle is applicable in this case. The facts in Warrell involve an employee who "had been suspended three times, placed on probation three times, and was on probation when the final offensive conduct took place." Id. In contrast, Gaborit had not been suspended or placed on probation. She had been verbally counseled regarding her attendance, and had received only one written warning prior to her termination. Further, the employer could not even identify how often Gaborit had been absent, or the dates of her previous absences, or whether the employer considered them to be excused or unexcused. We find the principles of Warrell inapplicable to the facts of this case.
Because we hold that Gaborit is entitled to unemployment benefits because her final absence was excused as a matter of law, we need not reach the issue of whether the agency's determination that she committed work-related misconduct was supported by substantial evidence.
REVERSED.
*559 VAITHESWARAN and BAKER, JJ., concur.
SACKETT, C.J., dissents.
SACKETT, C.J. (dissenting).
I respectfully dissent. I would affirm the agency and the district court. The district court concluded that:
Given the nature of the April 11th, 2006, disciplinary warning notice there can be no doubt that any absences for illness after April 11th without an accompanying doctor's note would not be tolerated by the employer. Whether or not Ms. Gaborit felt the doctor's note requirement was reasonable, she testified that she knew on May 15, 2006, that she needed a doctor's note in order for her absence to be considered as excused. Clearly, there is substantial evidence that Ms. Gaborit's failure to produce a doctor's note was intentional and constituted substantial misconduct which, given the context of her actions, is serious enough to warrant denial of benefits. The agency's application of the law to the facts is not irrational, illogical, or wholly unjustifiable. Nor is the agency's decision unreasonable, arbitrary, capricious, or an abuse of discretion.
I agree with the district court on this issue and do not find that the May 15 absence was excused as a matter of law.
NOTES
[1] We do not define "properly reported" under the Iowa Administrative Code as the Board found that Gaborit properly notified her employer and this finding was not contested by the employer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646266/ | 9 So.3d 614 (2009)
LESLIE
v.
STATE.
No. SC09-709.
Supreme Court of Florida.
April 22, 2009.
Decision without published opinion. Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1578708/ | 12 So. 3d 907 (2009)
James C. HOAG, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-5387.
District Court of Appeal of Florida, Second District.
July 8, 2009.
DAVIS, Judge.
In a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), James C. Hoag alleged that numerous errors appearing on his 1994 guidelines scoresheet resulted in an illegal sentence. We reverse the postconviction court's order *908 summarily denying Mr. Hoag's motion to the extent that it denied relief on his claim that the severity level of an additional offense was incorrectly scored. The order is affirmed in all other respects without comment.
Mr. Hoag was convicted of second-degree murder and attempted second-degree murder and was sentenced to concurrent terms of 28.1 years and fifteen years, respectively. On his 1994 guidelines scoresheet for the primary offense of second-degree murder, the offense of attempted second-degree murder was listed as an additional offense and scored as a level 9 offense for 10.8 points. However, under the applicable statutes and rules and as apparent on the face of the scoresheet, the offense of attempted second-degree murder should have been scored as a level 8 offense for 9.6 points. See §§ 777.04(1), 782.04(2), 921.0012(3)(j), Fla. Stat. (1995); Fla. R.Crim. P. 3.702(c) & (d)(6), 3.990; see also Hoag v. State, 801 So. 2d 207 (Fla. 2d DCA 2001). As a result, 1.2 points were erroneously added to Mr. Hoag's scoresheet total.
As originally scored, Mr. Hoag's total sentencing points equaled 298, resulting in a recommended state prison sentence of 270 months, with a permissible sentencing range between 202.5 and 337.5 months. For the primary offense of second-degree murder, Mr. Hoag was sentenced to the maximum 337.5 months or 28.1 years. Had the additional offense of attempted second-degree murder been scored correctly, Mr. Hoag's total sentencing points would have been 296.8, with a maximum permissible sentence of 336 months or twenty-eight years. Thus Mr. Hoag's sentence for second-degree murder exceeded the maximum permissible sentence by 0.1 years.
Errors in offense-level scoring are cognizable in a rule 3.800(a) motion. See Herrmann v. State, 768 So. 2d 511 (Fla. 2d DCA 2000). However, "if the trial court could have imposed the same sentence using a correct scoresheet, any error was harmless." Brooks v. State, 969 So. 2d 238, 243 (Fla.2007). When a defendant is sentenced to the maximum guidelines sentence, a scoresheet error that improperly adds sentencing points to the total requires resentencing using a corrected scoresheet. See Mitchell v. State, 880 So. 2d 1261, 1262 (Fla. 2d DCA 2004) ("[T]he scoresheet error resulted in the imposition of a sentence that could not have been imposedabsent a departure under a correct scoresheet.... Accordingly, we reverse and remand for the trial court to resentence Mitchell under a corrected scoresheet."); see also Pantle v. State, 784 So. 2d 1139 (Fla. 2d DCA 2001).
In this case, the scoresheet error was not harmless because the trial court could not have imposed a 28.1-year sentence using a correct scoresheet reflecting a maximum guidelines sentence of twenty-eight years.[1] Accordingly, Mr. Hoag is entitled to be resentenced using a corrected scoresheet scoring the additional offense of attempted second-degree murder as a level 8 offense.
Affirmed in part, reversed in part, and remanded.
ALTENBERND and CASANUEVA, JJ., Concur.
NOTES
[1] The record before us does not indicate that the trial court made any findings that would justify a departure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1023399/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1175
D. ALAN THOMAS, Esq.; JOHN ISAAC SOUTHERLAND,
Esq.,
Appellants.
---------------------------------------------
SYLVIA SHATZ; ANDREW SHATZ, her husband,
Plaintiffs - Appellees,
versus
FORD MOTOR COMPANY, a Delaware corporation,
Defendant.
No. 06-1857
D. ALAN THOMAS, Esq.; JOHN ISAAC SOUTHERLAND,
Esq.,
Appellants.
---------------------------------------------
SYLVIA SHATZ; ANDREW SHATZ, her husband,
Plaintiffs - Appellees,
versus
FORD MOTOR COMPANY, a Delaware corporation,
Defendant.
Appeals from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Frederick P. Stamp,
Jr., District Judge. (3:01-cv-00047-FPS)
Argued: May 23, 2007 Decided: August 7, 2007
Before WIDENER,1 MICHAEL, and TRAXLER, Circuit Judges.
Reversed by unpublished per curiam opinion.
ARGUED: Rebecca A. Betts, ALLEN, GUTHRIE, MCHUGH & THOMAS,
P.L.L.C., Charleston, West Virginia, for Appellants. Christopher
L. Brinkley, MASTERS LAW FIRM, L.C., Charleston, West Virginia, for
Appellees. ON BRIEF: Stephanie D. Thacker, Peter G. Markham,
ALLEN, GUTHRIE, MCHUGH & THOMAS, P.L.L.C., Charleston, West
Virginia, for Appellants.
Unpublished opinions are not binding precedent in this circuit.
1
Judge Widener heard oral argument in this case but did not
participate in the decision. The opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
2
PER CURIAM:
The district court reprimanded and censured Alan Thomas and
John Isaac Southerland, trial attorneys for Ford Motor Company, for
improper conduct in the jury room after the jury had been
discharged, and ordered them to pay attorney’s fees and expenses in
the amount of $14,655.40. Thomas and Southerland appeal, and we
reverse.
I.
Sylvia and Andrew Shatz brought a products liability action
against Ford in West Virginia. With Thomas acting as lead trial
counsel and Southerland assisting, Ford secured a defense verdict.
After the jury was discharged, the courtroom clerk asked counsel
for both parties to assist in removing exhibits from the jury room.
On an easel in the jury room in plain view was a flip chart
reflecting the jurors’ views on the evidence presented in the case.
Thomas asked Southerland to copy the notes from the flip chart for
assistance in future cases. According to Southerland, he was
“simply taking notes from the flip chart and . . . was not aware of
any problem in doing so.” J.A. 28. Eventually, Southerland left
after being told that the courtroom was closing.
Three days later, the district judge was advised by a law
clerk that she saw someone copying notes from the jury’s flip chart
in the jury room after trial, but that she did not know who he was.
3
Based on this information, the district court issued an order
directing the parties to identify the person in the jury room and
his affiliation with the parties, and scheduled a hearing “to
determine what action, if any, should be taken.” J.A. 20.
Thomas responded that Southerland copied the notes at his
request, “[o]ut of curiosity, for professional information, and for
personal development purposes.” J.A. 22. Thomas indicated that he
did not “attempt to be secretive nor did [he] believe there was any
prohibition given the completion of the jury’s deliberations and
the discharge of the jury,” or that “there were any court rules or
regulations that were violated either by letter or in spirit.”
J.A. 22-23. Nevertheless, he apologized to the court for any
misunderstanding and provided his own and Southerland’s affidavits
regarding the incident as well as the only copy of the notes made
concerning the jury’s flip chart. Plaintiffs’ counsel submitted
affidavits denying involvement in the incident.
At the hearing, the district judge adopted the facts as set
forth in the affidavits and assumed for purposes of the hearing
that court personnel had asked the attorneys to retrieve their
exhibits from the jury room themselves. However, the district
judge admonished counsel that the court itself had not given the
lawyers permission to enter the jury room or copy the jury’s notes
from the easel. Based upon its review of the notes taken by
Southerland, the court found that the flip chart reflected the
4
jury’s thoughts during deliberations and may have represented the
jurors’ division prior to unanimity. The court then concluded that
Thomas and Southerland had violated the spirit, if not the letter,
of Local Rule 47.01, which prohibits an attorney from
“communicat[ing] or attempt[ing] to communicate with any member of
the jury regarding the jury’s deliberations or verdict without
obtaining an order allowing such communication.” N.D. W. Va. Local
R. Gen. P. 47.01. The court determined that by reading and copying
the jury’s notes on the easel, Thomas and Southerland essentially
communicated with the jury without the court’s permission.
Moreover, the district court found that Thomas and Southerland, by
intentionally copying the notes, acted in bad faith, engaged in
professional misconduct, and breached their professional
responsibilities. Citing his powers under his inherent authority
and 28 U.S.C.A. § 1927 (West 2006), the judge reprimanded and
censured both Thomas and Southerland and found them jointly and
severally liable for attorneys’ fees and costs incurred by
plaintiffs in responding to the court’s order and attending the
hearing.
After the hearing, the district court filed a written order
memorializing his findings. In the written order, the judge
concluded that Thomas and Southerland’s conduct was improper under
not only Local Rule 47.01 but also Federal Rule of Evidence 606(b),
which generally prohibits the use of juror testimony about matters
5
occurring during deliberations to challenge a verdict. The court
explained that
clear and convincing evidence shows that Mr. Thomas and
Mr. Southerland have engaged in conduct that, from an
objective standpoint, falls short of the obligations owed
to the Court, to opposing counsel and to the jurors in
this action. By failing in such obligations, Mr. Thomas
and Mr. Southerland have required this Court to hold
additional proceedings, have complicated the grounds for
post-verdict motions, have violated the sanctity of the
jury room and have interfered with this Court’s ability
to achieve an orderly and expeditious disposition of this
case, which necessarily continues through the time
available for post-verdict motions.
J.A. 146 (citation omitted). By separate orders, the judge granted
attorneys’ fees and costs to the plaintiffs in the amount of
$14,655.40 but denied the plaintiffs’ motion for a new trial.
Thomas and Southerland appeal.2
II.
We review the district court’s decision to impose sanctions
under its inherent authority for abuse of discretion. See Chambers
v. NASCO, Inc., 501 U.S. 32, 55 (1991); Chaudhry v. Gallerizzo, 174
2
Thomas and Southerland filed a notice of appeal on November
23, 2005, appealing the October sanction order. Because the
October order did not set the amount of the sanctions, the
plaintiffs filed a motion with this court seeking to dismiss the
appeal as interlocutory. The district court’s order became final
in March 2006, when the court set the sanction amount, and Thomas
and Southerland timely appealed that order as well. While Thomas
and Southerland’s November 2005 notice of appeal may have been
premature, they filed a second notice of appeal from a final
appealable order, and the appeals have been consolidated.
Accordingly, we deny the plaintiffs’ motion to dismiss.
6
F.3d 394, 410 (4th Cir. 1999). A court abuses its discretion when
its ruling is based “on an erroneous view of the law or on a
clearly erroneous assessment of the evidence.” Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405 (1990).
A.
The district court has the inherent authority to impose
sanctions against a party who “has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons.” Chambers, 501 U.S. at 45-46
(internal quotation marks omitted). This inherent authority
“extends to a full range of litigation abuses.” Id. at 46. At the
hearing, the district judge ruled that Thomas and Southerland had
acted in bad faith, although the court did not repeat this finding
in its subsequent written order. We view the written order as
supplementing the court’s oral rulings during the hearing.
Accordingly, we review his finding of bad faith for clear error.
The district court found Thomas and Southerland’s conduct
objectively sanctionable because the court viewed the copying of
the jury’s notes as an improper invasion of the jury’s
deliberations. In support, the court cited Rakes v. United States,
169 F.2d 739 (4th Cir. 1948), a case dealing with improper contact
with jurors after a trial; Local Rule 47.01, which also addresses
contact with jurors; and Federal Rule of Evidence 606(b), which
generally prohibits a juror from testifying about matters occurring
during deliberations in hearings to challenge a verdict.
7
We disagree. First, Local Rule 47.01 is aimed at preventing
lawyers, without permission of the court, from bothering jurors
after they have completed their service by writing them or
attempting to talk to them. See Rakes, 169 F.2d at 745-46; N.D. W.
Va. Local R. Gen. P. 47.01. And, Rule 606 restricts what a juror
can testify to in proceedings to set aside a verdict. See Fed. R.
Evid. 606(b). Neither of these concerns were implicated, however,
by counsel’s conduct here. Not only was no juror contacted, but it
is doubtful that any juror ever knew what transpired. There was no
harassment of any juror by the attorneys, nor has there been any
effort by Thomas or Southerland to challenge the verdict on the
basis of what the jurors wrote. In short, we find nothing in the
record to support the district court’s determination that Thomas or
Southerland engaged in conduct that is prohibited by these rules.
The district court also viewed the attorneys’ actions as an
invasion of the sanctity of the jury room and the jury’s
deliberations. We cannot agree. The jury had finished its
deliberations, reported its verdict, been discharged, and left the
building. No effort was made by the jurors to obliterate anything
written on the easel or to otherwise conceal or destroy the
information recorded thereon. The notes were left where anyone
coming into the jury room could have seen and read them. We have
found no rule or law that makes sanctionable the viewing or copying
of jurors’ notes after the case has ended, nor are we aware of any
8
authority that confers per se confidentiality upon discussions in
a jury room.
Additionally, we see nothing in the record suggesting bad
faith. Indeed, these attorneys were invited into the jury room by
a representative of the court after the jury had been discharged.
Moreover, the notes on the top sheet of the flip chart were plainly
exposed to the view of anyone who entered the jury room. We cannot
fault the lawyers for seeing what was in front of them and
remembering what they had seen. Any error, therefore, would have
to be in peeking under the top sheet and in copying that
information, and in this we simply can find no grievous harm.
In sum, we see no factual or legal basis for concluding that
counsel acted in bad faith or abused the litigation process, nor do
we find any basis for concluding that counsel violated the rules
cited by the district court or engaged in conduct otherwise
deserving of sanctions under the inherent power of the court.
B.
For similar reasons, we cannot affirm the district court’s
conclusion that the sanctions were authorized by 28 U.S.C.A.
§ 1927. Section 1927 provides:
Any attorney or other person admitted to conduct cases in
any court of the United States . . . who so multiplies
the proceedings in any case unreasonably and vexatiously
may be required by the court to satisfy personally the
excess costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct.
9
28 U.S.C.A. § 1927. Section 1927 requires “a finding of counsel’s
bad faith as a precondition to the imposition of fees.” See
Chaudhry, 174 F.3d at 411 n.14 (internal quotation marks omitted).
Mere negligence will not support an imposition of sanctions under
§ 1927. See United States v. Wallace, 964 F.2d 1214, 1219 (D.C.
Cir. 1992). Section 1927 authorizes sanctions only when counsel’s
bad faith conduct multiplies the proceedings, resulting in excess
costs for the opposing party.
In our view, § 1927 provides no basis for the sanctions
imposed by the district court because it is triggered by
subjective bad faith. See Chaudhry, 174 F.3d at 411 n.14; Blair v.
Shenandoah Women’s Center, Inc., 757 F.2d 1435, 1438 (4th Cir.
1985) (concluding that evidence was sufficient to show “subjective
bad faith” and supported sanctions imposed by the district court);
see also Hilton Hotels Corp. v. Banov, 899 F.2d 40, 45 n.9 (D.C.
Cir. 1990) (“[S]ection 1927 applies only when the attorney acts in
subjective bad faith.”). As stated above, there is no evidence of
subjective bad faith on the part of either attorney. In fact, the
evidence is uncontradicted that the lawyers were motivated by a
desire for general professional development rather than any purpose
related to this particular case. Consequently, the district court
committed clear error in finding that Thomas and Southerland acted
in bad faith and abused its discretion in awarding attorney’s fees.
10
III.
Finally, we note that this problem could have been avoided had
the clerk of court properly performed his responsibility of
retrieving the evidence and exhibits from the jury room and
returning them to the attorneys in the courtroom. It is the duty
of the clerk of court to see that those items admitted into
evidence, and only those items, are taken to the jury room for the
jury’s use during its deliberation, see United States v. Lentz, 383
F.3d 191, 213-14 (4th Cir. 2004), and we believe it is likewise the
duty of the clerk of court to return those items to the courtroom
after the trial has ended.
IV.
Accordingly, we reverse the district court’s order censuring
and reprimanding the attorneys, and imposing sanctions against
Thomas and Southerland in the amount of $14,655.40.
REVERSED
11 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2720052/ | Filed 8/21/14 Pricaspian Development v. Ficeto CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
PRICASPIAN DEVELOPMENT B239435
CORPORATION,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC396756)
v.
TODD FICETO et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael C. Solner, Judge. Affirmed.
Baker, Keener & Nahra, Robert C. Baker and R. Jeffrey Neer for Plaintiff and
Appellant.
Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg,
Gary S. Lincenberg and Thomas V. Reichert for Defendants and Respondents.
_______________________________________
Plaintiff and appellant Pricaspian Development Corporation (Pricaspian)
invested $12 million in three offshore hedge funds managed by Absolute Capital
Management Holdings Limited (Absolute), a company for which Florian Homm was
the Chief Investment Officer. Unbeknownst to Pricaspian, Homm also a partner with
Todd Ficeto in a broker-dealer in California called Hunter World Markets (HWM).
HWM not only traded stocks; it also did business as an investment banker. Homm,
Ficeto, Absolute, and HWM were allegedly engaged in a complicated fraud scheme in
which they used the Absolute funds to invest in small thinly-traded over-the-counter
stocks, for which they themselves possessed warrants. Homm, Ficeto and HWM
allegedly engaged in numerous trades of the stocks with Absolute funds on both sides of
the same trade, designed to artificially inflate the prices of the stocks while also
generating commissions. Defendants were then able to exercise their warrants to obtain
high quantities of the stocks at prices far lower than the inflated prices at which the
stocks were trading. They then sold the stocks to the Absolute funds, realizing profits.
Eventually, the scheme collapsed in September 2007, when Homm suddenly
resigned from Absolute and disappeared. At that time, it was discovered that the
Absolute Funds were invested in highly-overvalued positions in the small corporations.
When the dust cleared, all of the Absolute funds had lost more than 50% of their value.
Pricaspian had lost nearly $7 million of its $12 million investment.
2
Pricaspian brought the instant action against Homm, Ficeto, and HWM. Homm
did not appear at trial and is not a party to this appeal.1 The jury returned a special
verdict, concluding that Homm had committed fraud. The jury also found that HWM
had conspired with Homm, and was equally liable for the fraud. As we shall discuss,
the jury’s verdict was inconsistent as to Ficeto, and prompted the trial court to
tentatively grant a new trial as to him.
However, at the request of HWM and Ficeto, the trial court delayed ruling on the
new trial motion until it could hear the motion of HWM and Ficeto for judgment
notwithstanding the verdict (JNOV) on the basis of insufficient evidence. Ultimately,
the trial court granted that JNOV motion, on the basis that Pricaspian had failed to
establish that any of the losses it had suffered were due to the defendants’ wrongdoing,
as opposed to market factors or other non-fraudulent causes of loss. The court denied
Pricaspian’s motion for new trial as moot.
Pricaspian appeals. We conclude the trial court did not err in granting JNOV.
We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Pricaspian Invests in the Absolute Funds
Pricaspian is an oil and gas company; its president and chief executive officer is
Jack Grynberg. Grynberg sought to invest some of Pricaspian’s capital, and a friend
recommended that he speak with Homm. Grynberg met with Homm, who made a
1
For this reason, references to “defendants” refer only to Ficeto and HWM.
3
lengthy presentation to him regarding Absolute and some of the Absolute funds.
Subsequently, Homm sent Grynberg various offering memoranda and disclosures
regarding the funds. Grynberg agreed to invest.
While it was alleged that several misrepresentations or concealments of material
facts induced Grynberg to invest, key for our purposes was that Homm had failed to
disclose that he was a 50% partner, with Ficeto, in HWM. On the contrary, Homm
specifically assured Grynberg that he had no interest in any broker-dealer whatsoever.
Grynberg testified that he would not have invested any of Pricaspian’s money in the
Absolute funds had he known of Homm’s interest in a broker-dealer – specifically, an
interest in a broker-dealer which would be used to perform trades for the Absolute
funds.
In August 2005, Pricaspian invested $3 million in the Absolute Octane Fund,
$4 million in Absolute’s European Catalyst Fund, and $3 million in the Absolute
East/West Fund. There were several other Absolute funds which Homm managed;
Pricaspian invested only in the three identified funds. In April 2006, after Pricaspian
received statements indicating its investments were doing well, Pricaspian invested an
additional $2 million in the Absolute Octane Fund, giving it a total investment of
$5 million in that fund.
2. Pricaspian’s Losses
We need not discuss the evidence of fraud in any great detail, beyond the
evidence relevant to the causation of damages. The following facts, however, are not in
dispute: (1) Pricaspian received regular statements indicating that the investments were
4
doing well;2 (2) in September 2007, Grynberg learned that Homm had resigned from
Absolute; (3) the stock for Absolute itself immediately dropped 70% in value;
(4) Pricaspian sought to liquidate its investments in the Absolute funds; (5) this did not
occur – the funds held many illiquid positions and Absolute could not cash out the
investments; and (6) over the course of two years, Pricaspian received payments from
the funds which totaled $5,245,239.16.
It was not until early 2009 that Grynberg learned that Homm had been
a 50% partner in HWM. Thereafter, Pricaspian filed the instant action3 and engaged in
discovery to determine exactly what had become of its investment. The documentary
evidence is far from complete.4 Nonetheless, a picture of flagrant market manipulation
emerges.
3. The Market Manipulation
The fraud occurred with respect to stocks in small corporations, known
colloquially as “microcaps,” which Ficeto defined as companies with capitalizations
2
In May 2006, it received a statement indicating its $12 million investment had
increased in value to over $16 million.
3
In February 2011, the Securities and Exchange Commission brought suit against
Ficeto, Homm, HWM, and others for violations of federal securities laws. At the trial in
the instant matter, out of the presence of the jury, two individuals who had worked for
HWM asserted their Fifth Amendment privilege against self-incrimination, due to
ongoing criminal investigations.
4
Pricaspian, in a motion in limine, sought terminating sanctions against Ficeto and
HWM for failing to disclose documents ultimately determined to be in their possession.
The motion was denied, but the jury was instructed that if a party intentionally
concealed or destroyed evidence, the jury could decide the evidence would have been
unfavorable to that party.
5
under $1 billion.5 These microcap stocks were not traded on any exchange. Instead,
they were considered over-the-counter stocks. When such stocks were traded, each
trade needed a specific buyer and a specific seller. The prices for these stocks are listed
on a quotation medium, such as the “Pink Sheet” or “OTC Bulletin Board.” HWM was
considered a “market maker” in the microcap stocks at issue in this case. This means
that HWM itself maintained an inventory in the stocks, and always posted prices to buy
and sell each of these stocks.
While the prices at which the microcap stocks were quoted each day were
relevant to the next day’s trading, the prices at which they closed at the end of every
month were significant for other reasons. Specifically, the Absolute funds, which were
invested in these stocks, were valued at the end of each month. High prices at the end
of the month enabled Homm to report to investors in the Absolute funds that the values
of those funds were increasing. More than that, though, manipulating the prices of the
microcaps enabled HWM to profit by the exercise of warrants.
The market manipulation scheme generally operated as follows: (1) HWM, as
investment banker, would agree to obtain funding for a new microcap; (2) HWM would
obtain the funding by eliciting investments from the Absolute funds; (3) in exchange for
obtaining this funding, HWM would receive a substantial commission, and warrants to
obtain future stock in the corporation; (4) HWM and Absolute, together, would have the
5
Ficeto testified that the term “penny stock” would be incorrect in this case, as
penny stocks are defined as those worth less than $5 per share, and some of the stocks
with which we are concerned traded for more than that.
6
Absolute funds engage in many trades6 of the microcap’s stock, in order to raise the
price of the stock and generate commissions for HWM; (5) when the stock price was
high enough, HWM would exercise its warrants, obtaining more stock in the microcap
at a price much lower than the “market price” which HWM itself had set; (6) HWM
would then sell the stock to the Absolute funds, generating a profit.7
This manipulation was executed by means of a secret line of communication
between HWM and Absolute. Broker-dealers are required to monitor and keep records
of all of their correspondence with clients. HWM had a system to properly monitor and
record all of its electronic communications. However, HWM also had a second,
unmonitored, instant message system by which it communicated with Absolute. Colin
Heatherington was the individual at Absolute who used the secret instant messaging
system; he communicated with Tony Ahn at HWM. Frequently, at the end of the
month, Heatherington would indicate to Ahn the closing prices he wanted for each of
6
Ficeto testified that a “cross trade” is when the same party buys and sells shares
of the same stock – in other words, when the same party is on both sides of the
transaction. Interestingly, the individuals at HWM and Absolute who were involved in
the trades referred to trades between Absolute funds as “cross” trades. In other words,
those individuals did not consider trades between Absolute funds as arm’s-length
transactions between different legal entities (the different funds), but instead, as
cross-trades in which the same party (Absolute) was on both sides of the transaction.
7
Ficeto testified that when HWM sold its shares to the Absolute funds, it always
did so at a reduced price. For example, if HWM exercised its warrant at $1.33, while
the market price of the stock was $3.82, HWM would sell its shares to the Absolute
funds at $1.50 or $1.75. This assumes, however, that $3.82 is a real market price, and
not a price falsely inflated by HWM and Absolute. Indeed, if the true value of the stock
was less than $1.50, HWM would still have profited at the expense of the Absolute
funds – selling them a worthless stock at an inflated price.
7
the microcaps; Ahn would then perform the trades necessary to reach those prices. By
means of this instant messaging system, Heatherington and Ahn also discussed
increasing commissions on certain trades, and decreasing the commissions when other
individuals at Absolute complained. It is apparent, from reviewing excerpts from the
instant message records, that Heatherington and Ahn believed these instant messages
would never be reviewed by regulators or made public, as their discussions of the
market manipulation therein are blatant.8
Further details of the fraudulent scheme are unnecessary to our analysis, as we
are concerned solely with the issue of damages.
4. Evidence of Damages
At trial, Pricaspian proceeded on the theory that, since Grynberg would not have
invested in the Absolute funds at all had Homm’s involvement in HWM been disclosed,
Pricaspian should be entitled to recover the entire amount of its lost investment in the
Absolute funds. Defendants argued, however, that Pricaspian should recover only the
8
For example, on July 30, 2007, Heatherington gave Ahn a list of closing prices to
be obtained. He told Ahn to “buy whatever it takes” to drive the prices up. The
purchases were all made by one of the Absolute funds. At one point, Ahn said he was
having difficulty reaching the requested closing price of 37 cents for one of the stocks,
stating, “I have bought over 150k,” and that the price was not increasing. When Ahn
asked if he should keep going, Heatherington said, “sure.” On October 12, 2006, after
Ahn informed Heatherington that a microcap had last traded at $1.75, Heatherington
requested a “3 close.” Ahn stated he “would probably need to do a cross [¶] is that ok?”
Heatherington said it was “not a problem” and Ahn agreed to have the trade done before
the close. About a week later, that same stock was trading at $4. Heatherington stated
“we will need to move it back down,” and Ahn agreed to “put a small cross to get it
back to 3.” At another time, when Ahn was having difficulty obtaining a closing price
Heatherington requested, Ahn asked, “how much stock can I cross, I need to make it
seem some[wh]at believable . . . . ”
8
losses related to the fraud. Defendants elicited testimony that neither Grynberg nor
Pricaspian’s expert could testify as to whether the Absolute funds in which Pricaspian
had invested had gained or lost money on the microcap stocks in which the funds had
invested through HWM. Indeed, Pricaspian’s expert admitted that he could not
determine whether the Absolute funds gained or lost money from the market
manipulation.9
This much is clear: the Absolute funds were invested in many stocks other than
the microcaps they had invested in through HWM. Thus, some of Pricaspian’s losses
may have been due to a decrease in the value of other, legitimate, investments. At trial,
there was no attempt to either determine the precise losses attributable to the market
manipulation or to make a reasonable estimate as to the percentage of the Absolute
funds’ losses which were related to the manipulation.
5. The Trial and Verdict
Pricaspian brought the instant action against Homm, Ficeto, and HWM. The
case was tried to a jury on Pricaspian’s causes of action against Homm for fraud by
9
As we shall discuss, both parties had mistaken the proper measure of damages.
While Pricaspian was incorrect in believing it could recover all of the damages lost by
its investment in Absolute funds, defendants were equally incorrect in believing
Pricaspian could (if supported by the evidence) recover its share of the losses the
Absolute funds, in which he invested, had suffered as a result of the market
manipulation. As we shall explain, Pricaspian was only entitled to recover its out of
pocket losses for the fraud – measured by the difference between what Pricaspian had
invested and the value of what Pricaspian received at the time of its investment. Losses
to the value of the Absolute funds as a whole were losses that could only be recovered
by the funds themselves (or the shareholders in a derivative action), not by Pricaspian in
an individual action.
9
misrepresentation, fraud by concealment, and conversion; the jury was also asked
whether Ficeto and/or HWM were co-conspirators with Homm, such that they were
equally responsible for Homm’s torts. Finally, the jury was asked to determine whether
there was clear and convincing evidence that any of the defendants had acted with
malice, fraud or oppression sufficient to warrant an award of punitive damages.
The jury concluded that Homm was liable for fraud by misrepresentation, fraud
by concealment, and conversion. It concluded that HWM, but not Ficeto, had conspired
with Homm with respect to the fraud by misrepresentation and fraud by concealment,
but not the conversion. The jury calculated Pricaspian’s compensatory damages to be
$1,200,000. The jury also concluded that all three defendants were liable for punitive
damages – even though Ficeto had been exonerated from liability for compensatory
damages. Because of this disparity, the trial court chose to solicit, and grant, Ficeto’s
motion for JNOV with respect to punitive damages. After a brief trial on punitive
damages; the jury awarded $2 million each against Homm and HWM.
6. Post-Trial Motions
On August 11, 2011, Pricaspian filed a notice of intention to move for a new trial
on several bases, including that the trial court erred in its disposition of the inconsistent
verdicts against Ficeto. Ficeto and HWM opposed the motion. In addition, on
August 29, 2011, Ficeto and HWM moved for JNOV, on the basis of insufficient
evidence with respect to damages.10
10
Pricaspian suggests that defendants’ motion for JNOV was untimely, as it was
filed more than 15 days after Pricaspian’s motion for new trial. This is incorrect.
10
The trial court initially indicated its tentative view that Pricaspian’s motion for
new trial against Ficeto should be granted. The court correctly recognized that, when
the jury’s verdict is inconsistent, the proper remedy is for the court to reinstruct the jury
and seek clarification. (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 301.)
Having failed to do so, the court is not permitted to choose which of two inconsistent
jury findings should be disregarded. (Shaw v. Hughes Aircraft Co. (2000)
83 Cal.App.4th 1336, 1346.) Instead, the matter must be retried. (Lambert v. General
Motors (1998) 67 Cal.App.4th 1179, 1186.)
When the trial court indicated its intention to grant the new trial, defendants
requested that the trial court first rule on their motion for JNOV, as the grant of JNOV
would moot the need for a new trial. The trial court agreed, and stated that it would
resolve both motions together.
Thereafter, the trial court granted defendants’ motion for JNOV, on the basis that
the evidence “adduced at trial, through both the plaintiff and [its] expert, did not
establish that [Pricaspian] suffered any dam[a]ges due to the wrongoing of either [Ficeto
A motion for JNOV “shall be made within the period specified by [Code of Civil
Procedure s]ection 659 . . . in respect of the filing and serving of a notice of intention to
move for a new trial.” (Code Civ. Proc., § 629.) Code of Civil Procedure section 659
provides that a such a notice is to be filed and served either before the entry of judgment
or within 15 days after mailing or service of notice of entry of judgment, “provided, that
upon the filing of the first notice of intention to move for a new trial by a party, each
other party shall have 15 days after the service of that notice” to also file a notice.
(Code Civ. Proc., § 659, subd. (a).) The 15-day period in which a party may file
a notice of intention after another party has so filed is an extension of the statutory
period, not a limitation thereof. Defendants’ motion for JNOV was filed before entry of
judgment; it was therefore timely under the statutory language.
11
or HWM].” Judgment was therefore entered in favor of Pricaspian against only Homm.
Pricaspian filed a timely notice of appeal.
ISSUE ON APPEAL
The sole issue necessary for the resolution of the instant appeal is whether the
trial court erred in granting JNOV for defendants. As we conclude Pricaspian failed to
prove any legally cognizable damages it suffered on an individual basis, as opposed to
damages suffered as a shareholder in the Absolute funds, we affirm.
DISCUSSION
1. Standard of Review
On appeal from a court’s grant of JNOV, “ ‘ “the trial court may not weigh the
evidence or judge the credibility of the witnesses, as it may do on a motion for a new
trial, but must accept the evidence tending to support the verdict as true, unless on its
face it should be inherently incredible. Such order may be granted only when,
disregarding conflicting evidence and indulging in every legitimate inference which
may be drawn from plaintiff’s evidence, the result is no evidence sufficiently substantial
to support the verdict. [¶] On an appeal from the judgment for defendant
notwithstanding the verdict, the appellate court must read the record in the light most
advantageous to the plaintiff, resolve all conflicts in his favor, and give him the benefit
of all reasonable inferences in support of the original verdict. . . .” ’ ” (Stubblefield
Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 703.)
In the instant case, the jury concluded that HWM had conspired with Homm and
was therefore liable for his fraud. Because of the inconsistent verdict with respect to
12
Ficeto, we consider the verdict as though the jury had concluded that Ficeto was also
liable for Homm’s fraud.11 Specifically, we consider whether there is any evidence
sufficient to support an award of damages against HWM and Ficeto in connection with
Homm’s fraud by misrepresentation or concealment.
2. Damages for Fraud
“Under California law, a party asserting fraud must establish that its damages are
the ‘proximate’ or ‘legal’ result of the fraudulent conduct. [Citations.] Moreover,
California law generally limits a defrauded party to recovering out-of-pocket damages,
as stated in Civil Code section 3343. [Citation.] The out-of-pocket rule ‘ “is directed to
restoring the plaintiff to the financial position enjoyed by him prior to the fraudulent
transaction, and thus awards the difference in actual value at the time of the transaction
between what the plaintiff gave and what he received.” ’ [Citation.]” (OCM Principal
Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835,
869-870.)
When a plaintiff alleges that it has suffered damages because the defendants
manipulated the price of a stock in which the plaintiff invested, the plaintiff may not
recover the entire purchase price of the stock less any money it received from selling the
stock. Instead, the plaintiff is entitled to damages measured by the difference in value
between the price paid by the plaintiff for the stock and its value when it was purchased.
11
Putting it another way, we consider whether any evidence could have supported
a jury verdict against Ficeto for fraud, even though the jury’s verdict was inconsistent
on this issue.
13
(Gutterman v. Gally (1933) 131 Cal.App. 647, 652.) This is a straightforward
application of the out-of-pocket rule discussed above; it is the difference in actual value
at the time of the transaction that determines damages. If the stock purchased by the
plaintiff in reliance on the fraudulent misrepresentation (or concealment) was, at the
time of the purchase, actually worth what the plaintiff paid for it, the plaintiff was not
damaged by the purchase “for even though [it] would not have bought [the shares] had
[it] known the truth, [it] nevertheless received property as valuable as that with which
[it] parted.” (Gagne v. Bertran (1954) 43 Cal.2d 481, 491 [discussing the rule in the
context of a purchase of land].)
In this case, Pricaspian failed to establish recoverable damages for Homm’s fraud
(which would be imputed to Ficeto and HWM through the conspiracy finding).
Pricaspian submitted evidence that it was induced to invest in the Absolute funds by
Homm’s fraud; Pricaspian could therefore recover the difference between the
$12 million it invested and the actual value of the shares of the Absolute funds
purchased at the time of the purchase. Pricaspian made no attempt to introduce
evidence of this second amount. Instead, Pricaspian took the position that, since it
received only $5,245,239.16 when the funds were liquidated, its damages could be
measured by the difference between those two figures. This is incorrect. There is no
evidence that Pricaspian’s shares in the Absolute funds were only worth $5,245,239.16
at the time of the investment; indeed, all of the evidence indicates that the loss in value
to those shares occurred years later. Moreover, Pricaspian introduced no evidence
14
supporting the conclusion that, at the time of its investment, the Absolute funds’ shares
were not worth the $12 million paid for them.
Pricaspian argues, however, that any failure of proof on the issue of damages
should be charged against defendants, as they failed in discovery to disclose the
evidence which would have enabled Pricaspian to establish specific damages.
Specifically, Pricaspian argues that defendants failed to disclose the “trade tickets” for
all of the trades in the microcap stocks at issue. Had the trade tickets been disclosed,
Pricaspian could have determined “the exact detail for each and every trade made by
HWM on behalf of [the Absolute funds] for each of the [microcaps] at issue.”
Yet this argument raises a further issue. Pricaspian did not invest in the
microcaps; Pricaspian invested in the Absolute funds, which, in turn, invested in the
microcaps. Can Pricaspian recover, as fraud damages, its proportionate share of the
losses the Absolute funds incurred through their investments in the microcaps or, in the
alternative, can those damages only be recovered by the Absolute funds themselves (or
in a derivative action on behalf of the funds)? The answer is indisputably the latter.
“Shareholders may bring two types of actions, ‘a direct action filed by the
shareholder individually (or on behalf of a class of shareholders to which he or she
belongs) for injury to his or her interest as a shareholder,’ or a ‘derivative action filed
on behalf of the corporation for injury to the corporation for which it has failed or
refused to sue.’ [Citation.] ‘The two actions are mutually exclusive: i.e., the right of
action and recovery belongs either to the shareholders (direct action) or to the
15
corporation (derivative action).’ [Citation.]” (Schuster v. Gardner (2005)
127 Cal.App.4th 305, 311-312.)
“An action is deemed derivative ‘ “if the gravamen of the complaint is injury to
the corporation, or to the whole body of its stock and property without any severance or
distribution among individual holders . . . . ” ’ ” (Grosset v. Wenaas (2008) 42 Cal.4th
1100, 1108.) “The cause of action is individual, not derivative, only ‘ “where it appears
that the injury resulted from the violation of some special duty owed the stockholder by
the wrongdoer and having its origin in circumstances independent of the plaintiff’s
status as a shareholder.” ’ [Citation.]” (Nelson v. Anderson (1999) 72 Cal.App.4th 111,
124.) “ ‘Generally, a stockholder may not maintain an action in his own behalf for
a wrong done by a third person to the corporation on the theory that such wrong
devalued his stock and the stock of the other shareholders, for such an action would
authorize multitudinous litigation and ignore the corporate entity.’ [Citations.]”
(Grosset v. Wenaas, supra, 42 Cal.4th at p. 1108, fn. 5.)
Thus, while we emphasize that Pricaspian did not, in fact, offer any evidence that
its investments in the three Absolute funds were devalued by the trades performed in the
microcaps,12 any losses suffered by the Absolute funds could not be pursued by
Pricaspian in this individual action; those losses must be pursued by the Absolute Funds
12
There was evidence that the Absolute funds were charged unnecessary
commissions by HWM’s numerous trades in the microcap stocks among the different
Absolute funds. There was, however, no evidence that any of the three funds in which
Pricaspian was invested ultimately lost money on the investments in the microcaps
themselves.
16
themselves, or by a shareholder in a derivative action. Thus, even if the jury could have
properly inferred that the missing trade tickets would have established that the Absolute
funds lost money on their investments in the microcaps, this would not have established
damages Pricaspian could recover in this action.13 JNOV was therefore appropriately
entered.
13
Pricaspian notes that defendants did not argue before the trial court that
Pricaspian could not recover its proportionate share of the diminution in value of the
Absolute funds as a result of the microcap trades on the basis that such damages could
only be recovered in a derivative action. Pricaspian argues that defendants have
therefore waived the right to contest damages based on this theory. The purported right
of an individual to recover damages which may only be recovered in a derivative action
is a pure issue of law. We have discretion to consider pure questions of law for the first
time on appeal. (Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1709.) It is
appropriate to exercise our discretion to do so in this case, in which the strongest piece
of evidence on which Pricaspian relied to prove damages on this theory was the
inference which arises from the lack of trading tickets. In other words, Pricaspian
would have us uphold a verdict of $1.2 million in compensatory damages on an
untenable legal theory based on an utter absence of evidence. We decline to do so.
17
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
KITCHING, J.
18 | 01-03-2023 | 08-22-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3035660/ | Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-28-2008
USA v. Kyree Thompson
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2485
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Recommended Citation
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CLD-274 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2485
___________
UNITED STATES OF AMERICA
v.
KYREE THOMPSON,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 99-00089)
District Judge: Honorable James F. McClure, Jr.
____________________________________
Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P.
10.6
August 14, 2008
Before: AMBRO, FUENTES and JORDAN, Circuit Judges
(filed: August 28, 2008 )
_________
OPINION
_________
PER CURIAM
Kyree Thompson, a prisoner incarcerated at FCI-Fairton in Fairton, New Jersey,
appeals an order of the United States District Court for the Middle District of
1
Pennsylvania denying his pro se motion to reduce his sentence under 18 U.S.C. §
3582(c)(2). For the reasons that follow, we will summarily affirm.
On October 15, 2001, Thompson pled guilty in the United States District Court for
the Middle District of Pennsylvania to possession with intent to distribute in excess of
five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), as well as aiding and
abetting, in violation of 18 U.S.C. § 2. After determining that Thompson was a career
offender under U.S.S.G. § 4B1.1 and considering the government’s motion under
U.S.S.G. § 5K1.1, the District Court sentenced Thompson to a term of 140 months of
imprisonment.1
On November 1, 2007, the United States Sentencing Commission amended the
sentencing guidelines pertaining to cocaine base (“crack”) offenses and generally lowered
the penalties for these offenses. See U.S.S.G. § 2D1.1. On February 29, 2008, Chief
Judge Kane of the Middle District of Pennsylvania issued a Standing Order regarding the
appointment of counsel in proceedings related to this amendment.
On March 5, 2008, Thompson filed a motion to reduce his sentence in light of
these amendments. This motion consisted of a one-page, handwritten document in which
Thompson requested counsel and alluded to the crack-cocaine amendments. Although
Thompson did not explicitly invoke 18 U.S.C. § 3582(c)(2), the District Court construed
1
Thompson unsuccessfully sought to withdraw his guilty plea in the District Court. He
appealed, and we affirmed. United States v. Thompson, 48 Fed. Appx. 24 (3d Cir. Sept.
17, 2002).
2
the motion as arising under this provision, which authorizes District Courts to modify
sentences when “a defendant has been sentenced to a term of imprisonment based on a
sentencing range that has been subsequently lowered by the Sentencing Commission....”
Pursuant to the Standing Order, the District Court appointed a Federal Public Defender
(“FPD”) to represent Thompson. On March 7, 2008, the FPD filed a motion to withdraw
as counsel on the basis that Thompson was not eligible for a sentence reduction because
he had not been sentenced pursuant to § 2D1.1, the amended provision. The District
Court reviewed the record and determined that Thompson had been sentenced as a career
offender, and that the crack-cocaine amendments did not affect his sentence.
Accordingly, the District Court granted the FPD’s motion to withdraw and denied
Thompson’s motion in an order dated March 19, 2008.
Instead of appealing that order, Thompson renewed his motion. In his new
motion, Thompson explicitly invoked 18 U.S.C. § 3582 and included detailed arguments
regarding the basis for his entitlement to a new sentencing hearing. The District Court
construed the renewed motion as a motion for reconsideration of its March 19, 2008 order
and denied that motion as untimely under Fed. R. App. P. 4(b), in an order filed April 10,
2008. After the 10-day period to appeal expired, Thompson sent a letter to the court
indicating that his former attorney had not informed him of his right to appeal the denial
of relief under § 3582. Under Rule 4(b)(4), Fed. R. App. P., the District Court
determined that Thompson had shown good cause for his failure to file a timely appeal.
3
Therefore, the District Court re-opened the period in which Thompson could appeal, and
Thompson timely appealed from the District Court’s April 10, 2008 order.2
We agree that, under the circumstances, Thompson is not eligible for a sentence
reduction as a result of the amendments to § 2D1.1. Thompson pled guilty to possession
with the intent to distribute in excess of 5 grams of cocaine base, in violation of 21 U.S.C.
§ 841(A)(1). The maximum period of incarceration for this offense is 40 years. Under §
4B1.1(b)(B), a career offender who has committed an offense with a statutory maximum
of 25 or more years of imprisonment has a base offense level of 34 and a criminal history
level of VI. Because Thompson was a career offender, his base offense level was 34 and
his criminal history level was VI, as dictated by § 4B1.1. The amendment to § 2D1.1
played no role in determining the recommended guideline range for his sentence.
As this appeal presents no substantial question, we will summarily affirm the
District Court’s order. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6. To the extent that
appellant seeks summary reversal, his motion is denied.
2
In light of Thompson’s failure to timely appeal from the District Court’s March 19,
2008 order, we lack authority to review that order. However, we have authority to review
the District Court’s April 10, 2008 order.
4 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2454925/ | 480 S.W.2d 339 (1972)
Edward J. QUATTLEBAUM and CBM, Inc., Appellants,
v.
La Berta GRAY, Appellee.
No. 5-5913.
Supreme Court of Arkansas.
May 22, 1972.
*340 Guy H. Jones, Phil Stratton and Guy Jones, Jr., Conway, for appellants.
Clark, Clark & Clark, Conway, for appellee.
HARRIS, Chief Justice.
Central Business Machines, Inc., hereinafter called CBM, Inc., a domestic corporation with its principal office in Conway, instituted suit in the Faulkner County Chancery Court against LaBerta Gray, one of its officers (controller) seeking an accounting and return of certain records. Mrs. Gray answered the complaint and also cross-complained against Edward J. Quattlebaum, appellant herein, a stockholder and Vice President of CMB, Inc. In this pleading, Mrs. Gray alleged that Quattlebaum was indebted to her for $5,000, evidenced by a certain note. This portion of the litigation was transferred to the Faulkner County Circuit Court,[1] and appellant, after filing a general denial, further pleaded a failure of consideration. On trial, and after taking of evidence, the court instructed the jury to return a verdict for Mrs. Gray against Quattlebaum in the amount of the note, $5,000, plus interest and attorney's fees, and further directed the jury to return a verdict over for said sum in favor of Quattlebaum against CBM, Inc. From the judgment so entered comes this appeal.
The execution of the note was admitted by Quattlebaum, but he and Mrs. Gray differed as to the purpose for the giving of the note. Mrs. Gray testified that she gave Quattlebaum $15,000 in cash on December 10, 1969, and he executed the note at that time to her. Quattlebaum stated that he signed the note in blank and that Mrs. Gray was to go to Hot Springs to borrow the money from her mother, the money then to be turned over to CBM, Inc. He said that he signed the note because Mrs. Gray said that her mother would not lend the money without his signature. Quattlebaum stated that he did not receive any money personally. Two days after the execution of the note, Mrs. Gray did deposit to the corporation account $5,952.23, which included a $5,000 personal check executed by Mrs. Gray. Quattlebaum admitted that the corporation did receive $5,000 but "I don't know if it was this". When asked if the money was made available to the company, he replied "I don't know if this $5,000 was, but there was a $5,000 deposit", and he then stated that the company did receive a benefit.
Appellant argues that a jury question was made as to whether he personally received the money. As stated, Quattlebaum had pleaded "failure of consideration" as his defense to the note. This defense is *341 without merit. As early as 1882, in the case of Rockafellow v. Peay et al., 40 Ark. 69, this court said:
"It was not necessary to the validity of Gordon N. Peay's note and mortgage that he should have derived any benefit from the transactions out of which they arose. It is sufficient that a valuable consideration moved from the plaintiff to his brother. The consideration for the execution of the first mortgage was a loan of $4,000 to John C. Peay."
In Hays v. McGuirt, 186 Ark. 702, 55 S.W.2d 76, we pointed out that consideration does not have to move to the party promising, but may move from a promisor to a third person; that the consideration may consist in a loan to a third person. See also Anthony v. First National Bank of Magnolia et al., 244 Ark. 1015, 431 S.W.2d 267. As previously pointed out, Quattlebaum admitted execution of the note and admitted that the corporation received a benefit, and this was the purpose of his signing the note. Accordingly, from a legal standpoint, it makes no difference whether Quattlebaum received the money personally, or whether it was deposited to the account of the corporationfor, in either instance, he was liable.
The court acted erroneously in entering a judgment over and against CMB, Inc. in favor of Quattlebaum, since CBM, Inc. was not a party to this phase of the litigation. However, though CBM, Inc. filed a notice of appeal, it was not entitled to do so since it was not a party to this phase of the litigation. See Ark.Stat. Ann. § 27-2106.1 (Repl.1962). Though, under the record herein, it is clearly entitled to a reversal, this court cannot act upon an appeal taken by one who was not a party to the action in the trial court. Accordingly, CBM's relief should be obtained by an attack upon the judgment in the trial court.
Affirmed.
NOTES
[1] The record does not reflect any order of transfer, but the parties, in their briefs, agree that this was done. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576021/ | 612 F. Supp. 1158 (1985)
Annette MARKS, Kathleen Towson, Matthew Wissinger, James Deffler, Joan Walters, Individually, and on Behalf of a class of all others similarly situated, Plaintiffs,
v.
Clifford W. SNEDEKER, Director of The Division of Motor Vehicles, Joseph F. Murphy, Comm'r of Insurance, Kenneth R. Biederman, Treasurer of the State of New Jersey, and the New Jersey Automobile Full Insurance Underwriting Ass'n., Defendants.
Civ. A. No. 84-1393.
United States District Court, D. New Jersey.
July 11, 1985.
*1159 Philip Stephen Fuoco (argued), Haddonfield, N.J. and Gorelick & Groon, P.C. by Thomas Rossi, on brief, North Wildwood, N.J. and George H. Piperno, Haddonfield, N.J., for plaintiffs.
Irwin I. Kimmelman, Atty. Gen. of N.J. by Patrick J. Hughes, Deputy Atty. Gen. (argued), John J. Hayden, Deputy Atty. Gen., Trenton, N.J., for defendants.
OPINION
COHEN, Senior District Judge:
This action, challenging the constitutionality of portions of the New Jersey Insurance Reform Act of 1982 and the New Jersey Automobile Full Insurance Availability Act, N.J.Stat.Ann. 17:29A-33 et seq. and N.J.Stat.Ann. 17:30E-1 et seq. respectively (hereinafter the Reform Act), is before the Court on plaintiffs' motion for class certification and defendants' cross-motion for summary judgment or dismissal on abstention grounds. After a thorough consideration of the relevant facts and law, and for the reasons which follow, we shall dismiss the action on grounds of abstention.
INTRODUCTION
In order to understand our decision to abstain, it is necessary to become familiar with New Jersey's automobile insurance laws as they existed prior to the enactment of the Reform Act and thereafter. Prior to January 1, 1983, the effective date of the Reform Act, an individual convicted of a drunken driving offense was subject to criminal penalties imposed by the State including fines, points on the license, license suspension or revocation, or imprisonment. See e.g. N.J.Stat.Ann. 39:4-50 et seq. (West Supp.1984-85). In addition to these criminal penalties, a driver would almost inevitably be required, by his or her insurance carrier, to pay an insurance surcharge for a period of three years in order to compensate the insurer for the added risk posed by a driver with a history of drunken driving. Due to the complex nature of this previous statutory and regulatory scheme, insurance rates varied dramatically throughout the state dependent upon a driver's individual characteristics and the primary location of the automobile.[1]See Affidavit of J. Richard Boer, Exhibit A. In addition to being subject to significant rate discrepancies, drivers throughout New Jersey were often unable to obtain insurance coverage, despite a good driving record, due to the perceived lack of profitability for insurance carriers in New Jersey and their resultant decisions to discontinue writing new policies. See "Karcher, Overview of no-fault auto insurance," New Jersey Lawyer, No. 111 May 1985 at 8.
In an attempt to remedy the deficiencies in the State's automobile insurance system, the legislature has enacted numerous statutory provisions[2] which significantly overhaul the system and create a new and similarly complex scheme designed to provide insurance which "will be affordable, available, and more equitable to the motorists [throughout the] State ...". N.J.Stat. *1160 Ann. 17:29A-34(j) (West 1985). A number of the reform provisions enacted are at issue here.
As a result of the Reform Act, individual insurance companies are no longer allowed to collect surcharges from motorists. Instead, a driver convicted of a drunken driving offense is billed directly by the State's Division of Motor Vehicles (DMV) which collects the surcharges and then disburses them to the New Jersey Automobile Full Insurance Underwriting Association (the Association) pursuant to N.J.Stat.Ann. 17:29A-35(b)(2) (West 1985).[3] Underlying the removal of the surcharge system from the control of the individual insurance carriers is the need to eliminate the added insurance risk of drunken driving from rate calculations. This effort to standardize the insurance surcharge, resulting from drunken driving offenses statewide, is an integral component of the reform effort.
Plaintiffs allege that the imposition of the surcharge under the Reform Act constitutes an ex post facto law and is a violation of their due process rights as well as certain unspecified State Constitutional rights. They seek a declaration that the Reform Act is violative of both the United States and New Jersey Constitutions, an injunction of its enforcement as it applies to them, an accounting of monies received and dispersed under the Reform Act, the return to them of monies paid, damages, and such other relief as this Court may deem just and equitable. In response, defendants have brought the instant motion for abstention in support of which they rely on the doctrine as articulated in Burford v. Sun Oil Co., 319 U.S. 315 (1943).
DISCUSSION
Although abstention is a "narrow exception to the duty of a District Court to adjudicate a controversy properly before it," Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 1244, 47 L. Ed. 2d 483 (1976) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S. Ct. 1060, 1062, 3 L. Ed. 2d 1163 (1959)), it is appropriate under certain circumstances where litigation in the state court "would clearly serve an important countervailing interest." Id. One of the situations appropriate for abstention exists
where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 [79 S. Ct. 1070, 3 L. Ed. 2d 1058] (1959), for example, involved such a question. In particular, the concern there was with the scope of the eminent domain power of municipalities under state law. See also Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593 [88 S. Ct. 1753, 20 L. Ed. 2d 835] (1968); Hawks v. Hamill, 288 U.S. 52 [53 S. Ct. 240, 77 L. Ed. 610] (1933). In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. In Burford v. Sun Oil Co., 319 U.S. 315 [63 S. Ct. 1098, 87 L. Ed. 1424] (1943), for example, the Court held that a suit seeking review of the reasonableness under Texas state law of a state commission's permit to drill oil wells should have been dismissed by the District Court. The reasonableness of the permit in that case was not of transcendent importance, but review of reasonableness by the federal courts in that and *1161 future cases, where the State had established its own elaborate review system for dealing with the geological complexities of oil and gas fields, would have had an impermissibly disruptive effect on state policy for the management of those fields. See also Alabama Pub. Serv. Comm'n v. Southern R. Co., [341 U.S. 341, 71 S. Ct. 762, 95 L. Ed. 1002 (1951)].
Colorado River, 424 U.S. at 813-15, 96 S.Ct. at 1244-1245 (footnotes omitted).
As in Burford, the "exercise of federal review of the question in [this] case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern." Colorado River, 424 U.S. at 814, 96 S.Ct. at 1244.
In opposing defendants' motion, plaintiffs maintain that we need only be concerned with the "narrow issue of the constitutionality of the retroactivity of the penalties" thus not requiring that we consider a complex and technical regulatory scheme of the State of New Jersey. Plaintiffs' Brief at 9 (emphasis added). Plaintiffs' argument, however, begs the question. Before addressing the constitutionality of the "retroactivity of the penalties," the Reform Act must be interpreted to determine whether the surcharges actually apply retroactively and whether they constitute a penalty. The resolution of these questions could have a significant disruptive effect on New Jersey's newly reformed automobile insurance program which is unquestionably a "matter of substantial public concern." Colorado River, 424 U.S. at 814, 96 S.Ct. at 1244. In addition, the resolution of these issues will involve an in-depth analysis of the legislative purposes which underlie a major reform effort in an area of law insurance which has typically been left to the states to regulate. Thus, significant questions of public policy are inextricably involved in any consideration of these issues. Initial consideration of these policy issues is typically best left to state entities. In this case, the interest of both the state legislature and judiciary is manifest.
Plaintiffs' motion for class certification was initially returnable before this Court on September 7, 1984. At the request of both parties, however, the motion was adjourned on numerous occasions in the hope that the New Jersey Legislature would resolve the retroactivity issue, thus, rendering this case moot. At oral argument, the Court was informed that, for political reasons apparently not connected with the surcharge scheme, the legislative proposal intended to remedy the present situation is, in the words of the State's attorney, "dead." Although this initial attempt at a legislative resolution to the instant controversy has failed, other legislative measures, which are provided by the Reform Act itself, are yet to be exercised.
The Reform Act created a joint legislative committee to "monitor[] and evaluat[e] the effectiveness of the implementation of [the surcharge system], and said joint committee shall, as it may deem appropriate, issue recommendations for administrative or legislative changes affecting the implementation of [the] act." N.J. Stat.Ann. 17:29A-41 (West 1985). Moreover, the Reform Act created a study commission designed to evaluate market conditions resulting from the implementation of the reforms with respect to
market availability, affordability and equity of automobile insurance coverage; the operation and effectiveness of the modified two tier rating system including the effectiveness and adequacy of merit rating plans and surcharge systems ; ... the effectiveness and fairness of the New Jersey Automobile Full Insurance Underwriting Association, including the adequacy and fairness of its funding system; and the creation of genuinely competitive market conditions.
N.J.Stat.Ann. 17:30E-23 (West 1985) (emphasis added). The study commission's findings and recommendations regarding improvements in the reforms are to be reported to the Governor and Legislature no later than January 1, 1987. Id. The continuing involvement of the state legislature, vis-a-vis the joint committee and the *1162 study commission, clearly counsels in favor of our abstention in this matter.
Of even greater importance, however, is the fact that the regulations promulgated pursuant to the Reform Act have created an expedited appeals process whereby an individual challenging the application of the surcharge goes immediately to the Appellate Division of the New Jersey Superior Court following administrative review by the Division of Motor Vehicles. See N.J. Admin.Code 13:19-12.1 et seq. See also N.J.Stat.Ann. 52:14B-9 through 14. (West Supp.1984-85). In fact, at the present time, at least eight cases are before the Appellate Division challenging the surcharge system on grounds identical to those presented here.[4] Thus, in light of Burford v. Sun Oil Co. and in the interests of comity, we shall dismiss plaintiffs' complaint.
We feel constrained to note two additional factors which support our decision and which are involved with any perceived need on the part of plaintiffs for a federal review of their claims. First, an Administrative Law Judge (ALJ) has held the surcharge system to be an unconstitutional denial of due process as a result of it being harsh, oppressive and retroactive; although the ALJ's decision on the system's constitutionality was overturned on final review by the DMV, the result indicates that plaintiffs need not fear receiving a biased hearing from the state's judiciary. Secondly, if plaintiffs receive an unfavorable ruling from the Appellate Division, they have recourse to the State Supreme Court and, if necessary, they can seek federal review from the United States Supreme Court.
In light of our decision to abstain, it is unnecessary to consider plaintiffs' motion for class certification. The Court shall enter an appropriate order.
ORDER
This matter having come before the Court on the motion of plaintiffs, ANNETTE MARKS, et als., for class certification and the cross-motion of defendants, CLIFFORD W. SNEDEKER, et als., for summary judgment or dismissal on grounds of abstention; and
For the reasons stated in the Court's opinion filed this date;
It is on this 11th day of July, 1985 ORDERED that defendants' motion to dismiss on grounds of abstention be and hereby is granted.
NOTES
[1] For example, a young male driver located in suburban Trenton without any motor vehicle convictions and with basic coverage would have paid, in 1983, $1,842 for insurance. The same individual located in Jersey City would have paid $2,920 while the same person, if located in Newark, would have paid $4,296.
[2] Among the other statutes enacted were The New Jersey Insurance Fraud Prevention Act, N.J.Stat.Ann. 17:33A-1 et seq. (West 1985) and The New Jersey Automobile Insurance Freedom of Choice and Cost Containment Act of 1984 which is codified in various sections of Titles 17 and 39 of N.J.Stat.Ann.
[3] The Association, created pursuant to N.J.Stat. Ann. 17:30E-4 (West 1985), is an unincorporated, nonprofit association made up of all insurers licensed to transact automobile insurance in New Jersey. Among the powers and duties of the Association is the capacity to "[a]rrange for the issuance of automobile insurance to any qualified applicant through servicing carriers." N.J.Stat.Ann. 17:30E-7 (West 1985). In effect, the Association replaced the former "assigned risk pool." Nevertheless, it may write insurance for any qualified driver and not just those who present a high risk.
[4] The eight cases of which we are aware are those of Harry Ryan, Docket No. A-2432-84T7; Elaine M. Berger, Docket No. A-2431-84T6; Diane M. Vilardo, Docket No. A-2805-84T7; Robert L. Walukiewicz, Docket No. A-2991-84T7; Steven Koerner, Docket No. A-2785-84T7; Frederick Eldridge, Docket No. A-2656-84T7; William J. Crerand, Docket No. A-2532-84T7; and James Cuabello, Docket No. A-2964-84T7. See Defendants brief at 17. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2310471/ | 572 F. Supp. 2d 809 (2008)
Frank STOFFELS, on behalf of the SBC TELEPHONE CONCESSION PLAN and all other persons similarly situated, Plaintiffs,
v.
SBC COMMUNICATIONS, INC., and The SBC Telephone Concession Plan, Defendant.
Civil Action No. SA-05-CA-0233-WWJ.
United States District Court, W.D. Texas, San Antonio Division.
August 1, 2008.
*810 R. Joseph Barton of Cohen Milstein Hausfeld & Toll, P.L.L.C., Washington DC, Marc I. Machiz of Cohen Milstein Hausfeld & Toll, P.L.L.C., Philadelphia, PA, Renea Hicks, Austin TX, for Plaintiffs.
John L. Carter, Vinson & Elkins, Houston TX, for Defendant.
ORDER
WILLIAM WAYNE JUSTICE, Senior District Judge.
Before the Court for consideration is Defendant's Motion to Certify for Immediate Appeal (Docket No. 319), Defendant's Motion to Stay Proceedings (Docket No. 320), Plaintiffs' Opposition to Defendant's Motion for Immediate Appeal (Docket No. 325), Plaintiffs' Opposition to Defendant's Motion to Stay Proceedings (Docket No. 323), and Defendant's Reply to Plaintiffs' Opposition (Docket No. 333). Defendant seeks to immediately appeal the Court's finding that the Out-of-Region retiree concession is a pension plan and also seeks a stay of the case pending that appeal. Defendant's Motions are DENIED.
I. Procedural History
This is a civil enforcement action brought under sections 502(a)(1)(B), (a)(2), (a)(3) and (c)(3) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), (a)(2), (a)(3), and (c)(3), concerning Defendant SBC Communications, Inc.'s ("SBC") management of a "defined benefit" retirement plan known as "Concession." The Court bifurcated the matter; Phase I of the litigation focuses solely on the question of whether the Telephone Concession is an ERISA pension plan. Plaintiffs contend that the Telephone Concession is an ERISA plan; Defendant contends the opposite.
After empaneling an advisory jury and conducting a bench trial, this Court entered findings of fact and conclusions of law on May 21, 2008. (Docket No. 318.) In summary, the Court found that Concession is an ERISA pension plan and that Concession should be analyzed separately from telephone discounts provided by Defendant to employees and retirees that live within Defendant's service areas.
Defendant requests that this Court certify the following question to the Fifth Circuit: "Whether the Telephone Concession provided to Out-of-Service Area retirees is a pension plan governed by ERISA § 3(2)?" (Def.'s Reply Support Mot. Certify 2.)[1] Defendant contends this question presents a controlling question of *811 law over which there is substantial ground for difference of opinion.
II. Analysis
The "basic rule of appellate jurisdiction restricts review to final judgments, avoiding the delay and extra effort of piecemeal appeals." Clark-Dietz & Assocs.-Engrs. v. Basic Construction Co., 702 F.2d 67, 69 (5th Cir.1983). Federal law, however, allows a district court to certify questions for interlocutory appeal if three conditions are satisfied: First, the Court must certify in writing that there is a controlling issue of law. 28 U.S.C. § 1292(b). Second, the district court must demonstrate a substantial ground for a difference in opinion on the issue of law. Id. Third, the interlocutory appeal should materially advance the ultimate termination of the litigation. Id.
Because Defendant's motion for interlocutory review fails to establish that there is a controlling issue of law, and fails to establish substantial disagreement over a controlling issue of law, an immediate appeal is not appropriate.
A. There is no controlling issue of law
Defendants strenuously contend that the question of whether Concession is governed by ERISA is a pure, controlling question of law. The Fifth Circuit requires that the question of law be a pure question of law; permissive interlocutory appeals are not proper for determinations that involve applications of law to fact. Louisiana Patients' Comp. Fund Oversight Bd. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 585, 588 (5th Cir.2005) (denying review of the question of whether insurer breached a duty to Plaintiff because its fiduciary duty to its insureds prevailed over any general good faith and reasonable care duty to the plaintiff, because such a question required an application of law to the facts which is beyond the scope of § 1292(b)). The Fifth Circuit also notes that parties seeking interlocutory appeal must show substantially differing views regarding the legal issue before the court. Clark-Dietz, 702 F.2d at 69.
In the instant action, the controlling law is clear and not disputed by the parties: A "pension plan" is defined in 29 U.S.C. § 1002(2)(A) as:
[1] any plan, fund or program [2] which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, [3] to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program-(i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan.
The issue raised by Defendants is, at its core, whether, under the facts adduced at trial, Concession is a pension plan governed by ERISA. Based on the jury's verdict and its own analysis, the Court held that the facts adduced at trial demonstrated that Concession is a pension plan:
The class of beneficiaries was clearly ascertainable, as were the benefits to which they were entitled. (Mem. Op.8.)
Defendant maintained Concession. Id. at 12; see also id. at 13 (finding that trial "testimony conclusively demonstrates that Defendant and its employees had ultimate control over and responsibility for Concession"); id. at 14 (finding "SBC's communications with OOR retirees demonstrate that SBC maintained Concession").
*812 "Concession was structured separately from other segments of the telephone discount." Id. at 15.
Concession provided retirement income. Id. at 11 (noting, inter alia, that Regional Bell Operating Companies "have not even been consistent in their claim that Concession is not a retirement benefit").
Concession was intended to provide retirement income. Id. at 12.
It is on the basis of these factual findings that the Court made its conclusions of law. For there to be substantial disagreement on the controlling issue of law, Defendant would have to show that where, as here, the facts show that all the elements of a pension plan under 29 U.S.C. § 1002(2)(A) are met, some courts rule that as a matter of law, there is still no pension plan. Defendant has failed to indicate any courts that have so held; therefore, no substantial difference of opinion exists on the question Defendant seeks to have certified.
Defendant accepts that ERISA is the undisputed controlling law, but nevertheless, argues that "the Fifth Circuit frequently applies legal standards to facts in interlocutory appeals." (Def.'s Reply 3.) However, that statement, and the cases Defendant cites in support, do not further Defendant's request for interlocutory review. For example, Defendant relies on Halliburton Company Benefits Committee v. Graves, 463 F.3d 360 (5th Cir.2006). Defendant fails to mention that both parties in Halliburton sought interlocutory appeal; here, Plaintiffs' oppose Defendant's motion. Defendant also fails to mention that Halliburton considered a partial grant of summary judgment, meaning that the critical underlying facts were not disputed; here, the facts were contentiously disputed at trial. Finally, Defendant characterizes the question in Halliburton, as "whether the specific terms of a company's merger agreement amended its retiree medical plan." (Def.'s Reply 3.) By the Defendant's own characterization, the question in Halliburton is the meaning of contract terms and the interaction of different documents; these are the kind of issues of law that are appropriate for summary judgment and interlocutory review because the facts are readily ascertainable. In contrast, the contended facts here determine whether the ERISA even applies.
Defendant also cites to Mello v. Sara Lee Corporation, 431 F.3d 440 (5th Cir. 2005). Mello, like Halliburton, was an appeal from a summary judgment order; like Halliburton and unlike this case, the facts in Mello were not disputed. Mello, 431 F.3d at 443. Moreover, in granting judgment as a matter of law, the district court in Mello found that "because the Fifth Circuit has not soundly rejected the applicability of ERISA estoppel ... the doctrine of ERISA estoppel ... is applicable in this cause of action." Id. (internal quotations omitted). In other words, the district court in Mello was facing a novel issue of law and chose to apply that law one way; the Fifth Circuit saw the issue differently and reversed. Id. at 442. This Court, unlike the Fifth Circuit, has clear law and the task is applying the law to the facts. In contrast, the Fifth Circuit in the instant action would have to review the factual findings in order to apply the law precisely that court's function in an appeal after a full determination of liability and damages. Hightower v. Texas Hospital Association, 65 F.3d 443, 448 (5th Cir. 1995), is similarly distinguishable because the question certified for interlocutory appeal was one of statutory interpretation; a pure question of law.
B. There is no substantial ground for difference of opinion on the issue of law
Defendant contends that the district court's opinion in Rathbun v. Qwest, *813 458 F. Supp. 2d 1238 (D.Colo.2006) demonstrates that there is substantial ground for difference of opinion as to whether the OOR Concession and in-region discount should be analyzed separately.[2] Such a difference is a difference in the underlying facts, not law, and therefore does not fulfill any requirement of 28 U.S.C. § 1292(c).
The Court's finding that the OOR plan should be analyzed separately from the inregion telephone discounts was an entirely fact based conclusion. In summary, the Court found that the OOR plan and in region plan should be analyzed separately because Defendant conceived of them separately: the OOR plan is administered separately from the in-region plan; Defendant had employees who coordinated the OOR plan and whose responsibilities were specific to the OOR plan (and not the inregion plan); and the Court found Norma Gonzalez's deposition testimony that the OOR plan and in-region plan were separate to be credible. (Mem.Op.12-17.)
Rathbun was based on different facts. Id. at 28-29. The parties in Rathbun agreed that the purpose of the telephone concession program was to make the same benefits available to in-service and out-of-service retirees. Rathbun, 458 F.Supp.2d at 1248. Here, Defendant's witnesses acknowledged that Concession was intended to provide value to OOR Retirees. Defendant's witnesses also acknowledged that cash reimbursements for telephone service are distinct from discounted service. Because Rathbun is premised on a very different set of factsnamely, that the telephone discount program was one program without distinctive parts and that the purpose for the OOR retiree reimbursements was the same as the purpose for the inregion phone discountsthe Rathbun court's analysis is inapposite.
The other cases Defendant cites, Murphy v. Inexco Oil, 611 F.2d 570 (5th Cir. 1980), Oatway v. American International Group, Inc., 325 F.3d 184 (3d Cir.2003), and Fraver v. North Carolina Farm Bureau Mutual Insurance Company, 801 F.2d 675 (4th Cir.1986), are also inapposite. These cases do not lay out any legal guidelines for determining whether a particular pension plan is part of a larger plan or should be analyzed separately. That determination is left to the finder of fact.
C. Interlocutory appeal would materially advance the litigation
Defendant contends that, because this case is complex, interlocutory appeal is appropriate. (Def.'s Reply 10-11.) On this point, Defendant moves some way toward persuading the Courtsaving judicial resources by avoiding unnecessary litigation is a worthwhile goal. While Defendant's showing that an interlocutory appeal would advance this litigation is necessary in order for its Motion for Interlocutory Appeal to be Granted, it is not sufficient.
D. Defendant's other claims do not support interlocutory review
Defendant argues that in excluding Defendant's proposed expert, Professor John Langbein, Esq., the Court determined that the proposed issue is a "legal question." (Def.'s Reply 4-5.) The Court first notes that Defendant conceded that Professor Langbein's testimony was inappropriate. (Def.'s Resp. Pl.'s Mot. Exclude Expert Test. 2, (Doc. No. 248).) Moreover, the court excluded Professor Langbein's testimony as to whether Concession was a plan under ERISA because his speculation as to the ultimate issue, based on assumed *814 facts, would not aid the Court in applying the controlling law to the facts adduced at trial.
Defendant also contests the Court's finding that Concession provides retirement income. According to Defendant, the Court found that Concession provided retirement income because it provided recipients payments in retirement and because those payments were taxable. (Def.'s Reply 8.) Defendant misconstrues the Court's opinion. The Court made the finding of fact that Concession was intended to provide retirement income, in addition to creating goodwill. (Mem.Op.11.) Defendant's witness testified that Concession was intended to provide "value" to retirees. Id. at 10. Defendant contests the Court's finding of fact that Concession provides retirement income, but such a contention is not a proper question for interlocutory appeal.
Finally, according to Defendant, Concession is arguably a welfare plan as opposed to a pension plan. (Def.'s Reply 9.) First, this is a question of fact that does not meet the requirements of 28 U.S.C. § 1292(c). In addition, the Court finds that the characteristics Defendant says apply only to welfare plans can also apply to pension plans. Pension plans can be inkind payments, akin to provision of a service or reimbursement. See Musmeci v. Schwegmann, 332 F.3d, 339 (5th Cir.2003) (holding that plan to provide retirees with grocery vouchers was a pension plan covered by ERISA). Pension plans may be contingent on participants' satisfying certain prerequisites. See Cen. Laborers' Pension Fund v. Heinz, 541 U.S. 739, 740, 124 S. Ct. 2230, 159 L. Ed. 2d 46 (2004) (finding a pension plan where eligibility for payment was contingent on retiree's decision not to live in the same geographic area and work in the same industry in which he had been previously employed). Pension plan payments may also be variable. Shaw v. Int'l Ass'n of Machinists & Aerospace Workers Pension Plan, 563 F. Supp. 653, 655 (C.D.Cal.1983) (finding a pension plan where the formula for payment was based on the retirees' salary, but was not based on a post-retirement change in the salary of the retiree's former position); see also In Re Defoe Shipbuilding Co., 639 F.2d 311, 312-14 (6th Cir.1981) (noting that pension plan payments were to be adjusted pursuant to recommendations by actuary).
For the reasons stated herein, Defendant's Motion to Certify for Immediate Appeal and Defendant's Motion to Stay Proceedings are DENIED.
NOTES
[1] Defendants initially contended that there were three controlling questions for certification, (Def.'s Mot. for Immediate Appeal 2) but in response to the Court's order requesting clarification of the questions for certification, Defendants have now raise this lone question. (Def.'s Reply 2.)
[2] The Court found Rathbun inapposite in its ruling on summary judgment, Stoffels v. SBC Communications, Inc., 526 F. Supp. 2d 645 (W.D.Tex.2007), as well as in the Memorandum Opinion. Repetition has not made Rathbun's facts more similar to those here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1006951/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHARD L. HOLDCRAFT,
Plaintiff-Appellant,
v. No. 01-1868
COUNTY OF FAIRFAX, VIRGINIA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-00-1551-A)
Submitted: February 25, 2002
Decided: March 11, 2002
Before WILLIAMS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
John W. Karr, Theodore S. Allison, KARR & ALLISON, P.C., Wash-
ington, D.C., for Appellant. David P. Bobzien, County Attorney, Rob-
ert Lyndon Howell, Deputy County Attorney, Cynthia L. Tianti,
Assistant County Attorney, Fairfax, Virginia, for Appellee.
2 HOLDCRAFT v. COUNTY OF FAIRFAX
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Richard L. Holdcraft appeals from the district court’s order grant-
ing summary judgment in favor of the County of Fairfax, Virginia
("County"), and dismissing his employment discrimination action
alleging violations of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C.A. § 2000e-5 (West 1994 & Supp. 2001), and the
Age Discrimination in Employment Act (ADEA), 29 U.S.C.A.
§§ 621-634 (West 1999 & Supp. 2001). Holdcraft alleges that the
County unlawfully discriminated against him on the basis of his gen-
der and age when he applied for and was not selected as the best qual-
ified applicant for the position of Program Manager, Occupational
Health and Safety Center in the County’s Fire and Rescue Depart-
ment.
Our review of the record and the district court’s opinion discloses
that this appeal is without merit. We find that, even assuming
arguendo that Holdcraft established a prima facie case of gender or
age discrimination, he failed to rebut the legitimate, nondiscrimina-
tory reasons the County proffered to support its decision to select the
other candidate over him for the position at issue. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 254-56 (1981); Conk-
wright v. Westinghouse Elec. Corp., 933 F.2d 231, 234-35 (4th Cir.
1991). Specifically, deposition testimony and supporting documenta-
tion established the County relied on rank-ordering of candidates by
a review panel, based on objective reviews of documentation and sub-
jective interviews during which all candidates were presented with the
same questions and rated individually on their answers.1 Although
1
Holdcraft’s allegation that two of the scores given him by one of the
selection panelists in the first interview appear to have been changed has
no evidentiary support because, as the County notes in its brief, even
adding the two points to Holdcraft’s score still would have placed him
HOLDCRAFT v. COUNTY OF FAIRFAX 3
both Holdcraft and Arndt, the candidate ultimately selected, were
qualified for the Program Manager position, the final tally of the
scores of the initial interview placed Arndt well above Holdcraft, who
never made it to the second interview round because his score was not
among the top three highest.2
In addition, while Holdcraft complains he possessed superior quali-
fications, his perception of himself, without evidence to support it, is
not relevant. Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980).
There was evidence that Arndt’s qualifications and prior work experi-
ence on a Wellness/Fitness Committee of the International Associa-
tion of Fire Fighters were directly and specifically related to the
Program Manager position, and more suited to the County’s attested
to desire to hire an individual with a strong background in health and
wellness. In a deposition, Holdcraft agreed that the selection panel
stressed the health and wellness aspect of the position during his
interview, and further admitted that Arndt’s credentials in this area
were stronger than his.
We find that there is no evidence that the two raters in the second
and final interview were motivated by any desire other than to select
the candidate they felt was the best suited for the position. Gaines,
who made the final decision to appoint Arndt to the position, testified
that his choice of her was based on her technical background, her
prior work experience with the International Association of Fire-
fighters (specifically, her work in the Health and Wellness initiative),
the fact that she had a master’s degree and was published in the Jour-
fifth out of the seven candidates and he would not have advanced to the
second round of interviews. Nor is Holdcraft’s claim that the interview
scores were manipulated by some individuals on the panels supported by
evidence, given that all the raters testified unequivocally that they based
their scoring on the answers to the interview questions, and that they did
so independently of any other rater.
2
Holdcraft’s allegations that one of the raters manipulated the first
round of interview scores do nothing to advance his claims of age or gen-
der discrimination because that rater accorded another candidate, a male
over the age of forty, a higher score in the initial round of interviews than
that which he accorded Arndt.
4 HOLDCRAFT v. COUNTY OF FAIRFAX
nal of American Medicine, and that her vision of her potential role as
Program Manager coincided with his. He testified that in his opinion,
Arndt’s responses to the interview questions demonstrated an ability
to think like a business manager while at the same time expressing an
affinity for firefighters and an understanding of their needs. There is
no evidence that Gaines ever met Holdcraft, or that he knew that
Holdcraft was within a protected group.
We further note that Arndt scored the highest within each individ-
ual interview. If Arndt had not been selected, or had declined the
offer, the next three ranked individuals in line for the job before Hold-
craft all were males over the age of forty. Given the undisputed evi-
dence in this case, we agree with the district court that Holdcraft
clearly is unable to demonstrate that the County’s selection of Arndt
was pretext for discrimination or that the County’s failure to hire him
was motivated by age or gender discrimination.
As the district court noted, courts do not sit as super personnel
departments second guessing an employer’s perceptions of an
employee’s qualifications. Smith v. University of N. Carolina, 632
F.2d 316, 345-46 (4th Cir. 1980). The law does not require an
employer to make, in the first instance, employment choices that are
wise, rational, or even well-considered, as long as they are nondis-
criminatory. Powell v. Syracuse Univ., 580 F.2d 1150, 1156-57 (2d
Cir. 1978). Because the County set forth legitimate, nondiscrimina-
tory reasons for hiring Arndt rather than Holdcraft, and because Hold-
craft failed to promulgate evidence on which a reasonable jury could
find the proffered reasons were a pretext for discrimination, we find
that the district court did not improvidently grant summary judgment
to the County on Holdcraft’s age or gender discrimination claims.
Accordingly, we affirm the district court’s order granting the Coun-
ty’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/1544314/ | 99 F.2d 1 (1938)
BALDWIN RUBBER CO.
v.
PAINE & WILLIAMS CO.
No. 7726.
Circuit Court of Appeals, Sixth Circuit.
October 6, 1938.
*2 Clarence B. Zewadski, of Detroit, Mich. (Whittemore, Hulbert & Belknap and Clarence B. Zewadski, all of Detroit, Mich., on the brief), for appellant.
John F. Oberlin and Howard F. Burns, both of Cleveland, Ohio (Beaumont, Smith & Harris, of Detroit, Mich., and John F. Oberlin, Howard F. Burns, and William R. Day, all of Cleveland, Ohio, on the brief), for appellee.
Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
Appellee was the owner of Turner patent No. 1,715,523 for floor coverings for automobiles and the like and Vrooman patent No. 1,715,525 for a similar purpose. Claim 3 of the Turner patent was for a floor covering or the like, flexible throughout comprising a loosely-compacted fibrous base, with a layer of fabric stitched thereto, and an upper wearing surface layer of flexible vulcanized rubber.
Claim 4 of the Vrooman patent was for a covering for floors and the like comprising a resilient, fibrous base and an upper wearing layer of rubber, said upper layer extending beyond said base as a free, flexible margin.
On October 22, 1932, the appellee entered into a price fixing license agreement with the appellant, permitting it to manufacture floor mats embodying the inventions covered by the Turner and Vrooman patents for a royalty of 2 cents per mat. The appellant had theretofore manufactured mats and at the time of the execution of the license agreement, appellee was charging it with infringement of these two patents. One of the covenants of the license agreement was that appellant would not dispute the validity of any patent thereunder and that the royalties would be paid notwithstanding litigation involving either of them. It was also provided that the license was not to be construed to be applicable to automobile floor mats in which none of the inventions covered by the patents were embodied.
The appellant paid the stipulated royalty on 916,525 mats during the life of the license *3 agreement and manufactured and sold 918,001 mats on which it paid no royalties, claiming they were non-infringing. The appellee instituted this action at law to recover the stipulated royalties on these mats. A jury was waived, the law and facts submitted to the Court.
The parties stipulated into the record the description and number of the mats manufactured by the appellant on which it paid royalties and also those on which it had failed to pay. The lower court made special findings of fact where by reference it included therein the construction and mode of assembly of the mats as typified by the exhibits, and concluded as a matter of law that the several types of mats as set forth in the findings of fact, were covered by one or both of the licensed patents and that royalties were due thereon, and awarded the appellee judgment as prayed from which this appeal is prosecuted.
The appellant made a motion for a directed verdict at the conclusion of appellee's testimony which was renewed on final submission of the case and denied. It also made appropriate motions for findings of fact and conclusions of law and objected and excepted to the findings of fact and conclusions of law of the Court and thereon bases its assignment of errors.
The appellee insists that this appeal involves a mixed question of law and fact not separable and having been tried without a jury, the lower court's findings of fact have the force and effect of the verdict of a jury and as the court found as a fact that the mats were within the scope of the licensed patents, there is nothing for us to review and rely on. General Motors Company v. Swan Carburetor Company, 6 Cir., 44 F.2d 24. This case does not apply because there the questions raised on appeal were not presented to the lower court.
Appellant insists that all of the issues on appeal are of law reviewable and relies on Singer Mfg. Company v. Cramer, 192 U.S. 265, 286, 24 S.Ct. 291, 48 L.Ed. 437 and contends that the trial court's findings of fact gave no construction to the claims of the licensed patents nor stated whether any of the mats manufactured by defendant, and not accounted for, came within the scope of said claims and therefore the law as found by the court is not supported by the facts.
It also urges that the special findings of fact of the trial court may not be supplemented by statements in its conclusions of law and relies on United States v. Esnault-Pelterie, 299 U.S. 201, 207, 57 S.Ct. 159, 81 L.Ed. 123. In the cited case, the Court of Claims failed to find as a fact or as a conclusion of law that the patent was valid or had been infringed. In the case at bar the court found under the heading "conclusions of law" that each of the licensed patents owned by the appellee disclosed and covered a patentable difference over the prior art and that each of the several types of mats manufactured and sold by appellant as set forth in the findings of fact was covered by one or the other or both of the licensed patents. The findings of fact were mingled by the lower court, with its conclusions of law. This state of the record does not require a reversal for further finding, nor prevent this court from examining the facts as found whether under the heading "findings of fact" or "conclusions of law," to determine their sufficiency. Compare O'Reilly v. Campbell, 116 U.S. 418, 423, 6 S.Ct. 421, 29 L.Ed. 669; Mayes v. Paul Jones Company, 6 Cir., 270 F. 121.
The construction of letters patent is a question of law for the Court, infringement a question of fact. Motor Wheel Corporation v. Rubsam Corporation, 6 Cir., 92 F.2d 129. On the record before us, we are authorized to review the judgment of the lower court in three particulars; first, the proper construction of the patents; second, whether there was substantial evidence to support the findings of the lower court as to infringement; and, third, whether the facts as found support the conclusions of law. Winans v. Denmead, 15 How. 330, 56 U.S. 330, 347, 14 L.Ed. 717; Stilz v. United States, 269 U.S. 144, 148, 46 S.Ct. 37, 70 L.Ed. 202; Humphreys v. Third Nat'l Bank, 6 Cir., 75 F. 852; Maryland Casualty Co. v. Jones, 279 U.S. 792, 797, 49 S.Ct. 484, 73 L.Ed. 960.
The appellant manufactured and sold three types of mats in controversy which the lower court found were covered by the claims of one or both of the licensed patents.
The first consisting of 656,279, were made for the Ford Motor Company and consisted of a loosely-compacted fibrous base having a layer of paper stitched thereto and an upper wearing surface mat of flexible, vulcanized rubber. In the front compartment mats, 503,841 of which were manufactured and sold by appellant, the *4 felt lies between the rubber and the floor board and both are held in position and anchored firmly thereto by glove, or snap, fasteners. They also have openings cut through both the felt and the rubber through which the steering column, the brake levers and other operating appliances of the car pass, holding them in perfect assembly.
The transmission in the Ford car comes up through the floor of the car and is covered with a transmission housing, which is a metal stamping fitting over the transmission. There is a large hole in the mat and in the felt and they are placed in position so the transmission housing extends several inches above the floor level and is covered by a separate rubber cap. After it is placed in position six screws are passed through the rubber housing covering the transmission and through the mat, which serves as a substantial anchor for the complete assembly of the rubber mat and felt pad.
In these front compartment mats, there was a free flexible margin of rubber beyond the underlying fibrous base which held them in alignment. Of these front mats appellant manufactured and sold 235,876 separate rubber mats and cut the felt pads to shape and size for the Ford Motor Company after being delivered to them by the company and manufactured and sold only separate rubber mats for the remaining 267,965, though they knew the mats were to be laid on the felt base when installed.
The back compartment mats are identical with the front with the exception of openings for appliances and that the rubber mat is laid on two felt pads. Appellant manufactured and sold 96,688 of the separate rubber back pads for the Ford Motor Company and cut the felt pads to shape and size after delivery to it by the Ford Company and manufactured and sold 55,750 of the separate rubber back pads, without the felt base though it knew they were to be installed with the felt bases.
The second type of mats were comprised of a felt base, lacking a layer of fabric but with an upper rubber wearing surface secured thereto by cement, the felt base extending at all points to the outer edges of the rubber wearing surface, but beveled off or skived at the door openings.
The third type of mats were also comprised of a felt base, lacking a layer of fabric but with an upper rubber wearing surface, secured thereto by cement with the felt base cut back from the edge of the rubber surface at some points and extending at all other points to the outer edges of the upper rubber wearing surface. Of these two latter type mats, appellant manufactured and sold 261,722.
A licensee is estopped from questioning the validity of his licensor's patent but when charged with its infringement, that question is determined without reference to any privity between them and in measuring the scope of the claim as disclosed by the patent, the Court may consider the state of the art involved and thus determine the primary or secondary character of the licensed patent and the extent to which the doctrine of equivalents may be invoked for the recovery of royalties.
Where the claim rests entirely upon the novelty of the specific combinations to carry the idea of the inventor into practical use, the means themselves being old, the range of equivalents allowed to the combination is narrowed to exclude anything which is not substantially identical with that used by the patentee.
This principle cannot be carried to the extent of making the patent invalid but the licensee has the right to claim he does not infringe and the court, to correctly decide this question, should determine what the patent in suit covers. It is sometimes impossible to ascertain this without reference to the prior art. In such cases the state of the art may be proved, but not for the purpose of invalidating the patent. Westinghouse Electric & Manufacturing Company v. Formica Insulation Company, 266 U.S. 342, 355, 45 S.Ct. 117, 69 L.Ed. 316; Noonan v. Chester Park Athletic Company, 6 Cir., 99 F. 90; Kelsey Wheel Company v. Hayes Wheel Company, 6 Cir., 5 F.2d 491; Smith v. Ridgely, 6 Cir., 103 F. 875.
In order to determine the bearing of the prior art upon the claims in suit, it is necessary to examine their essential features and construe them in connection with the explanation contained in their specifications. Claim 3 of the Turner patent provides a combination with flexibility throughout and a long-wearing surface with a soft carpet feel when trod upon. This is accomplished by a flexible vulcanized rubber top and a loosely-compacted fibrous base, said base including a layer of fabric stitched thereto.
The Vrooman patent is in all essentials indentical with the Turner patent except *5 that the underlying fibrous base is cut to a smaller dimension than the rubber layer so as to leave a free flexible margin.
When the claim of each of the patents in suit is fairly and truly construed with reference to the prior art and the specifications of each, avoiding a strained and unnatural interpretation, each provides for an upper rubber surface that need not be cemented or sewed to the felt base. The utility of each, its objects and purposes, may be attained without the use of a closely woven fabric between the fibrous base and the upper rubber wearing surface.
We express no opinion as to the validity of either of the patents in suit but, in view of the state of the prior art, the claim of each patent is to be so narrowly construed that the range of equivalents allowable to each of the combinations described in each claim must include nothing which is not substantially identical with the means employed by Turner or Vrooman. Knapp v. Morss, 150 U.S. 221-230, 14 S.Ct. 81, 37 L.Ed. 1059.
The usual tests of equivalency are identity of function and substantial identity of performance. In a combination patent, if the alleged infringing device is made up of the principal things precisely as described in the patent and attains the same result, infringement is present, though minor parts may be omitted or taken from well known equivalents. Eames v. Godfrey, 1 Wall. 78, 68 U.S. 78-80, 17 L.Ed. 547; McDonough v. Johnson-Wentworth Co., 8 Cir., 30 F.2d 375.
The Ford mats are identical with those described in appellee's patent with the exception of the stitching of the layer of paper to the felt in lieu of cloth and the use of the glove fasteners for assembly. Substitution of one equivalent for another in a combination patent, does not avoid infringement, if the structure when completed contains all of the essential elements described in the patent claims. Infringement may not be avoided by making a device which differs in form if the infringer appropriates the principle and mode of operation of the patent device and obtains its result by the same or equivalent means. This rule applies even when the claim is narrowly construed if the alleged infringing device is within the narrow construction. Johns-Manville Corporation v. National Tank Seal Company, 10 Cir., 49 F.2d 142; Lourie Implement Company v. Lenhart, 8 Cir., 130 F. 122; Smith Cannery Machines Co. v. Seattle-Astoria Iron Works, 9 Cir., 261 F. 85; Angelus Sanitary Can Machinery Co. v. Wilson, 9 Cir., 7 F.2d 314; Highway Appliances Co. v. American Concrete Expansion Joint Company, 7 Cir., 93 F.2d 113; Berke v. Courtney Folding Box Corporation, 2 Cir., 93 F.2d 284; Peale-Davis Company v. West Kentucky Coal Company, 6 Cir., 95 F.2d 655.
The appellant cannot escape infringement, because it furnished a part only of the floor mats for the Ford Motor Company. It had knowledge that the part assembled by it was to be used in the completed combination and was a part thereof and was therefore a contributory infringer. Motor Wheel Corporation v. Rubsam Corporation, supra.
The second and third types of mats were identical with those described in appellee's patents, except the second type were beveled off or skived at the door openings and the third type had the felt base cut back from the edge of the rubber surface at some points and extending at all other points to the outer edges of the upper rubber wearing surface. Neither type had a layer of fabric attached thereto and each had the pad and rubber surface welded together by cement.
Notwithstanding these differences the appellant employed the principle and appropriated the substance of the claims of one or the other or both of appellee's licensed patents in all three types of mats. We are of the opinion there was substantial evidence to support the lower court's findings and its judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919883/ | 279 Md. 392 (1977)
369 A.2d 56
JAMES B. CAINE EX UX.
v.
DRUCILLA M. CANTRELL
[No. 94, September Term, 1976.]
Court of Appeals of Maryland.
Decided February 9, 1977.
Motion for reconsideration filed March 8, 1977.
Denied March 18, 1977.
The cause was argued before MURPHY, C.J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.
Raymond S. Smethurst, Jr., with whom were Sally D. Adkins and Adkins, Potts & Smethurst on the brief, for appellants.
Hamilton P. Fox, Jr., for appellee.
Amicus curiae brief filed by Department of Natural Resources, Francis B. Burch, Attorney General, Warren K. Rich and John B. Griffith, Assistant Attorneys General, on the brief.
SINGLEY, J., delivered the opinion of the court. ELDRIDGE, J., concurs in part and dissents in part and filed an opinion concurring in part and dissenting in part at page 400 infra.
On two occasions in the recent past, in Department of Natural Resources v. Ocean City, 274 Md. 1, 332 A.2d 630 (1975) and Department of Natural Resources v. Cropper, 274 *394 Md. 25, 332 A.2d 644 (1975), we have considered the relative rights of the private landowner and the public as regards the beach at Ocean City, Maryland. While this case presents a somewhat different factual pattern which controls the result, it is in the same area of controversy.
The appeal is from an order of the Circuit Court for Worcester County, entered 28 October 1974 (the First Order), which, as amended at the request of the parties, was made interlocutory, and declared that a parking structure erected in the bed of a public street adjacent to an ocean front lot owned at time of trial by the appellants, James B. Caine and Joyce W. Caine, his wife, should be abated as a public nuisance, and from a second order entered by the same court on 14 November 1975 (the Second Order), which declared that a house erected on the lot owned by the Caines should be abated as a public nuisance. An appeal was taken by the Caines to the Court of Special Appeals. We granted certiorari before the matter was considered by that court. We propose to affirm the First Order entered below, but to modify the Second Order and affirm it as modified.
On 7 March 1968, Fountain Corporation and I.W. Long & Son, Inc. by James B. Caine, filed an application with the Mayor and City Council of Ocean City for a permit to build a one-family frame house on lot No. 1, block 102 of the Fenwick, Maryland plat. The lot, which is located at the northeast corner of Wight Street and English Avenue in Ocean City, is approximately 50 feet wide and 140 feet deep and fronts on the Atlantic Ocean.[1] On 12 March 1968, a building permit was prepared, but withheld until approval of "engineering decision of utilities are approved."[2] The permit was apparently issued on 28 March 1968.
At a date subsequent to the granting of the building permit apparently in May of 1968 Caine sought and *395 received a permit for the construction of a ramp and parking dock in the bed of English Avenue, a public street which is adjacent to his property on the south. The ramp is some 17 feet wide and 54 feet long. That part of the dock which extends into English Avenue is about 40 feet wide (23 feet wider than the ramp) and 25 feet longer than the ramp, and is built at an elevation of 14 feet. Since English Avenue is only 50 feet wide, it is partially blocked by the ramp and the dock, and access from English Avenue to Wight Street is similarly impaired.
An action which was instituted for declaratory relief in June, 1968, finally came on for trial in April, 1973. By that time, the parties were Mrs. Drucilla M. Cantrell, the former owner of adjacent lot No. 2 in block 102, and the owner of lot No. 11, lying west of lot No. 2, on which is built her residence,[3] as the sole party plaintiff; Mr. and Mrs. Caine and the Mayor and City Council of Ocean City as defendants; and the State of Maryland, Department of Natural Resources, which had entered the fray as amicus curiae.
The trial court, relying on Adams v. Commissioners of Trappe, 204 Md. 165, 102 A.2d 830 (1954); Perellis v. Mayor & City Council of Baltimore, 190 Md. 86, 57 A.2d 341 (1948); Huebschmann v. Grand Company, 166 Md. 615, 172 A. 227 (1934); Townsend, Grace & Co. v. Epstein, 93 Md. 537, 49 A. 629 (1901), and Van Witsen v. Gutman, 79 Md. 405, 29 A. 608 (1894), concluded, and we think quite rightly, that the Mayor and City Council of Ocean City were without authority to grant a permit allowing a private individual to obstruct a public street, thus denying the public the full use to which they were entitled, to gain access to the beach.
Additionally, we observe that the obstruction of a public way is a violation of statute, Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 121, punishable by fine and imprisonment; that Code (1957, 1973 Repl. Vol.) Art. 23 A, § 2 (23) empowers municipal corporations to suppress nuisances, and that Code of Ocean City, Maryland (1972), *396 Charter § C-414 (42) and (43) empowers the City Council to prevent or abate all nuisances and to remove all obstructions from streets, lanes and alleys. See generally W. Prosser, Torts § 88 (4th ed. 1971); 58 Am.Jur.2d Nuisances §§ 7-8, at 561-64 (1971).
For this reason, we shall affirm the First Order requiring the removal of that part of the ramp and dock which stands in the bed of English Avenue.
We turn now to a consideration of the Second Order, which declared the house erected on lot No. 1, block No. 102 to be a public nuisance and ordered it abated by the Mayor and City Council of Ocean City.
The reasoning adopted by the court to reach this conclusion can be summarized as follows. Relying on our holdings in Department of Natural Resources v. Cropper, supra, 274 Md. 25; Department of Natural Resources v. Ocean City, supra, 274 Md. 1, and Board of Public Works v. Larmar Corp., 262 Md. 24, 277 A.2d 427 (1971), and see Van Ruymbeke v. Patapsco Industrial Park, 261 Md. 470, 475, 276 A.2d 61, 64 (1971), the court concluded, and we think quite rightly, that ownership of land lying between mean high water and mean low water is vested in the State of Maryland, and held in trust for public use.
Relying largely on the testimony of George Bert Cropper, a civil engineer with wide experience in the area, the court then found as a fact that there has been no significant change in recent years in the mean high water mark in the part of Ocean City where the Caine house was built, with the result that what became a lot 140 feet in depth from the lot line to the west to mean low water was bisected by the mean high water mark in 1968, leaving a lot extending approximately 70 feet westerly from the mean high water mark to the lot line on Wight Street, which binds the property on the west. After reviewing the evidence in the case we cannot say that this finding of fact was clearly erroneous.
The court then proceeded to a finding of fact, for which we find no support in the record, to resolve an issue not raised *397 by the plaintiff: that the issuance of the building permit was conditioned upon the grant of an easement 15 feet wide lying immediately west of the mean high water mark for use by the public as a means of access to the beach. It was the court's conclusion that the house, as constructed, encroached upon this easement, a nuisance which the court ordered abated.
It is at this point that the view which we take of the case is at variance with the determination reached below. It will be recalled that the building permit was issued to the Fountain Corporation and I.W. Long and Son, Inc., the co-owners of the lot at the time, and not to Mr. Caine.[4] Construction was commenced in April, 1968, and the house was virtually completed by late summer or early fall of 1968. Title to the property was taken by Mr. and Mrs. Caine, as tenants by the entirety, in September, 1969. There was introduced in evidence an untitled document:
"October 21, 1968
"TO WHOM THIS MAY CONCERN:
Lot 1 Block 102
The permit is ussed [sic] in accordance with your agreement with the Council when permit was approved to be resolved with the City Solicitor as follows:
"Subjected to the granting of a 15 foot perpetual public easement on the easterly portion of the plotted lot to the Town of Ocean City for a public beach; and subjected also to access being provided at the *398 cost of the property owner and in compliance with other City Ordinances.
Signature: James B. Caine
Date 2/24/69"
The record shows that the only condition to which the building permit was subject was the approval of arrangements for sewer service, a condition which was apparently satisfied when the lot was connected to the public sewer.
There is absolutely no evidence that there was ever a formal grant of the easement. Even assuming that the paper was a formal undertaking to make such a conveyance, it should be noted that Mrs. Caine did not join in the execution and that by February, 1969, when Mr. Caine apparently signed the paper, he was not yet the holder of record title, although the house had been completed and the conveyance, if contemplated, would have been a practical impossibility, because the house encroached on the area which would have been subjected to the easement.
What we regard as of greater significance is that the lower court found that the application for the building permit contemplated the construction of a house 40 feet wide and 52 feet deep, and that no application was made for a change in those dimensions. The house as built was 40 feet wide and about 58 feet, 10 inches deep. Additionally, it was set back approximately six feet from Wight Street, and there was a cantilevered porch or deck about 10 feet, four inches wide on the ocean front, overhanging the easternmost line of pilings, so that the structure extended eastward about 75 feet from the western lot line, five feet easterly of what the trial court found to be the mean high water mark. Curiously enough, the structure which was built covered almost precisely the area which would have been included in the easement, had an easement been granted.
Thus, while we conclude that the trial court erred in entering a declaratory order directing that the house be removed because of the failure to meet what it regarded as a *399 condition upon which the permit was issued, we see no reason why an order should not have been entered directing that any portion of the structure which extends easterly beyond the mean high water mark as found by the court be abated as a public nuisance. This is clearly an encroachment upon the area between mean high water and mean low water, title to which is vested in the State of Maryland, and held for the benefit of the inhabitants of the State, Board of Public Works v. Larmar Corp., supra, 262 Md. at 35-36; Kerpelman v. Board of Public Works, 261 Md. 436, 445, 276 A.2d 56, 61 (1971); United States v. Certain Land in County of Worcester, State of Maryland, 311 F. Supp. 1039 (D.C. Md. 1970).
We regard the Caines' reliance on Code (1957, 1968 Repl. Vol.) Art. 54, § 46 as misplaced. This provision, until its repeal in 1970, gave the owner of land bounding on navigable waters "the exclusive right of making improvements into the waters in front of his said land," so long as it does not "interfere with the navigation of the stream of water into which the said improvement is made." (emphasis supplied)
Even assuming that § 46 was intended to apply to property fronting on the Atlantic Ocean, as well as to navigable rivers and bays, the case law makes it clear that what was contemplated were improvements in the nature of wharves, piers, landing stages and similar structures, Hess v. Muir, 65 Md. 586, 598 (1886). See also discussion by Judge Finan, for the Court, in Board of Public Works v. Larmar Corp., supra, and by Judge Smith, for the Court, in Van Ruymbeke v. Patapsco Industrial Park, supra.
Consequently, we shall modify the declaration contained in the Second Order and affirm the order as modified:
"Accordingly it is, this 14th day of November 1975 by the Circuit Court for Worcester County, Maryland, ORDERED AND ADJUDGED:
"1. That such portion of the structure located upon Lot No. 1 in Block No. 102, as shown upon the plat entitled `Revised and Reassembled Plat No. 4 of Fenwick, Maryland,' as recorded among the land *400 records of Worcester County, Maryland, in Liber E.W.R. No. 1, at Folio 40, as extends eastward of 70 feet from the western lot line of said Lot No. 1 on Wight Street, be, and the same is hereby declared to be a public nuisance, and should be abated by the Mayor and City Council of Ocean City, Maryland; and
"2. That the Defendants and the Mayor and City Council of Ocean City, Maryland shall each pay one-half the costs of this proceeding."
Order of 28 October 1974 affirmed; order of 14 November 1975 modified, and as modified, affirmed.
Costs to be paid, one-half by defendants James B. Caine and Joyce W. Caine and one-half by defendants, Mayor and City Council of Ocean City.
Eldridge, J., concurring in part and dissenting in part:
I agree with the majority that the circuit court's order of October 28, 1974, should be affirmed. However, for the reasons set forth in my dissenting opinion in Dep't of Natural Res. v. Ocean City, 274 Md. 1, 15-25, 332 A.2d 630, 639-644 (1975), I would affirm without modification the circuit court's order of November 14, 1975.
NOTES
[1] The plat of Fenwick, dated 1940 and revised in 1966, shows that lot No. 1 as originally laid out had a depth of 200 feet, but by 1966 had a depth of about 140 feet from the westernmost lot line to mean low water.
[2] This related to the manner in which sewer service was to be provided. The problem was resolved by the installation of a septic tank on adjacent property, and later by a connection with a public sewer.
[3] At trial Mrs. Cantrell testified that lot No. 2, which was unimproved, had been conveyed to Worcester County.
[4] Mr. Caine testified that when he signed the application, he did not know what interest he had in the property, but that he owned it at time of trial. It would appear that Fountain Corporation and I.W. Long and Son, Inc. contracted to purchase the lot on 28 February 1968; that James B. Caine, Inc. acquired title on 14 May 1968, and on 22 September 1969, conveyed title to James B. Caine and Joyce W. Caine, his wife. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919897/ | 245 Pa. Superior Ct. 174 (1976)
369 A.2d 350
COMMONWEALTH of Pennsylvania
v.
James WESTBROOK, Appellant.
Superior Court of Pennsylvania.
Submitted March 17, 1975.
Decided November 22, 1976.
*176 Richard R. Lunenfeld, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
PRICE, Judge:
This is an appeal nunc pro tunc from judgment of sentence. Appellant, James Westbrook, was arrested on May 30, 1972, and charged, inter alia, with aggravated robbery. An Assistant Defender from the Defender Association of Philadelphia represented appellant at the preliminary hearing on these charges. On November 15 and 16, 1972, appellant, having waived his right to a jury trial, was tried before a judge and found guilty of aggravated robbery. At this trial appellant was represented by a different Assistant Defender. On November 22, 1972, trial counsel filed post-trial motions for a new trial and in arrest of judgment. These motions contained only pro forma claims that the verdict was against the evidence, the verdict was against the weight of the evidence and the verdict was contrary to law. On June 26, 1973, post-trial motions were argued by a third Assistant Defender and denied.[1] Appellant was then *177 sentenced to 2 1/2 to 7 years incarceration in the State Correctional Institution at Graterford. No direct appeal was taken to this court, although both appellant and his trial counsel testified at a subsequent PCHA hearing that appellant had indicated to the defender's office his desire to appeal, and that he had received appellate forms which were subsequently completed and returned. No explanation of the lack of further action appears in the record.
On April 16, 1974, appellant filed a pro se petition for relief under the Post Conviction Hearing Act.[2] In his petition, appellant claims numerous violations of his rights. Only two of these allegations, denial of the right to representation by effective counsel and denial of the right to appeal, are relevant here. An evidentiary hearing was held on June 5, 6, and 26, 1974, at which appellant was represented by private counsel. The hearing judge, finding that appellant had not waived his right to appeal, granted him the right to appeal to this court nunc pro tunc. All other claims in the petition were denied.[3] This appeal followed.
Appellant raises three arguments in support of his prayer for a new trial: (1) that a mistrial should have been granted when the district attorney indirectly informed the trial judge that appellant had previously been convicted of a criminal offense; (2) that appellant *178 was inadequately advised of his right to a jury trial; and (3) that trial counsel was ineffective. Only the final issue is properly before us. The boiler plate post-trial motions filed by trial counsel are totally inadequate to preserve claims of pre-trial and trial error. Such issues, unless raised specifically in post-verdict motions, are waived. Commonwealth v. Blair, 460 Pa. 31, 33 n. 1, 331 A.2d 213, 214 n. 1 (1975); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974).[4]
In this case, because the PCHA hearing court granted leave to appeal to this court nunc pro tunc rather than leave to file proper post-trial motions nunc pro tunc, two of the claims in this appeal are not preserved and cannot be given consideration. Commonwealth v. Reid, supra; Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1971). However, since appellant raised the issue of ineffective assistance in his PCHA petition and at the subsequent PCHA hearing, and as appellant is represented by different (than trial) counsel on this appeal, this contention is properly before us. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).
A short review of the factual history of this case is necessary to an analysis of appellant's ineffective assistance claim. Appellant was charged with the robbery and beating of one Robert Really, which took place on May 23, 1972, in South Philadelphia. On May 30, 1972, Mr. Really was in the same area and observed appellant *179 standing in a parking lot. Mr. Really sought a patrolman and, on the basis of his identification of appellant as his assailant, an arrest was effected.
At trial, appellant's defense rested on a theory of misidentification. It was asserted that appellant's brother, Alphonso Westbrook, rather than appellant, had robbed and beaten Mr. Really. Two witnesses, appellant's mother, Barbara Lou Westbrook, and a prison social worker, Scott T. Wilson, gave testimony for the defense. Mrs. Westbrook asserted that Alphonso had acknowledged his guilt to her. Wilson, on the other hand, recounted a meeting between the two brothers and himself where appellant had maintained his own innocence and his brother's guilt, while Alphonso had not protested. Detective Bonsera, who had been present at appellant's preliminary hearing, testified that at some point in that proceeding appellant's counsel suggested that Alphonso was going to admit that he had committed the crime with which appellant was charged.[5] Detective Bonsera indicated further that before Alphonso could be approached regarding a statement, a second, unidentified (in the record before us) Assistant Defender advised Alphonso not to make any statement relating to the robbery of Mr. Really.[6] During the period encompassing the pre-trial and trial stages of appellant's case, Alphonso was represented by another Assistant Defender (not one of those who represented appellant) in regard to a different criminal charge. Alphonso, at all times prior to and subsequent to the recounted incident, has declined to make a statement regarding this robbery and has consistently denied any involvement therein.
Appellant first contends that his trial counsel was ineffective in that he was subject to a conflict of interest in presenting appellant's defense. Our courts have typically *180 found such conflicts where an attorney or a firm has represented different defendants, with actually or potentially antagonistic interests, in joint or separate trials.[7]
There was no such "dual representation" in the instant case. Appellant and his brother Alphonso were not co-defendants, nor were they tried either jointly or separately on the same offense. James and Alphonso were each represented by different members of the same defender office in regard to separate and distinct criminal charges based on factually discrete events.
Given that appellant and Alphonso were not co-defendants and Alphonso was never charged with or tried for the crime in question, the instant situation could not constitute a conflict of interest under traditional analysis. Further, no prejudice to appellant could have resulted at trial since appellant's counsel was not aware, until near the end of the trial, that his office represented both James and Alphonso on different charges.[8] Even following this discovery, trial counsel had neither legal responsibility toward nor other interest in Alphonso such as could have prejudiced his representation of appellant. Appellant's counsel testified that he attempted to secure *181 Alphonso's testimony at trial, first by subpoena and later by requesting a continuance for the purpose of locating him when he apparently absented himself from the courtroom area. (N.T. PCH 8).[9] Further, trial counsel vigorously argued appellant's misidentification defense, introduced supporting testimony from appellant's mother, a prison social worker who had known both appellant and Alphonso, and appellant himself, and introduced pictures of both brothers into evidence to demonstrate their similarity in appearance. Appellant has thus failed to show, in respect to his trial, either actual harm or "the possibility of harm," Commonwealth v. Breaker, 456 Pa. 341, 345, 318 A.2d 354, 356 (1974), resulting from the alleged conflict.
The only substantive harm appellant claims as a product of the purported conflict of interest in this case is the advice of an unspecified public defender, given to Alphonso at the scene of appellant's preliminary hearing, not to make a statement regarding his involvement in the crime with which appellant was charged. It is extremely doubtful, in view of Alphonso's subsequent refusal in several instances, including the PCHA proceedings upon which this appeal is based, to admit guilt or involvement, that the advice given by the unidentified public defender reversed or otherwise altered Alphonso's disposition to make a statement or testify. Alphonso did not come forward prior to the preliminary hearing, and appellant and his mother were the only parties who claimed that he had ever admitted being involved in the robbery of Mr. Really. Any supposed detriment which appellant may have suffered as a result of the public defender's advice to Alphonso was not a compromise of one defendant's interests in favor of those of another defendant. It was objective legal advice given to a person never charged with the crime involved.
*182 In Commonwealth v. Breaker, supra at 343, 318 A.2d at 355, our Supreme Court stated that "[i]nherent in the right to effective assistance of counsel is the correlative right to be represented by counsel unburdened by any conflict of interest." Appellant's trial counsel was in no way so burdened. Appellant was his only client at the trial, and appellant was given the benefit of his undivided loyalty and interest. Breaker, supra, also requires that "a defendant must demonstrate that a conflict of interest actually existed at trial . . . ." and that "`. . . appellant . . . must at least show the possibility of harm. . . .'" 456 Pa. at 344, 318 A. 2d at 356. (emphasis added) Appellant herein fails to meet either of these requirements. The only harm resulting from the alleged conflict took place long prior to appellant's trial and on the facts, no conflict existed at trial and thus no possible threat to appellant's interests was present. We perceive no reason to abrogate the established requisites to a finding of conflict of interest under the case law of this Commonwealth.
The second ground of ineffectiveness urged by appellant is his trial counsel's failure to secure Alphonso's presence at trial. Although trial counsel's testimony at the PCHA hearing indicated that he requested a continuance for this purpose, no such request is evident in the record.
Assuming that trial counsel failed to seek the disputed continuance, we must determine whether this conduct constituted ineffective assistance. When asked to make a statement or questioned by the police about the robbery of Mr. Really, Alphonso had uniformly declined to cooperate and had denied any connection with the crime. If Alphonso had been called as a witness and had once again declared his innocence, appellant's misidentification defense might have been seriously impaired, if not totally discredited. In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), the *183 court stated that ". . . a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized." 427 Pa. at 605, n. 8, 235 A.2d at 353, n. 8. Considering the facts of this case and the PCHA hearing testimony of Alphonso, where he once more denied having committed the robbery (N.T. PCH 56), we cannot conclude that his trial testimony would have substantially strengthened the appellant's defense or increased the likelihood of his acquittal.
The judgment of sentence of the lower court is affirmed.
SPAETH, J., files a dissenting opinion in which WATKINS, President Judge, and HOFFMAN, J., join.
SPAETH, Judge, dissenting:
My difference with the majority's view of the law of dual representation and conflict of interest is based in large part on the facts of this case. Therefore a fuller recitation of those facts may be helpful.
The theory of the defense was that appellant's brother Alphonso, who closely resembled appellant, had initially attacked Mr. Really and had led the robbery, rather than appellant. At trial, a detective who had been present at appellant's preliminary hearing, the mother of Alphonso and appellant, and a social worker from the Detention Center all offered testimony that tended to prove Alphonso's involvement in the crime. Alphonso himself did not testify.[1]
*184 Detective Bonsera testified that Alphonso had been given a preliminary hearing for an unrelated robbery at the same police station as appellant, and that this hearing had immediately followed appellant's. He said when cross-examined that someone from the Defender Association had informed him that Alphonso might have been implicated in the attack on Mr. Really:
Q. Did you who did you receive this information from, sir?
A. It was made known in the courtroom that he [Alphonso] participated in the robbery. We all knew *185 there was more than one man. There were four involved in the robbery. There was only one identified.
Q. Sir, who made this known to you?
A. This was made known to the Court. The Public Defender said he had something to offer the Court that James [appellant] was held for the charges. The Public Defender said he wanted to make it known to the Court. This was after the proceedings.[2]
Q. So the Public Defender gave you the information that Alphonso had implicated himself; is that correct?
A. That's correct.
Q. Were you present during the time that the Public Defender had a conversation with Alphonso?
A. No, I was not.
Q. Do you know the name of this Public Defender, sir?
A. No, it would be on the record. I don't know his name.
(N.T. Trial 49.)
However, the detective said, when he attempted to secure a statement from Alphonso, "the Public Defender's office . . . decided that they did not want Alphonso to make a statement to the admission of the robbery." *186 (N.T. Trial 45-46.) On direct, the detective testified to the following conversations with Alphonso and with the mother of Alphonso and appellant:
At the particular time of the hearing, it was suggested that Alphonso Westbrook was going to admit to this robbery. OK. And the Public Defender at that time, I can't recall his name, he said that he didn't want Alphonso Westbrook to admit to the robbery, or he wouldn't let Alphonso make a statement . . . Mrs. Westbrook had spoken to the complainant also outside in the hearing room after both of those hearings had taken place. Prior to Mrs. Westbrook talking to Alphonso, I asked Alphonso if he would make a statement to me, and he said no. And I came back to the hearing room and explained to Mrs. Westbrook that he would not make a formal statement. And she asked for the opportunity to talk with him . . . . She asked me if she could have a few minutes in private with both her sons. And I stepped back out of earshot. She proceeded to talk with them. And when I came back, she said that Alphonso would admit to his part in the robbery.
(N.T. Trial 43-44.)
Nevertheless, Alphonso never made a statement to the police, and he was never arrested or tried for the robbery of Mr. Really.[3]
*187 Mrs. Westbrook, the mother of Alphonso and appellant, testified that at the time of the preliminary hearing, Alphonso told her that "James was not the one who robbed the oil man, said it was him and three more guys, at 13th and Bainbridge Sts." (N.T. Trial 61.) She also testified that Mr. Really said to her after seeing Alphonso: ". . . that's the one who robbed me. If they brought him out before they brought the other boy out, I would have identified Alphonso." (N.T. Trial 63.) However, this was contradicted by Mr. Really, who, on redirect, persisted in his identification of appellant:
Q. Who was it who robbed you that day?
A. James.
Q. Did you tell the detective that?
........
A. Yes.
Q. Did you tell him that after you saw Alphonso?
A. Yes.
(N.T. Trial 57.)
Scott Wilson, the social worker, testified that he had interviewed appellant in the presence of Alphonso and that appellant had told him that "I have my brother here now. I brought him down because of what I told you about him doing what I am accused of." (N.T. Trial 79.) Mr. Wilson testified that he then telephoned the Defender, because "I thought there was enough substance to what James had told me to contact somebody that would be representing James Westbrook when he went to court." (N.T. Trial 80.) On cross-examination, however, he admitted that he had acted as he had only because he was impressed with appellant's sincerity, not *188 because Alphonso had made any admission in his presence or because he had any direct knowledge of the circumstances of the case.
No testimony was offered to prove that Alphonso had admitted his role in the robbery to anyone other than his mother and appellant. Detective Bonsera, in his direct testimony, said that "[p]rior to his mother speaking to him, I asked if he did participate in the robbery, and he said no. I asked if he was going to admit to it, and he said no." (N.T. Trial 48.)[4]
From this record it is evident that a written statement from Alphonso, taken by the police, or his testimony at appellant's trial, or at least his appearance at the trial, so that the trial judge and Mr. Really could have assessed his similarity to appellant, might have been of decisive importance to appellant's defense that it was Alphonso, not he, who had robbed Mr. Really.
As the majority notes, the cases in which a conflict of interest due to dual representation has been found have dealt with situations where either co-defendants or defendants charged with the same offense but tried separately have, despite the existence of antagonistic defenses, been represented by the same attorney or by members of the same law firm. Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968); Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962). Here, Alphonso has never been arrested or charged with the offense that was the subject of the trial of appellant, his brother. Nevertheless, I believe that a conflict of interest did exist at appellant's trial, and that therefore his conviction should be reversed and a new trial awarded.
*189 The law on conflict of interest was recently summarized in Commonwealth v. Breaker, 456 Pa. 341, 318 A. 2d 354 (1974), as follows:
First, "[i]f, in the representation of more than one defendant, a conflict of interest arises, the mere existence of such a conflict vitiates the proceedings, even though no actual harm results. The potentiality that such harm may result, rather than that such harm did result, furnishes the appropriate criterion [citation omitted]." Second, a defendant must demonstrate that a conflict of interest actually existed at the trial because "dual representation alone does not amount to a conflict of interest [citations omitted]." Third, "[t]o make the dual representation arise to a true conflict, appellant need not show that actual harm resulted,. . . but must at least show the possibility of harm . . . . [citation omitted]." Fourth, appellant will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, "that he had a defense inconsistent with that advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense [citations and footnote omitted]."
Id. at 344, 318 A.2d at 356.[5]
*190 From this statement of the law, the following may be deduced. "Conflict of interest" may arise from "dual representation." "Dual representation" is composed of two elements: (1) representation by the same counsel, or by members of the same law firm, or (2) "more than one defendant." If the second element is confined to its literal terms, then the majority is correct that there was no dual representation in the present case, since Alphonso was never a "defendant." However, I suggest there is no defensible reason for such a limitation of the definition of the element "more than one defendant." Rather, the element should be defined and applied by reference to the right to be safeguarded, i.e., the "right to be represented by counsel unburdened by any conflict of interest." Commonwealth v. Breaker, supra 456 Pa. at 343, 318 A.2d at 355. In this sense the element of "more than one defendant" and the presence of a "possibility of harm" merge into one question: Did the representation of two clients (by one attorney, or by members of the same law firm) import into a defendant's trial a possibility of harm sufficient to amount to a conflict of interest?
When the criteria of Commonwealth v. Breaker, supra, are applied, the first question becomes whether appellant has shown the existence of the first element of "dual representation," or, to define the question as required by the facts of this case: Must Assistant Defenders from the same Defender Association be considered "lawyers who are associated in practice," ABA Standards § 3.5, supra n. 5? If so, must they adhere to the same standards governing conflicts of interest in private practice? The issues raised by these questions do not appear to have been addressed in a case involving a conflict of interest. Nevertheless, we are not without guidance.
*191 In Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974), appellant claimed in his second PCHA petition that the Assistant Defender who had represented him at trial and the Assistant Defender who had represented him at his first PCHA hearing (both from the Dauphin County Public Defender's Office) had been ineffective. In holding that appellant had not waived his right to raise this issue because he had not raised it at the first PCHA hearing, the Supreme Court noted that appellant had been represented by the "same firm":
However, here, during the first PCHA proceeding, appellant was assigned counsel who was a member of the same firm that represented him at trial. We will not view the failure to raise a claim of incompetency as a waiver where an individual in the subsequent proceeding is represented by the same counsel or one of his associates. The law will not assume that counsel has advised his client of his inadequacies or those of his associates.
Id. at 377, 316 A.2d at 898.
Accord, Commonwealth v. Bliss, 239 Pa.Super. 347, 361 n. 8, 362 A.2d 365, 373 n. 8 (1976).
If Assistant Defenders are to be considered members of the "same firm" in cases involving a claim of ineffectiveness, there is no reason to establish a different rule for cases involving a claim of conflict of interest.
Nor is there any reason to distinguish between a public firm, such as the Defender Association, and a firm engaged in private practice. Indeed, important constitutional considerations argue against such a distinction. Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), "the scope of judicially mandated representation of the poor [has] increased dramatically." Defender Association of Philadelphia Amendment of the Articles of Incorporation, 453 Pa. 353, 356, 307 A.2d 906, 908 (1973). See, inter alia, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Coleman *192 v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1969); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). The right to counsel's assistance necessarily means the right to effective assistance. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). To hold that there should be higher standards for determining when a conflict of interest arises in a private firm than when it arises in the legal office charged with the primary responsibility of representing indigent accused would undercut this constitutional mandate and discriminate among clients on the basis of their ability to pay. "Such differing standards, depending on wealth, when dealing with the fundamental right to counsel, are prohibited by the Constitution." Defender Association, supra 453 Pa. at 375, 307 A.2d at 917 (dissenting opinion by Roberts, J.). See also Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); ABA Project on Standards for Criminal Justice, Standards Relating to Providing Defense Services (Approved Draft, 1968); Equal Justice for the Accused, Report of the Special Committee of the Association of the Bar of the City of New York and the National Legal Aid and Defender Association (1959).
Indeed, because indigent defendants have more limited alternatives available to them, a conflict of interest may be even more destructive when it involves the Defender rather than private practice. "[E]ven after full disclosure of the possible conflict of interest, the indigent defendant has no alternative but to accept the representation of the Defender Association. Such a conflict, which surely would not be tolerated by a non-indigent defendant, will be unavoidable and undoubtedly acquiesced in by the indigent, having no other recourse." Defender Association, supra 453 Pa. at 375, 307 A.2d at 917 (dissenting *193 opinion by Roberts, J.).[6] In this regard, it is of interest to note the testimony of appellant's trial counsel at the PCHA hearing, when he evaluated his conduct of appellant's trial:
Part of the case that has upset me the most was that a Public Defender at the police station was appointed for Alphonso Westbrook. When I went to trial I did not know of this conflict of interest . . . . At the time we had the trial, I did not know, because it was not in the file, it should have been, that there was a conflict that we represented not only a brother but a person who had come forth and stated that he and *194 three other people . . . were involved in this case . . . .
........
I've always looked at the Defender's Association as a law firm, perhaps a special law firm. Every member of that office represents that law firm when they represent a client. I feel that Mr. Westbrook was not properly represented.
........
If I had known at the time of trial that my office represented Alphonso Westbrook, a letter would have immediately gone out to the Court Administrator withdrawing our representation of the defendant.
........
A memo from the assistant who represented Alphonso Westbrook should have been in the defendant's file. I should have been notified of this before trial. I was not.
(N.T. PCH 14-15, 24-26.)[7]
I recognize that the constantly increasing caseload of the Defender Association imposes a heavy burden upon every Assistant Defender. From July, 1973, through June, 1974, the Defender Association disposed of over 57,000 cases in the state courts; the comparable figure for 1972-73 was 54,000 cases. Defender Association of Philadelphia, 39th and 40th Annual Reports of the Directors (1972-1973 and 1973-1974). However, the volume *195 of the Defender's work cannot be used as an excuse for a failure to meet constitutionally imposed standards of competent representation; indeed, it makes the effective advocacy required by our cases even more essential.[8]See generally Suggs v. United States, 129 U.S.App.D.C. 133, 391 F.2d 971 (1968).
Once it is established that the first element of dual representation existed, the remaining question is whether the representation of two clients imported a possibility of harm sufficient to amount to a conflict of interest. Under the facts of the present case I think such a possibility of harm has been shown. This may best be illustrated by a comparison of the possible harm here with the possible harm found in other dual representation cases.
In Commonwealth ex rel. Whitling v. Russell, supra, two brothers were charged with sodomy. At their joint trial, the judge requested that counsel for appellant also represent appellant's brother. Counsel acceded to the request. However, the defense appellant offered was to claim innocence and to say that his brother was guilty. The Supreme Court held that given these facts, a true conflict existed in the dual representation of the two defendants. In Commonwealth v. Meehan, 409 Pa. 616, 187 A.2d 579 (1963), appellant was convicted of robbery. He and his co-defendant were tried two times; at the second trial both were represented by the same Assistant Defender. Although the complainant had first identified the co-defendant as the robber, at the second trial he *196 identified appellant. The Assistant Defender, however, did not call this prior identification to the attention of the court. This court affirmed the conviction, but the Supreme Court reversed on the basis of Judge FLOOD's dissenting opinion, 198 Pa.Super. 558, 567, 182 A.2d 212, 217 (1962), because "under these circumstances, we cannot say that an attorney free of the responsibility of representing McKnight as well as Meehan, would not have used these facts to the advantage of Meehan and the disadvantage of McKnight." 198 Pa.Super. at 571, 182 A. 2d at 219. Perhaps even closer in point is Commonwealth v. Booker, 219 Pa.Super. 91, 280 A.2d 561 (1971). There, appellant and a co-defendant were jointly tried for aggravated robbery. At trial, one of the arresting officers testified that before the arrest, one defendant had tried to blame the theft on the other. We wrote:
In the instant case appellant has shown a conflict of interest. As soon as the police officer testified that one defendant tried to blame the theft on the other defendant, it became obvious that the defendants had antagonistic defenses. It became impossible for counsel to represent both defendants fully and faithfully. Id. at 94, 280 A.2d at 562.
Here, although appellant and his brother Alphonso were not co-defendants at trial, their "defenses" in the sense of their interests and the legal advice each was entitled to receive from his attorney were antagonistic. This became apparent as soon as Detective Bonsera testified. The detective's testimony has been stated in some detail above. To recall it briefly: Appellant was represented by one Assistant Defender at his preliminary hearing. At the preliminary hearing, that Defendant, or possibly another Defender, brought to the detective's attention the possibility that Alphonso rather than appellant might have committed the robbery; also, that Defender, or possibly another Defender, then advised Alphonso not to make a formal statement to the police. *197 While these events did not occur at the trial, they may well have determined its outcome.[9] At trial, the Assistant Defender argued that Alphonso was guilty of the robbery, not appellant. However, the advice that had been given Alphonso by the Assistant Defender he had consulted at the preliminary hearing had evidently prevented Alphonso being charged with the robbery. This advice was in direct conflict with effective representation by the Defender of appellant. It was in the interest of appellant that Alphonso make a statement to the police, which might well have led to his arrest, and that he be present at appellant's trial to testify, or at least to be seen.
True, we cannot be certain what Alphonso's statement or testimony would have been, or how his appearance might have affected the trial. However, it is the "potentiality that such harm [i.e., harm arising from a conflict] may result, rather than that such harm did result, [that] furnishes the appropriate criterion." Commonwealth v. Breaker, supra, citing Commonwealth ex rel. Whitling v. Russell, supra 406 Pa. at 48, 176 A.2d at 643. We need not determine the exact quantum of harm. Commonwealth v. Wilson, supra. The right to effective assistance of counsel "is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). As in Commonwealth v. Booker, supra, "[a]s soon as the police officer testified . . . it became *198 obvious that the [brothers] had antagonistic defenses." Id. 219 Pa.Super. at 94, 280 A.2d at 562. As soon as the detective testified here, the Assistant Defender should have asked to be allowed to withdraw as appellant's counsel; at the very least he should have requested a continuance so as to determine whether the Defender Association still represented Alphonso. He did neither.
I would reverse the order of the lower court, vacate the judgment of sentence, and order a new trial.
WATKINS, President Judge, and HOFFMAN, J., join in this opinion.
NOTES
[1] Issues in this case could possibly have been preserved by the oral argument of post-trial motions, which took place prior to Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975). Here, however, the oral argument is not recorded; because no direct appeal was taken, we have no opinion of the trial court to reveal what post-trial arguments it considered; and appellant does not allege that any of the grounds for relief he advances in the instant appeal were raised in this manner.
[2] Act of January 25, 1966, P.L. (1965) 1580, § 1 (19 P.S. § 1180-1) et seq. (Supp. 1976-77).
[3] Where a post-conviction court determines that a petitioner is entitled to a direct appeal, it should make no further decision as to other claims for post-conviction relief. Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1976). The court should then determine whether proper post-trial motions have been filed. In the absence of such motions, as in the instant case, leave should be granted to file post-trial motions nunc pro tunc. Such a procedure allows the trial court an opportunity to grant relief or answer allegations of error, thus possibly eliminating the necessity of an appeal, or, in the alternative, providing the appellate court with a complete record and issues ripe for review.
[4] Here, appellant alleged ineffectiveness of counsel in his PCHA petition and at the post-conviction hearing. However, at neither of the aforementioned stages, nor in the appeal before us, does appellant raise trial counsel's filing of only pro forma post-trial motions as an instance of ineffectiveness. Thus, in order for this court to reach the two allegations which appellant raises for the first time in this appeal, we would have to interpose, sua sponte, trial counsel's failure to file proper post-trial motions as a ground for a finding of ineffectiveness. This we will not do.
In Commonwealth v. Drummond, 238 Pa.Super. 311, 357 A.2d 600 (1976), this court (per Hoffman, J.) applied a parallel analysis to a similar procedural situation.
[5] No such suggestion or intimation, either by appellant's counsel or Alphonso, appears in the record of appellant's preliminary hearing.
[6] This incident is similarly unreflected in the record.
[7] See Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968) (co-defendants, separate trials); Commonwealth v. Meehan, 409 Pa. 616, 187 A.2d 579 (1963) (co-defendants, joint trial); Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962) (co-defendants, joint trial); Commonwealth v. Booker, 219 Pa.Super. 91, 280 A.2d 561 (1971) (co-defendants, joint trial).
See also the ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, The Defense Function § 3.5 ("Conflict of Interest") (Approved Draft, 1971): "(b) Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another." (emphasis added)
[8] At the PCHA hearing which preceded this appeal, appellant's trial counsel testified that he was not aware, until the testimony of Detective Bonsera at trial, that another member of his office had represented or was representing Alphonso. (N.T. PCH 14, 15)
[9] The record does not, however, reflect a request for a continuance for this purpose, and there is some conflict as to whether or not Alphonso was, in fact, subpoenaed.
[1] Appellant argues that trial counsel was ineffective because he failed to secure Alphonso's testimony. (Brief for Appellant 5-7.) It is not clear from the record whether Alphonso was ever subpoenaed to appear at the trial, or whether trial counsel requested a continuance when he did not appear. At trial, counsel said that Alphonso had been issued a subpoena.
THE COURT: I thought somebody testified today that the brother was here this morning.
MR. DEUTSCH [appellant's trial counsel]: The brother was served a subpoena, Your Honor.
MR. KOGAN: He was here.
MR. DEUTSCH: And I understand from the family he did come in, that he did come in, and then disappeared. And I further understood that he refused to testify on the behest of his family, that thought it would be proper, and that is why I say to Your Honor that he wasn't man enough to take the witness stand.
THE COURT: Well, he didn't even remain long enough to be viewed. At least it wasn't pointed out to the Court or to the witness whose identification was critical.
MR. DEUTSCH: I think he remained around for approximately 10 or 15 minutes. I didn't see him thereafter, Your Honor. (N.T.Trial 92-93.)
Immediately following this exchange, the trial judge found appellant guilty. The record is devoid of any request for a continuance so that Alphonso could be found and his testimony obtained. Nevertheless, at the PCHA hearing, trial counsel gave the following testimony:
Q. Was Mr. Alphonso Westbrook subpoenaed?
A. Yes, he was.
Q. And in your own mind, sir, was he a critical witness?
A. The critical witness.
Q. And when Mr. Alphonso Westbrook disappeared, did you ask for a continuance to bring him in here?
A. Oh yes, definitely.
Q. And in fact was he ever brought in?
A. No, he was not.
(N.T. PCH 8.)
Despite this testimony, the Assistant Defender who argued post-trial motions said that Alphonso "should have been subpoenaed and/or arrested." N.T. Post-Trial Motions 4-5, implying that no subpoena had been served. Because of my view of this case, I would not try to decide from such a record whether trial counsel was ineffective for failing to request a continuance and possibly for not even issuing a subpoena for Alphonso.
[2] None of the discussions among the Assistant Defender or Defenders involved, Detective Bonsera, appellant, and Alphonso is of record. The only indication that the Assistant Defender representing appellant made known any of these circumstances at the preliminary hearing is the following exchange:
MR. SCHAMBELAN: If Your Honor pleases, I would like to have a word with the District Attorney in this case before we proceed.
MR. BERMAN: What is it?
MR. SCHAMBELAN: I would like to have it in private.
MR. BERMAN: If the Court doesn't mind?
MR. SCHAMBELAN: As an officer of the Court, I have a legal request.
THE COURT: Come up here and we will discuss it.
(Off-the-record discussion)
MR BERMAN: Your Honor, we rest our case in this matter. (N.T. Prelim. H. 9.)
[3] Appellant was represented by different Assistant Defenders at the preliminary hearing, trial, and post-trial argument. However, other details of appellant's representation are not so clear. I cannot agree with the majority's conclusions that "appellant's counsel [at appellant's preliminary hearing] suggested that Alphonso was going to admit that he had committed the crime with which appellant was charged," majority opinion at ____, and that "before Alphonso could be approached regarding a statement, a second, unidentified (in the record before us) Assistant Defender advised Alphonso not to make any statement relating to the robbery of Mr. Really." Majority opinion at ____ (emphasis added). The record does not show whether the Assistant Defender who implicated Alphonso was the same Defender who represented appellant at his preliminary hearing. Nor is it clear whether the Assistant Defender who advised Alphonso not to make a statement was the person who had implicated him. Detective Bonsera refers only to "the Public Defender," N.T. Trial 43, and "The Public Defender's Office," N.T. Trial 45.
[4] Alphonso did, however, testify at appellant's PCHA hearing. There, when asked if he had committed the robbery for which his brother had been found guilty, he responded: "No, I did not." (N.T. PCH 56.)
[5] It is also important to consider the ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, § 3.5 ("Conflict of Interest") (Approved Draft, 1971):
(b) "Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated in practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty of another. The potential for conflict of interest in representing more than one defendant is so grave that ordinarily a lawyer should decline to act for more than one of several co-defendants except in unusual situations when, after careful investigation, it is clear that no conflict is likely to develop and when the several defendants give an informed consent to such multiple representation.
See also the commentary to that Standard, providing inter alia:
In many instances, a given course of action may be advantageous to one of the defendants but not necessarily to the other. . . . The weaker defense may often detract from the stronger, and a lawyer may find that to assert a point vigorously for one client operates to disparage the other or to put him in a bad light. Such situations underscore the need for separate representation . . . ."
See also ABA Code of Professional Responsibility DR 5-105.
[6] See also Webster, The Public Defender, the Sixth Amendment, and the Code of Professional Responsibility, 12 Am.Crim.L.Rev. 739, 741-43 (1975):
It has long been true, under numerous decisions both of ethics committees and of courts, that if one lawyer, whether he be an associate or partner, is ethically precluded from representing a particular client or urging a particular view by reason of a conflict of interest, no lawyer in that firm may do so. . . . The question remains as to whether the public defender service ought to be treated as a private law firm for the purpose of determining the appropriate action where conflicts of interest are truly present. It might be argued that there are no conflicts of interest questions in the public defender context because of the absence of economic interest in challenging or refraining from challenging the conduct of trial counsel. However, this view completely ignores the fact that the same subtle but real noneconomic pressures present in private practice are equally operative in a public defender service. . . . By their nature, the non-economic conflicts friendship, loyalty, pride, fear of ostracism or retaliation operate with equal vigor on the individual lawyer in the public firm. It is he who feels the conflict, not the form of his law association, upon whom the ethical considerations must prevail. . . . In short, for the purpose of applying the maxim that if one lawyer is disqualified then all the lawyers in the "firm" are disqualified, the concept of "firm" encompasses a partnership, an association of individuals which looks to the public like a partnership, a prosecutor's office, a neighborhood legal services program, a legal aid society, a legal services corporation, and a public defender service.
[7] Large private law firms routinely cross-check their files before accepting new clients so as to avoid potential conflicts of interest. Had the Assistant Defender (or Defenders) who represented appellant and Alphonso at the preliminary hearing noted in Alphonso's and appellant's respective files that Alphonso might have committed the robbery with which appellant was charged, both trial counsel and post-trial counsel would have been alerted to the existence of a conflict.
Trial counsel explained at the PCHA hearing that the Defender Association's appeal files are kept separate from the Common Pleas files. N.T. PCH 23. Apparently there was no routine office procedure for trial and post-trial counsel to learn of possible conflicts or to ascertain that an appeal had been filed.
[8] One writer has remarked:
Many defenders are assigned unrealistic case loads which place such a burden on him that he is physically unable to devote adequate time to each individual indigent. This has led to the complaint increasingly heard from defendants who, after their conviction, in response to the question, ". . . [W]ere you represented by defense counsel?" answered "No, I was represented by a public defender."
Friloux, Equal Justice Under the Law, 12 American Criminal L. Rev. 691, 702.
[9] The ABA Standards, § 3.5, supra note 5, exclude dual representation at initial hearings from the general prohibition against dual representation. However, as this case amply illustrates, dual representation at preliminary hearings may in certain circumstances develop into a conflict of interest. Here the Defender Association represented appellant at his preliminary hearing and at trial. Therefore, the conflict represented by appellant's and Alphonso's antagonistic defenses did not terminate after the initial hearing, but continued through appellant's trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1575988/ | 17 So. 3d 300 (2009)
WALTON
v.
STATE.
No. 3D09-1535.
District Court of Appeal of Florida, Third District.
August 5, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576029/ | 743 N.W.2d 870 (2007)
STATE
v.
MAAS
No. 06-0845.
Court of Appeals of Iowa.
November 15, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/888566/ | 182 P.3d 763 (2008)
MARRIAGE OF FICKINGER (2008 MT 93N)
No. DA 07-0354.
Supreme Court of Montana.
March 18, 2008.
Affirmed. | 01-03-2023 | 06-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576033/ | 35 S.W.3d 328 (2000)
72 Ark.App. 148
Delton RICE
v.
GEORGIA PACIFIC CORPORATION.
No. CA 00-97.
Court of Appeals of Arkansas, Division IV, I and II.
December 13, 2000.
*330 Denver L. Thornton, El Dorado, for appellant.
Mark Alan Peoples, PLC, Little Rock, for appellee Georgia Pacific Corporation.
David L. Pake, for appellee Second Injury Fund.
ANDREE LAYTON ROAF, Judge.
Delton Rice appeals from a Workers' Compensation Commission decision finding that he failed to make a prima facie case that he was permanently and totally disabled pursuant to the odd-lot doctrine, and denying liability as to the Second Injury Fund. Rice argues on appeal that he is entitled to permanent disability under the odd-lot doctrine and that the Commission's denials of permanent disability and of liability as to the Second Injury Fund are not supported by substantial evidence. We affirm.
Delton Rice was employed by Georgia Pacific Corporation (GP) from approximately 1970 to September 1995. Rice suffered an admittedly compensable back injury on May 22, 1992. Rice had several work and non-work related injuries prior to the 1992 injury, in 1975, 1980, 1981, 1988 and 1991. No permanent anatomical rating was assessed for any of these earlier injuries. Rice testified before the Administrative Law Judge (ALJ) that prior to his 1992 injury, he was able to lift, crawl, stand or climb with no restrictions, and was also able to roof houses for supplemental income.
An MRI performed after the 1992 injury reflected a herniated nucleus pulposus at L5-S1. On July 16, 1992, Dr. Stephen Cathey performed a laminectomy and diskectomy. Rice had further surgery on January 20, 1993, to exercise fragments of disc material. Rice continued to have pain but an additional MRI showed no further disc herniation.
In a report dated April 15, 1993, Dr. Cathey stated that Rice had reached maximum medical improvement and returned him to work with a twenty-five pound weight-lifting restriction. Dr. Cathey assessed a fifteen percent (15%) permanent partial impairment rating to the whole person due to residual effects of the disc herniation and nerve-root damage. In assessing the fifteen percent (15%) impairment, Dr. Cathey did not use any of Rice's preexisting degenerative disc disease to render the opinion, though he testified that he thought there were objective factors to assess a five percent (5%) rating prior to the 1992 injury. Functional capacity and work-hardening assessments indicated that Rice was capable of performing light work. A functional capacity assessment in 1995 recommended Rice for "medium" level work due to his relatively good level of strength.
Rice attempted five times to return to work at GP, performing such jobs as sweeping the floors, emptying the garbage, cleaning up paper and dragging paper weighing as much as five or six hundred pounds. On September 1, 1995, Rice claimed to have suffered severe back pain while dragging paper and did not return to work or seek employment elsewhere after that date. In a letter dated March 11, 1997, Dr. Cathey noted a significant progression of Rice's degenerative disc disease, osteoarthritis, and spondylois, and stated that Rice was "... permanently and totally disabled with regard to his future employment." However, in a July 1, 1998 deposition, Dr. Cathey stated that no objective factors had changed between September 1995 and March 1997, and that Rice's anatomical impairment never changed with regard to the AMA Guidelines but that he understood that factors other than Rice's work-related injury could contribute to his disability status, such as "level of education, other social or economic factors and other variables." On April 16, 1998, Dr. Cathey again maintained that Rice was "totally and permanently disabled."
At the time of the hearing before the ALJ, Rice was forty-eight years of age and *331 had not finished high school. Rice stated that he experiences back and leg pain every day, that walking is a problem, especially on concrete, and that he cannot stand or sit for long periods. He testified he has trouble riding in a car. If he overdoes it one day, he is "laid up" in the house for a day or two. On a typical day, he might put a load of clothes in the washing machine. He might rinse a few dishes if he feels like it or vacuum around the kitchen table. He can ride a riding law mower for fifteen minutes but can't use a push mower. He can hunt and fish every now and then. He can ride a four-wheeler. He can lift thirty to forty pounds. He is on pain medication but testified he tries not to take it unless he has to. He draws Social Security with a comp offset. He testified that he has no plans to obtain his GED and has not thought about going back to work or what he would do if he did return to work.
The ALJ found that the Rice had failed to show that he had been rendered permanently and totally disabled as a result of his 1992 compensable back injury and resulting surgeries; that Rice failed to make a prima facie case that he fell within the odd-lot category and failed to establish that he was permanently and totally disabled; that Rice was entitled to an additional fifteen percent (15%) wage-loss disability; that Rice's pre 1992 anatomical impairment, assessed by Dr. Cathey, did not combine with the 1992 compensable back injury to produce Rice's current disability status, and therefore, the Second Injury Fund was not liable for any of the benefits awarded and GP was responsible for the benefits awarded. The Commission affirmed and adopted the ALJ's findings.
On appeal, Rice argues that the Commission's decision that he is not permanently and totally disabled under the odd-lot doctrine is not supported by substantial evidence. In reviewing decisions of the Workers' Compensation Commission, this court views the evidence in the light most favorable to the Commission and affirms the decision if it is supported by substantial evidence. Hooks v. Gaylord Container Corp., 67 Ark.App. 159, 992 S.W.2d 844 (1999). Barnette v. Allen Canning Co., 49 Ark.App. 61, 896 S.W.2d 444 (1995). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Id. A decision by the Workers' Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Id. Where the Commission denies a claim because of the claimant's failure to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission's decision if its opinion displays a substantial basis for the denial of relief.
Disability is defined under Arkansas law as the "incapacity because of compensable injury to earn, in the same or other employment, the wages which the employee was receiving at the time of the injury." Ark.Code Ann. § 11-9-102(5). The wage-loss factor is the extent to which a compensable injury affects a person's ability to earn a livelihood. Grimes v. North American Foundry, 42 Ark.App. 137, 856 S.W.2d 309 (1993). Wage-loss disability is to be determined from a consideration of the medical evidence, together with the other elements such as the injured worker's age, education, experience, and other matters affecting wage loss, including the claimant's motivation to return to work. Mann v. Potlatch Forests, Inc., 237 Ark. 8, 371 S.W.2d 9 (1963); Weyerhaeuser Co. v. McGinnis, 37 Ark. App. 91, 824 S.W.2d 406 (1992).
Rice asserts that he is permanently and totally disabled pursuant to the odd-lot doctrine. The doctrine was abrogated by Act 796 of 1993 but has continued to be applied to injuries that occurred before the Act's July 1, 1993 effective date. See, e.g., Nelson v. Timberline International, Inc., 57 Ark.App. 34, 942 S.W.2d *332 260 (1997). Under that doctrine, permanent total disability may be found where a worker, not all together incapacitated, is so handicapped that he will not be employed regularly in any well-known branch of the labor market. Lewis v. Camelot Hotel, 35 Ark.App. 212, 816 S.W.2d 632 (1991). The injured worker has the burden of making a prima facie showing that his case fits within the odd-lot category. Only if the worker makes a prima facie showing does the employer bear the burden of showing that some kind of suitable work is regularly and continuously available to him. See Nelson, supra.
Rice worked for GP for twenty-five years, and receives both retirement from GP and social security disability. Rice can hunt and fish and do light housework. He can lift thirty pounds. After his 1992 injury he was assigned a fifteen percent (15%) permanent whole-body impairment in 1993. He attempted to return to work at GP five times, but has not worked for GP or any other employer since September 1, 1995. In a September 18, 1995 report, Dr. Cathey stated that appellant's MRI scan looked better than any of his previous studies in terms of ruling out recurrent lumbar disk herniation or nerve-entrapment syndrome. In 1995, his functional-capacity evaluation recommended him for "medium level work due to his relatively good level of strength." However, Rice testified that he has not attempted to find work since 1995. In 1997, Dr. Cathey stated Rice was permanently and totally disabled, however, this opinion was issued when Rice was applying for social security disability benefits. Moreover, Dr. Cathey also stated that there were no additional objective findings upon which to base Rice's change in status since he last assessed a fifteen percent (15%) rating in 1993, and he clearly considered wage-loss factors other than medical or anatomical factors in issuing this opinion.
The Commission found that there was the lack of a substantial and credible basis for Dr. Cathey's permanent and total disability rating and therefore found that it should not be accorded much weight. The Commission also found that Rice's present lack of interest and motivation to return to work impeded a full assessment of Rice's capacity to earn wages. Consequently, considering all relevant factors, there is substantial evidence to support the Commission's decision that Rice failed to make a prima facie case that he falls within the odd-lot category and failed to prove by a preponderance of the evidence that he is totally incapacitated from earning wages.
Rice also argues that the Commission's finding that the second injury fund has no liability is not supported by substantial evidence. For the Second Injury Fund to be liable under workers' compensation law, the employee must have suffered a compensable injury at his present place of employment, prior to that injury the employee must have had a permanent partial disability or impairment, and the disability or impairment must have combined with the recent compensable injury to produce the current disability status. Second Injury Fund v. Stephens, 62 Ark.App. 255, 970 S.W.2d 331 (1998). The Fund is obligated to provide compensation for any disability greater than the disability resulting from the earlier injury and the anatomical impairment caused by the second injury. Ark.Code Ann. § 11-9-525 (Repl.1996); see also Nelson v. Timberline International, Inc., 332 Ark. 165, 964 S.W.2d 357 (1998). The stated public purpose of the establishment of the Fund is to encourage employment of handicapped or disabled workers by assigning liabilities for the wage-loss consequences of a second injury to the Fund. Id.
Rice contends that he had a five percent (5%) rating that predated his 1992 injury and that the 1992 injury combined with his chronic, degenerative lumbar disc disease to produce the current disability status. He asserts that he meets these requirements for second injury fund liability. However, Rice contended before the *333 Commission that he did not have a serious back problems before his 1992 injury and he was in "good, healthy shape." Likewise, there is no evidence that Rice was given any anatomical impairment rating for his condition or as a result of his other injuries before the 1992 injury. The Commission found that Rice failed to establish that the Second Injury Fund had any liability; there is substantial evidence to support such a conclusion.
Affirmed.
HART, JENNINGS, KOONCE, CRABTREE, and MEADS, JJ., agree.
BIRD and GRIFFEN, JJ., and ROBBINS, C.J., dissent.
SAM BIRD, Judge, dissenting.
Although I agree with the majority's decision that the Second Injury Fund does not have any liability in the case at bar, I respectfully dissent from the majority's decision that appellant Delton Rice failed to present prima facie evidence that he is permanently and totally disabled under the odd-lot doctrine. The majority opinion, along with the Commission, has failed to consider all of the credible evidence and has failed to explain why the opinion of Rice's two treating physicians should be disregarded.
The odd-lot doctrine refers to employees who are able to work only a small amount; the fact that they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. M.M. Cohn v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark.App. 1979). Furthermore, an employee who is injured to the extent that she can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled. Lewis v. Camelot Hotel, 35 Ark.App. 212, 816 S.W.2d 632 (1991). Under the odd-lot doctrine, where the claim is for permanent disability based on incapacity to earn, the Commission is required to consider all competent evidence relating to the disability, including the claimant's age, education, medical evidence, work experience, and other matters reasonably expected to affect his earning power. Buford v. Standard Gravel Co., 68 Ark.App. 162, 5 S.W.3d 478 (1999).
As the majority noted, Rice worked at Georgia Pacific for more than twenty-five years. In 1975, he injured his back while lifting rolls of paper. In 1980, he sustained another work-related back injury. In 1981, he sustained a crush-type injury to his chest. In 1988, he suffered low-back pain while lifting a washing machine. In 1990, he was diagnosed with degenerative disc disease. In 1991, he hurt his back while lifting firewood. None of these injuries affected his work capabilities. He testified that prior to his May 1992 injury he was in good, healthy shape, in that he was able to lift, stand, and sit with no restrictions.
However, in May 1992, Rice was unloading a piece of plywood; he picked it up, turned sideways and felt a pinch. An MRI showed that he had a herniated disc. He underwent two surgeries and was assigned an impairment rating of fifteen percent to the body as a whole, had permanent lifting restrictions applied, and was given a rating of five percent for the preexisting degenerative back disease. Rice returned to work, but continued to complain of constant pain. At first, Dr. Cathey released Rice to work, stating that he could perform a medium workload. This was later changed to a light workload.
In finding that Rice did not fall within the odd-lot doctrine, the law judge stated that appellant was able to hunt and fish, perform light housework, and lift thirty to forty pounds. The law judge also noted that Rice has not done any work or made any efforts to be trained to do any other type of work. The Commission affirmed and adopted the law judge's opinion.
In Buford v. Standard Gravel Co., supra, the court of appeals reversed a finding *334 by the Commission that the appellant did not fall within the odd-lot doctrine guidelines. Buford had had his larynx crushed and had undergone three back surgeries. He had been restricted from repetitive bending, stooping, and lifting heavy objects. After each injury and each surgery he had returned to work. Then his doctor found that he was permanently and totally disabled. The Commission, in making its decision, emphasized his lack of motivation, his use of beer, his enjoyment of walking to his friend's home, his ability to hunt deer, fish and camp, and his ability to shop with his wife, garden, and mow the yard. Therefore, it denied that he fell under the odd-lot doctrine. This court reversed.
In Walker Logging v. Paschal, 36 Ark. App. 247, 821 S.W.2d 786 (1992), the claimant, a man in his late forties, also dropped out of school and never received his GED. He had worked jobs involving heavy manual labor and could neither read nor write. He was injured while working as a timber cutter when a tree fell on him, injuring his right knee. Although his treating physicians never stated that he was permanently and totally disabled, the Commission found that substantial evidence existed to support the finding that the claimant was totally and permanently disabled. We affirmed.
In the instant case, the law judge, Commission, and majority in its opinion have failed to consider all of the evidence presented. Rice testified that he does not have a high-school education; he is forty-seven years old; and, as the law judge correctly noted, he has not received any further training. He performed manual labor for Georgia Pacific all of his adult working life. He has had several back injuries, undergone two surgeries, continues to complain of constant back pain, and stated that he can sit or stand only for very limited periods of time. He did state that he had hunted deer and gone fishing a few times since his injuries. He testified that he tried returning to work a couple of times. Even though the Commission found that he lacks motivation, he stated that if Georgia Pacific would offer him a job, he would accept it.
In addition, the law judge, the Commission, and the majority have failed to adequately explain why the testimony of Rice's two physicians, who found that he was permanently and totally disabled, should be disregarded. In November 1994, in a chart note, Dr. Cathey stated, "Considering the fact that the patient had two lumbar disc surgeries and still has significant amount of chronic lower back and right leg pain is difficult for me to see how he will [be] able to return to his previous occupation." On March 11, 1997, Dr. Cathey wrote to Rice summarizing his recent evaluation and stated, "Mr. Rice, in my opinion, your chronic degenerative lumbar disc disease, osteoarthritis, and spondylosis has progressed significantly since your last evaluation in April 1996. Although I realize you have been denied social security benefits in the past, based on today's exam, I believe you to be totally and permanently disabled with regard to future employment." Contrary to the suggestion of the majority, there is nothing in this statement by Dr. Cathey that should cause the inference that Dr. Cathey made his total-and-permanent-disability determination solely for the purpose of supporting Rice's application for Social Security disability benefits. Dr. Cathey reiterated his belief that Rice was permanently and totally disabled on April 16, 1998, when he stated in a clinic note, "Lastly, it is my belief that Mr. Rice remains permanently disabled from the effects of his multiple lumbar disc surgeries, the residual nerve damage in his right leg, and his chronic degenerative lumbar disc disease." (Emphasis added).
Dr. D.L. Toon, Rice's general physician, also stated in a doctor's note, dated May 24, 1995, that Rice was permanently and totally disabled. Then, in a doctor's note dated June 29, 1995, Dr. Toon again stated that Rice had been a patient of his for *335 many years and that he had determined Rice to be permanently and totally disabled.
Based upon his work experience, his injuries, and the credible opinion of the medical doctors who found him to be permanently and totally disabled, I believe that the Commission erred in finding that Rice had not met his burden in proving that he is permanently and totally disabled, and I would reverse the part of the Commission's opinion finding otherwise.
I am authorized to state that Chief Judge ROBBINS and Judge GRIFFEN join in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576034/ | 17 So. 3d 268 (2009)
The FLORIDA BOARD OF BAR EXAMINERS, et al., re Anthony Eladio RAMOS.
No. SC07-2388.
Supreme Court of Florida.
August 27, 2009.
*269 Michele Gavagni, Executive Director, and Thomas Arthur Pobjecky, General Counsel, Florida Board of Bar Examiners, Tallahassee, Florida, John F. Harkness, Jr., Executive Director, and Kenneth Lawrence Marvin, Director of Lawyer Regulation, The Florida Bar, Tallahassee, Florida, and Adria E. Quintela, Bar Counsel, The Florida Bar, Fort Lauderdale, Florida, for Petitioner.
Anthony Eladio Ramos, Arlington, Virginia, pro se.
PER CURIAM.
Anthony Eladio Ramos was disbarred for twenty years, effective December 18, 1997. See Fla. Bar v. Ramos, 717 So. 2d 540 (Fla.1998) (case nos. 91,562 & 91,564) (table); Fla. Bar v. Ramos, 703 So. 2d 478 (Fla.1997) (table). Even though the disbarment is imposed until 2017, Anthony Eladio Ramos petitioned this Court in 2007 for permission to seek readmission to The Florida Bar.[1] On July 14, 2008, the Court dismissed Ramos's petition. Further, on September 18, 2008, the Court denied Ramos's motion for rehearing. Since that order, Ramos has submitted numerous additional filings. Thus, the Court issued an order directing Ramos to show cause why we should not limit his filings or otherwise impose sanctions upon him for submitting frivolous filings. We now sanction Ramos.
Ramos's Filings and the Order to Show Cause
Despite the resolution of the present case, Ramos persists in filing numerous documents that ignore the dismissal of the petition. Also, in those filings he inappropriately continues to challenge his long-finalized disciplinary cases. Thus, on October 7, 2008, the Clerk of the Court sent Ramos a letter stating that the instant case "is final in this Court and no further pleadings may be filed."[2] Nevertheless, since the Court dismissed his petition, Ramos has filed twenty-four documents.[3] The filings have not resulted in relief for Ramos. Thus, in order to limit Ramos's ability to monopolize this Court's time, the Court issued the order to show cause directing Ramos to demonstrate why:
this Court should not impose upon you a sanction for abusing the legal system, including, but not limited to directing the Clerk of this Court to reject for filing any future pleadings, petitions, motions, letters, documents, or other filings submitted to this Court by you unless signed by a member of The Florida Bar other than yourself, which in any way challenge the disbarment entered by this Court in the above cases or challenge the disposition of the instant Florida Board of Bar Examiners case.
Fla. Bar v. Ramos, No. SC07-2388 (Fla. Mar. 2, 2009). In his response to the *270 order to show cause, Ramos continues to present arguments regarding the petition for readmission case and his finalized disciplinary cases. For example, he asserts that the referee in one of his disciplinary cases held a "secret hearing" with Bar counsel and his counsel, during which the referee permitted Ramos's counsel to withdraw from representation. Ramos claims his case proceeded before the referee for months, but no one informed him that his counsel had withdrawn.
In addition, Ramos fails to comprehend that the Court has disposed of his cases. In fact, Ramos asserts that the Court has not yet dealt with the substantive issues in these cases and, from that point, he complains that the instant case has been pending with the Court for an excessive period of time. Ramos is apparently oblivious to the fact that the Court issued an order dismissing his petition for review on July 14, 2008.
Next, in response to the order recognizing that Ramos has submitted numerous frivolous filings, Ramos makes the inapt assertion that he is an industrious professional who is "not inclined to frivolity."
Further, in his response, Ramos argues that he should be permitted to seek readmission now, even though the disbarment continues until 2017. Ramos fails to acknowledge the extent of his misdeeds and the professional misconduct that caused his disbarment.[4] In fact, Ramos's disciplinary cases resulted in more than one recommendation of disbarment.[5] Ramos cannot evade his sanction by continuing to file numerous documents in this Court.
A thorough review of Ramos's response to the order to show cause leads to one conclusion. Ramos has failed to show good cause why sanctions should not be imposed. Indeed, his response suggests that he will continue his practice of repeatedly filing meritless documents because he is incapable of recognizing that his cases are resolved. Ramos has abused the processes of the Court and, by doing so, has hindered the ability of this Court to properly resolve those matters that are properly before it. We conclude that a sanction is merited on this record.
Authority to Sanction
Both this Court and the United States Supreme Court have, when deemed necessary, exercised the inherent judicial authority to sanction an abusive litigant. See, e.g., Martin v. District of Columbia *271 Court of Appeals, 506 U.S. 1, 113 S. Ct. 397, 121 L. Ed. 2d 305 (1992); In re Sindram, 498 U.S. 177, 111 S. Ct. 596, 112 L. Ed. 2d 599 (1991); In re McDonald, 489 U.S. 180, 109 S. Ct. 993, 103 L. Ed. 2d 158 (1989); Fla. Bar v. Thompson, 979 So. 2d 917 (Fla.2008); Hamilton v. State, 945 So. 2d 1121 (Fla.2006); May v. Barthet, 934 So. 2d 1184 (Fla.2006); Sibley v. Florida Judicial Qualifications Comm'n, 973 So. 2d 425 (Fla.2006); Armstead v. State, 817 So. 2d 841 (Fla.2002); Peterson v. State, 817 So. 2d 838 (Fla.2002); Jackson v. Fla. Dep't of Corr., 790 So. 2d 398 (Fla. 2001); Rivera v. State, 728 So. 2d 1165 (Fla.1998); Attwood v. Singletary, 661 So. 2d 1216 (Fla.1995). One justification for such a sanction lies in the protection of the rights of others to timely review of their legitimate filings. See Martin, 506 U.S. at 3, 113 S. Ct. 397 (imposing sanction where petitioner's filings for certiorari review had a deleterious effect on the Court's fair allocation of judicial resources); Sibley, 973 So.2d at 426. As noted by the United States Supreme Court, "[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources. A part of the Court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice." In re McDonald, 489 U.S. at 184, 109 S. Ct. 993. In Sibley, after finding that an attorney had filed numerous meritless pro se filings related to his dissolution of marriage proceedings, the Court refused to accept any further filings from the attorney regarding his domestic disputes with his former wife unless signed by a member of The Florida Bar other than himself. In Jackson v. Fla. Dep't of Corr., 790 So. 2d 398 (Fla. 2001), the Court noted that such action did not violate the constitutional right of access to the courts:
While on the one hand, we would like to say that the courts should never limit a person's ability to access the courts, on the other hand, there are a handful of petitioners who have so abused the system that failure to restrain them could deny or delay the right of access to courts for the rest of the populace.
Id. at 401.
Conclusion
Accordingly, in order to preserve the right of access for all litigants and promote the interests of justice, the Clerk of this Court is hereby instructed to reject for filing any future pleadings, petitions, motions, notices, or other filings submitted by Anthony Eladio Ramos that are related to his judgments of disbarment or his potential readmission to The Florida Bar, unless the filings are signed by a member in good standing of The Florida Bar. Under the sanction herein imposed, Ramos is not being denied access to the courts; that access is simply being limited due to his abusiveness. Ramos remains eligible to seek readmission to The Florida Bar, once he has completed the twenty-year period of disbarment,[6] with the requirement that the filings be signed by a member in good standing of The Florida Bar. However, we cannot tolerate Ramos's continued inability *272 to abide by the legal processes of the judicial system. If Ramos submits a filing in violation of this order, he may be subjected to contempt proceedings or other appropriate sanctions, including permanent disbarment. See R. Regulating Fla. Bar 3-5.1(f) ("Permanent disbarment shall preclude readmission.")
All other pending petitions, motions, and requests for relief filed in this cause are hereby denied.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and PERRY, JJ., concur.
NOTES
[1] We have jurisdiction. See art. V, § 15, Fla. Const.
[2] Similarly, Ramos's numerous meritless filings in his disciplinary cases resulted in this Court advising him that the cases are final and "any further filings will not be responded to and placed in a miscellaneous file." Fla. Bar v. Ramos, No. 89,797 (Fla. Aug. 16, 2005) (Ramos filed more than thirty documents subsequent to the order of disbarment); see also Fla. Bar v. Ramos, Nos. 91,562 & 91,564 (Fla. Aug. 16, 2005).
[3] The filings include a brief, a petition for writ of mandamus, an appendix, several "notices," a memo to the Clerk of the Court, various supplemental authorities, several motions, notices of information regarding allegations of prosecutorial misconduct in the case of United States Senator Ted Stevens, "instructions" to the Clerk of the Court, a "Request for Investigation by the Inspector General Concerning the Actions of the Clerk of the Court," and a request to "Florida Legislative Committees to Expend Investigation Concerning the Office of the Clerk of the Florida Supreme Court."
[4] For example, in No. 89,797, the Bar filed a nineteen-count complaint against Ramos alleging over 160 rule violations, including: massive trust account deficits from 1990-1996 demonstrating that he took over $200,000 from fourteen clients; trust account checks returned for insufficient funds; failure to inform clients of settlements and to disburse settlement proceeds; premature withdrawal of trust account funds; excessive fees; forgery of client signatures; and failure to pay medical providers.
Further, in No. 91,562, the Bar filed a complaint alleging trust account shortages of approximately $23,000 as to insurance recoveries for two clients. The referee found the facts as alleged by the Bar. The referee also found that Ramos had utilized the clients' insurance settlement proceeds (the money at issue) without the clients' permission and for reasons that had no nexus with the cases. Ramos was found guilty of violating fourteen provisions of the Rules Regulating the Florida Bar.
[5] See Fla. Bar v. Ramos, 717 So. 2d 540 (Fla. 1998) (table citation of unpublished order for consolidated case nos. 91,562 & 91,564) (disbarred); Fla. Bar v. Ramos, 703 So. 2d 478 (Fla. 1997) (table citation of unpublished case no. 89,797) (disbarred); Fla. Bar v. Ramos, 699 So. 2d 1376 (Fla. 1997) (table citation of unpublished case) (suspended); Fla. Bar v. Ramos, 662 So. 2d 933 (Fla. 1995) (table citation of unpublished case) (probation); Fla. Bar v. Ramos, 577 So. 2d 1330 (Fla.1991) (table citation of two consolidated, unpublished cases) (public reprimand).
[6] Ramos has repeatedly argued that a twenty-year disbarment is an unusual sanction. We acknowledge that such a sanction is not typical. However, we also recognize that Ramos's ongoing and pervasive misdeeds placed him in a category beyond the typical misappropriation case. He was the subject of numerous disciplinary cases. Also, his misdeeds were extremely egregious. Further, if Ramos had been permanently disbarred, he would never be permitted to seek readmission to The Florida Bar. See Fla. Bar v. Thompson, 994 So. 2d 306 (Fla.2008) (imposing a permanent disbarment "without leave to apply for readmission"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576039/ | GEORGE BAYHI
v.
SUSAN DIANE STARKS ROSS MCKEY.
No. 2009 CA 0481.
Court of Appeals of Louisiana, First Circuit.
September 11, 2009.
Not Designated for Publication
JACK M. DAMPF, DAVID C. VOSS, THOMAS G. HESSBURG, Baton Rouge, LA, Counsel for Plaintiff/Appellant, George Bayhi.
E. TRENT McCARTHY, Baton Rouge, LA Counsel for Defendant/Appellee, Susan Diane Starks Ross McKey.
Before: WHIPPLE, HUGHES, and WELCH, JJ.
WHIPPLE, J.
This matter is before us on appeal by plaintiff, George Bayhi, from an adverse judgment rendered by the trial court after remand from this court. Finding no error, we affirm.
Plaintiff, an attorney, filed the underlying action as a suit on open account, seeking to recover amounts allegedly due for legal services provided to defendant, Susan Diane Starks Ross McKey, his former client. After a trial on the merits, the trial court rendered judgment dismissing his claims against the defendant. Plaintiff then appealed to this court. On May 2, 2008, another panel of this court rendered an opinion, affirming the trial court's finding that plaintiff failed to meet his initial burden of proof on his claim for sums allegedly due on open account pursuant to LSA-R.S. 9:2781, and noting that the trial court's determinations were clearly based on its assessment of the credibility of the parties, who had provided contradictory testimony on almost every important issue. Finding, however, that the record did not indicate whether the trial court had considered plaintiffs right to recover under the alternative basis of quantum meruit, this court remanded the matter to allow the trial court to consider plaintiffs claims for recovery under this theory.[1] On remand, the trial court stated that it had, in fact, considered the theory of quantum meruit in rendering its initial ruling. Thus, for the reasons set forth in its initial ruling, as well as additional reasons assigned on remand, the lower court again dismissed plaintiffs claims by judgment dated January 9, 2009.
Plaintiff filed the instant appeal, asserting as his sole assignment of error that the trial court erred in dismissing his claim without reviewing the family court record of the underlying divorce and community property settlement proceedings.[2]
The record reflects that on December 1, 2008, the matter was heard on remand. At the commencement of the hearing, the parties stipulated that no other evidentiary hearing was necessary and that they were present for a ruling on the issue of quantum meruit. The trial court then stated that in rendering its initial decision, although not clear to this court from the earlier record, it had taken into consideration whether plaintiff was entitled to recover under the theory of quantum meruit. The trial court further stated that after considering the evidence submitted at trial, including the time and work that plaintiff testified he had spent on the case, the amount plaintiff was requesting as his outstanding fee, the testimony of the defendant, and the attorney's fees in the amount of $40,050.00 that had been previously paid to plaintiff by the defendant, the court found that plaintiffs claim for attorney's fees had been satisfied. In particular, the trial court again noted its rejection of plaintiffs contention that he had worked 648.25 hours, stating that "during the course of the trial [plaintiff] could not produce at one point the number of hours he had worked and the timeframe that he had worked those hours."
Notably, (and contrary to plaintiff's assertion as error on appeal), the record does not contain any indication or statement by the trial court that it had not reviewed the family court record, which was introduced into evidence in the suit on open account. Nonetheless, we note that even if the trial court had not reviewed the family court record, the trial court had sufficient evidence before it to determine that the amount of attorney's fees previously paid to plaintiff by defendant was satisfactory and that nothing further was due.
The trial court is vested with "much discretion" in determining a proper fee in quantum meruit and we will not disturb that determination absent manifest error. Oppenheim v. Bouterie, 505 So. 2d 100, 101 (La. App. 4th Cir. 1987). On review, considering the credibility determinations and factual findings made by the trial court, we find no error in the judgment of the trial court rejecting plaintiffs claim that additional fees were due.
Accordingly, the January 9, 2009 judgment of the trial court is affirmed in accordance with Uniform Rules Courts of Appeal, Rule 2-16.2(A)(5), (6), (7), and (8). Costs of this appeal are assessed to the plaintiff/appellant, George Bayhi.
AFFIRMED.
NOTES
[1] See Bavhi v. McKey, XXXX-XXXX (La. App. 1st Cir. 5/2/08) (unpublished opinion).
[2] Plaintiff also requests in his brief on appeal that this court review the family court record de novo and render an attorney's fee award. We note, however, that appellate review of cases involving awards of attorney's fees pursuant to quantum meruit is subject to the manifest error standard of review. Barham & Arceneaux v. Kozak, 2002-2325 (La. App. 1st Cir. 3/12/04), 874 So. 2d 228, 245, writ denied, XXXX-XXXX (La. 6/4/04), 876 So. 2d 87. Thus, absent a showing that the trial court committed a legal error that interdicted the trial court's findings, the manifest error standard of review applies herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576073/ | 731 S.W.2d 291 (1987)
Pauline BROWN, Plaintiff-Appellant,
v.
NATIONAL SUPER MARKETS, INC., Sentry Security Agency of St. Louis, Inc. and T.G. Watkins, Defendants-Respondents.
No. 51634.
Missouri Court of Appeals, Eastern District, Division Two.
April 7, 1987.
Motion for Rehearing and/or Transfer Denied May 20, 1987.
Application to Transfer Denied July 14, 1987.
*293 Daniel C. Aubuchon, Gary W. Kullmann, St. Louis, for plaintiff-appellant.
Ben Ely, Jr., St. Louis, for National Super Markets.
Sam P. Rynearson, St. Louis, for Sentry Sec. Agency of St. Louis & T.G. Watkins.
REINHARD, Judge.
Plaintiff appeals after a jury verdict in favor of defendants on plaintiff's claim that defendants negligently failed to protect her from an assault by an unknown third party on defendant National's parking lot. We affirm.
This case has been before us previously. Brown v. National Super Markets, Inc., 679 S.W.2d 307 (Mo.App.1984). Plaintiff's petition asserted that while she was on National's premises she was assaulted, battered, and shot by an unknown assailant as a direct and proximate result of the negligence of the defendants. She also alleged that in the two years prior to the assault there were sixteen reported robberies involving a firearm, seven incidents of reported strong arm robberies, and 136 other reported crimes on National's premises. Plaintiff maintained that this known criminal activity created "special facts and circumstances" which gave rise to a duty on the part of the defendants to protect her against assault. Defendants denied that these allegations of prior crimes constituted "special circumstances" giving rise to a duty to protect plaintiff from injuries caused by the criminal activity of an unknown third party.
We held that the trial court erred in granting summary judgment and that the plaintiff pled a cause of action. This holding was based upon a theory that, notwithstanding the general rule that a business owner has no duty to protect patrons against the intentional criminal conduct of unknown persons, the duty can arise where there is a special relationship, such as innkeeper-guest, or special facts and circumstances. Included among the special facts and circumstances was the frequent and recent occurrence of violent crimes on the business premises. Brown, 679 S.W.2d at 309.[1]
At the trial, the evidence revealed that on August 6, 1980, at about 3:00 p.m., plaintiff parked her automobile near the middle of the west parking lot of National's store at 4331 Natural Bridge Avenue in St. Louis. When she returned to her car from the store and began to enter the vehicle, another automobile pulled alongside her. A man jumped out from the passenger side of the second automobile and told her to "get back in that car, lady." When plaintiff attempted to run back to the store, the man grabbed her arm, said, "Well, I got to shoot you," shot her once in the side, and fled. Plaintiff suffered serious injury.
The jury heard evidence that 22 violent crimes had been committed on National's premises during the 22½ month period immediately preceding the assault on plaintiff. There also was evidence that for at least two years prior to the shooting, one armed uniformed guard from Sentry was on duty at all times the National store was open for business. National introduced into evidence a weekly time report listing the Sentry security guards on duty from August 2 to August 8, 1980, the week appellant was shot. On this list were T.G. Watkins and Tom Saulsberry, both of whom testified at trial, and five other security guards who did not testify at trial. Watkins and Saulsberry gave conflicting accounts regarding the instructions each received about providing security on the parking lot. Watkins testified that he was specifically instructed not to go out on the parking lot; Saulsberry testified that he and other guards regularly were out on the parking lot. Plaintiff testified she had shopped at the store almost daily and had *294 never seen a security guard on the store's parking lot.
Plaintiff contends that the trial court erred in excluding evidence of 14 purse snatchings that the court concluded did not involve physical contact with the victims and evidence of all other prior non-violent crimes on National's premises. Immediately prior to trial, the court conducted a hearing in chambers on National's motion in limine by which it sought to exclude from evidence all police reports of crimes which had occurred on National's premises and a police department computer printout which listed those crimes. The court ruled it would admit into evidence only police reports of prior violent crimes that had occurred on the premises. The court defined violent crimes as "assaults, robberies, murder, rape, things such as that, that require some attempt at bodily harm or bodily harm together with whatever else may have occurred, such as a robbery."
Specifically excluded by the trial court's ruling were reports of purse snatchings that did not involve bodily harm, incidents where bodily harm occurred incident to a criminal's escape attempt, crimes involving property only, and the entire computer printout of reported crimes.[2] The court admitted police reports of the 22 violent crimes and also permitted testimony about some of the details of each, including the nature of the offense and the weapon used, if any. The court also allowed testimony from the two victims of one of the crimes.
Determination of the relevance of evidence is within the discretion of the trial court, and the court's determination will be upheld on appeal absent a showing of an abuse of discretion. City of Cape Girardeau v. Robertson, 615 S.W.2d 526, 531 (Mo.App.1981). While a reading of the cases in which we have discussed the "special facts and circumstances" exception makes it evident that various judges have different views on this cause of action, the cases uniformly hold that if there is such a duty, it arises only upon a showing of recent, prior violent crime on the defendant's premises. The court properly ruled that evidence of property and other non-violent crimes was irrelevant and, therefore, inadmissible.
Evidence of purse snatchings falls into a different category. Some purse snatchings involve sufficient force to constitute robbery in the second degree; in others, there is no violence. Here, the trial court carefully reviewed the police reports of all purse snatchings and admitted those which it believed involved violence. Recognizing the broad discretion of the trial court on matters of relevance, we find no abuse here. Moreover, in light of the evidence of numerous violent crimes admitted, any error which might have occurred in excluding evidence of any of the 14 purse snatchings in question would have been harmless.
Plaintiff points to the case of Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881 (Mo. banc 1983), as support for the admissibility of evidence of non-violent crimes. There, the supreme court found a duty where there was evidence of past incidents which should have alerted hotel management to the possibility of crime on the premises. Id. at 888. The court in Virginia D. stated, "Nor can it be said that the duty of anticipation extends only to crimes similar in nature and seriousness to those that have occurred in the past." Id. We believe, however, the supreme court's comments on the evidence required to establish a duty refer to the "special relationship" exception that it had before it.[3] At the time of trial in this case, the court had before it not only our previous Brown opinion but also our other pronouncements on the issue. See supra note 1. The trial court's rulings are consistent with our opinions and not inconsistent with Virginia D.
*295 Plaintiff also alleges error in the trial court's refusal to admit the computer printout into evidence. Most of the crimes listed on the printout were non-violent and, therefore, irrelevant. Evidence of those that were violent was admitted in the form of police reports; thus the printout would have been cumulative as to those crimes. There was no error in excluding the printout.
Plaintiff also contends the trial court erred in excluding evidence that a bank parking lot, directly across a side street from National's parking lot, had been crime-free for the two-year period immediately prior to the assault. There was testimony that a security guard had constantly patrolled the bank parking lot during the two-year period. During the trial, plaintiff made an offer of proof in chambers that St. Louis city police detective Brogan would testify that during the two-year period prior to the assault on plaintiff, there was never a report of a crime, violent or otherwise, on the lot. National objected that the evidence was irrelevant and that there was a lack of foundation because plaintiff had failed to show "any substantial similarity of conditions." The court sustained National's objection and denied the offer of proof.
Plaintiff contends this evidence "was material and relevant to show that if National had taken similar precautions the attack on [plaintiff] might not have occurred." Plaintiff submits the evidence "was highly relevant and probative on the issue of causation... [because] the bank's experience tends to prove the relative deterrent effect of the presence of a uniformed security guard on a parking lot in the same neighborhood...."
In Broadview Leasing Co. v. Cape Central Airways, Inc., 539 S.W.2d 553 (Mo. App.1976), this court stated, "[W]hat others do is relevant and admissible if the circumstances and conditions are `substantially,' although not `precisely,' similar. The similarity that is required is a similarity in essential, not precise, circumstances." Id. at 563. Plaintiff argues the essential similarities here are those of two parking lots, separated only by a small side street, both serving "businesses in the same neighborhood where the customers would be expected to be carrying money with them." We have examined the evidence on this issue and cannot say the trial court abused its discretion.
Plaintiff alleges the trial court erred in submitting to the jury National's converse instruction because it "did not utilize substantially the same language of [plaintiff's] verdict director in that [plaintiff's] verdict director submitted `ordinary care,' whereas National's converse submitted `negligence' ...."
Plaintiff submitted and the trial court gave the following verdict directing instruction to the jury:
Instruction No. 9
Your verdict must be for plaintiff and against defendant, National Super Markets, Inc. if you believe:
First, there was a danger that customers would be attacked on National Super Market's parking lot, and as a result the parking lot was not reasonably safe, and
Second, defendant, National Super Markets, Inc., knew, or, by using ordinary care, could have known, of this condition, and
Third, defendant, National Super Markets, Inc., failed to use ordinary care to make the parking lot reasonably safe, and
Fourth, such failure either directly caused damage to plaintiff or combined with the acts of defendants, Sentry Security Agency and T.G. Watkins, to directly cause damage to plaintiff.
National submitted and the trial court gave the following converse instruction to plaintiff's verdict director against National:
Instruction No. 10
Your verdict must be for defendant National Super Markets, Inc. unless you believe defendant National Super Markets, Inc. was negligent as submitted in instruction number 9 and as a direct result *296 of such negligence plaintiff sustained damage.
The trial court gave the following definitional instructions to the jury:
Instruction No. 5
The term "negligent" or "negligence" as used in these instructions means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.
Instruction No. 6
The phrase "ordinary care" as used in these instructions means that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.
In Demko v. H & H Investment Co., 527 S.W.2d 382 (Mo.App.1975), plaintiff gave verdict directing instructions for each defendant which required a finding that "defendant failed to use ordinary care." The various defendants gave separate converse instructions which required a verdict for that defendant unless the jury found the defendant "negligent." Plaintiff's verdict director defined "ordinary care" as that "degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances." Defendants' converse instructions defined "negligence" as "the failure to use `ordinary care' which means that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances." Id. at 385.
In Demko, this court stated:
MAI 33.01 requires a converse instruction to contain substantially the same language as the verdict directing instruction in order to prevent a jury from returning a verdict based on its interpretation of a term of law which neither appears in the verdict director nor is defined. Brewer v. Swift & Company, 451 S.W.2d 131, 133 (Mo. banc 1970). That danger is not present in this case. Whatever the semantic differences in the instructions given the jury, all instructions in question here included definitions of "ordinary care" and "negligence" which used identical language. Thus we cannot say, as the court said in Brewer, that the jury was given a roving commission to substitute its own notion of the proper interpretation of a term of law.
527 S.W.2d at 385.
The court concluded that:
In these circumstances it is difficult to conceive how the jury was confused or misled.... Therefore, while the failure of defendants ... to use substantially the same language in their converse instructions as used in plaintiff's verdict directors did not comport with previous decisions, we find that the instructions, when read together, that is, plaintiff's verdict directors and definitions given in defendants' converse instructions are clear and complete and we cannot find any reversible error.
Demko, 527 S.W.2d at 386.
The instructions before us are similar to those in Demko. Plaintiff's verdict director used "ordinary care" and the converse used "negligent" and "negligence." Separate instructions gave identical definitions to "negligent," "negligence," and "ordinary care" as those words were used in instructions. We do not believe the jury could have been confused or misled by the instructions.
Plaintiff also alleges the trial court erred in permitting National to argue an adverse inference from Sentry's failure to call as witnesses five of the guards who were on duty the week of the assault. Plaintiff contends that, while she and Sentry were opposing parties in the lawsuit, they were aligned on the issue of patrolling the lot.
During his closing argument, in the context of his discussion of the potential apportionment of fault between National and Sentry, National's attorney stated:
There were other onesother employees of Sentry employed as security guards working there that week. ... Now, here were employees of Sentry that were also there working at the time she was injured. Now, if they weren't told to be *297 out on the lot why weren't these individuals brought in here to tell us what the story was? Now, you can infer, and I'll be corrected if I'm wrong again, but you may infer from the fact that Sentry did not bring these individuals in you may infer that their testimony would have been adverse. You may infer that these people if brought in would have said, "Yes, Mr. Long did tell us to be out there in the lot. Yes, we were instructed to periodically patrol the lot. Yes, we did periodically patrol the lot."
Plaintiff did not object to this portion of the closing argument, and thus this allegation of error has not been preserved for appellate review. We find no manifest injustice or miscarriage of justice that would entitle plaintiff to relief under the plain error standard of Rule 84.13.
Judgment affirmed.
SMITH, P.J., and DOWD, J., concur.
NOTES
[1] While we have been confronted previously with the "special facts and circumstances" exception to the general rule, this is the first case we review after a jury trial. In addition to Brown, 679 S.W.2d 307, see e.g. Warren v. Lombardo's Enterprises, Inc., 706 S.W.2d 286 (Mo. App.1986); Vorbeck v. Carnegie's at Soulard, Inc., 704 S.W.2d 296 (Mo.App.1986); Nappier v. Kincade, 666 S.W.2d 858 (Mo.App.1984); Meadows v. Friedman Railroad Salvage Warehouse, 655 S.W.2d 718 (Mo.App.1983).
[2] During the trial, plaintiff made offers of proof concerning the excluded evidence. The offers were denied.
[3] We recognize that the Pennsylvania case of Murphy v. Penn Fruit Co., 274 Pa.Super. 427, 418 A.2d 480 (1980), cited in Virginia D., supports plaintiff's position. A reading of Vorbeck, 704 S.W.2d 296, however, reveals that we reject the position stated in Murphy, 418 A.2d at 483-84. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576076/ | 35 S.W.3d 144 (2000)
Linda J. WEYANDT, Appellant,
v.
The STATE of Texas, Appellee.
No. 14-98-00194-CR.
Court of Appeals of Texas, Houston (14th Dist.).
December 7, 2000.
Rehearing Overruled January 18, 2001.
*147 Terri Jacobs, Houston, for appellants.
William J. Delmore III, Houston, for appellees.
*148 Panel consists of Justices ROBERTSON, SEARS, and LEE.[*]
OPINION
SEARS, Justice.
A jury found appellant, Linda J. Weyandt, guilty of practicing medicine without a license. See Tex.Rev.Civ.Stat.Ann. art. 4495, §§ 1.03(a)(12) & 3.07(a) (Vernon Supp.1999) (current version at Tex.Occup.Code Ann. §§ 151.002(a)(13) & 165.152 (Vernon Pamph.2000)). The trial court sentenced her to one year in jail, probated for two years; 100 hours of community service; 21 days in the Harris County Jail as a condition of probation; and ordered her to post a sign at any place of employment stating she is not a licensed physician. In five points of error, appellant argues the conviction should be reversed because (1) the evidence is legally insufficient to support the verdict; (2) the evidence is factually insufficient to support the verdict; (3) the trial court erred by submitting evidence of other crimes, wrongs or acts in violation of Evidence Rules 403 and 404; (4) the statute preventing practicing medicine without a license, as applied to appellant, is unconstitutionally vague; and (5) appellant's constitutional and statutory rights to remain silent were violated when the prosecutor called her to the stand.
Factual Background
Appellant worked as a nurse anesthetist at the Veteran's Administration Hospital in Houston and also ran a private nursing clinic. At her clinic, Associated Hypnotherapy and Pain Management Services of Texas, appellant administered hypnotherapy and other pain management techniques to alleviate her patients' pain. The clinic's Yellow Pages advertisement, which was listed in the hypnotherapists' section, identified appellant as "Dr. Linda J. Weyandt."
Although appellant graduated in 1983 from Universidad del Noreste Medical School in Tampico, Tamaulipas, Mexico, with a doctor of medicine degree, she is not licensed to practice medicine in Texas. She is, however, a Certified Registered Nurse Anesthetist (CRNA), an advanced nurse practitioner, and a certified hypnotherapist.
Elizabeth G. Mihalco, an undercover Houston police officer, visited appellant's clinic claiming she had an injured shoulder. Mihalco made an appointment to see appellant, explaining the problem with her shoulder. When she visited appellant's office, she carried a concealed transmitter in her purse. A tape recording of the ensuing conversations was made by another officer waiting in a vehicle parked outside.
Appellant's name was listed as "Dr. Linda Weyandt" on the door to her clinic, which resembled a typical doctor's office, and hanging on the wall of the reception area were several certificates issued to "Linda J. Weyandt, M.D." When Mihalco entered the clinic, appellant introduced herself as "Doctor Weyandt," and during the initial interview, explained that she had "been in anesthesia" for almost twenty years. When Mihalco spoke of a previous experience with an "anesthesiologist," utilizing the term for a medical doctor specializing in anesthesia, appellant responded that "she would not have done it that way," but did not clarify that she was not an anesthesiologist.
Appellant discussed with Mihalco some possible causes of her shoulder pain and examined Mihalco's shoulder and manipulated her arm. Appellant attached to Mihalco's shoulder and wrist the wires from a peripheral nerve stimulator. Anesthesiologist Carmen Maymi testified that peripheral nerve stimulators are designed to test nerve conduction on patients who are under general anesthesia, in order to determine when their muscles are sufficiently paralyzed as to permit intubation through the trachea. Maymi was unaware of any therapeutic use for the device. Appellant *149 turned on the peripheral nerve stimulator, and muscles in Mihalco's wrist, arm, and shoulder began to move and twitch. After a moment, appellant increased the electrical current until Mihalco directed her to stop after experiencing pain. Appellant complied, and took Mihalco into another room where she unsuccessfully attempted to hypnotize Mihalco. As the visit was winding down, she suggested Mihalco drink a herbal tea called "Cat's Claw" and charged her $75 for the visit.
As a result of Mihalco's visit, police investigators obtained a search warrant to search appellant's offices, and found several containers of drugs in a cabinet in the treatment room, including injectable lidocaine and lidocaine ointment.
Denise Meyer, Director of the Enforcement Division of the Texas State Board of Medical Examiners, testified that appellant is not licensed to practice medicine in Texas. She also stated that if someone holds an M.D. degree, they are a doctor of medicine, but not a physician until licensed by the Board. Additionally, she noted a person holding an M.D. degree may call themselves doctor and doctor of medicine.
Legal Sufficiency
In her second point of error, appellant argues the evidence is legally insufficient to support the jury's verdict. We review legal sufficiency challenges to determine "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, 61 L. Ed. 2d 560 (1979); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). The standard is the same in both direct and circumstantial evidence cases. See Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991) overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App.2000). For the purpose of applying the Jackson v. Virginia test for legal sufficiency, the "essential elements" of the offense are those required by the "hypothetically correct jury charge for the case." Malik, 953 S.W.2d at 240. The hypothetically correct jury charge is that which "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. We find Malik applies in this case because the jury charge did not precisely track the allegations in the indictment.
Appellant was charged by complaint and information with the offense of practicing medicine without a license.[1]See Tex.Rev. Civ.Stat.Ann. art. 4495b, § 3.07(a). "Practicing medicine" is defined as:
(12) "Practicing medicine." A person shall be considered to be practicing medicine within this Act:
(A) who shall publicly profess to be a physician or surgeon and shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, *150 or any physical deformity or injury by any system or method or to effect cures thereof; or
(B) who shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method and to effect cures thereof and charge therefor, directly or indirectly, money or other compensation.
Tex.Rev.Civ.Stat.Ann. art. 4495b, § 1.03(a)(12).
The information alleged appellant publicly professed herself to be a physician by misusing the initials, "Dr." and "M.D." and by representing herself as an "M.D." to officer Mihalco. The jury charge was different from the information. The jury charge substituted the word "in" for "and" and thereby effectively required a finding that appellant utilized the initials "Dr." and "M.D." specifically to induce Mihalco to receive medical treatment.[2]
The hypothetically correct jury charge would have allowed a finding that appellant publicly professed to be a physician by the alternative means of "using the initials `Dr.' or `M.D.' or by representing herself as a physician to a patient ... to induce her to receive medical treatment." To require the State to prove appellant publicly professed to be a physician by using the initials Dr. and M.D. and by representing herself as a physician to Mihalco would unnecessarily increase the State's burden of proof and would not adequately describe the offense appellant was charged with. The remainder of the unlicenced practice of medicine statute was satisfied by the requirement that the jury find appellant diagnosed a disorder (a "muscle injury") and provided treatment ("shock treatment") to Mihalco.
The standard formulated by Malik "ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted." 953 S.W.2d at 240; see Mijores v. State, 11 S.W.3d 253, 256 (Tex.App.-Houston [14th Dist.] 1999, no pet.).
Before discussing whether appellant practiced medicine without a license, we must determine what acts she was permitted to perform as a CRNA. The requirement that a person must be licensed to practice medicine does not apply to "registered or professional nurses and licensed vocational nurses registered or licensed under the laws of this state who confine *151 their practice strictly within the provisions of such applicable licensing Acts and under the laws of this state...." Tex.Rev.Civ. Stat.Ann. art. 4495b, § 3.06(a)(4). Under the Board of Nurse Examiners's rules, a CRNA may select, obtain, and administer anesthesia and anesthesia-related services in certain facilities in accordance with a physician's order if the facility policy or medical staff bylaws permit it, as follows:
(a) In a licensed hospital or ambulatory surgical center, consistent with facility policy or medical staff bylaws, a nurse anesthetist may select, obtain and administer drugs, including determination of appropriate dosages, techniques and medical devices for their administration and in maintaining the patient in sound physiologic status pursuant to a physician's order for anesthesia or an anesthesia-related service. This order need not be drug-specific, dosage specific, or administration-technique specific.
(b) Pursuant to a physician's order for anesthesia or an anesthesia-related service, the nurse anesthetist may order anesthesia-related medications during perianesthesia periods in the preparation for or recovery from anesthesia. Another RN may carry out these orders.
(c) In providing anesthesia or anesthesia-related service, the nurse anesthetist shall select, order, obtain and administer drugs which fall within categories of drugs generally utilized for anesthesia or anesthesia-related services and provide the concomitant care required to maintain the patient in sound physiologic status during those experiences.
22 Tex.Admin.Code § 222.6 (1999) (Texas Board of Nursing Examiners, Advanced Practice Nurses). Accordingly, a CRNA who, "pursuant to [a physician's] order and in accordance with facility policies or medical staff bylaws," selects, obtains, or administers an anesthetic or anesthetic-related service and maintains a patient's physiological status does not practice medicine. Tex.Rev.Civ.Stat.Ann. art. 4495b, § 3.06(d)(6)(I); see Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 825-26 (Tex.App.-Amarillo 1995, writ denied).[3]
The Texas Court of Criminal Appeals has defined the practice of medicine as follows:
In construing the Medical Practice Act,[4] and in determining what constitutes the practice of medicine thereunder, it has been the long and consistent holding of this court that one who publicly professes to treat diseases or disorders, as a profession or avocation is practicing medicine, regardless of the system or method employed, the name by which the system is known, or whether or not drugs or surgery are used. The practice of medicine as contemplated and defined by law, is not restricted to the treatment of diseases and disorders of the human body by the use of drugs or surgery.
Ex Parte Halsted, 147 Tex. Crim. 453, 182 S.W.2d 479, 483 (1944). In Kelley v. Texas State Board of Medical Examiners, the Fort Worth Court of Appeals found that dentists engaged in public profession of the practice of medicine where the dentists *152 professed to patients that they could use a blood test to diagnose cancer. See 467 S.W.2d 539, 542 (Tex.Civ.App.-Fort Worth 1971, writ ref'd n.r.e.), cert. denied, 405 U.S. 1073, 92 S. Ct. 1494, 31 L. Ed. 2d 807 (1972). When determining whether a defendant publicly professes to be a physician, "[i]t is not necessary in connection with [physician-like statements and activities] to say you are a medical doctor, a physician, or a surgeon, if what you say and do fall within the definitions of the Texas Medical Practice Act." Id. Stated differently, what one does, and not only what one says they are doing, determines whether they are practicing medicine. See id; Smith v. State Board of Medicine, 74 Idaho 191, 194, 259 P.2d 1033 (1953).
Appellant's conduct during Mihalco's visit constituted, in itself, a public profession of her status as a physician. See Halsted, 147 Tex. Crim. 453, 182 S.W.2d at 483; Kelley, 467 S.W.2d at 542. Appellant communicated to Mihalco, both expressly and implicitly, that she was a physician. For example, her office door identifies her as "Dr. Linda J. Weyandt," and she introduced herself to Mihalco as "Dr. Weyandt"; she displayed to Mihalco certificates identifying her as an "M.D."; and she implicitly suggested that she was a physician by purporting to diagnose the cause of and actually treat Mihalco's claimed physical disorder. See Halsted, 147 Tex. Crim. 453, 182 S.W.2d at 483; Kelley, 467 S.W.2d at 542.
Additionally, three witnesses testified regarding whether appellant knowingly or intentionally represented herself as a physician to Mihalco. Kathleen Warren testified that she understood from appellant's ads that appellant was a doctor and that appellant told her she was an anesthesiologist. Warren testified she was aware of the differences between an anesthetist and an anesthesiologist, and she was certain appellant claimed to be an anesthesiologist. Also, Shelia Dewan testified she visited appellant's office because appellant was the only hypnotherapist in the telephone book who was a doctor. During Dewan's visit, she permitted appellant to treat her sinus problems by sticking acupuncture needles in her face, which she would not have permitted appellant to do but for her belief appellant was a doctor. Furthermore, Barbara Twigg, who suffered from a degenerative disc disease, testified she and her psychologist sought alternative methods of pain management to avoid addiction to narcotic pain medication. They selected appellant from a list of physicians, which Twigg's psychologist received from a colleague, specializing in pain management. The psychologist testified that when he discussed Twigg's condition with appellant, before sending Twigg to see her, he believed she was a licensed physician. He stated he never would have referred Twigg to appellant, and Twigg stated she never would have visited appellant, if they had known that appellant was not licensed to practice medicine.
After reviewing the evidence in the light most favorable to the jury's verdict, we find the evidence at trial is legally sufficient to support the jury's verdict that appellant practiced medicine without a license. Appellant's speculation that Mihalco's discomfort was the product of "some type of muscle injury or tissue injury" plainly constituted "diagnosis"; and her using the "peripheral nerve stimulator" constituted "treatment" of a perceived disorder. Accordingly, we overrule appellant's second point of error.
Factual Sufficiency
The Court of Criminal Appeals recently rearticulated the factual sufficiency standard of review and now requires courts of appeal to ask the following question: Whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. *153 Crim.App.2000); see also Childs v. State, 21 S.W.3d 631, 634 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). If we determine a manifest injustice has occurred, we may not defer to the jury's findings, but rather provide a "clearly detailed explanation of that determination that takes all of the relevant evidence into consideration." Johnson, 23 S.W.3d at 12; see Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).
As we determined, the sufficiency of the evidence in this case must be viewed by the hypothetically correct jury charge, which would have accurately set out the elements. Factual sufficiency of the evidence is also viewed using the hypothetically correct jury charge. See McCain v. State, 987 S.W.2d 134, 135 n. 1 (Tex.App.-Houston [14th Dist.] 1998) rev'd in part on other grounds, 22 S.W.3d 497 (Tex.Crim. App.2000).
A neutral review of the evidence requires us to examine the evidence at trial favoring appellant. Appellant made Mihalco sign an acknowledgment after filling out her clinic's forms.[5] Appellant also answered her own phone, which she argues is something rarely done by licensed physicians. Also, no additional staff was present at the clinic. Certificates on her office wall indicated only her certification in hypnotherapy and pain management. Appellant advertised in the hypnotherapist section of the yellow pages, not the physician section. She also referred people to a medical clinic if they requested medical treatment as opposed to the pain therapy, which appellant argues she was authorized and qualified to provide. Mihalco conceded, under cross-examination, that appellant never identified herself as an anesthesiologist. Appellant provided three witnesses, including a Houston police officer, who claimed appellant did not represent herself as a licensed physician to him. Finally, appellant claims she did not provide any independent diagnosis of Mihalco's problem, but only accepted Mihalco's condition as it was presented to her.
Appellant also argues she graduated from a school of medicine, holds a degree as a "Doctor of Medicine," therefore she is entitled to call herself "Doctor Weyandt." The problem in this case, is not lack of academic credentials, it is a lack of a license to practice medicine in Texas. Further, the criminal statute is clearly directed at those who "hold themselves out" to *154 be a "doctor"/"physician" without holding also a license from the State of Texas. Calling herself "Doctor" and treating patients is clearly the conduct prohibited by statute.
After conducting a neutral review of the evidence, we find the proof of guilt is not so obviously weak as to undermine confidence in the jury's determination. Accordingly, we overrule appellant's first point of error.
Extraneous Offenses
In her third point of error, appellant argues the trial court reversibly erred in overruling her objections to the admission of testimony from three other individuals who believed she was a licensed physician, and that investigators discovered certain drugs at appellant's clinic, including lidocaine, which cannot be administered without a prescription. Appellant argues the testimony was inadmissible under Evidence Rule 404(b), because it tended only to reveal her bad character, and under Evidence Rule 403, because its probative value was outweighed by its potential prejudicial effect. We review a trial court's decision whether to admit evidence of an extraneous offense under an abuse of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990).
Appellant filed a pretrial motion in limine regarding any statements she may have made to several individuals, including the witnesses whose testimony is discussed under this point of error. However, the trial court's denial of this motion in limine does not preserve any error for us to review. See McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997). Because appellant did not make any contemporaneous objection to the testimony of Kathleen Warren or Sheila Dewan during their testimony, no error has been preserved for review regarding these witnesses. See Tex.R.App.P. 33.1(a).
Regarding Barbara Twigg, appellant did object once during her testimony that Twigg's testimony violated Evidence Rules 402, 403 and 404. However, appellant did not further object when Twigg resumed her testimony about appellant's holding herself out as a physician. Any error in the admission of evidence is cured where the same evidence comes in elsewhere without objection. See Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). Thus, nothing is presented for our review.
Regarding the lidocaine found in appellant's clinic, appellant initially properly objected to its introduction. The trial court admitted the evidence of lidocaine found at the clinic because appellant "opened the door" to such evidence by emphasizing on cross-examination that appellant administered only medicine-free therapy. The trial court did not abuse its discretion by permitting the State to offer evidence of extraneous misconduct to correct a false impression created by appellant during her cross-examination of witnesses. See Poole v. State, 974 S.W.2d 892, 905-06 (Tex.App.-Austin 1998, pet. ref'd). Accordingly, we overrule appellant's third point of error.
Constitutionality of Statute
In her fourth point of error, appellant argues section 3.07(e) of the Medical Practice Act is unconstitutionally vague and overbroad in violation of Article I, section 19 of the Texas Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.
The power to create and define criminal offenses rests within the sound discretion of the legislature. See Tex. Const. art. III, § 1; Webb v. State, 991 S.W.2d 408, 414 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Unless limited by constitutional provisions, the legislature has the inherent power to define and punish any act as a crime. See id. Whenever an attack upon the constitutionality of a *155 statute is presented for determination, we commence with the presumption that such statute is valid and that the legislature has not acted unreasonably or arbitrarily in enacting the statute. See Cotton v. State, 686 S.W.2d 140, 144 (Tex.Crim.App.1985); DeWillis v. State, 951 S.W.2d 212, 214 (Tex.App.-Houston [14th Dist.] 1997, no pet.). The burden rests on the individual who challenges the statute to establish its unconstitutionality. See Cotton, 686 S.W.2d at 144; Morris v. State, 833 S.W.2d 624, 627 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd). Furthermore, it is our duty to uphold the statute if a reasonable construction of the statute at issue can be determined which will render it constitutional and carry out the legislative intent. See Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979); DeWillis, 951 S.W.2d at 214.
Vagueness Claims
"All criminal laws must give fair notice to the populace as to what activity is made criminal so that individuals have fair warning of what is forbidden." Margraves v. State, 996 S.W.2d 290, 303 (Tex.App.-Houston [14th Dist.] 1999, pet. granted). Criminal statutes must provide an "objective standard by which a person's conduct can be measured ... A statute which forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Cotton, 686 S.W.2d at, 141. To determine whether a law provides fair notice requires a two-step process. First, we must determine whether appellant, as an ordinary person, received sufficient information from the statute to understand exactly what conduct is prohibited so that she could act in a lawful manner. See id.; State v. Fry, 867 S.W.2d 398, 401 (Tex. App.-Houston [14th Dist.] 1993, no pet.). Second, we must determine whether section 3.07(e) provides sufficient notice of the prohibited conduct to law enforcement personnel, so that appellant is not arbitrarily or discriminatorily prosecuted by the State or convicted by the jury. See id. If either of these inquiries is not met, a statute may be unconstitutionally vague. See id. (citing Adley v. State, 718 S.W.2d 682, 685 (Tex.Crim.App.1985)).
Additionally, "a statute is not unconstitutionally vague merely because words or terms used are not specifically defined." Engelking v. State, 750 S.W.2d 213, 215 (Tex.Crim.App.1988). Undefined words are ordinarily given their plain meaning unless the statute clearly shows that they were used in some other sense. See Ex parte Anderson, 902 S.W.2d 695, 699 (Tex.App.-Austin 1995, pet. ref'd). Statutory words are to be read in context and construed according to the rules of grammar and common usage. See Tex. Gov't Code Ann. § 311.011(a) (Vernon 1998). A statutory provision need not be cast in terms that are mathematically precise; it need only give fair warning of the conduct proscribed and provide guidelines for law enforcement. See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294, 2300, 33 L. Ed. 2d 222 (1972); State v. Mendel, 871 S.W.2d 906, 909 (Tex.App.-Houston [14th Dist.] 1994, no pet.).
Appellant argues the statute is unconstitutionally vague because the words "in any other manner" do not provide an objective standard by which to measure appellant's conduct, and do not provide adequate notice to appellant or law enforcement personnel of what conduct is prohibited. We disagree.
Section 3.07(e) of the Medical Practice Act provides that:
It shall be unlawful for any individual, partnership, trust, association, or corporation by the use of any letters, words, or terms as an affix on stationary or on advertisements, or in any other manner, to indicate that the individual partnership, trust, association, or corporation is entitled to practice medicine if the individual or entity is not licensed to do so.
*156 Tex.Rev.Civ.Stat.Ann. art. 4495b, § 3.07(e) (Vernon Supp.1999).
Applying the statute to appellant's specific conduct, section 3.07(e) is not impermissibly vague as applied to her conduct. Section 3.07(e) does not prohibit appellant from telling others she holds a medical degree. It only prohibits the use of the initials "M.D." and "Dr." in a fashion indicating she is entitled to practice medicine. Appellant's use of both "Dr." and "M.D.," in the particular context of the operation of her clinic, indicated to visitors she was entitled to practice medicine. Accordingly, appellant has failed to show the statute is "unconstitutional as to [her] in [her] situation; that it may be unconstitutional as to others is not sufficient." Parent v. State, 621 S.W.2d 796, 797 (Tex.Crim.App.1981); see Webb, 991 S.W.2d at 416.
Overbreadth Claims
In an overbreadth challenge, we must determine whether the statute reached a substantial amount of constitutionally protected conduct. See Webb, 991 S.W.2d at 415 (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982)). If a statute does not, the overbreadth challenge will fail. See id. The overbreadth doctrine is limited in context to First Amendment issues. See Bynum, 767 S.W.2d at 772-73.
Section 3.07(e) implicates no First Amendment protections. By its terms, the statute punishes only those individuals who practice medicine without a license. The right to practice medicine, to diagnose maladies, and to prescribe for their treatment is not constitutionally superior to the State's power to impose comprehensive and rigid regulations on the practice. See Dent v. West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed. 623 (1889). In Dent, the United States Supreme Court upheld the constitutionality of regulating the practice of medicine as being a reasonable exercise of the State's police power to regulate. See id.
The overbreadth doctrine is based on the principle that "a governmental purpose to control or prevent activities constitutionally subject to regulation may not be achieved by means which are unnecessarily broad and thereby invade the area of protected freedoms." Gholson v. State, 667 S.W.2d 168, 172 (Tex.App.-Houston [14th Dist.] 1983, pet. ref'd). The statute punishes only speech implying a person is permitted by the State to practice medicine. It does not reach a substantial amount of constitutionally protected conduct. See Webb, 991 S.W.2d at 415; Blanco v. State, 761 S.W.2d 38, 40 (Tex.App.-Houston [14th Dist.] 1988, no pet.). Thus, Section 3.07(e) does not infringe on constitutionally protected freedoms.
Accordingly, we overrule appellant's fourth point of error.
Comment on Failure to Testify
In her fifth point of error, appellant contends that the prosecutor improperly commented on her failure to testify when, in an attempt to call to the stand rebuttal witness Anesthesioligist Maymi, the prosecutor inadvertently transposed the appellant's name with Maymi's:
THE COURT: Will there be any rebuttal from the State?
MR. O'BRIAN [prosecutor]: The State calls Dr. Weyandt. I mean, the State calls Dr. Maymi.
(The following proceedings were had at the bench outside the presence of the jury:)
MR. TRITICO [appellant's counsel]: I have to object. Counsel just said I call Dr. Weyandt and he corrected what he did, you know. But it violates my client's right to be silent and placed it in the minds of the jury that she should have testified. I have to object to it.
THE COURT: Overruled.
MR. O'BRIEN: I apologize.
MR. TRITICO: I would ask for a mistrial based on what happened.
*157 THE COURT: That will be overruled.
A comment on the defendant's failure to testify violates the privilege against self-incrimination in the Fifth Amendment to the United States Constitution, Article I, Section 10 of the Texas Constitution, and Article 38.08 of the Texas Code of Criminal Procedure. See U.S. Const.Amend. V; Tex. Const. Art. I, § 10; Tex.Code Crim.Proc.Ann. art. 38.08 (Vernon 1979); Saldivar v. State, 980 S.W.2d 475, 501 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). To determine whether a prosecutor's argument constitutes an allusion to or comment upon the failure of a defendant to testify, we review the language from the standpoint of the jury. See Goff v. State, 931 S.W.2d 537, 548 (Tex.Crim.App.1996). We consider whether the offending language was manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. See Montoya v. State, 744 S.W.2d 15, 35 (Tex.Crim.App.1987), overruled on other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996). It is not enough that the language might be construed as an indirect or implied allusion to a defendant's failure to testify; the implication that the offending language made reference to the failure to testify must be a necessary one. See Swallow v. State, 829 S.W.2d 223, 225 (Tex.Crim.App.1992). A statement is not a direct comment on a defendant's failure to testify when it does not refer to evidence that can come only from the defendant. See Goff, 931 S.W.2d at 548.
Here, the prosecutor's misstatement was merely a slip of his tongue. He was attempting to call a witness and did not comment about appellant's previous failure to serve as a witness. This inadvertent transposition of the defendant's name for that of a witness being called to testify does not rise to the level of being a comment on appellant's failure to testify. As such, the prosecutor's small mistake was not such that the jury would naturally and necessarily take it to be a comment upon appellant's failure to testify. See Antwine v. State, 572 S.W.2d 541, 544 (Tex.Crim.App.1978); Green v. State, 640 S.W.2d 645, 648-49 (Tex.App.-Houston [14th Dist.] 1982, no pet.). Thus, appellant's fifth point of error is overruled.
Having overruled each of appellant's points of error, we affirm the trial court's judgment.
NOTES
[*] Senior Justices Sam Robertson, Ross A. Sears, and Norman Lee sitting by assignment.
[1] The allegation portion of the complaint stated:
Linda J. Weyandt, hereafter styled the Defendant, on or about February 28, 1997, did then and there unlawfully intentionally and knowingly practice medicine, to wit: by using the initials "DR." and "M.D." and representing herself as an, M.D., to a patient, namely E.G. Mihalco to induce her to receive medical treatment, namely shock treatment for the defendant's diagnosis of muscle injury, without first having obtained a license from the State Board of Medical Examiners.
The information stated:
Linda J. Weyandt, hereafter styled the Defendant, on or about February 28, 1997, did then and there unlawfully intentionally and knowingly practice medicine, to wit: by using the initials "DR." and "M.D." and representing herself as an, M.D., to a patient, namely E.G. Mihalco [Mihalco, changed without objection by defense] to induce her to receive medical treatment, namely shock treatment for the defendant's diagnosis of muscle injury, without first having obtained a license from the State Board of Medical Examiners.
[2] The charge stated:
Our law provides that a person practicing medicine in the State of Texas must be licensed by the State Board of Medical Examiners. A person who knowingly or intentionally practices medicine without a license commits an offense.
A person acts knowingly or with knowledge with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
It shall be unlawful for any individual by the use of any letters, words, or terms, as an affix on stationary or on advertisements, or in any manner, to indicate that the individual is entitled to practice medicine if the individual is not licensed to do so.
A person shall be considered to be practicing medicine if they publicly profess to be a physician or surgeon and shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity by any system or method to effect cures thereof.
Therefore, if you believe from the evidence beyond a reasonable doubt that in Harris County, Texas, LINDA J. WEYANDT, hereafter styled the defendant, on or about FEBRUARY 28TH, 1997, did then and there unlawfully intentionally or knowingly practice medicine, to wit: by using the initials "Dr." or "M.D." in representing herself as a physician to a patient, namely E.G. MIHALCO, to induce her to receive medical treatment, namely shock treatment for the defendant's diagnosis of muscle injury, without having first obtained a license from the State Board of Medical Examiners, then you will find the Defendant guilty.
If you do not so believe, or if you have a reasonable doubt thereof you will find the defendant not guilty.
[3] We disagree with Amici American Association of Nurse Anesthetists and Texas Association of Nurse Anesthetists, who argue that peripheral nerve stimulators, such as the one used by appellant are routinelyand properlyused by all anesthesia providers, including nurse anesthetists, in their anesthesia practice. The legislature has restricted a CRNA's practice to the administration of anesthesia and maintenance of an anesthesia patientall of which must be done under the delegation of a physician. See Tex.Rev.Civ. Stat.Ann. art. 4495b, § 3.06(d)(6)(I) (Vernon Pamph.1999) (current version at Tex.Occup. Code Ann. § 157.058(c)); Op.Tex.Att'y Gen. No. JC-0117 (1999).
[4] Tex.Rev.Civ.Stat.Ann. art. 4510 (Vernon 1976) repealed Acts 1981, 67th Leg., 1st C.S., p. 36, ch. 1, § 6(a), is the same statute in question, Tex.Rev.Civ.Stat. Ann. art. 4495, §§ 1.03(a)(12) & 3.07(a) (Vernon Pamph. 1999) (current version at Tex.Occup.Code Ann. §§ 151.002(a)(13) & 165.152 (Vernon Pamph. 2000)) in this appeal.
[5] The acknowledgment stated:
I acknowledge that I understand this questionnaire. All information provided by me is complete and accurate to the best of my knowledge.
I hereby request and agree to be taught self-hypnosis and give permission for consulting and/or hypnotic conditioning for the above stated area of concern. I understand and acknowledge that hypnotherapy and hypnosis cannot force me to do something that is against my own nature or desires; and as such I am solely responsible for my own actions and emotions and hold harmless ASSOCIATED HYPNOTHERAPY SERVICES OF TEXAS, Ltd., of any liability for my actions and emotions. In signing this form, I acknowledge understanding that HYPNOTHERAPY is a conditioning process, whereby an individual is taught to use their OWN ABILITIES for their OWN BENEFIT, and that this process may take several sessions for GOOD LONG LASTING RESULTS.
I understand that ASSOCIATED HYPNOTHERAPY SERVICES OF TEXAS' programs are vocational or avocational self-improvement, do not include or attempt to work in areas such as medicine, psychiatry, etc., which are outside ASSOCIATED HYPNOTHERAPY SERVICES OF TEXAS' chosen specialty, and that problems of psychogenic or functional origin are only accepted and treated by medical mor mental health referral as mandated. I understand that the hypnotherapy counseling I will receive is not a substitute for medical care, and I have been advised to discuss this hypnotherapy program with any doctor who is taking care of me now or in the future. Additionally, I understand that I should continue any present medical treatment and consult my regular medical doctor for treatment of any new or old illnesses.
I understand that it is my responsibility to discuss with my doctor any exercise program that ASSOCIATED HYPNOTHERAPY SERVICES OF TEXAS may suggest.
I understand that psychotherapy is available at ASSOCIATED HYPNOTHERAPY SERVICES OF TEXAS if I choose to use it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1579512/ | 671 N.W.2d 746 (2003)
In re the ESTATE OF Bette Janiece SAVICH, Decedent.
No. A03-414.
Court of Appeals of Minnesota.
November 25, 2003.
*748 Jerome S. Ophoven, Anderson & Ophoven, P.A., Grand Rapids, MN, for appellant Brad Lovdahl.
Richard R. Burns, Jacob J. Baker, Hanft Fride, Duluth, MN, for appellants Buddy John and Buddy Jason Savich and Gary Lotton.
Timothy Aldrich, Aldrich Law Office, Grand Rapids, MN, for respondents Hendricksons.
Considered and decided by KLAPHAKE, Presiding Judge, WILLIS, Judge, and ANDERSON, Judge.
OPINION
KLAPHAKE, Judge.
Appellants Brad Lovdahl, personal representative of the estate of Bette Janiece Savich, and Buddy John Savich, Buddy Jason Savich, and Gary Lotton, devisees of the estate, challenge the district court's order (1) determining that quitclaim deeds signed after Savich's death were ineffective to transfer title; (2) refusing to reform these deeds; and (3) refusing to impose a constructive trust on land conveyed by Savich to respondents Bobbie Hendrickson, Philip Hendrickson, and Brian Hendrickson. Because real property may not be transferred to a decedent by deed signed after the death and because there was not clear and convincing evidence that would support reformation of the deeds, we affirm the district court on these issues. But because there is clear and convincing evidence here that Savich intended respondents to hold the land in trust for others, we conclude that the district court abused its discretion by refusing to impose a constructive trust. We therefore reverse and *749 remand for imposition of a constructive trust consistent with this decision.
FACTS
Decedent Savich and her husband owned a farm of approximately 500 acres. Shortly after her husband's death in 1997, Savich decided to deed her farm acreage to her children, reserving a life estate, in order to protect the land if she had to enter a nursing home. Savich divided the land into parcels of various sizes, placed slips of paper with the descriptions of the parcels into a hat, and permitted her children, Brenda, Buddy Jason, Buddy John, Dana, and her nephew Gary Lotton to each pick a parcel. However, because Dana was in the midst of a divorce, Savich decided not to deed Dana any property. In May 1997, Savich deeded her farm acreage as follows:
1. Buddy John 80 acres
2. Buddy Jason 65 acres
3. Brenda 80 acres
4. Gary Lotton 120 acres
5. Bobbie Hendrickson 80 acres
6. Brian & Phillip Hendrickson 40 acres
Bobbie, Brian, and Phillip Hendrickson are Brenda's children and Savich's grandchildren, and were minors at the time of the 1997 transfer. The parcel deeded to Bobbie was the same parcel that Dana had chosen from the hat. Appellants testified that Savich intended Bobbie to hold the 80 acres for Dana's benefit, until her divorce was final. Appellants testified that Brian and Phillip were to hold their 40 acres for the benefit of all of Savich's grandchildren. Savich did not memorialize these intentions in writing.
Respondents did not exercise any ownership rights over the land and Savich retained a life estate interest in the parcels. At trial, respondents testified that they worked on the family farm each summer throughout their childhoods and that they were the only grandchildren of Savich's to do so. Respondents testified that Savich had not told them that they were to hold the deeded land in trust for others; Bobbie testified that she did not even know about the 1997 conveyance until after Savich's death.
In July 2001, Savich was dying of cancer and entered hospice care. She decided that she wanted to keep the farm intact and, on the advice of her attorney, asked her family to quitclaim the property back to her, so that she could form a limited liability corporation (LLC), which she would then devise to them through her will. On July 2, 2001, appellants attended a meeting at Savich's home. During this meeting, they agreed to quitclaim the land back to Savich and to form an LLC. Brenda drew up the quitclaim deeds and these were signed on that date or shortly thereafter by Brenda, Buddy John, Buddy Jason, Lotton and their spouses. Respondents were not present at this meeting, but their mother, Brenda, agreed to draw up quitclaim deeds for them to sign and to obtain their signatures. Buddy John recorded this meeting; a transcript of the tape was made available to the court.
Savich signed the LLC documents on July 11, 2001. The quitclaim deeds from Brenda, Buddy John, Buddy Jason, and Lotton were filed on July 12; Savich signed her last will and testament on the same day. Savich left the LLC to Brenda, Buddy John, Buddy Jason, and Lotton, and stated that she intended to provide for Dana through the LLC buy-sell agreement. She left the rest and residue of her property to Brenda, Dana, Buddy John, Buddy Jason, and Lotton in equal shares. Savich died on July 24, 2001.
On August 1 and 2, 2001, Brenda gave respondents quitclaim deeds to sign. Respondents testified that they did not discuss these documents with their mother; she merely directed them to sign because *750 the attorneys needed the documents. Respondents testified that they were not aware of the contents of the deeds and did not understand the effect of signing the documents.
During the probate process, Brenda became increasingly disenchanted with her siblings. On August 13, 2002, she filed an objection to the final accounting, which she withdrew on November 19, 2002. Respondents filed an objection to the final accounting on November 26, asserting that the quitclaim deeds that they had signed in August 2001 were defective because they did not know what they were signing and because Savich had died.
An evidentiary hearing was held on December 13, 2002. On February 27, 2003, the district court issued its order, concluding that the deeds signed by respondents were void because the grantee, Savich, was already dead, and because respondents did not know what they were signing and thus lacked the requisite intent to transfer land. Further, the district court refused to impose a constructive trust on this land or to reform the quitclaim deeds to reflect the estate of Savich as grantee, because of a lack of intent. Brad Lovdahl, as personal representative, and Buddy John, Buddy Jason, and Lotton, as devisees, appeal from the district court's decision.
ISSUES
1. Did the district court err by determining that the posthumous quitclaim deeds were ineffective to transfer property?
2. Did the district court abuse its discretion by refusing to reform the quitclaim deeds?
3. Did the district court abuse its discretion by refusing to impose a constructive trust on the property deeded by decedent to respondents?
ANALYSIS
1. Posthumous Deed
When reviewing mixed questions of law and fact, "we will correct erroneous applications of law, but accord the [district] court discretion in its ultimate conclusions and review such conclusions under an abuse of discretion standard." Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn.1997). Findings of fact made by a district court will not be set aside unless clearly erroneous, with due deference given to the district court's opportunity to judge the credibility of witnesses. Minn. R. Civ. P. 52.01.
In order to transfer title, a deed must be delivered. Slawik v. Loseth, 207 Minn. 137, 139, 290 N.W. 228, 229 (1940). The essential elements of delivery are surrender of control by the grantor and intent to convey title. Id. Physical delivery is not necessary; the grantor must merely show a present, unconditional intention to part with ownership. Mollico v. Mollico, 628 N.W.2d 637, 641-42 (Minn.App.2001). A deed signed, but not delivered, before the death of the grantor is void. Sauter v. Dollman, 46 Minn. 504, 504-05, 49 N.W. 258, 258 (1891). Likewise, a deed cannot be delivered to a deceased grantee. "Thus, ... a conveyance cannot be made to a deceased person. Not only would there be a failure to comply with historical requirements [of seisin], but it also would be impossible to make delivery to such a grantee." 14 Richard R. Powell, Powell on Real Property § 81A.04[1][a][iii] (Michael Allan Wolf ed., 2003).
It is undisputed here that respondents signed these quitclaim deeds only after Savich's death. The district court therefore did not err in concluding that the deeds were void and unenforceable.
2. Reformation of the Deed
Appellants argue that the district court erred by refusing to reform the *751 quitclaim deeds to reflect the grantee as the estate of Savich or the LLC. A court using its equitable powers may order the reformation of a deed if it is proved that
(1) there was a valid agreement between the parties expressing their real intentions; (2) the written instrument allegedly evidencing the agreement failed to express the real intentions of the parties; and (3) this failure was due to a mutual mistake of the parties, or a unilateral mistake accompanied by fraud or inequitable conduct by the other party.
Theros v. Phillips, 256 N.W.2d 852, 857 (Minn.1977). The evidence supporting reformation must be "consistent, clear, unequivocal, and convincing." Id. The proponent of reformation must demonstrate not only that a mistake was made, but must also submit clear proof of the actual agreement between the parties. Id. at 858. On review, the district court's decision will be overturned only if it is manifestly contrary to the evidence. Yliniemi v. Mausolf, 371 N.W.2d 218, 222 (Minn.App.1985).
Here, there is no evidence that respondents intended, but mistakenly failed, to deed the property to the estate or to the LLC. Therefore, the district court's refusal to reform the deed was not an abuse of discretion.
3. Constructive Trust
Appellants argue that the district court abused its discretion by failing to impose a constructive trust on the property in question. "A constructive trust is an equitable remedy imposed to prevent unjust enrichment and is completely dissimilar to an express or resulting trust." Freundschuh v. Freundschuh, 559 N.W.2d 706, 711 (Minn.App.1997), review denied (Minn. Apr. 24, 1997). When imposing a constructive trust, "the court is not bound by a formula, but is free to effect justice to avoid unjust enrichment according to the equities." Id. The court must be "persuaded by clear and convincing evidence that the imposition of a constructive trust is justified to prevent unjust enrichment." In re Estate of Eriksen, 337 N.W.2d 671, 674 (Minn.1983). A constructive trust is not limited to situations involving fraud or other wrongdoing, but may be imposed when there is clear and convincing evidence that it would be "morally wrong for the property holder to retain" the property. Spiess v. Schumm, 448 N.W.2d 106, 108 (Minn.App.1989).
A constructive trust has been imposed in cases where an ad hoc estate plan has gone awry, similar to the situation here. In Spiess, the decedent wanted to leave his assets to his stepchildren and step grandchildren, and he transferred most of his assets into a payable-on-death [POD] account, naming his executor, Schumm, as the payee. Id. at 107. This transfer was made shortly before Spiess' death. When a bank employee explained the legal significance of a POD account, Spiess stated, "Put [Schumm's] name on there, he will know what to do with it." Id. Because Schumm failed to distribute the assets after Spiess's death, the district court imposed a constructive trust on the account. Id. at 108. Despite the legality of Schumm's actions, this court affirmed the district court's imposition of the constructive trust, reasoning that it would be morally wrong to ignore clear and convincing evidence of Spiess' intent and Schumm's unjust enrichment. Id.
In Borsgard v. Elverum, 248 Minn. 405, 406, 80 N.W.2d 604, 606 (1957), decedent Elverum owned a farm in her own right, which she transferred to herself and her husband as joint tenants. She and her husband continued to treat that parcel of property as her own. Id. During her last illness, she made a will devising the farm *752 to her sisters and nieces; her husband was present and aware of the devises and acquiesced in them. Id. at 407, 80 N.W.2d at 606. On Elverum's death, her husband took title as the surviving joint tenant; on his death two years later, the farm passed to his relatives, who eventually sold the farm. Id. at 409, 80 N.W.2d at 607. The district court concluded that Elverum's devisees were entitled to equitable relief and imposed a constructive trust for their benefit, reasoning that Elverum's husband's failure to carry out her wishes established the basis for that relief. Id. at 413-14, 80 N.W.2d at 610.
Here, the evidence is clear and convincing that (1) Savich made the original transfer in 1997 to protect the property if she had to enter a nursing home; (2) she transferred the parcel of land intended for her daughter Dana to respondent Bobbie Hendrickson, because of Dana's impending divorce; (3) she told appellants that the land she transferred to respondents Brian and Philip Hendrickson was for all of her grandchildren; (4) she asked all of the recipients of land in 1997 to deed the property back to her at a family meeting shortly before her death; (5) although respondents were not present at this meeting, their mother assured Savich that she had prepared deeds for respondents and that she would have them signed and filed; (6) a tape recording of the meeting was contemporaneously made, memorializing these assurances, and was presented to the district court during the hearing; (7) Savich made her will in the belief that all of the property had been transferred back to her name and died shortly thereafter; (8) respondents initially deeded or attempted to deed the property back to Savich, although the transfer was not effective because of her death; and (9) respondents did not object to acceding to Savich's wishes until relations soured between their mother and Savich's other devisees. Given this clear and convincing evidence, we conclude that it would be unjust or morally wrong for respondents to continue to hold property that they had an equitable duty to convey to decedent.
DECISION
We affirm the district court's decision, concluding that the posthumous deeds were ineffective to transfer real property and that appellant had failed to produce clear and convincing evidence supporting reformation of the deeds. Although imposition of a constructive trust is usually a matter for the district court in its equitable powers, we are persuaded here that the district court erred by considering only the intent of respondents, rather than equities of the situation. We therefore reverse the district court's order and remand for imposition of a constructive trust on the land held by respondents for the benefit of Savich's devisees.
Affirmed in part, reversed in part, and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576485/ | 35 So. 3d 986 (2010)
LASALLE BANK NATIONAL ASSOCIATION, etc., Appellant,
v.
Daisy E. ALICEA a/k/a Daisy Alicea, etc., Appellee.
No. 5D09-2129.
District Court of Appeal of Florida, Fifth District.
May 21, 2010.
*987 Dana Marie Opitz and Charles P. Gufford, of Butler & Hosch, P.A., Orlando, for Appellant.
Harlan L. Paul, of Paul & Elkind, P.A., DeLand, for Appellee.
GRIFFIN, J.
LaSalle Bank National Association, as Trustee for Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-3 ["LaSalle"] appeals the trial court's non-final order denying its objection to sale and emergency motion to vacate summary final judgment and to vacate foreclosure sale and to return funds to the third party purchaser.[1]
On December 4, 2008, LaSalle filed a complaint to foreclose a mortgage on real property owned by Daisy E. Alicea a/k/a Daisy Alicea ["Alicea"] that she had purchased in 2007 for $225,000. Thereafter, in March 2009, LaSalle filed a motion for summary final judgment and notice of a hearing to be held on April 14, 2009. On that date, the trial court entered its summary final judgment of foreclosure, finding that $201,019.00 was due and owing to LaSalle and scheduling the foreclosure sale for May 14, 2009.
On May 12, 2009, LaSalle filed a motion to cancel/vacate foreclosure sale, stating: "Since the date of the entry of the Final Judgment of Foreclosure and the notice of sale, the borrowers have entered into a Non-FNMA Home Affordable Modification Program in an effort to retain their home and avoid the sale of their home." The trial court denied the motion without a hearing, using a "DENIED" stamp with a handwritten date of May 13, 2009. LaSalle then filed a renewed motion to cancel/vacate foreclosure sale, providing: "Since the date of the entry of the Final Judgment of Foreclosure and the notice of sale, the borrowers have entered into arrangements with the Plaintiff for a short sale of the property, which sale is scheduled to take place on May 20, 2009." A docket entry indicates that the trial court denied the renewed motion.
*988 On May 14, 2009, the foreclosure sale took place as scheduled, at which "Equitable Gain Inc." purchased the property for a bid of $8,000.00. "Equitable Gain Inc." provided proof of publication on May 15, 2009.
LaSalle filed an objection to the sale and an emergency motion to vacate summary final judgment and to vacate foreclosure sale and to return funds to the third party purchaser. It asserted that the judicial sale of the property should be set aside because the sale price was grossly inadequate. LaSalle stated that Alicea "purchased the property for the amount of $225,000.00 on 03/28/2007" and that the current tax appraisal value was $160,644.00. LaSalle noted other irregularities: that the affidavits filed in support of its motion for summary final judgment were not in compliance with the time requirements of Florida Rule of Civil Procedure 1.510(c), and the sale should not have taken place because proof of publication of the notice of sale had not been filed with the Clerk prior to the sale date. The trial court again denied LaSalle's objection and motion without a hearing, using the "DENIED" stamp with a handwritten date of May 20, 2009. On May 27, 2009, the Clerk filed a certificate of title, which showed that the property was sold to Third Party Purchasers as follows: "HILL & BECKMAN INC 2/3, AND TAMCO CORP OF VOLUSIA COUNTY 1/3...."
LaSalle filed a motion for rehearing or in the alternative motion to vacate certificates of sale and title. It asserted in part:
16. Plaintiff timely filed an Objection to Sale and Emergency Motion to Vacate Summary Final Judgment and to Vacate Foreclosure Sale and To Return Funds to Third-Party Purchasers, objecting to the sale on the grounds set forth hereinabove.
17. The Court held no hearing on the Objection to sale and made no written ruling on same, and on May 27, 2009, the Court entered the Certificate of Title to the third-party purchaser.
In support of its motion, LaSalle filed the affidavit of Charles P. Gufford, an attorney with Butler & Hosch, P.A., who was primarily responsible for representing LaSalle. The following statements were among those sworn to in the affidavit:
7. Prior to the 05/14/2009 sale, the undersigned counsel filed two (2) separate motions to cancel the sale (on 05/12/20[0]9 and 05/13/2009, respectively), as the borrower and lender had entered into a short sale, wherein the parties would equitably resolve the matter short of a judicial sale.
8. Both motions to cancel the sale were denied by the Court without providing any ruling of law as to the denials.
....
13. An Objection to Sale was timely filed by the Plaintiff on 05/19/2009, which is five (5) days after the sale, well within the ten (10) days in compliance with Fla. Stat. 45.031.
14. The Court held no hearing on the Objection to sale and on May 27, 2009, the Certificate of Title was issued to the third-party purchaser.[2]
The trial court denied the motion; the motion bears a "DENIED" stamp, with the handwritten date of June 3, 2009, and a reference to the previous order dated May 20, 2009.
This case is virtually identical in all material respects to two other cases recently before this Court. U.S. Bank Nat'l Ass'n v. Bjeljac, 17 So. 3d 862 (Fla. 5th DCA *989 2009) and Wells Fargo Bank, N.A. v. Lupica, 17 So. 3d 864 (Fla. 5th DCA 2009). The trial judge was the same in all three of these cases and the procedure he consistently followed is the problem.
In the U.S. Bank case, the lender sought to cancel and to reset a scheduled foreclosure sale, which the court denied without a hearing using a "DENIED" stamp. The lender's subsequent Objection to Sale, Motion to Return Third Party Funds, to Vacate Certificate of Sale and to Set Aside Foreclosure Sale met the exact same fate. In the Wells Fargo case, the lender initially sought to cancel the foreclosure sale before it occurred, representing to the court that a modification agreement had been reached with the defendant homeowners. This motion was denied without a hearing, using a "DENIED" stamp. Thereafter, Wells Fargo filed a Motion to Vacate the Foreclosure Sale, again attempting to enter into a forbearance agreement with the defendant homeowner that would provide them with the opportunity to save their home. As with all the other motions, no hearing and a simple "DENIED" stamp disposed of the motion.
In this case, as in the Wells Fargo and U.S. Bank cases, there is nothing establishing that the documents bearing these executed "denied" stamps were filed with the clerk of the court or when they were filed. As with the Wells Fargo and U.S. Bank cases, these orders cannot be considered properly rendered or final. We elect to treat this matter as a premature appeal and relinquish jurisdiction to the trial court for a period of thirty days for properly rendered orders. Because the trial judge involved in these cases is no longer on the bench, the successor judge will necessarily have to consider the motions de novo.
In this case, as in the Wells Fargo and U.S. Bank cases, there is also no reason we can discern why denial of the plaintiff lender's repeated motions to cancel the foreclosure sale should not have been granted, and the procedure followed by the trial judge leaves us in doubt that the motions were given any merits consideration. Accordingly, in order to enable meaningful appellate review, if the trial court again denies LaSalle's motions, it must provide reasons.
JURISDICTION RELINQUISHED.
SAWAYA and LAWSON, JJ., concur.
NOTES
[1] Hill & Beckman, Inc. and Tamco Corporation of Volusia County ["Third Party Purchasers"] have been granted leave to join as a party appellee in the instant appeal.
[2] On June 9, 2009, LaSalle also filed the affidavit of Alicea, confirming her agreement with LaSalle for a "short sale" of her property. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576495/ | 346 S.W.2d 142 (1961)
M. K. HIGGINBOTHAM, Appellant,
v.
M. L. BAGLEY, Appellee.
No. 6399.
Court of Civil Appeals of Texas, Beaumont.
March 23, 1961.
Rehearing Denied April 12, 1961.
John T. Buckley, Cleveland, for appellant.
E. E. Davis, Dayton, R. E. Biggs, Liberty, for appellee.
*143 ANDERSON, Chief Justice.
The suit, in form of trespass to try title, was brought by appellee to recover title to and possession of land in Liberty County, a part of Lot 1, Block 45, in the town or city of Dayton, West Liberty Town League. Appellant answered by plea of not guilty and by specially pleading the statutes of limitation of ten and twenty-five years. Trial was to the court, without a jury. Appellee was granted the relief for which he prayed.
It is questionable as to whether any of what appellant has brought forward as his four points of error is sufficient under the briefing rules to be entitled to consideration, but we shall nonetheless take note of the following contentions: 1) the contention that the evidence conclusively proved that the boundary between appellant's land and appellee's land had been established by agreement; 2) the contention that the evidence conclusively proved that appellant and those under whom he claims title had perfected title under the ten-year statute of limitations; 3) the contention that the trial court erred in admitting into evidence a certain document. We consider none of the contentions well founded.
The trial court neither filed nor was requested to file findings of fact and conclusions of law. The evidence will therefore be viewed in the light most favorable to the judgment.
Only a narrow strip of land is involved. It is adjacent to and west of the true dividing line between the east and west halves of the aforesaid Lot 1, extends from the lot's south line to the lot's north line, and is bounded on the west by an old fence line. The strip is 62.1 feet wide at its south end, 48.2 feet wide at its north end. Its length is substantial, as Lot 1 contains twelve acres of land and is in the form of a square.
Appellee holds record title to the west half of Lot 1, therefore to the land in suit. Appellant owns at least an undivided interest in the east half of the lot and whatever title those from whom he purchased held to the land in suit.
James Hunt formerly owned Lot 1 and an adjoining lot to the west of it, Lot 4, Block 44. In 1916 he and his wife conveyed the east half of Lot 1, Block 45, to Dave Roberts. In 1921 they conveyed the west half of the lot and all of Lot 4, Block 44, to Walter Bagley, who was appellee's father. In the meantime Hunt had built a fence across the east end of his land and had left between it and his true east line the strip of land that is in dispute. A fence, in varying states of repair, has been maintained on or near the original fence line ever since. For more than ten consecutive years a fence in a good state of repair was maintained on the fence line continuously. During those years, and in all others after the fence was first erected, Roberts or those holding under him occupied, cultivated, used and enjoyed the land east of the fence. This land was all the while enclosed, and the fences on its north and south connected to the fence we have been describing. Appellant first acquired an interest in the land east of the fence in 1957, and it was about this time that a survey was first made for the purpose of ascertaining the true location of the dividing line between the east and west halves of Lot 1. The suit was instituted less than two years later.
Irrespective of what findings with reference thereto it might support, the evidence does not require a finding that the fence line along the west side of the land in suit is an agreed division line, nor does it require a finding that appellant holds limitation title to the land that is involved.
There is no direct evidence of an express agreement as to the location of the dividing line, and the circumstances on which appellant relies as proof of an agreement are not of compelling force. A major premise of appellant's argument is that James Hunt and Dave Roberts together, rather than James Hunt alone, built the *144 original fence that was built across the east end of Hunt's land, but this community of effort is not an established fact. Although there is evidence from which joint action might have been inferred, there is also evidence to support a finding that the fence was built by Hunt alone, and this is the evidence by which we must be governed. It was because of this that we said earlier that Hunt built the fence. However, if a community of effort between Hunt and Roberts were an established fact, it would not be available to appellant. It would have antedated the conveyance to Walter Bagley in 1921, and the parties stipulated that Walter Bagley was the common source of title; appellant would not be heard to say that the agreed common source did not hold title. Crabtree v. Whiteselle, 65 Tex. 111, 115. Appellee admitted a community of action between himself, his father, and Dave Roberts in keeping up the fence, but he also said that they acted together under an express agreement that when located by a survey the true dividing line would be honored by all parties. He further said that as repaired and rebuilt by himself, his father, and Dave Roberts the fence at times stood east and at times stood west of its original location. This evidence not only does not compel a conclusion of agreement on the fence line as the dividing line, but negatives that concept. There remains, then, only the evidence that establishes that the owners of the west half of Block 1 acquiesced for many years in the use of the fence and of the land east of it by the owners and occupants of the east half of the lot. This is not sufficient to require a finding that the fence line was agreed to as the dividing line. Gulf Oil Corporation v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711, 714, wherein it was said: "Acquiescence in a line over a period of several years is evidence from which it may be inferred that the parties had agreed to the line, but it is not conclusive evidence of that fact."
As regards appellant's claim of limitation title, we shall first say that appellant did not himself have possession for a sufficient time before suit to affect the matter. Those under whom he claims title had possession for a sufficient period of time, but the evidence does not conclusively prove that their possession was adverse and hostile to the title and rights of the true owners. Not being conclusive in the respect last mentioned, the evidence does not conclusively establish that appellant has limitation title to the land. Arts. 5510, 5515, Vernon's Ann.Civ.St.; 2 Tex.Jur.2d, Adverse Possession, Sec. 60, p. 125, et seq., and the cases there collated. A witness who for some fifteen years owned and occupied an acre of land in the southwest corner of the east half of Lot 1 testified that she at no time claimed any land not described in her deed. There was also evidence to the effect that Roberts only claimed the land covered by his deed. This probably amounted to nothing more than the opinion of the witness or witnesses who so testified, but this is also true of the testimony of the witness or witnesses who testified that Roberts claimed the land in question. No one testified to having ever heard Roberts express a claim to the land or say anything that would shed light on his attitude toward it. There was only his possession and use, and this must be viewed in the light of appellee's testimony to the effect that there was an agreement between him and Roberts, in the presence of appellee's father, that the true line would be honored when established. The burden of proving limitation title was on appellant, and we do not feel that he discharged it in a conclusive manner.
Appellant complains because the trial court received in evidence a document which had been executed by Laura Roberts, who had been the wife of Dave Roberts. Dave had conveyed to Laura an interest in the east half of Lot 1, and it is to be inferred that Laura had lived on the land. For all that the record shows, she was still living on the land when she signed the instrument and when the case was tried. The instrument was in the nature of an *145 acknowledgment of tenancy and recited that the affiant had used the land in suit only as a tenant of its owners. Appellant made no objection to the introduction of the instrument. Therefore, we are perhaps under no duty to consider the point by which he assigns error to the matter. But we shall say that, with or without objection, the trial court's action in receiving the document in evidence did not constitute reversible error. The record does not affirmatively show that the instrument was inadmissible. But assuming that appellant does not hold under Laura Roberts and that the instrument was both hearsay and irrelevant, reversible error is not presented. Not only will the trial court be presumed to have disregarded it if those were the facts, but we are unable to see how, in such circumstances, the instrument could have operated to appellant's detriment.
Appellant's points are all overruled and the judgment of the trial court is affirmed.
McNEILL, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454955/ | 480 S.W.2d 104 (1972)
Lewis L. WARD and Mary L. Ward, Appellants,
v.
W. P. JOHNSON, Substitute Trustee, and Farm and Home Savings Association, a corporation, Respondents.
No. 25626.
Missouri Court of Appeals, Kansas City District.
April 24, 1972.
*105 A. J. Falcone, Kansas City, for appellants.
Robert L. Ewing, Nevada, for respondents.
PER CURIAM.
This is an appeal from a judgment entered June 17, 1970, dissolving a temporary restraining order and entering a judgment for defendants on plaintiffs' petition. The petition was for an injunction to restrain the sale of realty under a Deed of Trust. The case was submitted below to the court without a jury and upon stipulated facts and documents.
Briefly, the agreed facts showed that the plaintiffs purchased some real estate, and under the terms of the sale they assumed and agreed to pay an existing promissory note secured by a deed of trust held by the defendant Farm and Home. Both the note and deed of trust contained acceleration clauses providing that if any deficiency in the payment of any monthly installment under the note was not made good prior to the due date of the next such installment, the holder of such note could exercise an option of treating the remainder of the debt due and payable. It was further provided that failure to exercise such option would not constitute a waiver of the right to exercise the option in the event of any subsequent default.
The plaintiffs were in arrears on some payments in the spring of 1969 and they were advised in writing (Defs' Exh. No. 4) that if they did not bring the payments to a current basis by May 2, 1969, the whole unpaid balance would be due. In the same communication, the plaintiffs were advised that no further default would be tolerated without the balance of the note being declared due in its entirety. The payments were made upon a current basis for a few months, but the plaintiffs came into default again for the October and November, 1969 payments and they were advised by certified mail under date of November 13, 1969 that the entire unpaid balance of the note was due and payable according to its terms (Defs' Exh. No. 5). The December, 1969 payment was defaulted. There was some evidence that tender was made of some or all of these monthly payments after the acceleration option had been exercised, but such tender was not accepted by Farm and Home.
Beginning in March, 1969, the notice of Trustee's Sale was advertised and the sale set for April 10, 1970.
On April 9, 1970, this suit was filed seeking to enjoin the sale under the Deed *106 of Trust and on that date the court below made an "Order to Show Cause" as to why a temporary injunction should not be granted and set the hearing thereon for April 23, 1970.
On May 7, 1970, the matter was submitted to the Court upon stipulated facts and documents and thereafter on June 17, 1970, the judgment herein appealed from was entered.
This appeal must be dismissed for the failure of the plaintiffs to comply with the applicable rules relating to appeals.
Neither party below requested either a written opinion or findings of fact and conclusions of law.
No motion for a new trial is necessary for appellate review of a case tried without a jury. Russell v. Russell, Mo., 427 S.W.2d 471-475; State ex rel. Community Heating and Air Conditioning Co. v. Schwartz, Admrx., Mo.App., 452 S.W.2d 243-250; St. Louis Teachers Association v. Board of Education, Mo., 456 S.W.2d 16, 18; Rule 79.03. However, under Rule 73.01(c), a party to a court tried case may file a motion to amend judgment or a motion for a new trial, or both, not later than fifteen days after entry of judgment. The plaintiffs chose to file a motion for a new trial only, and it is now part of the record in this Court. It sets forth two alleged grounds, namely:
1. That the judgment of the Court in this case is against the weight of the evidence.
2. That the judgment of the Court is against the law and the evidence in this case.
The alleged errors set forth in plaintiffs' motion for a new trial are wholly inadequate to either present them properly at the trial level or preserve them here upon appeal. Robbins v. Robbins, Mo., 328 S.W.2d 552; Schneider v. Southwestern Bell Tel. Co., Mo.App., 413 S.W.2d 16, (a court tried case).
The notice of appeal filed herein under Rule 82.08 (now Rule 81.08) designates the judgment appealed from as the order of the trial court on September 2, 1970 (T. 16/17), which was an order overruling plaintiffs' motion for a new trial. The final judgment of the court below was entered June 17, 1970 (T. 16). This fault might be excused, since there was only one appealable judgment, that of June 17, 1970.
However, Rule 83.05 (now Rule 84.04, effective 1/1/72) relating to the contents of briefs, requires a jurisdictional statement. Under this heading in their brief, plaintiffs state:
"* * * Since the amount in dispute is less than $30,000.00, this Court has jurisdiction. Sec. 477.040 R.S.Mo.1969."
Such general statement does not comply with Rule 83.05(b) (nor present Rule 84.04(b)), is a conclusion, and insufficient.
Plaintiffs' statement of facts in their brief does not comply with Rule 83.05(c) (d) (now Rule 84.04(c) (h)), in that no specific page references to the transcript or exhibit numbers are set forth.
Plaintiffs' points and authorities in their brief state:
"The Trial Court Erred in Dismissing Plaintiffs'-Appellants' Petition for Injunction Because, in a Proper Case, a Tender of Arrears After Default and Acceleration May Prevent Foreclosure."
This is merely an abstract statement of law, without any showing of any relation to this case or any action of the trial court, and does not comply with Rule 83.05(e) (now Rule 84.04(d)). The decisions condemning this practice are myriad. Chase Realty Co. v. Dorel Company, Mo., 437 S.W.2d 65; Scarato v. Hayward, Mo.App., 446 S.W.2d 135; Troyer v. Click, Mo.App., 457 S.W.2d 221; Cases collected Missouri Digest App. & Error 758(3). The same rule applies to appellate review *107 of cases tried below by the Court. Boyd v. Boyd, Mo.App., 459 S.W.2d 8, 12.
The point relied on here by the plaintiffs is not only an abstract statement of law, but is completely devoid of any suggestion as to how or in what manner it is claimed that any action of the trial court was erroneous. Nothing is presented for review by this point.
Neither does the Argument contained in plaintiffs' brief comply with Rule 83.05(d) (now Rule 84.04(e), (h)), which requires specific transcript page references.
This record would almost impel the conclusion that there was a predetermined or studied failure to comply with the rules relating to appeal. These Rules of Civil Procedure are the result of decades of experience, refinement, review and simplification, calculated to promote and speed the processes of justice. There are valid reasons for each of them. They are calculated to serve the interests of justice and thus of all our citizens. They should and must be substantially followed and not disregarded. The courts in the past have meticulously pointed up the reasons for each rule, laid down simple examples and guidelines, and indulged in generous forgiveness and excuse for deviation.
But modern realities no longer permit a disregard of these standards by either the bench or the bar.
Rule 83.09 (now Rule 84.08) declares that upon an appellant's failure to comply with the rules relating to briefs, this Court will dismiss the appeal or affirm the judgment "unless good cause is shown or the interests of justice otherwise require".
Since this case involves the foreclosure of the plaintiffs' home, we have carefully studied the entire record and the exhibits and the authorities cited by the parties, but can find no valid reason why the trial court's judgment was erroneous or why justice would require any alteration thereof. The trial court's judgment is supported by and in accord with the record and with Brown v. Kennedy, 309 Mo. 335, 274 S.W. 357, and Thielecke v. Davis, Mo., 260 S.W.2d 510.
The appeal is dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454973/ | 480 S.W.2d 51 (1972)
George B. SHEPHERD et al., Appellants,
v.
ESTATE of Addie Mae LONG, Deceased, et al., Appellees.
No. 17304.
Court of Civil Appeals of Texas, Fort Worth.
April 14, 1972.
Rehearing Denied May 19, 1972.
*52 Miteff & Evans and Meto Miteff, Fort Worth, for appellants.
Fillmore, Lambert, Farabee, Purtle & Smith and David Smith, Wichita Falls, for appellees.
OPINION
BREWSTER, Justice.
The plaintiffs herein are appealing from a nunc pro tunc judgment that the trial court signed on September 18, 1971, after the original judgment that had been signed on November 30, 1970, and entered on December 2, 1970, had become final, and which nunc pro tunc decree purported to amend the original decree by deleting from it a part of the recovery that had been awarded plaintiffs by the original decree.
The original decree awarded the plaintiffs, Mr. and Mrs. Shepherd and Mr. and Mrs. Towles, a money judgment against the estate of Addie Mae Long, deceased, and against Harold Long, as the temporary administrator of the estate of Addie Mae Long, deceased, and against Harold K. Long, individually and as the sole surviving heir at law of Addie Mae Long, deceased.
The nunc pro tunc decree being appealed from purported to amend the original judgment by deleting therefrom the part that awarded the plaintiffs a money judgment against Harold K. Long, in his individual capacity and in his capacity as the sole surviving heir of the estate of Addie Mae Long, deceased. The court left intact the part of the original decree that gave plaintiffs judgment against the estate of Addie Mae Long and against Harold K. Long as temporary administrator of the estate of Addie Mae Long, deceased.
We will list the various events that occurred in connection with this matter.
1. On April 6, 1970, the plaintiffs flled this suit seeking judgment for damages against the following defendants: the estate of Addie Mae Long, Harold K. Long as temporary administrator of the estate of Addie Mae Long, deceased, and against Harold K. Long, individually and as the sole surviving heir at law of Addie Mae Long, deceased. The plaintiffs alleged that they sustained serious personal injuries in a car wreck involving the deceased's car and which wreck they alleged was proximately caused by the negligent acts of the deceased in the operation of her car, and sought to recover damages by reason of such injuries. The petition, in connection with plaintiffs' action against Harold K. Long in his individual capacity and in his capacity as the sole surviving heir of Addie Mae Long, deceased, alleged the following: "That the said Addie Mae Long died on the 8th day of April, 1968, ... Intestate, leaving no will, and left as her sole surviving heir the *53 defendant Harold K. Long, her son, sued here individually since all of the assets of the Estate of Addie Mae Long are now in his possession and control, as the only heir at law of the Estate of Addie Mae Long, deceased, ...."
2. The defendant, Harold K. Long, filed an original and an amended answer herein answering in all the capacities in which he was sued.
3. A jury trial was held and the jury returned a verdict on October 30, 1970. The jury found Addie Mae Long, deceased, guilty of negligence, that proximately caused the car wreck and plaintiffs' damages and the verdict also established the amount of the damages. Plaintiffs were found to have not been negligent on the occasion. The phase of the case relating to the question of whether or not Harold K. Long was individually liable for plaintiffs' damages to any extent by reason of his possession of and control of the property belonging to deceased's estate was not submitted to the jury. No issues in the charge related to it. The record does not in any way show what evidence was offered during the trial relating to that feature of the case.
4. Defendants' motion for judgment nunc pro tunc says that they did file herein a motion for judgment non obstante veredicto on November 17, 1970, and that the court overruled it on November 27, 1970.
5. The original judgment was then signed by the judge on November 30, 1970. It awarded the plaintiffs damages against all defendants sued and against said defendants in all the capacities in which they were sued. This judgment set out the verdict in full and followed it with the following recital: "... whereupon the Plaintiffs having made, and the Court having duly heard and considered a Motion For Judgment, and such additional consideration and findings as were authorized by law having been had and made, and the Court being of the opinion that Judgment should be rendered as follows for the Plaintiffs George B. Shepherd and wife Avie Irene Shepherd and Sam Towles and wife Mattie Towles: ...." The court then proceeded to render judgment as is above indicated.
6. The defendants in all the capacities in which they were sued did on December 11, 1970, file a motion for new trial. Defendants, in their motion for judgment nunc pro tunc, admit that they never presented this motion for new trial to the court and that this motion for new trial was overruled by operation of law.
7. No appeal was taken by the defendants from the original judgment.
8. On August 30, 1971, the defendant, Harold K. Long, individually and as sole surviving heir at law of Addie Mae Long, deceased, did file herein a motion asking the court to enter a nunc pro tunc decree deleting from the original judgment the part that gave the plaintiffs a money judgment against Harold K. Long in his individual capacity and in his capacity as the sole surviving heir of Addie Mae Long, deceased.
9. The relief prayed for in the last motion mentioned was granted on September 18, 1971, by the trial court. This was done by a nunc pro tunc order signed on that date, which was long after the original judgment had become final.
Plaintiffs' only point urged on this appeal is that the trial court erred in rendering the nunc pro tunc decree on September 18, 1971, so as to amend and remove from the original decree of November 30, 1970, the recital that judgment is rendered against Harold K. Long, individually and as sole surviving heir of Addie Mae Long.
We sustain this point.
As far as the record shows, the court, after the jury trial, made no oral or written pronouncements indicating the judgment he was rendering in the case other than his act of signing the original judgment dated November 30, 1970. The court's rendition of judgment in this case *54 therefore occurred on November 30, 1970, at the time he signed this original judgment. Knox v. Long, 152 Tex. 291, 257 S.W.2d 289 (1953); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912); and Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.Sup., 1970).
The law is settled in Texas that a previously rendered court judgment that has become final may not be corrected by a nunc pro tunc decree except where entered to correct a clerical error that has been made in the entry of the judgment. Judicial errors in the rendition of a judgment may not be corrected by a nunc pro tunc order. Such errors can only be corrected by appeal, writ of error or by bill of review. Finlay v. Jones, 435 S.W.2d 136 (Tex.Sup., 1968); Lone Star Cement Corporation v. Fair, 467 S.W.2d 402 (Tex.Sup., 1971); Comet Aluminum Company v. Dibrell, supra; Knox v. Long, supra; Love v. State Bank & Trust Co. of San Antonio, 126 Tex. 591, 90 S.W.2d 819 (1936).
One controlling question in this case is whether the claimed error sought to be corrected by the nunc pro tunc decree was a clerical error or a judicial one. The cases are clear that this question is a law question. See Finlay v. Jones, supra.
On this see Coleman v. Zapp, supra, 151 S.W. at page 1041, wherein the court said: "The inquiry ... is not what judgment might or ought to have been rendered, but only what judgment was rendered; and such is the sole issue to be determined."
If a court actually renders a judgment that for some reason is wrong and should not have been rendered, then that error, under the holdings of the above cited cases, is a judicial one and the court is powerless, after the judgment becomes final, to correct it by a nunc pro tunc decree.
But if the judgment that the court actually renders at the time he renders judgment in the case is incorrectly recorded, such error is a clerical error, and the court has the power to correct his original decree, even after it has become final, by a nunc pro tunc decree in order to make the court records correctly show the judgment that was actually rendered.
Since the court's action in signing and thereby making effective as the judgment in the case the November 30, 1970, decree was itself the act of rendering the judgment therein contained, no valid argument can be advanced to the effect that the court did not in fact render a money judgment for the plaintiffs and against Harold K. Long, individually and as the sole surviving heir of Addie Mae Long, deceased.
The part of the original judgment that was deleted by the nunc pro tunc decree was a part of the judgment that the court actually rendered at the time he signed the original decree. That written decree correctly recorded the judgment that the court actually rendered at the time he rendered judgment in the case. The claimed error sought to be corrected is therefore a judicial error. This is not an instance where prior to signing the original decree that is sought to be corrected the court had rendered a decree contra to the recitals that are here complained of and where through error the recitals complained of somehow got into the written decree later signed by the court as the judgment in the case. The latter would be an example of a clerical error that can be corrected by a nunc pro tunc decree in order to make the record correctly show the judgment that the court actually rendered at the time he rendered it.
If this was a non-jury case we are convinced that under the holdings of the above cited cases the claimed error sought to be corrected in this case is a judicial one and that the trial court would have been powerless to amend it by its nunc pro tunc decree signed after the original judgment in the case had become final.
The defendants urge that the rule applicable in jury cases is different. We are referred *55 to cases holding that entry of a judgment on a valid jury verdict involves no judicial or discretionary powers, but is simply a ministerial act. See Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296 (1926) and Williams v. Wyrick, 151 Tex. 40, 245 S.W.2d 961 (1952).
The defendant contends that because of the rule announced in those cases, that the court's action in this jury case in rendering and in entering judgment on the jury verdict was simply a ministerial act and that any error made by the court in the rendering or entering of a judgment under those circumstances is a mere clerical error of the type that can be corrected after the judgment becomes final by means of a nunc pro tunc decree.
We hold that under the facts of this case the holdings in the two cases just cited do not result in the error here involved being a clerical error instead of a judicial one.
It is not necessary for us to decide whether the holdings in these two cases make the rule applicable in jury cases in determining whether a claimed court error is judicial or clerical different from what the rule is in making the same determination in a non-jury case.
We are convinced that the rules above announced as applicable in making that determination in non-jury cases apply to this case also.
This case involved two features. It involved the feature relating to whether or not the plaintiffs or Addie Mae Long, deceased, committed negligence that proximately caused plaintiffs' damage. It was only that feature of the case that related to a recovery against the estate of Addie Mae Long, deceased, that was submitted to the jury. This case also involved the additional feature of whether or not plaintiffs were entitled to a judgment against Harold K. Long, individually and as the sole surviving heir of Addie Mae Long, deceased. That feature of the case was not submitted to the jury. The court in rendering judgment was duty bound to dispose of all parties and all issues involved. He had to dispose of this last mentioned feature of the case without the aid of a jury verdict, so it follows that the question of whether a claimed error committed by him in decreeing judgment on that feature of the case is a judicial or a clerical error must be determined by the same rules that govern when the whole case is non-jury.
Actually the entire feature of the case wherein it is claimed that the error was committed was not submitted to the jury at all. A non-jury trial was had on that feature of the case.
We hold that the claimed error that the trial court sought to correct by the September 18, 1971, nunc pro tunc decree was a judicial error and that the court was powerless to render that decree in this case after the original judgment had become final.
We reverse the trial court's nunc pro tunc decree and render judgment declaring that decree to be void and ineffective to amend the original judgment signed and rendered by the trial court on November 30, 1970. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919854/ | 245 Pa. Superior Ct. 415 (1976)
369 A.2d 471
COMMONWEALTH of Pennsylvania
v.
Forrest WILSON, Appellant.
Superior Court of Pennsylvania.
Argued September 10, 1975.
Decided November 22, 1976.
*416 Eugene A. Kestenbaum, Assistant Public Defender, Doylestown, for appellant.
Stephen B. Harris, First Assistant District Attorney, Doylestown, for appellee.
Before WATKINS, P.J., and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
WATKINS, President Judge:
This is an appeal from the judgment of sentence of the Court of Common Pleas of Bucks County, Criminal Division, by the defendant-appellant, Forrest Wilson, after *417 conviction in a jury trial of attempted robbery, attempted larceny, assault and battery and two counts of conspiracy; and from the denial of post-trial motions.
The defendant was first brought to trial on October 11, 1973, before the Honorable Arthur B. Walsh, Jr. and a jury. A mistrial was declared on the motion of defense counsel when it was discovered during the trial that one of the jurors had a hearing problem.
On October 31, 1973, the defendant was again brought to trial before the Honorable Robert M. Mountenay and a jury. Again, on motion of defense counsel, a mistrial was declared as a result of prejudicial statements made in front of the jury by a prosecution witness.
On November 20, 1973, the defendant was again brought to trial before a jury, with the Honorable Lawrence A. Monroe presiding. The jury retired for deliberations at 4:00 P.M. on November 21, 1973. At 7:00 P.M. the jury reported to the court that they were hopelessly divided and could not reach a verdict and the court then declared a mistrial over the objection of the defendant. On January 14, 1974, the appellant's application to quash the indictment on the ground of double jeopardy was denied by Judge Monroe.
On January 14 and 15, 1974, the appellant was tried before the Honorable Edmund V. Ludwig and a jury and was found guilty. Post-trial motions were denied and this appeal followed.
The appellant had moved to suppress evidence as to a statement made by him subsequent to his arrest and the search made pursuant to the arrest. He also complained of the examination at the hospital and alleged that the warrant secured by the arresting officer was not based upon probable cause.
The laws of Pennsylvania have defined probable cause as facts or circumstances, within the knowledge of the arresting officer at the time of arrest, which are sufficient *418 to warrant a reasonable man to believe that the suspect has committed a crime. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). In this case then, we must deal with the problem of whether an informative tip can satisfy the requirement of probable cause to issue an arrest warrant. The Supreme Court of the United States has recognized that informants' tips are but hearsay. Nevertheless, they may constitute probable cause when two standards are met:
(1) There must be underlying circumstances which enable the issuing magistrate to judge the validity of the informant's claim.
(2) The officer seeking the warrant must present facts from which the magistrate can infer the tip is a reliable one.
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1974); Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584 21 L.Ed.2d 637 (1967); Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976).
Appellant contends there was no showing of reliability. However, the informant described the circumstances surrounding the robbery which is an indication of reliability. As it was pointed out in Spinelli, supra, 393 U.S. at page 416, 89 S.Ct. at page 589, 21 L.Ed.2d at page 644:
"In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip described the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation."
The standard for probable cause to arrest was satisfied by the informant's tip.
*419 As the Honorable Arthur B. Walsh, Jr. stated in his opinion:
"In reaching his decision not to suppress the evidence, the hearing judge recognized that the information stated by the officer to the magistrate failed to include specifically how the informer linked defendant's name with the robbery. It was felt, however, that the circumstances surrounding the reported assault were in themselves sufficient to negate the possibility that the `tip' was merely an unsupported rumor or fabrication. First and foremost was the victim's statement that he had shot two assailants. Secondly, at the time the officer received the tip he had firsthand confirmation that at least one man was wounded and in custody. Thirdly, the street address given in the tip was in the neighborhood of the assault. Fourthly, the very nature of the tip that the alleged assailant was at that moment lying wounded on his couch was such as to belie fabrication. These circumstances together with the other information given to the magistrate sufficiently protected the defendant from invasion of the constitutional guaranty against unreasonable searches and seizures."
We find the search warrant valid and the denial of suppression by the court below proper.
Over the objection of the defendant, Dr. William Chamberlain, the Director of Surgery of Lower Bucks County Hospital, testified that he examined the defendant, Forrest Wilson, on March 28, 1971. This witness testified that upon examination he noted a "puncture-type wound" in the chest and shoulder area of the defendant and that based upon his observations of the wound and his consultation with and examination of certain X-Rays of the patient, he concluded that the wound was caused by a "projectile". This evidence was offered for the purpose of corroborating the testimony of the victim, *420 Mr. Sloan, who testified that upon arrest he noted a wound in the shoulder area of the defendant.
The defense contends that the evidence was inadmissible because it was "prejudicial" and that its inherent prejudice outweighed its value as admissible evidence. The defense contends in part, that the Commonwealth's failure to produce "qualified witnesses" to substantiate that the X-Rays relied upon were in fact those of the defendant was error.
In resisting this claim, the Commonwealth relied on Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), in which the Supreme Court clearly indicated that a medical expert may express his opinion, even though the opinion is based in part upon the reports of other persons which are not in evidence. In concluding that such an opinion is admissible as an exception to the hearsay rule, the court concluded that the opinion was based upon the reports of others to which the expert witness customarily relies in the practice of his profession.
Appellant further contends that the declaration of a mistrial by the court below after the conclusion of the November 20, 1973 trial was improper as having been ended without the requisite manifest necessity and barred subsequent trial so as to constitute "double jeopardy".
The factual situation preceding the declaration of a mistrial appears to be as follows:
On Wednesday, November 21, 1973, after a two-day trial before the Honorable Lawrence A. Monroe, the jury retired at 4:00 P.M. to deliberate. At some time during the course of their deliberations, (time undetermined from the record) the jury directed an inquiry to the court via a note sent through the tipstaffs. At 5:42 P.M. the court called the jury to the courtroom and instructed them as to the question contained in the note, and thereafter, sent the jury out for further deliberations.
*421 At 6:35 P.M. after the jury had been deliberating for 2 and 1/2 hours, defense counsel asked "that the jury be permitted to go out to have something to eat, and afterward they can continue with their deliberations in the case." After stating on the record that there had been no requests by the jury to suspend deliberations Judge Monroe requested that counsel inquire of the defendant whether he was agreeable to having the jury retire during mealtime. After the defendant agreed to his counsel's request, the court declared its intention to ". . . bring the jury in, first of all, and ask them whether they are near a verdict, and if they state they are not, we will ask them whether they care to go out and eat."
At 6:40 P.M. the court directed that the jury be brought into the courtroom whereupon the following colloquy ensued.
THE COURT: Members of the Jury: I am not asking the question for the purpose of putting any pressure upon you whatsoever. The question is this: Are you near to reaching a verdict or do you think you are going to need considerably more time before you reach a verdict?
THE FOREMAN: I think we will need considerably more time.
THE COURT: Very well. So you want to go out and eat, and then come back and deliberate? I do not know whether we can get out to a restaurant that will serve all twelve at the County's expense. The County has not made arrangements with any restaurant to accommodate twelve jurors in a situation like this.
* * * * * * * *
Would you want to discuss this among yourselves and report back to me or retire and discuss whether you want to continue with your deliberations, or whether you want to interrupt by going out to dinner?
* * * * * * * *
*422 If you want to go back now and discuss what I have just presented to you, take five or ten minutes.
THE FOREMAN: We will do this very promptly.
Thereafter, the jury again retired. At some time after the jury retired, the court requested a conference with counsel, in chambers, to discuss the circumstances under which one of the jurors had found herself unprepared for her monthly period which had "suddenly come upon her." After counsel had agreed that this particular juror be permitted to leave temporarily the tipstaff handed the court an additional note from the jury which read as follows:
"In addition to my spoken word, we anticipate a divided jury no matter how long we talk."
Thereafter, the court inquired as to the advisability of declaring a mistrial, and noted on the record certain "complications" it considered in suggesting this course of action. The court noted the difficulties in making dinner arrangements, the possibility of the separation of the jurors, and "the inability of the jury . . . apparently to agree . . ." In addition, Judge Monroe noted that it was "the eve of Thanksgiving Day, and the women on the jury who have chores to prepare for tomorrow's celebration, which may have some effect upon their verdict." The court also noted that defense counsel "express some concern about the Clergyman, who might have his congregation in mind, and not be able to give all those matters consideration . . ." Although there is nothing definitive in the record regarding this "Clergyman" there was some mention made that one of the jurors had expressed some concern regarding the convening of his congregation later that evening at the conclusion of the court's remarks on this subject counsel for defendant agreed that the court had properly stated the facts concerning this incident.
*423 After placing these matters on the record, and noting the defendant's objection to the declaration of the mistrial, the court reconvened the jury. At this point the court asked the eleven remaining members of the panel whether they agreed with the latest note from the foreman and after questioning, the following conversation took place:
THE COURT: . . . I have received this note, ladies and gentlemen:
"In addition to my spoken word, we anticipate a divided jury no matter how long we talk."
Is that the note of the jury?
THE FOREMAN: That is right, Your Honor.
THE COURT: Do each and every one of you eleven agree with this note?
THE JURORS: Yes.
THE COURT: Is it your opinion no matter how long you discuss this matter, you will be unable to reach a verdict?
THE JURORS: Yes.
THE COURT: Each and every one of that opinion?
THE JURORS: Yes.
THE COURT: All shaking your head and answering in the affirmative?
THE JURORS: Yes.
THE COURT: Is there anyone upon the jury who is not of the opinion that further discussions would be fruitless? (No response)
THE COURT: Very well. In the opinion of the Court, to require the jury to continue to deliberate under the present circumstances would be coercive. . .
At 7:00 P.M., after the jury had deliberated for three (3) hours, the court declared a mistrial.
*424 Whether or not the facts present a case of manifest necessity is one of degree and each case must turn on its own facts. The resolution of the variables of each case is left to the sound discretion of the trial judge. Under all the facts and circumstances of this case the court below did not abuse its discretion in declaring a mistrial. The inability of a jury to agree on a verdict is clearly a ground for a mistrial. Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971); Commonwealth v. Kent, 355 Pa. 146, 49 A.2d 388 (1946). Had the court insisted upon further deliberations under these circumstances it would clearly have put him into a position where coercion could be claimed by the appellant had a guilty verdict resulted. Cases are numerous wherein our courts have declared that a properly declared mistrial does not give rise to double jeopardy upon subsequent retrial. Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972).
Judgment of sentence is affirmed.
HOFFMAN, J., files a dissenting opinion in which SPAETH, J., joins.
HOFFMAN, Judge, dissenting:
Appellant contends that the double jeopardy provisions of the Pennsylvania[1] and United States Constitutions[2] barred his trial on charges of attempted robbery, attempted assault with intent to rob, aggravated assault and battery, and related counts of conspiracy.
On October 12, 1971, appellant was indicted for the attempted robbery of Paul F. Sloan in Bristol Township. On October 10, 1973, pre-trial motions were heard and denied. Appellant's first jury trial began on October 11, 1973. Defense counsel's motion for mistrial was granted when it was discovered that one of the jurors had a hearing *425 problem. A second jury trial was commenced on October 31, 1973, which also ended in a mistrial on the motion of defense counsel because of prejudicial statements by a prosecution witness.
On November 20, 1973, a third jury trial was commenced. At 4:00 p.m., on November 21, 1973, the jury retired to deliberate. At 5:42 p.m., the jury returned with a question and was sent back to deliberate shortly thereafter. At 6:40 p.m., the court summoned the jury to inquire about the progress of its deliberations and to determine what, if any, dinner arrangements would be necessary. The judge informed the jury foreman that there would be some difficulty in arranging dinner for all the jurors at county expense, but suggested that, if considerably more time would be necessary, it would be possible for the members of the jury to make their own dinner arrangements and return in the evening to deliberate. The foreman advised the judge that the jury would need considerably more time to reach a verdict. The judge suggested that the jury retire to discuss what dinner plans would best suit its needs.
While the jury was discussing its plans for eating, the tipstaff informed the judge that one of the jurors had begun her menstrual period and did not have any sanitary napkins with her. The court requested that the tipstaff make the necessary arrangements for the juror. Before the tipstaff departed, she handed the judge a note from the foreman which read: "In addition to my spoken word, we anticipate a divided jury no matter how long we talk." The judge consulted with the attorneys for both sides and noted that various complications had arisen: the fact that in making dinner arrangements there was the distinct possibility that the members of the jury would be separated, the problem of the female juror's unexpected menstrual period, the fact that female members of the jury might be anxious about the delay in preparing for Thanksgiving festivities, and the fact that *426 one of the members of the jury was a clergyman who would be precluded from conducting services with his congregation. The court asked for consent of counsel to declare a mistrial. After consultation with his client, counsel for appellant objected. The court felt, nevertheless, that, if the jury were forced to reach a verdict, it would be subject to reversal on appeal on the grounds that it was coerced. The court then resolved to declare a mistrial.
The jury was called in and the following colloquy occurred:
"THE COURT: You will note that the jury is in the room and eleven of them are present. Number Two Juror is absent, for matters which I have put on the record.
"THE FOREMAN: That is right, Your Honor.
"THE COURT: Do each and every one of you eleven agree with this note?
"THE JURORS: Yes.
"THE COURT: Is it your opinion no matter how long you discuss this matter, you will be unable to reach a verdict?
"THE JURORS: Yes.
"THE COURT: Each and every one of you of that opinion?
"THE JURORS: Yes.
"THE COURT: All shaking your head and answering in the affirmative?
"THE JURORS: Yes.
"THE COURT: Is there anyone upon the jury who is not of the opinion that further discussions would be fruitless?
"(No Response)"
A mistrial was declared at 7:00 p.m.
*427 On January 14, 1974, the court heard appellant's motion to dismiss the indictment on the ground that a fourth trial, after the court's sua sponte declaration of a mistrial, would constitute double jeopardy. Appellant's motion was denied, and he was subsequently convicted of all charges. Post-trial motions were denied and this appeal followed.[3]
The issue is whether the sua sponte declaration of a mistrial over defendant's objection under the circumstances of this case precluded appellant's retrial. The Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), bars retrial unless the declaration of a mistrial was dictated by "manifest necessity" or the "ends of public justice." United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Perez, 22 U.S. (9 Wheaton) 579, 6 L.Ed. 165 (1824); Commonwealth v. Wideman, 453 Pa. 119, 306 A.2d 877 (1973); Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971); Commonwealth v. Kennedy, 229 Pa.Super. 189, 323 A.2d 384 (1974); Commonwealth v. Culpepper, 221 Pa.Super. 472, 293 A.2d 122 (1972).
"Manifest necessity" is difficult to quantify, and ". . . virtually all of the cases turn on the particular facts . . .". Illinois v. Somerville, 410 U.S. 458, 462, 465, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973). *428 "Manifest necessity" may result when a jury is deadlocked, but deciding when to abort the proceedings, however, is a difficult task: "If a Judge discharges a jury before it returns a verdict, the defendant will likely plead at the second trial `double jeopardy' unless he has expressly consented to its discharge. On the other hand, if a Judge urges a jury to resume deliberating, and it thereafter brings in a verdict of guilty the defendant will frequently contend that the jury's verdict was coerced. See, for example, Commonwealth v. Clark, 404 Pa. 143, 170 A.2d 847, where this Court (a) held that the trial Judge erred in ordering a confused and overworked jury to continue its deliberations, and (b) reversed the judgment of first degree murder because the verdict was coerced, and (c) remanded the case for a new trial. Cf. also: Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65." Commonwealth v. Baker, 413 Pa. 105, 114, 196 A. 2d 382, 386.[4]
It is permissible for a trial judge to send a jury back several times even after they have indicated an inability to agree. Cf. Devault v. United States, 338 F.2d 179 (10th Cir. 1964); Commonwealth v. Kennedy, supra; Annot., 93 A.L.R.2d 627, 639 (1964). But a trial judge commits reversible error if he compels a jury to deliberate so long that its verdict is the product of impatience, fatigue, or confusion. See Commonwealth v. Clark, supra. "The reasonableness of the deliberation period depends upon such factors as the length of the trial, the nature or complexity of the case, the volume and nature of the evidence, the presence of multiple counts or multiple defendants, and the jurors' statements to the court *429 concerning the probability of agreement. Annot., 93 A. L.R.2d 627 (1964)." American Bar Association, Standards Relating to Trial by Jury § 5.4, Commentary Section 5.4(b) at 147-48 (Approved Draft, 1968).
To be sure, a trial judge must strike a delicate balance between the "defendant's valued right to have his trial completed by a particular tribunal" and the "public's interest in fair trials designed to end in just judgments." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). The decision to declare a mistrial because a jury cannot agree or to urge the jurors to return to their deliberations is committed to the sound discretion of the trial judge; but appellate review of an exercise of that discretion is guided by the following standard: "As the United States Supreme Court said in Downum v. United States, 372 U.S. 734, 738, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100 (1963), any doubts as to the existence of a `manifest necessity' of granting a mistrial must be resolved `. . . in favor of the liberty of the citizen, rather than [by exercising] what would be an unlimited, uncertain, and arbitrary judicial discretion.' See Commonwealth v. Ferguson, supra, 446 Pa. at 30, 285 A.2d 189; Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972)." Commonwealth v. Culpepper, supra, 221 Pa.Super. at 477, 293 A.2d at 124.
In the instant case, the jury deliberated an hour and forty minutes before submitting its first written question to the court. After a brief interruption in the jury's deliberations while the court gave its instruction, the jury was sent to resume its work. Less than an hour later, the court, during the discussion related to dinner arrangements, received its first indication from the foreman that substantial additional time would be needed to produce a verdict. When asked to discuss what dinner plans the jury wished to make, the jury sent its first note indicating that it was having trouble reaching a verdict. *430 Thus, the jury deliberated less than three hours before the mistrial was declared at 7:00 p.m.
Although there was multiple counts charged in the indictment, all arose out of the same transaction. The only issue necessary for a verdict was the relatively simple question of the identity of the perpetrator of the crime. The trial was relatively short, requiring only a few hours of testimony by a small number of witnesses. These factors might weigh in favor of curtailing the jury's deliberations sooner than if there were more complex issues or more time-consuming testimony. The trial court was properly concerned about the numerous obstacles to reasoned deliberations. It should be noted, however, that the defendant was prepared to waive all objections to the verdict which might have rested on its potentially coerced nature.[5]
I would, therefore, hold that the "defendant's valued right to have his trial completed by a particular tribunal" was prematurely terminated in the instant case. I do not believe that there was "no reasonable probability of agreement." See Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973); Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). Had the jury continued its deliberations and found appellant guilty, appellant could not have objected to the verdict as being coerced that objection was effectively waived. Appellant had made a counselled choice to continue with the jury empanelled at his third trial and was thus entitled *431 to a verdict from this jury unless it became "hopelessly deadlocked." The record is devoid of facts which would support the conclusion that the sua sponte declaration of a mistrial was compelled by "manifest necessity." Thus I conclude that the declaration of the mistrial was premature and would hold that appellant's retrial was barred by the Double Jeopardy Clause.
I would, therefore, reverse the judgment of sentence, and order appellant discharged.
SPAETH, J., joins in this dissenting opinion.
NOTES
[1] Pa.Const. art. I, § 10.
[2] U.S.Const. amend. V and XIV.
[3] Appellant also contended both in written post-trial motions and in his brief that: (1) it was error for the court below to admit certain expert testimony because it was hearsay; and, (2) it was error for the court to refuse to suppress a "search" of appellant's body and certain statements made by appellant because they were the product of an unlawful arrest. The opinion of the court below indicates that appellant abandoned these issues by not arguing them orally, despite the fact that the record clearly reflects that these issues were preserved for appeal and were extensively discussed in briefs to the court below. Because I would hold that appellant's retrial would be barred by double jeopardy, it is unnecessary to pass on these two arguments for award of a new trial.
[4] "Manifest necessity" may also result ". . . where the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant's interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice. Wade v. Hunter, supra." Illinois v. Somerville, supra at 471, 93 S.Ct. at 1074.
[5] I do not mean to suggest here that once a defendant elects to continue with a particular jury that a trial judge is precluded from declaring a mistrial for the reason that the jury has become exhausted, confused or impatient or for the reason that it shows "no reasonable probability of agreement". Neither would it be appropriate or permissible for a trial judge to permit the jury to continue its deliberations after it is apparent that the jurors are "hopelessly deadlocked", even if the defendant had once indicated his willingness to continue with the jury. Rather, the court should be guided by the decisions of Brown and Spencer, on the one hand, and Clark on the other to see that the public interest in fair trials is preserved. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919875/ | 245 Pa. Superior Ct. 1 (1976)
369 A.2d 263
John J. POLASCIK, Appellant,
v.
William O. BALDWIN and Mary P. Barrett.
Superior Court of Pennsylvania.
Argued December 12, 1975.
Decided November 22, 1976.
*3 George I. Puhak, Hazleton, for appellant.
No appearance entered nor brief submitted for appellees.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
SPAETH, Judge:
This troublesome case is an appeal from an order dismissing appellant's motion to quash an appeal from an arbitrators' award.
On November 9, 1973, appellant filed a complaint in trespass against appellees, who are nonresidents, for property damage arising out of an automobile collision. On May 10, 1974, a panel of arbitrators awarded appellant $1,590.00.
The statute governing an appeal from an arbitrators' award provides, in pertinent part, as follows:
Either party may appeal from an award of arbitrators, to the court in which the cause was pending at the time the rule or agreement of reference was entered, under the following rules, regulations and restrictions, viz.:
I. The party appellant, his agent, or attorney, shall make oath or affirmation, that "it is not for the purpose of delay such appeal is entered, but because he firmly believes injustice has been done."
II. Such party, his agent or attorney, shall pay all the costs that may have accrued in such suit or action.
III. The party, his agent, or attorney, shall enter into the recognizance hereinafter mentioned.
IV. Such appeal shall be entered, and the costs paid, and recognizance filed, within twenty days after *4 the day of the entry of the award of the arbitrators on the docket.
........
Act of June 16, 1836, P.L. 715, § 27, 5 P.S. § 71.
These requirements are jurisdictional. James F. Oakley, Inc. v. School District of Philadelphia, 464 Pa. 330, 334, 346 A.2d 765, 767 (1975). Accordingly, where there has not been compliance with them, an appeal will be quashed, although we have held that where after "an honest effort . . . to meet the requirements of the statute," there has been "substantial compliance," we will not quash. Black & Brown, Inc. v. Home for the Accepted, Inc., 233 Pa.Super. 518, 522, 335 A.2d 722, 724 (1975).[1]
In the instant case, appellant filed a motion to quash the appeal from the arbitrators' award alleging that appellees' counsel had altered the appeal papers to make it appear that the statutory requirements had been complied with when in fact they had not been. The court below dismissed the motion to quash without a hearing.[2]
Before we may consider the correctness of the order of the court below we must ask whether the appeal from the order is properly before us; we must do this *5 even though neither party has raised the question. Jones v. Crossgates, Inc., 220 Pa.Super. 427, 289 A.2d 491 (1972); see also Stadler v. Mt. Oliver Borough, 373 Pa. 316, 95 A.2d 776 (1953). Here, the appeal is not properly before us, for "[a]n appeal does not lie from an order refusing to strike off an appeal from arbitrators, as such an order is merely interlocutory." Caples v. Klugman, 202 Pa.Super. 517, 198 A.2d 342 (1964). To be sure, an interlocutory order is appealable if it presents a jurisdictional question. Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672. In such a case, however, the appeal must be filed within 20 days, Act of July 31, 1970, P.L. 673, No. 223, art. V, § 502, 17 P.S. § 211.502(d), which was not done here. Accordingly, the appeal will be quashed.
Ordinarily, this conclusion would end the matter, as far as we were concerned. In the circumstances, however, that would be inappropriate. Appellee's counsel is an officer of this court, and we cannot overlook or ignore the record, in any case that comes before us, in whatever way, so far as it may bear upon the manner in which counsel has discharged his professional responsibilities.
As already indicated, the motion to quash contained allegations calling into question the integrity of appellees' counsel. See Code of Professional Responsibility, DR 1-102(4) & (5), DR 7-102(A)(5). Despite this, counsel neither appeared at the oral argument before us, nor did he file a brief.
Since the arbitrators' award was entered on May 10, 1974, appellees had until May 30, 1974, to comply with the statutory requirements for appealing from the award. Act of June 16, 1836, supra, 5 P.S. § 71(IV). The appeal contains a certification by appellees' counsel, dated May 30, 1974, "that the above named appellant [from the award] has paid all accrued record costs as well as fees of Arbitrators in the sum of $192.25, and that I have mailed a true copy of the foregoing to counsel *6 for the appellee." (Record 10a) The appeal also bears a stamped indication by the Prothonotary of Luzerne County that it was "FILED '74 MAY 30 PM 1 46." (Record 11a) However, a copy of the Prothonotary's costs docket, which is an exhibit to the motion to quash, shows that in fact a check in payment of the $192.25 in costs was not received until June 19, 1974.[3] (Record 22a)
In addition to the foregoing, we note that the arbitration appeal bond contains obvious alterations. The bond bears the typewritten indication in the body of its text that it was dated May 29, 1974. The bottom of the bond, however, contains a space in which the Prothonotary of the court below is to indicate the date on which he approved the bond. It is apparent that this date was originally written in long hand as "June _____, 1974" (the day is illegible). The month and day have been erased, however, and "May 30th" superimposed. (Record 21a; the erasure is more evident in the original record) the Prothonotary's date stamp, on the reverse side of the bond, bears an even more obvious alteration. Originally, the bond was stamped "FILED '74 ____ PM 2 10," the part indicated by the blank space being illegible (although upon close inspection one may be reasonably sure that "JUN" had been there). The month and day have been altered, and "May 30" superimposed in longhand. (Record 20a)
It may be that the alterations on the arbitration appeal bond were not the result of a deliberate attempt to mislead but represent some mere clerical inadvertence. Nevertheless, a substantial question is presented whether there has been an attempt to mislead.[4] Accordingly, the *7 appeal from the order of the court below is quashed, but the Prothonotary of this court is directed to furnish a certified copy of this opinion to the Disciplinary Board of the Supreme Court of Pennsylvania, for such further proceedings as may be appropriate.
HOFFMAN, J., files a concurring opinion.
HOFFMAN, Judge, concurring:
I agree with the Majority's conclusion that this appeal must be quashed because the appeal to this Court was not filed in a timely manner. Caples v. Klugman, 202 Pa.Super. 517, 198 A.2d 342 (1964); Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. V, § 502; 17 P.S. § 211.502(d). I do not join in the additional discussion because the Court engages in de novo factfinding based solely on speculation concerning the state of the record.
NOTES
[1] In James F. Oakley, Inc. v. School District of Philadelphia, supra, the Supreme Court held that the failure to pay in full the accrued costs was to be excused because of the "confusing and misleading state" of the prothonotary's costs docket. 464 Pa. at 335, 346 A.2d at 767-68. The Court therefore found it unnecessary to consider the correctness of the Black & Brown substantial compliance rule. Id. at 336, 346 A.2d at 768.
[2] Before filing the motion to quash, appellant had filed preliminary objections containing allegations identical with those made in the motion to quash. The preliminary objections were dismissed because of appellant's failure to comply with a local rule governing the filing of briefs. The judge who entertained the motion to quash dismissed it because of the dismissal of the preliminary objections. Since the motion to quash alleged a defect in subject matter jurisdiction, however, it should have been entertained. Daly v. School District of Darby Twp., 434 Pa. 286, 252 A.2d 638 (1969).
[3] Appellant's motion to quash (para. 5) and brief (at page 2) state that the date of receipt was June 18, 1974.
[4] The statement in the concurring opinion that "the Court [has] engage[d] in de novo factfinding based solely on speculation concerning the state of the record" is without basis. There has been no factfinding de novo or otherwise. Someday, it is to be hoped, there will be, and a finding made whether there was an attempt to mislead. It is also to be hoped that the finding will be that there was not, but that must abide the event. Neither has there been any speculation. Nothing has been done except to describe the record. Every court is under a duty to read the record. When as a result of that reading a substantial question is presented whether counsel has properly discharged his professional responsibilities, the court cannot ignore that question without stultifying itself. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919879/ | 245 Pa. Superior Ct. 17 (1976)
369 A.2d 271
COMMONWEALTH of Pennsylvania
v.
Roger HAYNES, Appellant.
Superior Court of Pennsylvania.
Submitted December 30, 1975.
Decided November 22, 1976.
*19 Arthur L. Gutkin, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
VAN der VOORT, Judge:
Appeal is taken to our Court from judgment of sentence rendered after a jury trial and adjudication of guilt to indictments charging criminal conspiracy, kidnapping, aggravated assault, and possession of instruments of crime.[1] Post-trial motions were filed and denied, thus preserving questions raised for our review.
A short factual history of the case, the evidence being considered in a manner most favorable to the verdict winner, is as follows: On the night of June 28, 1973, Clifford Walker was visiting a house occupied by Dianna Frank, her two children and one Roxanne Willock. He had been going there to buy drugs. Police suddenly appeared in front of this house. Walker and Roxanne ran *20 out of the back door, climbed over a fence and went together to Walker's apartment two blocks away. They stayed in his apartment until the early hours of the morning of June 29, 1973, during which period of time they engaged in sexual relations. Walker escorted Roxanne home that morning and went to work. Around 5:00 p.m., that afternoon Walker returned to Dianna Frank's house to visit. He made his way into the kitchen. Roxanne locked the doors. Suddenly appellant, identifying himself as Roxanne's boyfriend, entered the kitchen and confronted Walker with the accusation that Walker had raped Roxanne. She confirmed the accusation. Walker admitted he had had an intimate affair with Roxanne but denied raping her. Nevertheless appellant began to mete out a night of horror. Appellant drew a knife on Walker, tied him about the legs and neck, and began to threaten death and castration. Boiling water was poured on Walker's naked body, then salt and pepper was shaken thereupon. Two neighbors were called over for the "party", as it was described. This torture continued, interspersed with kicking all parts of Walker's body, repeated threats of death with knives and guns, and the jamming of a broomstick into Walker's rectum. Appellant and his cohorts placed Walker in a van and drove about for some hours, ending the trip on a bridge over Crum Creek in Swarthmore, Delaware County. Thereupon Walker was thrown into the water, and in the water he was sufficiently alert to duck under the surface until he believed his captors had driven away. He reached shore and received help at a near-by apartment complex. Walker was hospitalized for approximately two months.
Appellant's first allegation of error is that the lower court should have granted his request for dismissal pursuant to Pa.R.Crim.P. 1100. A hearing was held on this motion on October 29, 1974. A criminal complaint had been filed on July 2, 1973. Testimony from the *21 hearing shows that appellant had fled and Philadelphia authorities sought appellant through the means of the F. B.I., and a fugitive flight warrant. Appellant was apprehended in Virginia on August 2, 1973, and returned to Delaware County and there lodged in jail on August 3, 1973. It thus is clear that appellant was unavailable for 31 days and nothing could proceed on the case in question during that time. The case of Commonwealth v. Lewis, 237 Pa.Super. 357, 352 A.2d 99 (1975), relied upon by appellant, is factually inapposite because therein the unavailability of the defendant did not affect the case there pending. The case clearly mandates that "it is only those absences of the defendant or his attorney which caused a delay in the proceedings of the case in question which can be excluded pursuant to Rule 1100(d)." [Emphasis theirs.] Lewis, ibid., 237 Pa.Super. at 360, 352 A.2d at 101. Such a period was properly found excludable. Instantly the 31 days from July 2, 1973 to August 3, 1973 are excluded from the 270 day period.
Testimony of the Philadelphia Detective in charge of the case shows that from August 3, 1973, to October 9, 1973, numerous phone calls to the Delaware County authorities satisfied him that appellant was seriously ill and hospitalized. During this period appellant had a kidney removed. This is a valid reason for one's unavailability and is properly excludable under Rule 1100(d). Sixty-seven more days are excluded because of appellant's unavailability. Thus a total of 98 days are excluded, and the operative date for the commencement of trial, under Rule 1100, is extended by that number of days, placing the date for required trial at July 5, 1974, well beyond the originally-applicable date of March 29, 1974, which is 270 days after the filing of the complaint. It is important to note that at the hearing on appellant's motion to dismiss, all parties agreed that the Commonwealth only had to prove an excludable period up to June *22 8, 1974, when appellant escaped from prison and again fled jurisdiction. The additional 98 days places the time available for commencement of trial well beyond June 8, 1974. Judge GREENBERG, following the hearing and based upon this 98-day exclusion as well as the additional period due to appellant's escape and subsequent return on September 10, 1974, denied relief and found that the last day for the beginning of trial was February 25, 1975. In view of the clear evidence proving the unavailability of appellant and the consequent automatic exclusion under Rule 1100(d) of 98 days, and the parties' agreement that no further time need be considered if the Commonwealth proved excluded time sufficient to bring the required hearing date up to June 8, 1974, there would be no error. Trial commenced on February 3, 1975, well within the properly-extended period.
Appellant complains of the opening statement of the attorney for the Commonwealth. The prosecutor, in describing the crime alleged, made the following comments:
.......
They [the appellant and his cohorts] took his [Walker's] penis . . . and put it on the table and banged it with a bowling pin and then he took lighter fluid and set it on fire and put it out, he took boiling water and poured the boiling water on it.
........
They inserted an instrument into his anus and poured boiling water there.
These comments are attacked as a source of prejudice to the appellant's case before the jury because they were not proved. Appellant first raised the issue by a request for a mistrial after the Commonwealth rested. The Commonwealth in its statement of what it intends to prove may not go so far from the facts as it knows them, and can reasonably infer from them, so as to inflame the *23 passions or sensibilities of the jurors against the defendant. Commonwealth v. Fairbanks, 453 Pa. 90, 306 A.2d 866 (1973). While it is evident that Walker reluctantly described what had happened to him, wanted to exercise restraint in this embarrassing situation, and the testimony had to be drawn from him by repeated questions, the testimony is clear that Walker denied the described abuses to his penis, and stated only that a broomstick had been inserted into his anus. We must conclude that the more descriptive offerings of the assistant district attorney were error. There is no way to conclude that they were able to be inferred from the testimony as presented. Of course it is difficult to outline a case before testimony is presented, but there is no indication in the instant record that the prosecutor was faced with a reluctant or intentionally silent witness. Our inquiry must go to whether these statements so aroused the feelings of the jurors, to the prejudice of appellant, as to constitute reversible error. Commonwealth v. Ross, 452 Pa. 500, 307 A.2d 898 (1973). We hold that they do not. Standing alone the unproven acts are inflammatory, but they must be considered in the atmosphere of a case where crimes actually proven are horribly gruesome. In the midst of descriptions of the most heinous and reprehensible treatment, the comments of the assistant district attorney if not entirely ignored by the jury would fade into insignificance and would not serve to inflame further the mind of a juror, beyond whatever state of mind the proven facts placed the juror. The error here is harmless beyond a reasonable doubt and does not require reversal.
Another issue claimed to be prejudicial to appellant during trial is the lower court's allowance of the use of pictures of Walker's (the victim's) body. Appellant challenges this exercise of judicial discretion, arguing that the pictures were unduly inflammatory. Where the crime is so heinous as here, pictures thereof are naturally going to have a gruesome appearance. "Where pictures *24 are gruesome and so may be thought to have an inflammatory effect on the jury, the test to be used by the trial court in judging the admissibility is `whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds of the jurors.'" Ross, supra, 452 Pa. at 506, 307 A.2d at 901, quoting Commonwealth v. Wilson, 431 Pa. 21, 31, 244 A.2d 734 (1968). Absent any valid claim that the pictures were distorted or that they depicted something other than this crime, we are of the view that they were important evidence in the proof of the Commonwealth's case. Where verbal accounts are made which are quite unbelievable in themselves, it is reasonable to expect the proponent to show graphic depictions (if they are available) of the event, as in this case to show burns upon the body and large areas devoid of skin. The degree of inflammatoriness of photographs allowed in Ross, supra, necessarily becomes greater when the oral descriptions themselves portray appalling conditions. We hold that the use of the pictures did not exceed the bonds of fair play to appellant. The trial court kept tight rein on the use of the photographs only as supportive of medical testimony. The photos were not shown to the jury outside the strictures of such testimonial evidence. There was no error here. See also Commonwealth v. Scaramuzzino, 455 Pa. 378, 317 A.2d 225 (1974).
Appellant challenges comments of the prosecutor during his closing to the jury. First is the comment that an eyewitness and alleged co-conspirator of appellant was brought from a State Correctional Institution to testify for the Commonwealth. It is totally within the scope of good trial practice for the Commonwealth to point out that (as the evidence showed) the witness had been convicted as a participant in the crimes in question and his appearance subpoenaed so as to blunt the sword of defense counsel, who had attempted to impeach credibility *25 by inferring a "deal" for such testimony. Second the appellant complains of the remarks of the assistant district attorney's portrayal of appellant as one who "reaped terror" and caused "the evil [situation which] led that little girl [the alleged rape victim] to lie. . .," we hold that these comments are not the type which are so prejudicial that they go to the very heart of defendant's case or his testimony. Here the comments are descriptive of what the assistant district attorney justifiably thought the facts demonstrated, they would not form in the minds of the jurors "fixed bias and hostility toward the defendant" so that they would be unable to weigh the evidence and render a true verdict. Commonwealth v. Wiggins, 239 Pa.Super. 256, 361 A.2d 750, 753 (1976), quoting from Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975) and Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968).
There is no merit to appellant's argument that the charge to the jury was erroneous as to "conspiracy" because it permitted a finding of the crime from mere presence alone. The challenged portion reads:
Now, the defendant is also charged with conspiracy, which you will have to consider. This conspiracy is with Easter and Armstrong. And a conspiracy, simply stated, is when two or more people aid or take part in the commission of a crime, or if they plan a crime, or if they attempt or solicit a crime. In this case, it would have to be shown that Roger Haynes intended to commit a crime and that any one of his co-conspirators, Easter or Armstrong, committed some overt act. And the crime here, of course, is aggravated assault. This is if you find beyond a reasonable doubt that this defendant intended to commit the crime of aggravated assault and one or more of the others did some act to aid him or take part in the commission, then you should find him guilty of conspiracy.
*26 There is nothing to support appellant's suggestion that this charge improperly would allow a finding of conspiracy from presence at the scene of the crimes alone. See Commonwealth v. Wilson, 449 Pa. 235, 296 A.2d 719 (1972). In answer to a question posed by the jury during its deliberation, the judge further amplified the definition:
THE COURT: Well, the Commonwealth says in the indictment that the conspirators were Easter, whom you heard, and Armstrong, and that the conspiracy
MR. BATEMAN: May it please the Court, of the defendant, Roger Haynes.
THE COURT: Yes.
And among the three of them, this conspiracy occurred.
Now, conspiracy is an agreement. Generally, nobody is able to eavesdrop when an agreement is entered into; so you determine whether or not there was an agreement to do a criminal act by their conduct. You observe their conduct; and from this, you may or may not infer that they agreed to do this.
The crime here, of course, was aggravated assault. The conspiracy, very simply, is when two or more in this case the Commonwealth alleges three people aided or took part in the commission of a crime. Here it would be aggravated assault. There must be an overt act, one overt act.
That is, for example, suppose three people got together and they said, "Let's rob a bank." They said, "Fine, we will rob a bank." But they do absolutely nothing else. This is not a conspiracy. There must be something done in furtherance, one act in furtherance of this conspiracy: getting in the car, going to the bank, securing a gun.
Lastly the appellant complains that the trial judge in his charge instructed the jury to disregard defense counsel's *27 closing arguments. The judge was careful to point out that this was not a case where rape was charged. The portion of the charge complained of is as follows:
. . . But even if it were a forceful rape or if she agreed to have sexual intercourse with Walker, it makes no difference, because, although this may be the reason for the alleged behavior of the defendant certainly it is not a legal excuse for the alleged behavior of the defendant.
A part of appellant's argument was that the question of rape of Roxanne was important to the issue of credibility of Walker since he denied raping her. The judge took no issue with this argument. His actual charge with respect to arguments of counsel was as follows:
You should not infer from what I have said that you are to ignore what the District Attorney and counsel have said to you in their addresses. It is not only your right, but it is your duty to consider their arguments and to view and examine the evidence in the light of the arguments of the District Attorney and counsel for the defendant.
Judgment of sentence affirmed.
NOTES
[1] Violations of the "Crimes Code", Act of 1972, December 6, P.L. 1482, No. 334, 18 Pa.C.S. §§ 903, 2901, 2702, 907 respectively. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919918/ | 245 Pa. Superior Ct. 514 (1976)
369 A.2d 746
George A. LANDIS, Appellant,
v.
CITY OF PHILADELPHIA.
Superior Court of Pennsylvania.
Argued September 15, 1976.
Decided November 22, 1976.
*516 William L. Keller, Philadelphia, for appellant.
H. Abramson, Philadelphia, with him James M. Penny, Jr., Assistant City Solicitor, Philadelphia, for appellee.
*517 JACOBS, Judge:
This is an appeal from an order of the court below dismissing appellant's negligence action against the City of Philadelphia. The trial court based its ruling on the fact that appellant failed to file a timely reply to appellee's answer, in which, under the heading of new matter, appellee averred that appellant had not given the city the required notice of claim[1] and that appellant's action was therefore barred. While it is clear that under Pa.R.C.P. No. 1045(b), appellant, by failing to reply to the new matter, admitted the fact that appellee was not notified of the claim within six months after the alleged incident, we do not believe that this fact alone warranted the dismissal of appellant's claim without additional findings by the trial judge. Consequently, we reverse.
Appellant's cause of action arose out of an accident on November 19, 1969, at which time he allegedly fell and injured himself while walking along a path, owned and controlled by appellee, which appellant contends was maintained in a defective condition. Appellant did not retain counsel until June 27, 1970, more than one month after the six month notice period had expired. On June 30, 1970, appellant's counsel served written notice of the claim on appellee. The complaint was filed on August *518 14, 1970. On April 9, 1971, following an extension of time, appellee filed the answer in which it was averred that appellee had not received timely written notice of the claim, and that the action was therefore barred.
Two years passed, during which time both parties submitted and answered interrogatories. Finally, on April 30, 1973, appellant replied to the new matter, but pursuant to appellee's objections, the reply was stricken for lack of timeliness. A subsequent petition for leave to file a reply to new matter was similarly denied. The case went to arbitration, resulting in a decision in favor of the City of Philadelphia, appellee. Appeal was taken to the Court of Common Pleas, at which time Judge LORD, after reviewing the pleadings, dismissed the action. This appeal followed.
Appellant argues that his failure to reply in a timely manner to appellee's new matter resulted only in admission of the fact that notice had not been given within the six month period, but was not an admission of appellee's contention that the action was consequently barred. We agree with this argument inasmuch as failure to file a responsive pleading where required results only in the admission of factual averments, not legal conclusions. Pa.R.C.P. No. 1029.
The issue then, is whether or not the sole fact that the Act of 1937[2] was not strictly complied with by appellant warranted dismissal of the complaint without additional findings by the trial judge. In resolving this matter, we must look at the rationale behind the Act of 1937. Our Supreme Court has said that the purpose of the statute requiring that a municipality be notified of a claim against it within six months of the date of the accident or the complained of negligence is that it ". . . serves as a shield by which municipal governments might protect themselves against claims of those who have tarried *519 so long that they have made it insurmountably difficult for the municipality to conduct a proper investigation into the circumstances of the accident. . . ." Yurechko v. County of Allegheny, 430 Pa. 325, 332-33, 243 A.2d 372, 377 (1968).
It has generally been held that statutes such as this one should not be applied as rigorously as a statute of limitations, Dubin v. Southeastern Pennsylvania Transportation Authority, 219 Pa.Super. 476, 281 A.2d 711, allocatur refused, 219 Pa.Super. xxxvii (1971), and we have taken the consistent view that "[t]his Act is to be construed as far as possible so as not to change or impair rights, liabilities or principles of law as they existed prior to its enactment. . . ." Lutz v. Scranton, 140 Pa.Super. 139, 143, 13 A.2d 121, 123, allocatur refused, 140 Pa.Super. xxxvii (1940). Also, it is clear that as compared to a statute of limitations which bars the right to bring the action, the Act of 1937 provides an affirmative defense to recovery, but does not affect the right to bring the suit. Yurechko v. County of Allegheny, supra; Zack v. Saxonburg Borough, 386 Pa. 463, 126 A.2d 753 (1956).
In light of the foregoing, the courts of this Commonwealth have become extremely hesitant to deny a claimant his day in court based on his failure to strictly comply with the notice requirements of the Act of 1937, unless that failure has resulted in the violation of the interests which the Act was meant to protect. Our Supreme Court in Yurechko v. County of Allegheny, supra, articulated a two-pronged test to be used when applying the Act of 1937. The elements of the test are, (1) whether or not there is a reasonable excuse for failure to strictly comply with the statute, and (2) whether or not the complainant's failure to strictly comply worked an undue hardship on the municipality. Clearly, mere pleading the noncompliance with the Act of 1937 is not *520 sufficient to establish this affirmative defense, since "[t]o avail itself of this defensive shield, the municipality must show not only that the claimant failed to file written notice of his claim within the six months period, but, further, that, as a result of his tardiness, the municipality has been unduly pressed to delve into the circumstances of the case and is unable to discover properly the events and conditions which led to the mishap and has thus suffered undue hardship. . . ." Id., 430 Pa. at 333, 243 A.2d at 377.
We have also held, while applying a statute very similar to the one before us,[3] that the determination that an action should be barred for failure to comply with the notice statute must be coupled with a consideration of what if any prejudice resulted to the defendant. Dubin v. Southeastern Pennsylvania Transportation Authority, supra.
Thus we cannot agree with appellee's argument that appellant was required to place the issue of reasonable excuse directly before the court prior to proceeding with his action. While that would have been an acceptable procedure, it clearly is not a mandatory one under the holding of Yurechko v. County of Allegheny, supra. For us to so hold would be contrary to the spirit and purpose of the Act of 1937. By attempting to avail itself of this affirmative defense, appellee placed before the court the issues of reasonable excuse on the part of appellant and undue hardship to the city.[4] Since we believe that a dismissal of an action for failure to comply with the Act is inextricably coupled with a determination *521 of whether noncompliance was excusable, and whether hardship or prejudice resulted therefrom, the trial judge's dismissal of appellant's complaint, without consideration of these matters, was a mechanical application of the Act of 1937 and as such was improper.
Order reversed. Case remanded for further proceedings consistent with this opinion.
NOTES
[1] Act of July 1, 1937, P.L. 2547, § 1, 53 P.S. § 5301 (1972), provides:
"Hereafter any person, copartnership, association or corporation claiming damages from any county, city, borough, town, township, school district or other municipality, arising from the negligence of such municipality or any employe thereof, shall, within six (6) months from the date of origin of such claim or within six (6) months from the date of the negligence complained of, file in the office of the clerk or secretary of such municipality a notice in writing of such claim, stating briefly the facts upon which the claim is based. Such notice shall be signed by the person or persons claiming damages or their representatives. No cause of action may be validity entered of record where there was a failure to file such notice within the time required by this act, except leave of court to enter such action upon a showing of a reasonable excuse for such failure to file said notice shall first have been secured."
[2] Act of July 1, 1937, P.L. 2547, § 1, 53 P.S. § 5301 (1972).
[3] Act of August 14, 1963, P.L. 984, 66 P.S. § 2036, which provides for notice of claim within six months in order to maintain suit against a municipal authority.
[4] While these are factors the existence of which is to be determined by the trial judge, we would point out that a layman complainant's ignorance of the notice requirement is a "reasonable excuse." Yurechko v. County of Allegheny, supra. That in fact is the reason appellant gives for his noncompliance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3040709/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2421
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
$6,586.05 in United States Currency, * District of Nebraska.
*
Defendant, * [UNPUBLISHED]
*
Roger John Parker, *
*
Appellant. *
___________
Submitted: June 2, 2006
Filed: June 13, 2006
___________
Before ARNOLD, BYE, and SMITH, Circuit Judges.
___________
PER CURIAM.
Claimant Roger Parker appeals the district court’s1 adverse judgment in this
civil forfeiture action. After a bench trial, the court found that the government met its
burden of proving that the seized currency was substantially connected to drug-
1
The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska, to whom the case was referred for final disposition by consent
of the parties pursuant to 28 U.S.C. § 636(c).
trafficking activity and that the money was not derived from legitimate sources.
Parker’s assertion that the district court lacked jurisdiction to hear his case is without
merit because he consented to proceed before a magistrate judge. Accepting the
district court’s factual findings and evidentiary rulings as correct, see Fed. R. App. P.
10(b)(1)-(2); Meroney v. Delta Int’l Mach. Corp., 18 F.3d 1436, 1437 (8th Cir. 1994);
Schmid v. United Bhd. of Carpenters & Joiners, 827 F.2d 384, 386 (8th Cir. 1987)
(per curiam), cert. denied, 484 U.S. 1071 (1988), we conclude the district court’s
judgment was proper, see United States v. $117,920.00, 413 F.3d 826, 829 (8th Cir.
2005). Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4515702/ | Filed 3/12/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
EDDY MCHENRY, B292457
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC641363)
v.
ASYLUM ENTERTAINMENT
DELAWARE, LLC,
Defendant and
Respondent.
APPEAL from a judgment of the Los Angeles Superior
Court, Benny C. Osorio, Judge. Affirmed.
Kiesel Law, Paul R. Kiesel, Steven D. Archer, and Melanie
Palmer for Plaintiff and Appellant.
Arnold & Itkin and Cory Itkin (admitted pro hac vice) for
Plaintiff and Appellant.
Esner, Chang & Boyer, Stuart B. Esner, and Steven T.
Swanson for Plaintiff and Appellant.
Cox, Wootton, Lerner, Griffin & Hansen, Terence S. Cox,
Mitchell S. Griffin, and Mark E. Tepper for Defendant and
Respondent.
******
A seaman on a commercial fishing vessel out on the Gulf of
Mexico accidentally sliced up his hands with hooks and fish gills.
The vessel’s captain arranged to have a second vessel meet them
at sea and ferry the seaman back to shore so he could get medical
attention. The middle-of-the-night rendezvous on the high seas
was a success but did not come soon enough to save all of the
seaman’s fingers; due to infection, many had to be amputated.
These dramatic events were all caught on film because, as
serendipity would have it, a production company was filming a
reality TV show on the fishing vessel as these events unfolded.
The seaman sued the vessel’s owner and the production company,
among other parties, for his injuries under federal maritime law.
The viability of the seaman’s lawsuit against the
production company requires us to address the following
questions: (1) Is the production company liable under the Jones
Act (46 U.S.C. § 30104) because it “borrowed” the crew members
as “employees” by filming them doing their jobs and by
occasionally asking them to repeat what they are doing for the
camera and explain it, and (2) Is the production company liable
under maritime tort law because (a) it had a “special
relationship” with the crew members it was filming sufficient to
give rise to a duty to rescue them, (b) it voluntarily assumed a
duty to rescue but effectuated that rescue with gross negligence,
worsened the crewman’s position or caused the crewman to
detrimentally rely on its rescue efforts, or (c) it acted negligently
in “taking charge” of a “helpless” person within the meaning of
Restatement First and Second of Torts, section 324? We conclude
2
that the answer to these questions is “no,” and affirm the trial
court’s grant of summary judgment in favor of the production
company.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The Big Fish Texas Production
Asylum Entertainment Delaware, LLC (Asylum) is a
production company that films reality TV shows. In early 2015,
NGC Network US, LLC (National Geographic) hired Asylum to
produce eight episodes of a reality TV show that would follow the
trials and tribulations of life on a commercial fishing vessel in the
Gulf of Mexico; the show was to be called Big Fish Texas.
To facilitate this show, National Geographic negotiated
with Keith “Buddy” Guindon (Buddy)1 to allow Asylum to film the
crew of The M/V Black Jack IV, one of several commercial
fishing vessels Buddy owned, on a two-week voyage starting in
late March 2015. Buddy signed a Location Release Form
authorizing the filming, and National Geographic agreed to pay
him $5,000 per episode. On that voyage, the captain of The M/V
Black Jack IV was Buddy’s son, Hans Guindon (Hans). All of the
vessel’s crew members signed an Appearance Release Form, and
received no additional compensation for doing so. That form gave
Asylum permission to “tape and photograph [each member], and
record [his or her voice],” and granted Asylum “exclusive
owner[ship] of the results and proceeds of such taping.”
1 Because two members of the Guindon family are involved
in this case, we use first names for clarity. We mean no
disrespect.
3
Asylum arranged for two of its employees—a producer and
a cameraman—to be passengers on The M/V Black Jack IV
during the voyage.
B. Plaintiff’s hiring
Days before The M/V Black Jack IV was to shove off,
Buddy hired Eddy McHenry (plaintiff) to serve on its crew as an
“independent contractor.” Plaintiff had experience owning and
working on a shrimping boat on the Gulf, but had never served
aboard a commercial fishing vessel like Buddy’s. Because this
was plaintiff’s first time as a crew member on this type of vessel,
he was dubbed a “greenhorn.” Plaintiff signed a Release and
Waiver of Liability with The M/V Black Jack IV. Like the other
crew members, plaintiff also signed an Appearance Release Form
with Asylum.
C. The voyage
1. The Asylum employees’ role
The “primary duty” of the Asylum employees on board The
M/V Black Jack IV was to “observe[] and document[]” the crew’s
activities, especially those that “would appeal to the public
interest.” They were to be the proverbial “flies on the wall.” On
occasion, the producer or cameraman would ask crew members to
repeat an activity a second time while it was being filmed, or to
articulate or explain what they were doing. At no point, however,
did either Asylum employee tell any crew member “what to do” or
have any authority to direct the fishing operations of The M/V
Black Jack IV.
2. Plaintiff’s injury
Two or three days after The M/V Black Jack IV left port
from Galveston, Texas, plaintiff ended up cutting his hands on
hooks or fish gills. His hands became sore and swollen, and he
4
could no longer grip anything with them. At the suggestion of,
and with the aid of, another crew member, plaintiff cut his hands
with a razor blade in order to drain the excess fluid and puss
from his wounds; he then submerged his hands in rubbing alcohol
to disinfect them. The Asylum employees filmed the cutting. The
cutting only made his hands worse; they became even more
“swollen” and “pussy” and turned “kind of . . . green.”
3. Reacting to the injury
Panicked by the worsening condition of his hands, plaintiff
asked Asylum’s producer and its cameraman for help. Although
the producer reported that he promised only to “pass . . . on” this
news to Hans, the captain, plaintiff reported that both the
producer and cameraman further promised to “get [plaintiff] a
helicopter [to] get [him] off the boat.”
Plaintiff did not sit idly by, however. He also directly told
Hans about his worsening condition and asked to be evacuated.
Hans considered “three courses of action” for getting
plaintiff proper medical attention: (1) returning The M/V Black
Jack IV to Galveston, (2) rendezvousing with Buddy, who could
then take plaintiff back to Galveston on a faster ship, or (3)
calling the Coast Guard to see if they would send a helicopter to
evacuate plaintiff. In making his decision, Hans consulted with
several people. Hans asked the on-board producer for his input,
and the producer said it “wouldn’t hurt to call the Coast Guard
and alert them.” Hans “talk[ed] through options” with Asylum’s
“production team” back on shore, and the lead producer felt that
plaintiff’s “health” was of “primary” concern. Hans also consulted
with his father, Buddy. Hans ultimately decided to have Buddy
rendezvous with The M/V Black Jack IV in Buddy’s high-speed
5
boat, The M/V Hullraiser. This decision was Hans’s and Hans’s
alone.
4. The rescue
Buddy left Galveston in The M/V Hullraiser around
sundown on the day the decision was made to evacuate plaintiff.
Asylum arranged for an emergency medical technician
(EMT), a camera operator and an Asylum producer to be on that
ship. The EMT arrived at the dock about three hours before The
M/V Hullraiser departed, and while he waited to depart, signed
an Appearance Release Form and was fitted with a microphone.
The M/V Hullraiser departed the moment Buddy was ready; as
Buddy later explained, “I didn’t wait for anyone.”
A few hours past midnight, The M/V Hullraiser
rendezvoused with The M/V Black Jack IV on the dark waters of
the Gulf. Plaintiff was transferred to The M/V Hullraiser. The
EMT was able to assess plaintiff’s condition, but was unable to
treat it because he had no antibiotics. The two Asylum
employees aboard The M/V Hullraiser did not tell the EMT “how
to do [his] job,” but asked him general medical questions and
implored him to check on plaintiff every 30 to 60 minutes, which
was the EMT’s practice anyway. The EMT later stated that
these questions both did and did not interfere with his treatment
of plaintiff.
Upon reaching shore, plaintiff was immediately
transported to the emergency room of a Galveston hospital.
5. The outcome
Plaintiff ended up losing three fingers to infection.
Plaintiff’s injury, the deliberations over how to evacuate
him, and the rescue itself were featured prominently in the final
6
episode of the Big Fish Texas season dedicated to The M/V Black
Jack IV.
II. Procedural Background
In June 2017, plaintiff sued (1) Buddy, Hans and several
related companies owned by the Guindons,2 and (2) Asylum.3 He
alleged that these defendants were responsible for his injuries
under (1) the Jones Act (46 U.S.C. § 30104), (2) negligence and
negligence per se under general maritime law, and (3) the failure
to provide prompt medical care.4
Plaintiff settled with Buddy, Hans and their companies.
In March 2018, Asylum filed a motion for summary
judgment and/or summary adjudication. After entertaining a full
round of briefing and argument at a hearing, the trial court
issued and ultimately adopted an 11-page tentative ruling
granting summary judgment to Asylum. The court ruled that
plaintiff’s Jones Act claim failed as a matter of law because
plaintiff was neither a “direct” employee nor a “borrowed servant”
of Asylum’s. The court further ruled that plaintiff’s remaining
tort claims failed as a matter of law because Asylum had no
“special relationship” with plaintiff obligating it to rescue him
and because Asylum did not undertake a rescue of plaintiff in a
2 Those companies are Black Jack IV, LLC, Katie’s Seafood
Market, LLC and Katie’s Seafood, LLC.
3 Plaintiff also sued National Geographic, but it is not a
party to this appeal.
4 Plaintiff also alleged claims for intentional and negligent
infliction of emotional distress, but voluntarily dismissed those
claims early on in the lawsuit.
7
manner that was grossly negligent or that otherwise put plaintiff
in a worse position.
Following the entry of judgment, plaintiff filed this timely
appeal.
DISCUSSION
Plaintiff argues that the trial court erred in granting
summary judgment in Asylum’s favor because triable issues of
material fact remain as to several issues. We independently
review an order granting summary judgment. (Hartford
Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal. 4th 277,
286 (Hartford Casualty).)
I. Overview of Pertinent Law
A. The law governing summary judgment motions
Summary judgment is appropriately granted when “the
moving party is entitled to judgment as a matter of law” because
“‘all . . . papers submitted show that there is no triable issue [of]
. . . material fact.’” (Hartford Casualty, supra, 59 Cal.4th at p.
286, quoting Code Civ. Proc., § 437c, subd. (c).) A “triable issue of
material fact” exists “if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal. 4th 826, 850 (Aguilar).) In evaluating whether there is a
triable issue of material fact, we must view the evidence in the
light most favorable to the opposing party by “strictly
constru[ing]” the evidence of the moving party, “liberally
constru[ing]” that of the opposing party, and resolving any doubts
against summary judgment. (Miller v. Bechtel Corp. (1983) 33
Cal. 3d 868, 874.) Because “[s]peculation . . . is not evidence”
(Aguilar, at p. 864), speculation cannot create a triable issue of
8
material fact. (Accord, Pipitone v. Williams (2016) 244
Cal. App. 4th 1437, 1453 [“A triable issue of fact can only be
created by a conflict of evidence, not speculation or conjecture.”].)
B. Liability for torts under maritime law
Although state courts have concurrent jurisdiction over
lawsuits seeking recovery for torts committed on the high seas
(28 U.S.C. § 1333; Garrett v. Moore-McCormack Co. (1942) 317
U.S. 239, 245 (Garrett)), the law applied in such lawsuits is
federal substantive law, not state law. (Garrett, at p. 245;
Intagliata v. Shipowners & Merchants Towboat Co. (1945) 26
Cal. 2d 365, 371-372; Fahey v. Gledhill (1983) 33 Cal. 3d 884, 887.)
1. The Jones Act
The Jones Act is a federal law that authorizes “seamen” to
sue persons who employ them either as formal employees or
independent contractors for their negligence. (Chandris, Inc. v.
Latsis (1995) 515 U.S. 347, 354, 361-362; Norfolk Shipbuilding &
Drydock Corp. v. Garris (2001) 532 U.S. 811, 817 (Norfolk);
Mahramas v. American Export Isbrandtsen Lines, Inc. (2d Cir.
1973) 475 F.2d 165, 171; 46 U.S.C. § 30104.) “Seamen” are
“mariner[s] . . . who live[] [their] life upon the sea” (Warner v.
Goltra (1934) 293 U.S. 155, 157), and who are thus “continually
exposed to the hazards of the deep” (Reyes v. Vantage S.S. Co.
(5th Cir. 1977) 558 F.2d 238, 243). The Jones Act changed the
prior law that had limited employers’ liability to the cost of
“maintenance and cure” (The Osceola (1903) 189 U.S. 158, 175),
and did so by granting seamen “the same rights to recover for
negligence as other tort victims” (McDermott Int’l., Inc. v.
Wilander (1991) 498 U.S. 337, 342). Despite its remedial goal
(Spinks v. Chevron Oil Co. (5th Cir. 1975) 507 F.2d 216, 224,
overruled in part on other grounds, Gautreaux v. Scurlock
9
Marine, Inc. (5th Cir. 1997) 107 F.3d 331, 339), however, the
Jones Act’s expanded remedy applies only against a seaman’s
employer. (Cosmopolitan Shipping Co. v. McAllister (1949) 337
U.S. 783, 787, fn. 6 (McAllister) [“a seaman has the advantages of
the [Jones] Act only against his employer”]; Norfolk, at p. 817.)
2. Maritime tort law
To recover for injuries due to another’s negligence “under
. . . general maritime law,” a plaintiff must establish (1) the
defendant’s duty to act, (2) breach of that duty, (3) causation, and
(4) damages. (Naglieri v. Bay (D. Conn. 1999) 93 F. Supp. 2d 170,
174-175 (Naglieri); see also, Beacon Residential Community Assn.
v. Skidmore, Owings & Merrill LLP (2014) 59 Cal. 4th 568, 573
[same, under California tort law].) In defining the duty element,
maritime law looks both to state law and to the Restatement of
Torts. (In re Aramark Sports & Entm’t Servs., LLC (10th Cir.
2016) 831 F.3d 1264, 1279.) However, “duty” is “ultimately” “a
question of public policy” and, as such, is a question of law we
independently examine. (Ratcliff Architects v. Vanir
Construction Management, Inc. (2001) 88 Cal. App. 4th 595, 605;
Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1080.)
II. Analysis
A. Liability under the Jones Act
It is undisputed that plaintiff is a “seaman.” It is also
undisputed that a seaman’s employer owes him a “‘a duty to do
whatever is reasonably necessary . . . to ensure the safety of [the]
vessel and [its] crew.’ [Citation.]” (Naglieri, supra, 93 F.Supp.2d
at p. 175; Boudoin v. J. Ray McDermott & Co. (5th Cir. 1960) 281
F.2d 81, 85 (Boudoin) [same].) That duty includes “the duty to
rescue [and] to take proper and efficient means to effect a rescue
. . .” (Ferro v. United States Lines Co. (S.D.N.Y. 1947) 74 F. Supp.
10
250, 253-254), which in turn encompasses a duty to obtain
“necessary assistance” for a crew member’s injuries that render
the crew member “unfit” for “his or her routine duties” and that
“require[] professional medical treatment.” (46 U.S.C. § 2303,
subd. (a); 46 C.F.R. § 4.05-1.) Thus, the viability of plaintiff’s
Jones Act claim turns solely on whether Asylum is his
“employer.”
Asylum is not plaintiff’s formal employer because it is
undisputed that plaintiff was hired by, and worked for, The M/V
Black Jack IV. However, if one entity “lends an employee to [a]
[second entity] to do a particular job,” the employee becomes the
“borrowed servant” of the second entity “actually directing his
work.” (Maddux v. United States (S.D. Ohio 2010) 2010 U.S.
Dist. LEXIS 132466, *12; Hall v. Diamond M Co. (5th Cir. 1984)
732 F.2d 1246, 1249 (Hall); accord, Rest.2d Agency, § 227 [“A
servant directed or permitted by his master to perform services
for another may become the servant of such other in performing
the services.”].) This renders the second entity vicariously liable
for the employee’s torts (Societa Per Azioni Navigazione Italia v.
City of L.A. (1982) 31 Cal. 3d 446, 456 (Societa)), and, more to the
point here, renders the second entity liable to the “injured
worker” as his employer under the Jones Act (Hall, at p. 1249).
There is no “fixed test” defining when a worker loaned to a
second employer becomes its “borrowed servant.” (Hall, supra,
732 F.2d at p. 1249.) The “‘most important’” factor is whether the
second employer “has the power to control and direct the
servant[] in the performance of [his or her] work.” (Linstead v.
Chesapeake & O.R. Co. (1928) 276 U.S. 28, 34 (Linstead); Societa,
supra, 31 Cal.3d at p. 459.) For this purpose, “control” means
“authoritative direction and control,” not merely “the power to
11
suggest details or the necessary cooperation.” (Linstead, at p. 34;
Societa, at p. 460; Hall, at p. 1249.) What matters is the power to
control, not whether that power has been exercised. (Collins v.
Union Pacific Railroad Co. (2012) 207 Cal. App. 4th 867, 879.)
And the focus is on which employer has the power to control the
employee’s performance of specific acts. (Accord, Rest.2d Agency,
§ 227 [“He may become the other’s servant as to some acts and
not as to others.”], italics added.) Although the power to control is
paramount, other factors also have some bearing on whether an
employee of one entity is the borrowed servant of the other; these
include: (1) which employer’s “work [was] being performed,” (2)
whether “there [wa]s an agreement, understanding, or meeting of
the minds between the original and borrowing employer,” (3)
whether “the employee acquiesce[d] in the new work situation,”
(4) whether “the original employer terminate[d] [its] relationship
with the employee,” (5) which employer “furnished [the] tools and
place for performance,” (6) whether “the new employment [was]
over a considerable length of time,” (7) which employer “ha[d] the
right to discharge the employee,” and (8) which employer “had
the obligation to pay the employee.” (Hall, at p. 1249; accord,
Glynn v. Roy Al Boat Management Corp. (9th Cir. 1995) 57 F.3d
1495, 1499 (Glynn), abrogated on other grounds, Atl. Sounding
Co. v. Townsend (2009) 557 U.S. 404.)
There is no triable issue of material fact as to whether
plaintiff was a “borrowed servant” to Asylum’s; as a matter of
law, he was not. We reach this conclusion for two reasons.
First, the undisputed evidence establishes that Asylum did
not have the right to control what happened aboard The M/V
Black Jack IV. Neither the producer nor cameraman on board
the vessel controlled how plaintiff or any other crew member did
12
his job; at most, they asked crew members to repeat or explain
what they were doing for the camera. This does not even amount
to “the power to suggest details or the necessary cooperation,” let
alone “authoritative direction and control.” (Linstead, supra, 276
U.S. at p. 34; Societa, supra, 31 Cal.3d at p. 460; Hall, supra, 732
F.2d at p. 1249.) And no one from Asylum controlled The M/V
Black Jack IV or its captain. Although Hans solicited the input
of the Asylum employees on board as well as those on shore
regarding how to respond to plaintiff’s medical emergency, Hans
opted not to follow that input when he decided to rendezvous
with The M/V Hullraiser rather than call the Coast Guard.
Because the right to control must mean something more than the
right to make suggestions that can be ignored, the undisputed
facts show that Asylum had no right to control how plaintiff or
Hans did their jobs.
Plaintiff resists this conclusion with several arguments.
He points to his deposition testimony where he initially
proclaimed that the cameraman and producer aboard The M/V
Black Jack IV were “running the show” and “telling people what
to do” on the ship. But plaintiff went on to clarify that what he
meant was that they were asking them to re-do and explain tasks
for the camera. Plaintiff cannot ignore his clarified and narrowed
explanation in favor of his initially overbroad generalization.
Plaintiff suggests that because Asylum subsequently featured his
medical emergency as a prominent “plot point” in its Big Fish
Texas show, Asylum must have controlled the hiring process and
directed Buddy to hire a “greenhorn” who was more likely to get
injured. This is pure speculation and is also contradicted by the
undisputed evidence that Buddy alone made the decision to hire
plaintiff. Plaintiff cites deposition testimony from Asylum’s on-
13
board producer that crew members aboard The M/V Black Jack
IV occupied a “dual role as both fisherman on the one hand and
TV show characters on the other.” This does not aid plaintiff
because the “borrowed servant” doctrine is, as noted above, task
specific (accord, Rest.2d Agency, § 227), such that plaintiff would
at most be Asylum’s “borrowed servant” for purposes of being a
“TV show character.” But in that capacity, Asylum would still
not be his employer for purposes of his “role as [a] fisherman,” for
which the vessel’s captain retained the right to control how
plaintiff did his job as a crew member and how to get him medical
treatment. Lastly, plaintiff complains that the trial court was
wrong to focus on Asylum’s control as the primary factor to the
exclusion of the other, secondary factors. This complaint ignores
that control is the “most important” factor (Societa, supra, 31
Cal.3d, at p. 459), and that the remaining factors also point away
from plaintiff being Asylum’s borrowed servant because The M/V
Black Jack IV—not Asylum—dictated what work plaintiff did,
provided him tools and his workplace, had the right to fire him,
had the duty to pay him, and never terminated its relationship
with him.
Second, we decline to construe the borrowed servant
doctrine in the maritime context to impose a duty upon
passengers and observers on a vessel, like Asylum, to undertake
acts inconsistent with the orders of the vessel’s captain. The
Jones Act’s tort remedies are, as noted above, “informed” by
common law tort concepts, but they must also yield to the
“‘necessities of the sea.’” (Societa, supra, 31 Cal.3d at p. 459,
quoting United States v. W.M. Webb, Inc. (1970) 397 U.S. 179,
191.) “The exigencies and realities of life at sea require that
there be a rigid chain of command aboard a ship.” (Thames
14
Shipyard & Repair Co. v. United States (1st Cir. 2003) 350 F.3d
247, 276 (Thames Shipyard).) Were we to adopt a rule that
imposed a duty upon a vessel’s passengers to take actions
inconsistent with the orders of her captain, we would effectively
be imposing a duty to mutiny. (46 U.S.C. § 11501(4), (5)
[authorizing confinement and docking of wages for “disobedience
to a lawful command at sea”]; Harb. & Nav. Code, §§ 803, 804
[authorizing confinement and “other reasonable corporal
punishment” for disobeying “lawful commands” of a vessel’s
master]; Rees v. United States (4th Cir. 1938) 95 F.2d 784, 792
[“there must be a captain in charge of a ship, and the captain’s
word is taken and it must be acted on, not only by the crew, but
by passengers . . .”].) Not only would such a duty place
passengers in the untenable position of having to choose between
mutiny or tort liability, it would also be manifestly “unwise” to
require a vessel’s passengers “to interfere with the chain of
command” in a way that could “forc[e] the [ship’s] master to
succumb to the orders and directions” of “officious meddl[ers]”
rather than defer to his or her experience and judgment as a
mariner. (Thames Shipyard, at p. 276.)
For these reasons, we independently agree with the trial
court that plaintiff was neither an employee nor “borrowed
servant” of Asylum and that his Jones Act claim fails as a matter
of law.5
5 Because plaintiff is not Asylum’s borrowed servant, we
have no occasion to weigh on the split of authority regarding
whether such a borrowed servant may proceed under the Jones
Act against both his actual employer and the entity for which he
is a borrowed servant. (Compare McAllister, supra, 337 U.S. at p.
791 [“only one person, firm, or corporation can be sued as
15
B. Liability under maritime law
1. No duty to rescue as the general rule
“In general, each person has a duty to act with reasonable
care under the circumstances.” (Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 619 (Regents);
Civ. Code, § 1714, subd. (a).) However, a person generally “has
no duty to come to the aid of another.” (Williams v. State of
California (1983) 34 Cal. 3d 18, 23; Regents, at p. 619.) From this
general rule flows the corollary that there is no “affirmative duty
to rescue a vessel or person in distress.” (Korpi v. United States
(N.D. Cal. 1997) 961 F. Supp. 1335, 1346 (Korpi); Hurd v. United
States (D.S.C. 2001) 134 F. Supp. 2d 745, 771-772 (Hurd); Wright
v. United States (N.D. Cal. 1988) 700 F. Supp. 490, 494 (Wright);
Gough v. U.S. Navy (S.D. Cal. 2009) 2009 U.S. Dist. LEXIS
75589, *11-*12; see generally, Rest.3d Torts, § 40, com. h, page 43
[“there is no general duty to rescue”]; Rest.2d Torts, § 314 [“‘The
fact that the actor realizes or should realize that action on his
part is necessary for another’s aid or protection does not of itself
impose upon him a duty to take such action.’”].) Why do we have
this decidedly non-altruistic and “counterintuitive” general rule?
Because the “‘anglo-saxon thought’” that forms the seabed of our
tort law rests on an “‘attitude of extreme individualism.’”
(Soldano v. O’Daniels (1983) 141 Cal. App. 3d 443, 446; Rest.3d
Torts, § 40, com. h, pp. 42-43.)
employer”] and Glynn, supra, 57 F.3d at p. 1497 [“there can be no
more than one ‘employer’ for purposes of the Jones Act”] with
Guidry v. South Louisiana Contractors, Inc. (5th Cir. 1980) 614
F.2d 447, 452 [“It may also be possible for a seaman to have more
than one Jones Act employer.”].)
16
2. The pertinent exceptions
Although, under the general rule set forth above, Asylum
had no duty to rescue plaintiff by helping him get medical
attention for his injuries, plaintiff urges that there are triable
issues of fact as to whether three exceptions to this general rule
apply.
a. Special relationship between the parties
A person has a duty to “assist or protect another” if “there
is some relationship between [the two] which gives rise to a duty
to act.” (Regents, supra, 4 Cal.5th at p. 619; Williams, supra, 34
Cal.3d at p. 23; Rest.3d Torts, § 40, subd. (a) [“An actor in a
special relationship with another owes the other a duty of
reasonable care with regard to risks that arise within the scope of
the relationship.”].)
A “special relationship” imposing a duty to act—and hence
a duty to rescue—can arise from four different sources. First, a
special relationship can inhere in the nature of the relationship
itself, such as the relationships between (1) a common carrier and
its passengers, (2) an innkeeper and its guests, (3) a person who
owns or possesses land and persons coming onto the land, (4) an
employer and its employees who, while at work, are in imminent
danger or rendered helpless by injury or illness, (5) a school and
its students, (6) a landlord and its tenants, (7) a custodian and
those within its custody, and (8) a manufacturer or supplier of
goods and the buyer or user of those goods. (Rest.3d Torts,
§ 40(a) [listing first seven]; Regents, supra, 4 Cal.5th at p. 620;
Seo v. All-Makes Overhead Doors (2002) 97 Cal. App. 4th 1193,
1203 (Seo) [listing eighth].) Second, the parties may create a
special relationship by entering into a contract imposing a
“contractual duty” to act. (Johnson v. The Raytheon Co., Inc.
17
(2019) 33 Cal.App.5th 617, 634; Seo, at p. 1203; Suarez v. Pacific
Northstar Mechanical, Inc. (2009) 180 Cal. App. 4th 430, 438-439
(Suarez); Stockberger v. United States (7th Cir. 2003) 332 F.3d
479, 481 (Stockberger).) Third, a special relationship entailing a
duty to act can be created “by a statute or government
regulation.” (Seo, at p. 1203; Suarez, at p. 438.) Lastly, a special
relationship creating a duty to act can arise from one party’s
conduct in creating the very peril that necessitates aid and
intervention. (Williams, supra, 34 Cal.3d at p. 23; Rodrigue v.
United States (D. Mass. 1991) 788 F. Supp. 49, 51.)
The undisputed facts establish that no special relationship
exists between Asylum and plaintiff. No special relationship
inheres in the relationship between a production company and
the persons who merely consent to being filmed for a reality TV
show, at least when those persons are not otherwise hired,
employed or compensated by that company. The sole contract
between Asylum and plaintiff was the Appearance Release Form,
the sum total of which granted Asylum permission to “tape and
photograph” plaintiff and to “exculsive[ly] own[] . . . the results
and proceeds of such taping.” That form did not impose any duty
upon Asylum to aid plaintiff. Plaintiff cites no statute or
regulation requiring Asylum to aid him. And the medical peril
giving rise to the need for rescue was caused by plaintiff’s self-
inflicted injuries, not anything that Asylum did.
Plaintiff offers four reasons why he and Asylum were in a
special relationship that obligated Asylum to rescue him.6 First,
6 Plaintiff originally offered a fifth reason why he was in a
special relationship based on Asylum’s alleged “ownership” of The
M/V Black Jack IV (see Naglieri, supra, 93 F.Supp.2d at p. 175;
18
he argues that Asylum has a contract-based duty to rescue him
because he signed Asylum’s Appearance Release Form. We reject
this argument because, as noted above, a special relationship
arises by contract only if the contract itself imposes a duty to
rescue, and here it does not. Contrary to what plaintiff suggests,
the mere fact that the parties have signed some contract at some
point in the past does not, without more, give rise to a
contractual duty to aid.
Second, plaintiff asserts that he and Asylum are not
complete strangers—and hence have what he calls a “‘human
relationship’”—that gives rise to a duty to rescue. We disagree.
Although the list of special relationships enumerated in the
Restatement is not meant to be “exclusive” (Rest.3d Torts, § 40,
com. o, p. 47), it does not create a special relationship between
people merely because they have interacted at some point in the
past. Were that the case, the special relationship exception
would in large part swallow the no-duty-to-rescue rule.
Third, plaintiff argues that Asylum profited from his
misfortune by filming his injury, its treatment on The M/V Black
Jack IV and his subsequent rescue on The M/V Hullraiser, and
treating his personal tragedy as the dramatic denouement of its
reality TV show. This is not enough to create a special
relationship giving rise to a duty to rescue. Benefit to one party
is, at most, a relevant factor; it is not a sufficient one. (E.g.,
Regents, supra, 4 Cal.5th at p. 621 [examining “benefit” to the
“party [to be] charged with a duty of care”]; Dzung Duy Nguyen v.
Abogado v. International Marine Carriers (S.D. Texas 1995) 890
F. Supp. 626, 633, fn. 4), but he abandoned that argument in his
reply brief.
19
Massachusetts Institute of Technology (Mass. 2018) 479 Mass.
436, 452 [“financial benefit to the defendant” is one “factor” to
consider in deciding whether it had a duty to prevent suicide].)
What is more, recognizing a duty in the context of this case would
turn every production company employee into a person obligated
to rescue every unpaid “extra” and every “reality TV personality”
on every set. Tort law is elastic, but it cannot stretch this far
without breaking.
Lastly, plaintiff posits—as he did above—that Asylum
should be deemed to be in a special relationship with him because
it selected him to be on The M/V Black Jack IV because of his
relative inexperience; for the same reasons noted above, this
position finds no support in the evidence adduced in this case.
b. Voluntary efforts to rescue
Even if a person has no pre-existing duty to provide aid or
attempt a rescue, he or she can be liable in tort if (1) the person
voluntarily “undertakes to perform acts to rescue or aid those in
distress,” and (2) his or her efforts to rescue (a) are reckless or
wanton (that is, grossly negligent), (b) are negligent and place the
plaintiff in a worse position (by increasing the risk of harm to
him) than if there had been no rescue effort, or (c) prompt the
plaintiff to detrimentally rely on the rescue effort. (Berg v.
Chevron USA, Inc. (9th Cir. 1985) 759 F.2d 1425, 1430 [setting
forth exceptions (a) and (b)]; Hurd, supra, 134 F.Supp.2d at p.
772 [same]; Korpi, supra, 961 F.Supp. at p. 1347 [same]; Frank v.
United States (3d Cir. 1957) 250 F.2d 178, 180 [setting forth
exceptions (b) and (c)]; Sagan v. United States (6th Cir. 2003) 342
F.3d 493, 498 [same]; Williams, supra, 34 Cal.3d at p. 23 [same];
McGee v. Chalfant (Kan. 1991) 248 Kan. 434, 438 [same]; Ocotillo
W. Joint Venture v. Superior Court (Ariz. 1992) 173 Ariz. 486,
20
488-489 (Ocotillo) [same]; Rodrigue v. United States (1st Cir.
1992) 968 F.2d 1430, 1434 [setting forth exception (b)]; Furka v.
Great Lakes Dredge & Dock. Co. (4th Cir. 1985) 755 F.2d 1085,
1088 (Furka) [defining “reckless” or “wanton”]; see generally,
Rest.2d Torts, § 323 [“gratuitous[]” “undertak[ing]” “to render
services” to “protect[]” another gives rise to liability to that
person if “his failure to exercise such care increases the risk of
such harm” or “the harm is suffered because of the other’s
reliance upon the undertaking”]; Rest.2d Torts, § 324A [same, as
to liability to third persons].)
As this standard makes clear, a volunteer’s ordinary
negligence in effectuating a rescue is not enough to render him
liable in tort. “[T]he law accords [this] considerable latitude” to
would-be rescuers for a reason. (Grigsby v. Coastal Marine
Service, Inc. (5th Cir. 1969) 412 F.2d 1011, 1021 (Grigsby).) Such
latitude “‘encourage[s] the impulse to assist’” those in need by
reducing the “threat of liability” should their altruistic impulses
nonetheless result in a “clumsy rescue attempt.” (Hurd, supra,
134 F.Supp.2d at p. 772; Stockberger, supra, 332 F.3d at p. 481.)
A more forgiving standard of liability also acknowledges that
emergencies necessitating rescue typically exist in “‘the
excitement and confusion of the moment,’” where “promptness
may be prudence, and reflex may claim the seat of reason.”
(Furka, supra, 755 F.2d at p. 1088.) These considerations are
particularly acute in the context of maritime law: The “perils of
the sea”—in all its rage and glory—are legend, and they favor the
application of the legal standard “‘most hospitable to the
impulses of man and law to save life and limb and property.’”
(Korpi, supra, 961 F.Supp. at 1347; Wright, supra, 700 F.Supp. at
21
p. 494; accord, Grigsby, at p. 1022 [“[I]mpulsive action in the best
tradition of the sea [gives a rescuer] [a] highly preferred status”].)
Even if we assume that Asylum undertook “to perform acts
to rescue or aid” plaintiff, Asylum is not liable under the
heightened negligence standard applicable to voluntary rescuers
as a matter of law. That is because there are no triable issues of
material fact indicating that Asylum’s rescue attempts were
grossly negligent, that they placed plaintiff in a worse position
than had Asylum done nothing, or that plaintiff detrimentally
relied on anything Asylum said or did while attempting to get
him medical attention.
Plaintiff musters six arguments in favor of his position that
Asylum is nevertheless on the hook for what plaintiff asserts are
its abortive rescue attempts.
First, plaintiff contends that there are triable issues of fact
as to whether Asylum is liable to him because both the producer
and cameraman aboard The M/V Black Jack IV promised him
they would arrange for his evacuation by helicopter. This might
provide a basis for liability if plaintiff had relied to his detriment
on their representations, but it is undisputed that he did not.
Instead, he also went directly to the captain to make his plea for
a chopper.
Second, plaintiff asserts there are triable issues of fact as to
Asylum’s role in making the decision to evacuate plaintiff by
rendezvousing with The M/V Hullraiser rather than by Coast
Guard helicopter, a decision he claims was a negligent one.
However, and as discussed above, it is undisputed that Asylum at
most offered Hans its input on how to proceed, and that Hans
ignored the input by opting to rendezvous with The M/V
Hullraiser rather than call the Coast Guard. Thus, the factual
22
disputes that plaintiff points to regarding the internal debate
among Asylum employees about how best to effectuate plaintiff’s
evacuation are not material because the fruit of that internal
debate—its recommendation to call the Coast Guard—was
unequivocally rejected by The M/V Black Jack IV’s captain.
Third, plaintiff argues that there are triable issues of fact
as to whether Asylum’s decision to hire an EMT to accompany
The M/V Hullraiser to pick up plaintiff was a negligent one
because the EMT was not qualified to treat infections. However,
even if we assume this decision was a negligent one, it is still not
actionable as a matter of law because the resulting act did not
place plaintiff in a worse position. In assessing whether a
voluntary rescuer has placed the imperiled person in a worse
position, the relevant test is “‘“not whether the risk was increased
over what it would have been if the defendant had not been
negligent,” but rather whether “the risk was increased over what
it would have been had the defendant not engaged in the
undertaking at all.”’” (Thames Shipyard, supra, 350 F.3d at p.
261.) Thus, even if Asylum had been negligent in hiring an EMT
(rather than a doctor), that decision did not put plaintiff in any
worse position vis-à-vis the relevant alternative of not having any
medical professional aboard The M/V Hullraiser.
Fourth, plaintiff asserts that Asylum’s retention of an EMT
did put him in a worse position because there is a triable issue of
fact as to whether Asylum delayed The M/V Hullraiser’s
departure by several hours—and hence delayed medical
treatment to plaintiff’s detriment—while Asylum wired the EMT
with a microphone and made him sign a release form. Although
the EMT certainly testified that it took Asylum more than three
hours to sign a form and clasp a microphone to him, the EMT
23
never testified that The M/V Hullraiser was waiting on him to
depart. Instead, the sole evidence on that question came from
Buddy, The M/V Hullraiser’s captain, who unequivocally stated
that he shoved off once he was ready to depart and that he “didn’t
wait for anyone.” Thus, the undisputed facts show that no
actions by Asylum delayed The M/V Hullraiser’s itinerary.
Fifth, plaintiff contends that there are triable issues of
material fact as to whether Asylum’s cameraman and producer
“interfered” with the EMT’s care of plaintiff as they traveled back
to Galveston on the M/V Hullraiser after rendezvousing with The
M/V Black Jack IV. Although the EMT offered self-contradictory
testimony as to whether there was any interference, his confused
testimony does not create any triable issue of fact because it is
undisputed that any interference did not place plaintiff in any
worse position. That is because the EMT did not have the
antibiotics necessary to treat plaintiff. And, as noted above, the
decision to hire an EMT itself did not place plaintiff in any worse
position.
Lastly, plaintiff more globally asserts that the trial court
misapplied the standards for evaluating whether to grant
summary judgment by declining to view the evidence in the light
most favorable to him and by labeling his evidence as
speculation. We disagree. For the reasons set forth above, we
have viewed the evidence through the proper prism and, like the
trial court, conclude that many of plaintiff’s arguments rest on
speculation rather than evidence and that the evidence presented
does not raise any triable issues of material fact.
c. Taking charge of a “helpless” person
Even if a person has no pre-existing duty to provide aid or
attempt a rescue, he or she can be liable in tort if (1) the person
24
voluntarily “takes charge” of a “helpless” person, and (2) he does
not “exercise reasonable care to secure [the helpless person’s]
safety while within [his] charge.” (Rest., Torts, § 324; Rest.2d
Torts, § 324(a); Daughenbaugh v. Bethlehem Steel Corp., Great
Lakes (6th Cir. 1989) 891 F.2d 1199, 1208 (Daughenbaugh) [“One
who voluntarily takes charge of a helpless person must exercise
reasonable care for his welfare and safety.”]; Ocotillo, supra, 173
Ariz. at p. 489; Carson v. Adgar (S.C. 1997) 326 S.C. 212, 218
(Carson).)
Plaintiff has not raised a triable issue of fact as to either
element of liability.
(i) Taking charge
Plaintiff has not adduced sufficient evidence to create a
triable issue of fact as to whether Asylum “took charge” of him.
To establish that a person has “taken charge” of another, that
person must “‘through affirmative action assum[e] an obligation
or intend[] to render services for the benefit of another.’”
(Carson, supra, 326 S.C. at p. 218.) Typically, a person takes
charge of another person by taking physical custody of him
(Wakulich v. Mraz (Ill. 2003) 203 Ill. 2d 223, 226-227, 245
[defendants gave plaintiff dangerous alcoholic beverage and
decided to care for her when she passed out]; Sung-Ho Hwang v.
Grace Rd. Church (E.D.N.Y. 2016) 2016 U.S. Dist. LEXIS 32824,
*38-*39 [defendant restrained plaintiff on its property and did
not seek medical care for his gangrene]) or by taking
“responsibility for [his] overall safety” (Hinson v. Black (Ga. App.
2002) 257 Ga. App. 628, 631-632 (Hinson); e.g., Downs ex rel.
Downs v. Bush (Tenn. 2008) 263 S.W.3d 812, 823 [defendant
agreed to give incapacitated plaintiff a ride home and helped him
get into bed of truck]; Sarracino v. Martinez (N.M. Ct. App. 1994)
25
117 N.M. 193, 194-195 [same]; David v. Southern Farm Bureau
Casualty Ins. Co. (La. Ct. App. 1960) 122 So. 2d 691, 692
[defendant agreed to take plaintiff to nearest hospital]; Ocotillo,
supra, 173 Ariz. at pp. 487-490 [defendant took plaintiff’s car
keys because plaintiff was intoxicated, but then gave keys back to
plaintiff]; Shizuko Mita v. Guardsmark, LLC (Wash. Ct. App.
2014) 182 Wash. App. 76, 88-89 [defendant allowed plaintiff to
come into building out of the freezing cold, then released him
back outside]). However, a person does not “take charge” of
another merely by making suggestions or giving “cursory
assistance” short of assuming responsibility for his safety. (E.g.,
Carson, at p. 218 [plaintiff must show that “‘defendant did more
than act’”]; Hinson, at pp. 631-632 [defendant helped drunken
plaintiff who fell off of bar stool by getting her peanuts and
suggesting she sit down; did not “take charge”]; Byram v.
Renehan (M.D. Pa. 2011) 2011 U.S. Dist. LEXIS 141067, *4-*5,
*13-*14 [defendant helped plaintiff who slipped on wet grass
stand up; “cursory assistance” did not amount to “taking charge”];
Freeman v. Busch (S.D. Iowa 2001) 150 F. Supp. 2d 995, 1001-1003
[defendant allowed plaintiff entry into dormitory, where another
student watched over plaintiff; did not “take charge”].)
The undisputed evidence shows that Asylum neither took
physical custody of plaintiff nor responsibility for his overall
safety. Plaintiff was in the physical custody of Hans (as captain
of The M/V Black Jack IV) until he was handed off to Buddy (as
captain of The M/V Hullraiser). As captains of those vessels,
Hans and Buddy were also responsible for plaintiff’s overall
safety. (Naglieri, supra, 93 F.Supp.2d at p. 175; Boudoin, supra,
281 F.2d at p. 85.)
26
Plaintiff responds with three arguments. He begins by
pointing to the assurances of the two Asylum employees aboard
The M/V Black Jack IV that they would arrange for his
evacuation by chopper. But this did not mean Asylum took
charge of plaintiff because Hans remained firmly in charge when
he rejected their input to call the Coast Guard for a helicopter.
Plaintiff next cites to Asylum’s act of arranging for an EMT to be
aboard The M/V Hullraiser. But this also did not mean that
Asylum took charge of plaintiff because Hans had made the
decision to send for that vessel, Buddy was piloting that vessel,
and Buddy transported plaintiff to the Galveston hospital once
the vessel made landfall. Because the EMT was unable to do
anything beyond evaluate plaintiff’s medical condition, Asylum’s
retention of the EMT was at best “cursory assistance.” Plaintiff
lastly asserts that it is not his responsibility to identify what
harm he suffered due to Asylum’s substandard intervention
because that is relevant to causation, not duty. But this is a non-
sequitur. It is plaintiff’s burden to show that there is a triable
issue of material fact as to whether Asylum took charge of him
(Carson, supra, 326 S.C. at p. 218), and he has not carried that
burden.
(ii) Helpless person
Plaintiff has also not established that there is a triable
issue of material fact as to whether he was a “helpless” person.
For these purposes, a person is “helpless” if he is “incapable of
adequately taking care of himself,” such as when he is “ill, drunk,
or made helpless by the act of a third person, through his own
fault or by a force of nature.” (Rest., Torts, § 324, com. b, page
877; Daughenbaugh, supra, 891 F.2d at p. 1208 [intoxicated
person]; Garofalo v. Lambda Chi Alpha Fraternity (Iowa 2000)
27
616 N.W.2d 647, 655-656 [same]; Reynolds v. Hicks (Wash. 1998)
951 P.2d 761, 764 [same].) “[W]hether an individual is ‘helpless’
must be made within the context of each case.” (Ocotillo, supra,
173 Ariz. at p. 656.) In the context of this case, plaintiff was—as
a matter of law—not helpless. Although the condition of his
hands was deteriorating (even to the point of making it difficult
for him to get around the ship), plaintiff was not intoxicated,
unconscious, or otherwise unable to express his intention and
desire to be evacuated due to his medical condition. At bottom,
plaintiff’s argument boils down to the assertion that he is
“helpless” because he was in need of rescue. But if, as plaintiff
contends, a “helpless” person includes anyone in need of rescue,
the heightened standard that limits tort liability for would-be
rescuers would be displaced by the regular negligence standard
applicable to those who take charge of “helpless” persons because
anyone who attempts a rescue would necessarily “take care” of
that person. Not only would that throw overboard all of the rules
of liability applicable to would-be rescuers, it would also
completely destroy the very incentive those more forgiving rules
were carefully crafted to create—namely, the incentive to rescue
on the high seas where throwing someone the proverbial and
literal line can be the difference between life and death.
* * *
In light of our analysis, we have no occasion to decide
whether the liability release signed by plaintiff in the Appearance
Release Form is an additional bar to recovery.
28
DISPOSITION
The judgment is affirmed. Asylum is entitled to its costs on
appeal.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P.J.
LUI
_________________________, J.
CHAVEZ
29 | 01-03-2023 | 03-12-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1576510/ | 346 S.W.2d 197 (1961)
Bobby SIMMONS and Larry Flippo, Appellants,
v.
STATE of Arkansas, Appellee.
No. 5003.
Supreme Court of Arkansas.
May 15, 1961.
Dissenting Opinion May 30, 1961.
Rehearing Denied June 5, 1961.
Lightle & Tedder, Searcy, for appellants.
J. Frank Holt, Atty. Gen., by Jack L. Lessenberry, Asst. Atty. Gen., for appellee.
*198 JOHNSON, Justice.
The appellants, Bobby Simmons and Larry Flippo, were charged with the crime of rape by felony information. They were tried jointly, convicted of assault with intent to rape, and sentenced to three years imprisonment. Following the jury's recommendations for leniency, the court suspended the sentence of Bobby Simmons and declared that Larry Flippo should be eligible for parole after 18 months.
Of the several alleged errors which the appellants urge for reversal, only onerelating to the closing argument of the prosecuting attorneyneed be discussed in reaching our decision.
During the course of his closing argument to the jury, the prosecuting attorney stated that the defendant, Larry Flippo, had previously raped a girl other than the prosecutrix. Neither the remarks of the prosecuting attorney, nor the specific objections of the defense attorney was recorded by the court reporter. The defense attorney then filed a bystanders' bill of exceptions pursuant to Ark.Stats. Anno., 1947, § 27-1750 et seq. The matters set out in the affidavits are uncontroverted and must be taken as true on this appeal. Boone v. Holder, 87 Ark. 416, 112 S.W. 1081; Perry v. State, 188 Ark. 133, 64 S.W.2d 328.
In the affidavits it is stated that "* * * at the close of his argument to the jury, we understood the Prosecuting Attorney to state that the defendant, Larry Flippo had previously raped another girl and that he (Flippo) had never gone out with her thereafter." After overruling the defendants' objections, the court issued its only admonition to the jury on the prosecuting attorney's argument:
"The Court: The jury heard the evidence, if the Prosecuting Attorney misquoted it then they are the judges of it."
The only testimony relating to any other offense allegedly committed by either defendant was presented during the prosecuting attorney's cross-examination of the defendant Flippo:
"Q. Do you know Marjorie Varnell? A. Yes, sir, I knew her about a year.
"Q. You raped her on the 12th day of March of this year, didn't you?
"Mr. Lightle: We object to that.
"The Court: The objection is overruled.
"Mr. Lightle: Note our exceptions.
"Q. You raped her on the 12th day of March, 1960, didn't you? A. No, sir.
"Q. You say you went with her about a year? A. I say I knew her about a year.
"Q. How many times did you ever go with her? A. Once.
"Q. That was the 12th day of March, 1960? A. Yes, sir, I have went with her since then though."
One of the fundamental rules of trial practice in this State is that the closing arguments of counsel must be confined to the questions in issue, the evidence introduced at the trial, and all reasonable inferences and deductions which can be drawn therefrom. Vaughn v. State, 58 Ark. 353, 24 S.W. 885; Holder v. State, 58 Ark. 473, 25 S.W. 279; Hicks v. State, 193 Ark. 46, 97 S.W.2d 900. There is no evidence in the record which provides, under any logical analysis, a foundation for the prosecuting attorney's statement to the jury. As was said in Brown v. State, 143 Ark. 523, 222 S.W. 377, 380;
"* * * The prosecuting attorney is not allowed to state, as a matter of fact, that of which there is no evidence. His statement in the case at bar was not within the latitude of discussion the law accords to counsel. Its evil *199 tendency and prejudice to the rights of the defendant are manifest * * *"
A similar problem was presented in Wimberley v. State, 217 Ark. 130, 228 S.W.2d 991, 994:
"* * * In referring to the defendant the prosecuting attorney said that `every time he gets in trouble his poor old mother comes up here and pays his fine.' The defendant had not testified in his own behalf and there was nothing in the record to show that he had previously been convicted of other offenses. The defendant objected to this argument as being prejudicial and asked for a mistrial. The court then admonished the jury that counsel's argument must be based on the record. `The court wants to admonish you not to consider anything unless it is based upon the testimony of the record.' The defendant renewed his objection, again asking for a mistrial. He duly saved his exception to the overruling of the objection."
The defendant's conviction of assault with intent to kill was reversed by a unanimous Court. As the Court held in its opinion written by Judge Dunaway:
"* * * The statement of the prosecuting attorney * * * was highly improper and prejudicial. The natural inference was that the defendant was an habitual offender (which was not shown by the record) and such an argument was bound to influence the jury. The court's mild admonition to the jury to consider only argument based on testimony in the record was insufficient to remove the prejudice. Hughes v. State, 154 Ark. 621, 243 S.W. 70; Hays v. State, 169 Ark. 1173, 278 S.W. 15; Sanders v. State, 175 Ark. 61, 296 S.W. 70." [Emphasis supplied].
Many of the policies which underlie the rule prohibiting the introduction of evidence of other offenses apply with equal force to the problem presented in this case:
"* * * Basically, the rule rests upon that spirit of fair play which, perhaps more than anything else, distinguishes Anglo-American law from the jurisprudence of other nations. Our theory is simply that a finding of guilty should rest upon proof, beyond a reasonable doubt, that the accused committed the exact offense for which he is being tried. We do not permit the State to bolster its appeal to the jury by proof of prior convictions, with their conclusive presumption of verity, and still less is there reason to allow the jury to be prejudiced by mere accusations of * * * misconduct on the part of the defendant. If the accused has committed other crimes, each may be [tried] separately in a court of law, and punishment may be imposed for those established with the required certainty. In this way alone can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt." Alford v. State, 223 Ark. 331, 266 S.W.2d 804, 806.
Much of the fundamental protection thus afforded the accused would be rendered ineffective if the prosecuting attorney were allowed to place before the jury indirectly by argument that which could not be introduced as evidence. See Little Rock Railway & Electric Co. v. Goerner, 80 Ark. 159, 95 S.W. 1007, 7 L.R.A.,N.S.,97.
The appellee urges that the case at bar is controlled by what this Court said in Adams v. State, 165 Ark. 308, 264 S.W. 858, 859:
"It is not reversible error for the prosecuting attorney to make an argument based upon a misapprehension of the testimony of a witness. A different question would be presented had he argued as a fact some proposition about which there was no testimony."
While this case seems clearly within the exception to the rule as stated, the facts *200 here are not sufficiently analogous to the facts in Adams to require our application of its rule.
During the trial of Adams for murder a witness testified that on the day of the shooting Adams had been "fooling with his gun" at the house of the witness. In his closing argument the prosecuting attorney stated that this incident had occurred at the victim's house, which in fact was only a short distance from the house of the witness. It is evident that this error was harmless. In the present case the remarks of the prosecuting attorney were inherently prejudicial.
It must also be noted that in the Adams case the witness, and not the prosecuting attorney, supplied the facts that were later misapprehended in the closing argument. This Court has repeatedly observed that the prosecuting attorney acts in a quasi judicial capacity and that it is his duty to use all fair, honorable, reasonable and lawful means to secure the conviction of the guilty in a fair and impartial trial. But as we said in Holder v. State, supra:
"* * * Nothing should tempt him to appeal to prejudices, to pervert the testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success should never induce him to endeavor to obtain a verdict by arguments based on anything except the evidence in the case, and the conclusions legitimately deducible from the law applicable to the same. To convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences as the escape of a guilty man. The forms of law should never be prostituted to such a purpose." [58 Ark. 473, 25 S.W. 281].
See also, Adams v. State, 229 Ark. 777, 318 S.W.2d 599.
The answers of the defendant Flippo on cross examination provide no basis whatsoever for the prosecuting attorney's positive statement to the jury that the defendant had previously raped a girl other than the prosecutrix. Under these circumstances the prosecuting attorney's closing argument was highly improper and prejudicial. Absent an affirmative showing in the record to the contrary, the error was also prejudicial to the defendant Simmons. Moore et al. v. State, 227 Ark. 544, 299 S.W.2d 838. The prejudice created was not removed by the court's admonition to the jury. For this error the judgments of the trial court are reversed and the cause remanded for a new trial.
ROBINSON, J., concurs.
HARRIS, C. J., and McFADDIN, J., dissent.
McFADDIN, Justice (dissenting).
I am of the opinion that the admonition given by the Trial Court cured any error of the Prosecuting Attorney, even if, in fact, he misstated the evidence. When the defendants' attorney objected to the statements by the Prosecuting Attorney the Court said:
"The jury heard the evidence. If the Prosecuting Attorney misquoted it, then they are the judges of it."
Jurors are sensible persons. They had heard the witnesses and knew whether the Prosecuting Attorney was misquoting the evidence. The Court told the jury in the instructions: "In this case as in all others you are the sole and exclusive judges of the evidence, its weight, its sufficiency, and also the credibility of the witnesses * *" That instruction, coupled with the admonition previously quotedI maintainwas sufficient to cure any misstatement of the evidence. See 88 C.J.S. Trial § 197, p. 391, and see particularly Martin v. Kelley, 97 N.H., 466, 92 A.2d 163, where a very similar admonition by the Court to the jury was held to have cured any misstatement of the evidence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576491/ | 346 S.W.2d 784 (1961)
William A. GEORGE, Appellant,
v.
William E. SCENT, Commissioner, Department of Revenue, Commonwealth of Kentucky, et al., Appellees.
Court of Appeals of Kentucky.
April 21, 1961.
As Modified on Denial of Rehearing June 23, 1961.
*785 Stanley B. Mayer, Louisville, for appellant.
John Breckinridge, Atty. Gen., Wm. S. Riley, Hunter B. Whitesell, Asst. Attys. Gen., for appellees.
STANLEY, Commissioner.
This action by William A. George, as a class representative, against the Commissioner *786 of Revenue and the Attorney General, seeks a judgment declaring rights and determining the scope and effect of the 1960 Act of the General Assembly called the "Veterans' Bonus Sales and Use Tax Law" with respect to taxes on the sale or use of motor vehicles upon which a similar tax has been paid to another state.
The Act, Chapter 5, Acts of 1960, has six articles and many sections and subsections. Article I is a new and complete general Gross Receipts or Sales Tax statute (now Chapter 139, Ky.Rev.Stats.). Article II amended the existing motor vehicle usage tax statute (KRS 138.460 et seq.). Article III practically rewrote the Income Tax Statute (Chapter 141, KRS). Article IV repealed the Utilities Receipts Tax (KRS 136.240) and amended various sections relating to license taxes (KRS 137.030 et seq.). Article V appropriated money for use by the Department of Revenue. Article VI contained a severability clause, declared an emergency and postponed the effective dates of several provisions of the Act.
Another lengthy and comprehensive Act, Chapter 186, also amended and added a number of provisions to the revenue statute, some of which relate to motor vehicles. Article I, §§ 19, 28, Article IV, § 3, post. Both of these Acts (Ch. 5 and Ch. 186) amended KRS 138.460, concerning the motor vehicle usage tax.
The appellant, while a resident of Michigan, bought an automobile in that state in March, 1960, paid a three percent sales and use tax thereon and registered the car in that state. Subsequently, upon becoming a resident of Kentucky, in August, 1960, he sought registration and licensing of the car as required by KRS 138.460. The clerk refused to register it or issue a license because the appellant declined to pay the Kentucky usage tax on the car.
The trial court recognized the difficulty of determining the legislative intent of the 1960 Act in some respects, but construed the law as exacting the usage tax, holding that the previous payment by the plaintiff of the Michigan tax was immaterial. The court further declared the Act did not violate the Federal or State Constitutions.
The questions are: (1) the proper construction of the statutes in their application to such transactions; and, if the court should determine that payment of the use tax is required, (2) the constitutional validity of the application, which is challenged on the ground that it offends the equality clauses of the Federal and State Constitutions, that is, on the ground of discrimination.
Article I, § 4, paragraph (1), of the Act of 1960, c. 5 defines "Gross receipts" as meaning "the total amount of the sale, lease or rental price, as the case may be, of `retail sales' or `sales at retail', valued in money, whether received in money or otherwise, without any deduction on account of any of the following:" (Enumeration omitted.) Paragraph (3) of the section says "`Gross receipts' do not include any of the following: * * * (f) The sales price of any motor vehicle (including those defined under KRS 189.010(5) and 189.010(10),[1] which has never been registered in Kentucky."
Article I, § 20, imposes a tax of three percent of the gross receipts derived from retail sales after June 30, 1960.
Section 31 reads:
"An excise tax is hereby imposed on the storage, use or other consumption in this state of tangible personal property purchased on or after July 1, 1960, for storage, use or other consumption in this state at the rate of three percent of the sales price of the property." (Emphasis added.)
Section 72 reads:
*787 "The tax levied by Section 31 of this Article shall not apply with respect to the storage, use or other consumption of tangible personal property in this state upon which a tax substantially identical to the tax levied under Section 20 of this Article (not including any special excise taxes such as are imposed on alcoholic beverages, cigarettes and the like) equal to or greater than the amount of tax imposed by Section 31 of this Article has been paid in another state. Proof of payment of such tax shall be according to rules and regulations of the department. If the amount of tax paid in another state is not equal to or greater than the amount of tax imposed by Section 31 of this Article, then the taxpayer shall pay to the department an amount sufficient to make the tax paid in the other state and in this state equal to the amount imposed by Section 31 of this Article. No credit shall be given under this section for sales taxes paid in another state if that state does not grant credit for sales taxes paid in this state." (Emphasis added.)
Here is a broad exclusion from the excise tax of all tangible personal property to be used in this state if a similar tax has been paid in another state. The term, of course, includes motor vehicles.
A "grandfather clause" in Article VI, § 2, indicates an intention that all provisions of Article I relate to motor vehicles. It reads:
"Nothing contained in Articles I, II, or IV of this act shall affect any liability for motor vehicle usage taxes, utility gross receipts taxes, or retail occupational license taxes arising out of the registration or use of motor vehicles, * * * if such sale, registration or use, * * * occurred or was transacted prior to July 1, 1960." (This section was omitted from the publication in the Revised Statutes.)
As above stated, Article II amended the existing motor vehicle usage tax statute. It had been enacted in 1936 (3rd Extra Session, Ch. 14) in part substitution of general sales taxes imposed in 1934 (Ch. 25, Acts, and Ch. 19, § 3, Acts of Special Session) which had been repealed at the 1936 regular session. Ch. 101, Acts of 1936. The statute, as it read before 1960, KRS 138.460, imposed on the use in this state of every motor vehicle a tax equal to three percent of its retail price.[2] But there were expressly exempted (KRS 138.470) vehicles (1) sold to the United States, the State, a city or other political subdivisions, or to any charitable, religious or educational institution; "(2) Used motor vehicles registered or licensed in this state during the same or immediately preceding license period."; "(3) Motor vehicles owned by a person bona fide domiciled in another state and used and licensed in that state by the owner during the same or immediately preceding license period."; and (4) vehicles of public carriers upon which another tax had been paid.
Appellant's automobile would have been expressly exempted by subsection (3), above quoted.[3] But the 1960 Act, Ch. 5, Article II, amended KRS 138.470 by eliminating *788 subsections (3) and (4) and changing subsection (1) to include only vehicles sold to the United States and to the State of Kentucky. Subsection (2), above quoted, was re-enacted in identical language. If this were all, there would be no trouble, for the elimination of subsection (3) may be regarded as evincing, prima facie, an intent to bring such used vehicles within reach of the tax tentacles after twenty-five years of exclusion. But this is not all. The other provisions in the new and extensive legislation cannot be ignored. From them it appears the Legislature failed to carry through the apparent purpose, singly manifested.
A recapitulation of the 1960 Act is that Article I excludes from its operation (1) vehicles never registered in Kentucky (§ 4, par. (3)(f); (2) the "use" of all tangible personal property upon which a tax substantially the same has been paid in another state (§ 72); (3) and all transactions occurring prior to July 1, 1960 (§ 2, Art. VI). It defines the term "use" as meaning "the exercise of any right or power over tangible personal property incident to the ownership of that property, or by any transaction in which possession is given, except that it does not include the sale of that property in the regular course of business." § 19. Article I also expressly excludes many specific sales and transactions, among which are those that the state is prohibited from taxing under the Constitution of the United States or of Kentucky, and gasoline or special fuels otherwise subject to similar taxation. §§ 46, 47, 48.
Ostensibly, such taxes are imposed upon the privilege of use of motor vehicles in the state. But, generally, a motor vehicle use tax is regarded as complementary of a general sales tax. 47 Am. Jur., Sales and Use Taxes, § 42; Notes 129 A.L.R. 230. As complementary, the statutes must be correlated. Indeed, the existing usage tax statute, KRS 138.450 et al. as amended was integrated with the 1960 general sales tax Act. It is true that the present and other like statutes are interchangeably denominated "usage tax" or "use tax." But words are flexible. The substance rather than the form is to be considered. The end to be achieved is to subject the sale of motor vehicles to the prescribed tax, so a wider meaning should be given the word "use" or "usage." This was certainly the meaning of our statute when it was enacted in 1936 as a limited sales tax. That statute, as does the present one, required the "sales tax" to be paid by the seller, who may pass it on to the buyer. The "use tax" is payable by the user or owner of the property in this state. See City of Covington v. State Tax Commission, 257 Ky. 84, 77 S.W.2d 386; Gray v. Methodist Episcopal Church, etc., 272 Ky. 646, 114 S.W.2d 1141. Because of their mobility, the use tax is a justifiable device to protect the revenue and local dealers from outside purchases of automobiles; otherwise, their purchase out of the state would escape payment of the state's sales tax. Together the two provisions form a comprehensive tax system applicable to the sale of motor vehicles. It is an excise and not a property tax or fee for regulation. Said the court in Gray v. Methodist Episcopal Church, etc., supra, "[I]t is a revenue statute, pure and simple."
Such statutes "normally exempt goods upon which a sales tax has previously been paid." 47 Am.Jur., Sales and Use Tax, § 42. This results in equality. Annotations, 129 A.L.R. 223, 228; 1 A.L.R. 2d 453.
There is ambiguity in the statutes now because of the inconsistency between the main sales and use tax provisions of Article I (KRS, Ch. 139) and the motor vehicle use statute Article II (now KRS 138.450 et seq.), which now omits such exclusion. With one voice the Legislature has excluded the appellant's automobile from the use tax and with another has silently implied that his car is included.
*789 With the foregoing consideration of the nature and purpose of the sales and use laws as enacted and amended by the 1960 Act (Ch. 5) and the critical analysis of their terms and ambiguities, we turn to consider the general rules of construction of statutes and our conclusions reached by applying those rules.
We are asked by the taxing authorities, appellees herein, to ignore Article I of the 1960 Act as of no significance in interpreting Article II, and read it as if it were complete in and of itself as amended. But we are not at liberty thus to deny effect to a part of the same enactment as if it were not there.
The presumption is that the Legislature intends an Act to be effective as an entirety. No rule of statutory construction has been more definitely stated or more often repeated than the cardinal rule that significance and effect shall, if possible, be accorded to every part of the Act. So, the construction of the present Act requires consideration not of a few words or only of the amendment of the previous motor vehicle usage statute, but of the whole Act of 1960 concerning the sale and use tax on the price of motor vehicles brought into the state upon which a bona fide resident of another state has already paid a similar tax.
Taxing laws should be plain and precise, for they impose a burden upon the people. That imposition should be explicitly and distinctly revealed. If the Legislature fails so to express its intention and meaning, it is the function of the judiciary to construe the statute strictly and resolve doubts and ambiguities in favor of the taxpayer and against the taxing powers. Frank Fehr Brewing Co. v. Commonwealth, 296 Ky. 667, 178 S.W.2d 197. This is particularly so in the matter of pointing out the subjects to be taxed. Martin v. F. H. Bee Shows, 271 Ky. 822, 113 S.W.2d 448; Frank Fehr Brewing Co. v. Commonwealth, supra: Cooley on Taxation, §§ 503, 505.
We do not overlook the concomitant and equally as firm rule, pressed by the appellees, that an intention of the Legislature to grant an exemption from taxation will not be presumed or implied, since taxation of all is the rule and exemption is the exception. But the rule calls for no strained construction adverse to the apparent intention of the Legislature. Stearns Coal & Lumber Co. v. Thomas, 295 Ky. 808, 175 S.W.2d 505; Iroquois Post No. 229, etc. v. City of Louisville, Ky., 309 S.W.2d 353. It requires a normal and reasonable construction. Cooley on Taxation, § 672.
The instant case does not concern an exemption of a person or institution or municipality from taxation. Cf. City of Covington v. State Tax Commission, 257 Ky. 84, 77 S.W.2d 386. It concerns the question of whether the broad terms of Article I of the 1960 Act allow credit for taxes already paid a sister state on used motor vehicles brought into the state.
It is to be remembered that equality of taxation is the demand of the Constitution. §§ 171, 172, 173. It is a touchstone by which a taxing statute is to be tested. The principal decision in Henneford v. Silas Mason Co., 300 U.S. 577, 57 S. Ct. 524, 527, 81 L. Ed. 814, cited by the parties herein, was that the imposition of the sales and use tax by the State of Washington upon construction machinery and material brought into the state was not a burden upon interstate commerce, for it was levied after the property had come to rest. With reference to the payment of similar taxes on the same property in other states, Mr. Justice Cardozo observed:
"When the account is made up, the stranger from afar is subject to no greater burdens as a consequence of ownership than the dweller within the gates. The one pays upon one activity or incident, and the other upon another, *790 but the sum is the same when the reckoning is closed. Equality exists when the chattel subjected to the use tax is bought in another state and then carried into Washington."
If the appellant and others similarly situated should be called upon to pay the Kentucky tax upon their used cars, it would result in unfairness, if not discrimination, as between them and citizens who had purchased automobiles in this state and paid the Kentucky use tax within the same period and between motor vehicles and other tangible personal property. KRS 138.470 (2) and Art. II, § 2, Act of 1960, c. 5, supra. See Reeves v. Deisenroth, 288 Ky. 724, 157 S.W.2d 331, 138 A.L.R. 1493, construing an ambiguous statute relating to reciprocal immunity from registration, licensing and regulation of foreign commercial motor vehicles.
Moreover, while taxes levied by distinct sovereignties, each for its own purposes, upon the same tax basis are technically not double taxation and are usually valid, Fox v. Board for Louisville & Jefferson County Children's Home, 244 Ky. 1, 50 S.W.2d 67; 51 Am.Jur. Taxation, §§ 494, 459, as a matter of fact, the appellant and others of his class would have to pay twice for the same privilege of use, i.e., a sales tax or its equivalent. A construction of a statute which avoids double taxation in any form is favored where the intention of the Legislature is not clear in respect thereto. Campbell County v. City of Newport, 174 Ky. 712, 193 S.W. 1, L.R.A.1917D, 791; Falls City Brewing Co. v. Talbott, 265 Ky. 541, 97 S.W.2d 57; Hertz Drivurself Stations v. City of Louisville, 294 Ky. 568, 172 S.W.2d 207, 147 A.L.R. 306; 51 Am.Jur., Taxation, § 286.
The instant case seems to justify the repetition, in part, of statements made in Atlantic Coast Line R. Co. v. Commonwealth, 302 Ky. 36, 193 S.W.2d 749, 758. In construing an ambiguous statute, it is logical to consider the consequences of one or another construction. "If one construction reconciles the ambiguity with other provisions of the law clearly expressed, produces uniformity and equality and results in just and equitable treatment * * * and gives recognition to the principle of reciprocity between the states, that is the construction to be adjudged. If another construction threatens unconstitutionality [citation], puts the particular provision out of line with the rest of the Act, results in discrimination, harsh or unjust treatment of [a] taxpayer * * *, causes a pyramiding of taxes, * * * violates the principles of reciprocity between the states, then that construction should be denied. This is so, for a legislative intent not clearly revealed may be presumed to hold in contemplation the reasonable and probable. If something else was in view, it should not have been left to implication. There will be no assumption of a purpose to visit oppression."
Our conclusion is that the appellant and others similarly situated are entitled to have their motor vehicles registered and licensed in Kentucky upon proving they have paid similar and equal taxes in another state.
The judgment is reversed for consistent proceedings.
WILLIAMS, PALMORE and STEWART, JJ., dissenting.
WILLIAMS, Judge (dissenting).
The majority of the Court is of the opinion that the two revenue measures (1) Sales and Use Tax and (2) Motor Vehicle Usage Tax are so inseparable as to be incapable of individual interpretation. The fact is, however, the Sales and Use Tax (Chapter 5, Acts 1960) is entirely new legislation, while the Motor Vehicle Usage Tax has been in effect since 1936. The Motor Vehicle Usage Tax statute was amended in 1960 to the extent, insofar as pertinent here, of *791 deleting certain exemptions from that statute. A further amendment was by an Act (Chapter 186) completely separate and distinct from the Act providing for Sales and Use Tax (Chapter 5). The Motor Vehicle Usage Tax now and since its inception has levied a usage tax on every motor vehicle used in this State, subject to certain exemptions. The motor vehicle in question here does not fall within a class that is exempted therein. The Sales and Use Tax Act allows a credit against that tax if a sales tax has been paid in another state under a reciprocal arrangement. That credit provided by the Sales and Use Tax cannot be made a part of the separate and distinct Motor Vehicle Usage Tax by judicial fiat. That the Sales and Use Tax was enacted in 1960 and the Motor Vehicle Usage Tax was amended in the same year should not be treated as destroying their separate identities.
We have before us a taxpayer who is claiming an exemption from the Motor Vehicle Usage Tax by virtue of the credit provision that exists only under the general Sales and Use Tax. The Acts in question are capable of separate interpretation and should be so construed.
For these reasons, I am of the opinion the appellant is not entitled to an exemption, and respectfully dissent from the majority opinion. Judges Palmore and Stewart join me in this dissent.
NOTES
[1] Trailers and semitrailers.
[2] In Ch. 186, Acts of 1960, the Legislature amended KRS 138.460 to make the tax levy on ninety percent of the retail price and to require production of certain proof thereof.
[3] The Michigan "Use tax act," § 205.94, subsection (e), reads: "Property the sale or use of which has already been subjected to a sales tax or use tax equal to or in excess of that imposed by this act under the law of any other state of the United States: Provided, That if the sale or use of property has already been subjected to a tax under the law of any other state in an amount less than the tax imposed by this act, the provisions of this act shall apply, but at a rate measured by the difference only between the rate herein provided and the rate by which the previous tax was computed." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576121/ | 731 S.W.2d 889 (1987)
W. Hermsworth GARDINER, Plaintiff-Appellee,
v.
Jerry L. WORD and Alberta McLemore, Defendants-Appellants.
Supreme Court of Tennessee, at Nashville.
May 26, 1987.
*890 William D. Leader, Jr., Nashville, for plaintiff-appellee.
Vernon G. Bush, Edward F. Bell, Nashville, for Jerry L. Word.
Richard H. Dinkins, Nashville, for Alberta McLemore.
OPINION
BROCK, Chief Justice.
The key issue in this case is whether the trial court abused its discretion when it refused to allow the defendants, appellants in this court, to amend their answers unless they posted a $20,000.00 bond. The Court of Appeals, Judge Koch dissenting, upheld the action of the trial court in so conditioning the amendment.
This case grew out of a three-year lease of office space in a medical complex by the plaintiff to the defendants, Jerry L. Word and Alberta McLemore, on May 1, 1981. On November 1, 1981, the defendants breached the lease when they failed to pay rent due at that time. The plaintiff gave the defendants notice of the breach on December 12, 1981; and on March 2, 1982, took possession of the premises and certain personal property left there by the defendants.
Almost six months later, on August 27, 1982, the plaintiff filed this action seeking compensatory damages for the breach in the amount of $20,000.00 for the lost rent, cost of removal of the defendants' personal property and attorneys' fees. Slightly less than two months later, in October 1982, the defendants, who were represented by the same attorney, filed their separate, but almost identical, answers. The answers consisted of general admissions and denials and asserted no affirmative defenses or counterclaims.
Four months afterwards, after the plaintiff had moved to set the case for trial, the parties agreed to the entry of an order setting the case for trial on May 4, 1983. On that day, however, a second agreed order, prepared by the plaintiff's counsel, was entered continuing the case for trial until June 23, 1983. A later order and other material in the record indicate that this continuance was made at the request of the defendants. Then, on June 13, 1983, only ten days before the trial, the defendants' attorney moved to withdraw as counsel of record upon the request of the defendants. This motion was granted on June 14, 1983.
The exact dates upon which the defendants retained new counsel are not revealed in the record. On June 27, 1983, a third order resetting the trial for August 25, 1983, was entered which was agreed to by counsel for the plaintiff, by defendant Word personally, and by new counsel for defendant McLemore. On August 17, 1983, slightly less than one year since the filing of the complaint and only eight days before trial, Word's new attorney filed a motion to amend his answer by asserting a counterclaim and certain affirmative defenses. On that same day defendant McLemore's new attorney also filed a motion to amend his client's answer by alleging the same affirmative defenses as had Word and by making similar counterclaims against the plaintiff.
After a hearing on these motions on August 18, 1983, the trial court held that the defendants would only be allowed to amend their answers and receive a continuance if they posted a sufficient cash or surety bond in the amount of $20,000.00 to be used to satisfy any judgment in the case against either or both of the defendants by the close of business on August 24, 1983. If the bond was not posted, the trial would begin as scheduled on August 25. The order contained an additional condition that the bond must be satisfactory to the Clerk and Master.
The defendants attempted to file a surety bond but it was unacceptable to the *891 Clerk and Master. On August 25, 1983, the trial court entered an agreed order providing that, if the defendants did not file the required bond by September 21, 1983, a default judgment would be entered against them for $20,000.00 plus a reasonable attorneys' fee. The defendants again experienced difficulty in securing the bond; and on September 21, 1983, McLemore moved for a ten day extension during which she might secure and file her portion of the bond. No bond was filed with the Clerk and Master on September 21, 1983; and on September 22, 1983, the plaintiff moved for a default judgment pursuant to the agreed order of August 25. Shortly thereafter, on that same day, defendant Word filed a bond in the entire amount of $20,000.00 with the Clerk and Master.
On September 28, 1983, the trial court entered an order granting the plaintiff a default judgment against the defendants for $20,000.00, reserving the determination of reasonable attorneys' fees and releasing the bond tendered on September 22, 1983. The defendants unsuccessfully sought post-judgment relief by various motions, which were denied in an order of October 27, 1983.
Under the provisions of Rule 15.01, T.R.C.P., at the time the defendants sought to amend their answers they could do so "only by written consent of the adverse party or by leave of court." The rule further provides that such "leave shall be freely given when justice so requires."
In Branch v. Warren, 527 S.W.2d 89 (Tenn. 1975), this Court emphasized the liberality of this rule where pre-trial amendments are sought and noted that Rule 15.01 substantially lessened the exercise of pre-trial discretion on the part of the trial judge. Rule 15, this Court continued, "needs no construction, it means precisely what it says, that `leave shall be freely given.'" 527 S.W.2d at 92. Cases since Branch v. Warren have emphasized the liberality with which trial courts should approach the question of whether a pretrial motion to amend should be granted. See, e.g., Craven v. Lawson, 534 S.W.2d 653, 655 (Tenn. 1976); Walden v. Wylie, 645 S.W.2d 247, 250 (Tenn. App. 1982); Douglass v. Rowland, 540 S.W.2d 252, 256 (Tenn. App. 1976); see also Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. App. 1979); cf. Liberty Mutual Insurance Co. v. Taylor, 590 S.W.2d 920, 921 (Tenn. 1979).
There have been no prior Tennessee cases on the question of whether Rule 15.01 allows for conditions to be placed on the granting of an amendment as was done in this case. The Rule itself unlike Rule 15.04 does not expressly provide for a conditional grant. The federal courts have interpreted Rule 15(a), F.R.C.P., which is identical to our Rule 15.01, to allow conditional amendments in order to give effect to the liberal policies of Rule 15(a) while mitigating any prejudice that the other party might suffer as a result of granting the amendment. SFM v. Sundstrand Corp., 99 F.R.D. 101 (N.D.Ill. 1983); see also Firchau v. Diamond National Corp., 345 F.2d 269, 275 (9th Cir.1965); Key Pharmaceuticals, Inc. v. Lowey, 54 F.R.D. 447 (S.D.N.Y. 1972); United States v. United States Trust Co., 106 F.R.D. 474, 476 (D.Mass. 1985); 6 Wright & Miller, Federal Practice and Procedure § 1486 (1971 & Supp. 1986); 3 Moore's Federal Practice ¶ 15.08[b] (1986). As stated in Wright & Miller, supra at p. 424, "If the party opposing the amendment can be protected by the use of conditions from any possible prejudice that might result from the untimeliness of the amendment, there is no justifiable reason for not allowing it." When a condition is unwarranted to prevent prejudice, however, the requirement placed by the trial court will be reversed. See Local 783, Allied Industrial Workers of America AFL-CIO v. General Electric Co., 471 F.2d 751, 756 (6th Cir.1973).
In considering whether to grant a motion to amend, a trial court should consider several factors such as undue delay in filing the amendment, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies *892 by previous amendments, undue prejudice to the opposing party, and the futility of the amendment. Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. App. 1979).
The reasons for the trial court's denial of the motions to amend in this case are not clearly stated in the record. In the initial order in which the court denied the motions, the court indicated that it had considered that there had already been two continuances in the case, each at the request of the defendants; that no prior counterclaims had been asserted; that the plaintiff would be unduly prejudiced in having to defend against the defendants' counterclaims in the short time remaining before trial; and that the defendants had served their original answers in October 1982, with no further leave to amend having been sought, so that their request to file their amended answers was untimely. As the dissent in the Court of Appeals notes, it appears that the trial court primarily based its decision upon the conclusion that the defendants had delayed unreasonably in amending their answers and that the plaintiff would be unduly prejudiced if the amendments were allowed. The present record clearly does not support the other criteria mentioned in Merriman v. Smith, supra, such as repeated prior amendments, bad faith, etc.
It is the conclusion of this Court that the record also does not support the trial court's finding of undue delay and prejudice. Regarding the timeliness of the amendments, one must note that the motions to amend were filed within one year after the complaint was filed and that only two months earlier the trial court had allowed the defendants' counsel to withdraw from the case shortly before trial. New counsel was soon thereafter retained and had filed the motions within sixty days, not an unreasonable time for new counsel to familiarize themselves with the facts and status of a case already in progress, particularly in light of the fact that it was by then becoming apparent that the defendants themselves, who had previously been represented by the same counsel, may have had cross-claims against one another. Furthermore, in reference to dilatory practices by the defendants in the case generally, it must be noted that the original answers were filed within two months after the complaint was served and that the two prior continuances, while granted at the defendants' insistence, are not shown to have been requested for frivolous reasons. Indeed, the plaintiff had agreed to these postponements.
This acquiescence in the two prior delays likewise reflects on the lack of evidence in the record showing prejudice to the plaintiff if the amendments were granted. The plaintiff had delayed for almost ten months after the breach before filing this action. He had been in possession of the leased office space since March 1982, five or six months before filing the action; and there was no evidence that the pendency of this action had interfered in any way with the plaintiff's exercise of ownership. Under these circumstances neither the possibility of the delay occasioned by one further continuance nor the inconvenience of being called to answer the defendants' counterclaims is a sufficient reason for denying the defendants an opportunity to amend their answers. See Craven v. Lawson, supra, 534 S.W.2d at 655 (Tenn. 1976). The injustice to the defendants by denying them their day in court and the loss of what appear to be compulsory counterclaims far outweighs any prejudice that might be suffered by the plaintiff. Cf. Hopper v. Davidson County, 206 Tenn. 393, 333 S.W.2d 917, 919-920 (1960) (holding under the broader discretion granted to the trial court prior to the present Rules that, where the denial of a pretrial motion to amend denies a person his day in court, the action is erroneous.)
As noted earlier, conditions may be placed upon the granting of a motion to amend under the liberal policy of the Rule in order to lessen or avoid whatever prejudice might result to the opposing party. Such conditions, however, should bear some relationship to the actual harm suffered *893 by the party. Usually under situations similar to that in the present case, the trial court requires the moving party to post a bond to secure the payment of any costs directly resulting to his adversary from the amendment or a resulting continuance. See, e.g. Estes v. Kentucky Utilities Co., 636 F.2d 1131, 1134 (6th Cir.1980); Pollux Marine Agencies v. Louis Dreyfus Corp., 455 F. Supp. 211, 216 (S.D.N.Y. 1978); Sherrell v. Mitchell Aero, Inc., 340 F. Supp. 219 (D.Wis. 1971); Thermal Dynamics Corp. v. Union Carbide Corp., 42 F.R.D. 607 (D.N.H. 1967). None of the facts in the record in this case, however, warranted the trial court's requirement that the defendants post bond in the entire amount sought as damages by the plaintiff. There is no showing that this condition was in any way connected to any prejudice the plaintiff might suffer as a result of the amendment and a related continuance, as for example, might have occurred if the defendants had been shown to have been disposing of assets needed to satisfy a judgment. Even if this condition had been valid, the plaintiff was fully protected on September 22, 1983, when defendant Word filed a surety bond meeting the trial court's requirements.
Plaintiff argues that since the defendants agreed to the order entered on August 25, 1983, they may not now attack on appeal the judgment entered pursuant to that order granting the plaintiff a default judgment for the failure to post bond on or before September 21, 1983. The plaintiff characterizes the August 25 order as a consent decree, which cannot be altered or set aside unless entered through fraud or mistake. See Third National Bank v. Scribner, 212 Tenn. 400, 370 S.W.2d 482, 486-487 (1963); Clinchfield Stone Co., Inc. v. Stone, 36 Tenn. App. 252, 254 S.W.2d 8, 12 (1952); 1 Gibson's Suits in Chancery § 619 (5th ed. 1955).
This Court reaffirms the continuing validity of this rule where there is true consent to a compromise. The plaintiff himself points out, however, that the reason for the unassailability of a consent decree is based on the well-founded maxim volenti non fit injuria (he who consents to what is done cannot complain of it). Under the particular facts of this case, the element of true consent is missing. As the dissent in the Court of Appeals noted, the defendants' agreement to the default judgment was compelled by the trial court's imposition of the condition upon the defendants of posting a $20,000.00 bond before granting their motions to amend. The invalidity of the condition compelling the agreed order requires that the results of any failure to satisfy this condition must also be set aside. In the absence of sufficient evidence to support the trial court's denial of the motions to amend or the imposition of the condition upon allowing amendment, the default judgment was improperly granted.
The judgment of the Chancery Court of Williamson County is reversed and this cause is remanded for further proceedings. Costs are adjudged against appellee.
FONES, COOPER, HARBISON and DROWOTA, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576147/ | 17 So. 3d 754 (2009)
ALLSTATE INSURANCE COMPANY, Appellant,
v.
ADVANTAGE OPEN MRI, INC. a/a/o David Wrobel, Appellee.
No. 2D08-668.
District Court of Appeal of Florida, Second District.
July 31, 2009.
Rehearing Denied September 29, 2009.
*755 Douglas G. Brehm of Shutts & Bowen LLP, Miami, for Appellant.
David M. Caldevilla, Nicolas Q. Porter and Christopher J. Lewis of de la Parte & Gilbert, P.A., Tampa; Lorca John Divale of The Divale Law Group, P.A., St. Petersburg; and Scott R. Jeeves of Jeeves & Hutchison, P.A., St. Petersburg, for Appellee.
KHOUZAM, Judge.
Allstate Insurance Company, the defendant below, seeks review of a county court order certifying two questions as being of great public importance. The order was entered in conjunction with a final judgment in which the county court awarded Advantage Open MRI, Inc., as assignee of David Wrobel, $52.28 plus interest based on the court's determination that Allstate underpaid personal injury protection (PIP) benefits for magnetic resonance imaging (MRI) services. Allstate also appeals the final judgment.
Allstate challenges the computation of the amount payable for the MRI. The computation was made by applying an annual consumer price index (CPI) inflation adjustment to the amount payable under this PIP policy. We are asked to resolve whether the computation for PIP benefits payable for an MRI performed during the effective date of section 627.736(5)(b)(5), Florida Statutes (2006), should begin with an inflation adjustment for 2001 and whether the annual inflation adjustment applied for 2001 through 2005 should be based on the CPI adjustment factor for the twelve-month period ending June 30 of each year.
We have jurisdiction to review the certified questions. See Fla. R.App. P. 9.030(b)(4)(A). Having exercised our discretionary authority to accept review of the certified questions, we also have the authority to review the final judgment. See Fla. R.App. P. 9.160(e)(2), (f)(1). We reverse the final judgment. We rephrase the certified questions framed by the county court as a single question, which we answer in the affirmative.
*756 The county court certified the following two questions to be of great public importance:
FOR MRI SCANS PERFORMED AFTER THE EFFECTIVE DATE OF THE 2005 REVISER'S BILL AMENDMENTS TO SECTION 627.736(5)(B)(5), WHEN IS THE FIRST CPI ADJUSTMENT REQUIRED?
PRECISELY WHAT CPI ADJUSTMENTS ARE REQUIRED BY FLA. STAT. § 627.736(5)(B)(5) (2006) IN CONNECTION WITH REIMBURSEMENTS FOR MRI SCANS?
We rephrase the certified questions as a single question as follows:
IS THE MRI INFLATION ADJUSTMENT CALLED FOR BY SECTION 627.736(5)(B)(5), FLORIDA STATUTES (2006), TO BE MADE FOR THE YEAR 2001 BEGINNING ON AUGUST 1, 2002, AND ADJUSTED ANNUALLY EACH YEAR THEREAFTER ON AUGUST 1 THROUGH THE YEAR IN WHICH THE MRI IS PERFORMED UTILIZING THE STATUTORILY-REFERENCED CPI THAT REFLECTS THE CHANGES FOR THE PRECEDING 12-MONTH PERIOD ENDING JUNE 30 OF EACH YEAR?
We answer the question in the affirmative.
Mr. Wrobel was injured in an automobile accident. As a result of the accident, he received an MRI from Advantage on July 17, 2006. He assigned to Advantage his benefits under his PIP policy with Allstate. Advantage billed Allstate $1375 for the MRI. Allstate paid Advantage $1307.98 for this scan. Advantage then filed suit in county court seeking monetary damages for the unpaid PIP benefits and declaratory relief regarding the parties' rights and obligations under section 627.736(5)(b)(5), Florida Statutes (2006).
In determining the underpayment, the county court construed section 627.736(5)(b)(5), Florida Statutes (2003-2006), to determine how to properly calculate the payment that Allstate should have remitted for the MRI. All of the foregoing versions of section 627.736(5)(b)(5) limit the allowable amount to be charged to a PIP insurer for an MRI. Each version, however, provides for an annual upward adjustment to the allowable amount, which is to be based on CPI figures. Advantage maintained that the first CPI adjustment was required as of August 1, 2001, with annual adjustments thereafter (resulting in five CPI adjustments in this case), and that the specific CPI figures to use were to come from the CPI chart for medical care items for all urban consumers in the south region as determined by the Bureau of Labor Statistics of the United States Department of Labor for the twelve-month period ending June 30 of that year.
The county court agreed with Advantage's interpretation of the statute and determined that it should have been paid $1360.26 (a bit less than the amount originally billed). In the final judgment, the court awarded Advantage $52.28 in monetary damages, i.e., the difference between the amount remitted by Allstate ($1307.98) and the adjusted amount payable to Advantage for this MRI ($1360.26).
The certified question before this court has been answered, for the most part, by the Fourth District in an opinion that was published during the pendency of this appeal after this court accepted review of this matter. See Progressive Auto Pro Ins. Co. v. One Stop Med., Inc., 985 So. 2d 10 (Fla. 4th DCA 2008). In Progressive Auto, a consolidated appeal, the Fourth District addressed certified questions that arose from separate county court cases involving State Farm Mutual Automobile Insurance Company, Progressive Auto Pro Insurance Company, and two different *757 MRI providers. Id. The Fourth District, in Progressive Auto, determined that the CPI adjustment to the base amount allowable under section 627.736(5)(b)(5), Florida Statutes (2001-2003), should begin with an annual CPI adjustment for the year 2001 and the first CPI adjustment is to be made as of August 1, 2002.[1]Id. at 14-15. The Fourth District also confirmed that the adjustment should be compounded annually "through August 1st of the year in which the MRI scan is performed." Id. at 15.
Additionally, although the Fourth District did not identify which CPI chart was utilized in determining the adjusted amount due to the MRI providers in Progressive Auto, it recognized that the trial court had used a CPI adjustment of 3.6 percent and it concluded that the trial court did not err in finding that the MRI provider was entitled to the 2001 CPI adjustment. Id. at 12-14. This adjustment percentage is identical to the adjustment percentage applied in the present case for 2001. And, here this adjustment percentage and the adjustment percentages for each year thereafter were derived from the statutorily-referenced Bureau of Labor Statistics' chart for the CPI ending on June 30 of each year.[2]
The county court did not have the benefit of the Progressive Auto decision when it entered the final judgment and order in this case. Nonetheless, the county court's methodology was consistent with that applied in Progressive Auto in all but one respect. The county court began its computation by adjusting the base figure as of August 1, 2001, with the CPI factor for the year 2001. In Progressive Auto, the Fourth District determined that the first CPI adjustment should begin on August 1, 2002, utilizing the CPI factor for the year 2001.[3]
The method of computation described in Progressive Auto remains the same even after the 2005 reviser's bill to section 627.736(5)(b)(5). The reviser's bill provides:
(5) Charges for treatment of injured persons.
(b)
*758 5. Effective upon this act becoming a law and before November 1, 2001, allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 200 percent of the allowable amount under Medicare Part B for year 2001, for the area in which the treatment was rendered. Beginning November 1, 2001, Allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services shall not exceed 175 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually on August 1 to reflect the prior calendar year's changes in the annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor for the 12-month period ending June 30 of that year, except that allowable amounts that may be charged to a personal injury protection insurance insurer and insured for magnetic resonance imaging services provided in facilities accredited by the Accreditation Association for Ambulatory Health Care, the American College of Radiology, or the Joint Commission on Accreditation of Healthcare Organizations shall not exceed 200 percent of the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001, for the area in which the treatment was rendered, adjusted annually on August 1 to reflect the prior calendar year's changes in the annual Medical Care Item of the Consumer Price Index for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics of the United States Department of Labor for the 12-month period ending June 30 of that year. This paragraph does not apply to charges for magnetic resonance imaging services and nerve conduction testing for inpatients and emergency services and care as defined in chapter 395 rendered by facilities licensed under chapter 395.
Reviser's note.Amended to delete an obsolete provision limiting charges to personal injury insurers and insureds for magnetic resonance imaging to 200 percent of the allowable amount under Medicare Part B until November 1, 2001.
Ch. 2005-2, § 121 at 146-47, Laws of Fla. (eff. July 5, 2005) (emphasis supplied).[4] A plain reading of the foregoing reflects that under the version of section 627.736(5)(b)(5) effective July 5, 2005: the first CPI adjustment should be made as of August 1, 2002, for the year 2001; the adjustment should then be made annually on August 1 each year through the year in which the MRI is performed; and the CPI factor should be based on the statutorily-referenced chart for the 12-month period ending June 30 of each year.
We reverse the final judgment and remand for further proceedings consistent with this opinion. We answer the certified question, as reframed, in the affirmative.
Reversed and remanded. Certified question answered.
ALTENBERND and CRENSHAW, JJ., Concur.
NOTES
[1] In Progressive Auto, the MRI in State Farm's case was performed on August 5, 2002, and the MRI in Progressive's case was performed on May 4, 2005. 985 So.2d at 12, 14.
[2] The county court applied CPI adjustments of 3.6% (the factor published by August 1, 2001, for the 12-month period ending June 30, 2001), plus a second, cumulative CPI adjustment of 4.1% (the factor published by August 1, 2002, for the 12-month period ending June 30, 2002), plus a third, cumulative CPI adjustment of 4.0% (the factor published by August 1, 2003, for the 12-month period ending June 30, 2003), plus a fourth, cumulative CPI adjustment of 4.4% (the factor published by August 1, 2004, for the 12-month period ending June 30, 2004), plus a fifth, cumulative CPI adjustment of 4.0% (the factor published by August 1, 2005, for the 12-month period ending June 30, 2005).
Curiously, in Altamonte Springs Imaging, L.C. v. State Farm Mutual Automobile Insurance Co., 12 So. 3d 850 (Fla. 3d DCA 2009), the Third District presents a hypothetical example of a computation "as applied by the Fourth District in Progressive Auto" that utilizes, for the first CPI adjustment, a multiplier of 4.0693%. Id. at 856. It identifies 4.0693% as the June 30, 2002, adjustment factor. Id. Here, unlike in Altamonte Springs, no issue was raised concerning the propriety of using the rounded percentage figures for the annual CPI adjustment rather than extending the percentages to four or more decimal places. Indeed, as recognized by the Third District, "[t]he CPI figures published by the Bureau of Labor Statistics that are to be used in these adjustments are rounded to the nearest tenth." Id. at 855. Furthermore, we do not read Progressive Auto as applying the column of the Bureau of Labor Statistics' chart for June 30, 2002, for the first CPI adjustment.
[3] We recognize that this manner of computation will result in one less annual adjustment in this case.
[4] We note that section 627.736 was substantially revised effective July 1, 2008. Ch. 2008-220, § 22 at 451-54; ch. 2008-4, § 153 at 2452-54, Laws of Fla. (eff. July 1, 2008). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1007005/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 01-4168
CHRISTOPHER LEE THOMAS, a/k/a
Crank,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 01-4169
JULIUS LAMONT NEWTON, JR., a/k/a
Bey Newt, a/k/a Bey,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-99-477-A)
Argued: February 28, 2002
Decided: March 19, 2002
Before WIDENER and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. THOMAS
COUNSEL
ARGUED: Gregory Bruce English, ENGLISH & SMITH, Alexan-
dria, Virginia, for Appellant Thomas; Alan Hideto Yamamoto, Alex-
andria, Virginia, for Appellant Newton. Alessandra DeBlasio,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Kenneth E. Melson, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In these consolidated cases, Christopher Lee Thomas and Julius
Lamont Newton, Jr. appeal their convictions and sentences. Thomas
was convicted of second-degree murder, see 18 U.S.C. § 1111, and
Newton was convicted of voluntary manslaughter, see 18 U.S.C.
§ 1112, for their roles in the death of Brett Reginald Hawkins while
all three men were inmates at the Lorton Reformatory Correctional
Complex. On appeal, Thomas contends that the district court erred by
denying his motion for a mistrial. Newton maintains that the court
erred by admitting the grand jury testimony of an unavailable witness
and by sustaining Thomas’ objection to evidence of the victim’s char-
acter. Newton also argues that the evidence at trial was insufficient
to sustain his conviction. Finding no reversible error, we affirm.
I.
We first address Thomas’ contention that the district court abused
its discretion in denying Thomas’ motion for a mistrial. At trial, the
government proffered evidence that Thomas had been interviewed by
UNITED STATES v. THOMAS 3
an FBI agent about the murder, and told the agent that "he didn’t
know anything" relevant because he "was at the ball field" when it
happened. The agent further testified that the interview was very short
and that Thomas had "a little bit of attitude" and "didn’t want to have
anything to do with the interview." Thomas objected, and the district
court barred any further testimony about his demeanor. Thomas also
moved, unsuccessfully, for a mistrial. On appeal, Thomas asserts that
the district court’s refusal to grant a mistrial was an abuse of discre-
tion because this evidence was "equivalent to . . . commenting during
closing argument that the defendant failed to testify," and therefore
constituted a presumptively prejudicial violation of Thomas’ Fifth
Amendment rights. Brief of Appellant at 23.
Denying the motion for mistrial was not an abuse of discretion. As
the district court explained, "[Thomas] didn’t say he didn’t want to
talk to the FBI. He told the FBI he was at a different place when the
murder occurred. That is two entirely different things. [Thomas] was
told who they were, he was told what they were investigating, he was
asked the question, and he gave an answer." See United States v. Dor-
louis, 107 F.3d 248, 257 (4th Cir. 1997) (noting that denial of a defen-
dant’s motion for mistrial "is within the sound discretion of the
district court and will be disturbed only under the most extraordinary
of circumstances") (citation omitted).1
II.
Newton’s contentions are equally meritless.
First, Newton maintains that the district court erred in admitting the
grand jury testimony of an unavailable witness. He contends that
introduction of this testimony deprived him of his Sixth Amendment
right to confront all witnesses against him. But it is well settled that
statements by unavailable declarants are admissible if they "contain[ ]
‘particularized guarantees of trustworthiness’ such that adversarial
testing would be expected to add little, if anything, to the statements’
reliability." Lilly v. Virginia, 527 U.S. 116, 124-25 (1999) (quoting
1
Read liberally, Thomas’ brief could also be understood to assert that
the evidence about his demeanor was prejudicial, but we find this argu-
ment unsupported by the record.
4 UNITED STATES v. THOMAS
Ohio v. Roberts, 448 U.S. 56, 66 (1980)). The testimony of the
unavailable witness in this case contained such guarantees: it was vol-
untary, given under oath to a grand jury, from personal knowledge,
and consistent with testimony provided by other eye witnesses. See
United States v. McHan, 101 F.3d 1027, 1037-38 (4th Cir. 1996).
Newton also contends the Federal Rules of Evidence barred intro-
duction of the grand jury testimony, and that the district court erred
in sustaining Thomas’ objection to evidence of the victim’s character.
Because Newton did not raise either of these arguments before the
district court, our review is for plain error. Newton must show: (1) an
error; (2) that the error was plain; (3) that the error affected substan-
tial rights. See United States v. Olano, 507 U.S. 725, 732 (1993). If
these three elements are met, we may exercise our discretion to notice
the error only if the error "seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings." Id. (citation and internal
quotation marks omitted).
With respect to both arguments, we note that there were four eye-
witnesses present at the trial who testified that Newton "tackled or
caught up to and pulled down Mr. Hawkins," so that Thomas could
stab him to death. The only contrary testimony came from Newton,
who was self-interested, and from Thomas, who was not only self-
interested but also admitted that he had lied to the FBI about his role
in the killing. Given this evidence, even if admission of the chal-
lenged evidence was error, we would not exercise our discretion to
notice it since such error does not "seriously affect the fairness integ-
rity or public reputation of judicial proceedings." Furthermore, this
abundant evidence also renders Newton’s contention as to the alleged
insufficiency of the evidence meritless.2
2
Both Thomas and Newton also timely filed supplemental pro se peti-
tions or letters, which we treat as supplemental appellate briefs, in which
they assert that they received ineffective assistance from counsel. We
review such claims on direct appeal only when the ineffectiveness "con-
clusively appears" on the record, and here, it does not. See United States
v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998). Thomas also raises sev-
eral additional issues; all of which are clearly meritless.
UNITED STATES v. THOMAS 5
III.
Accordingly, the convictions and sentences are in all respects
AFFIRMED. | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919920/ | 117 N.H. 78 (1977)
STATE OF NEW HAMPSHIRE
v.
JACKIE PARTLOW.
No. 7567.
Supreme Court of New Hampshire.
January 31, 1977.
*79 David H. Souter, attorney general, and Edward A. Haffer, assistant attorney general (Mr. Haffer orally), for the state.
Bruce R. Jasper, of Newport, by brief and orally, for the defendant.
KENISON, C.J.
The defendant was found guilty of receiving four automobile tires, the value of which was less than $100, knowing and believing that the tires were stolen. RSA 637:7. Ordinarily, this crime is a misdemeanor. RSA 637:11 III. However, theft constitutes a class B felony if "the actor has been twice before convicted of theft of property or services valued at one hundred dollars or less ...." RSA 637:11 II(b). The defendant has been convicted of, or has pleaded guilty to, six offenses prior to his conviction in this case. Upon the state's recommendation, the Trial Court (Johnson, J.) found that at least two of these six prior convictions involved theft of property or services valued at $100 or less. By operation of RSA 637:11 II(b), the present offense was thus raised from a misdemeanor to a class B felony. Accordingly, the court sentenced the defendant to not less than three nor more than six years of incarceration in the New Hampshire State Prison.
The trial court judge, however, did not identify which two or more of these six offenses triggered the operation of RSA 637:11 II(b). The state concedes that two convictions, one for forgery involving $110 in 1972 and one for burglary involving $200 in 1970 cannot serve as the basis for the court's decision because each offense involved a value of over $100. The defendant, on the other hand, concedes that out of the six prior offenses one in 1969 involving the receipt and concealment of stolen property valued at $32.85 does come within the scope of RSA 637:11 II(b).
The issue in this case is whether at least one of the remaining three convictions was for "theft of property or services valued at one hundred dollars or less" as those words are used in the statute. If so, the defendant here is guilty of a class B felony. If not, his *80 crime is only a misdemeanor. The convictions in issue are as follows: (1) forgery of a check for $48.45 in 1967; (2) entering at night and taking twenty-seven blank checks of undetermined value from a lumber mill in 1972; (3) breaking and entering a grocery store and taking $13 in 1966.
We will first consider whether the 1967 forgery conviction constituted theft of property or services valued at $100 or less. The monetary limitation is clearly satisfied because the forged check was for $48.45. The remaining question is whether the crime of forging a check may be regarded as the crime of theft of property. "Theft" is defined in RSA 637:1 which states in relevant part: "Conduct denominated theft in this chapter constitutes a single offense embracing the separate offenses such as those heretofore known as larceny, larceny by trick, larceny by bailees, embezzlement, false pretense, extortion, blackmail, receiving stolen property." The forgery statute in existence in 1967 stated: "If any person shall falsely make or counterfeit or fraudulently alter any... promissory note, order ... or request for the payment of money... with intent that any person may be defrauded, he shall, except as otherwise provided, be imprisoned not more than seven years." RSA 581:1. The false pretenses statute in effect at this time stated: "If any person, with intent to cheat or defraud, shall, by personating or representing another, or by means of any false pretense or false token ... wrongfully obtain any money ... he shall be fined not more than five hundred dollars, or imprisoned not more than seven years." RSA 580:1.
[1, 2] Although the crimes differ in some respects, it is clear that obtaining money by forging a check comes within the terms of the false pretenses statute. "A forged check is a false token and the fraudulent obtaining of money or goods by means of a forged check was punishable as a cheat at common law, and unquestionably comes under the statute on false pretenses." R. Perkins, Criminal Law 315 (2d ed. 1969); see Furey v. Hollowell, 203 Iowa 376, 212 N.W. 698 (1927); 2 W. Burdick, Law of Crime §§ 635-42 (1946). Because the defendant's check forgery was equivalent to the crime of false pretense, his offense may be regarded as theft for the purposes of RSA 637:1 and :11.
[3-5] Even if the forgery technically could not or did not constitute a false pretense, it still could be regarded as theft under RSA ch. 637. Section one states that theft encompasses crimes *81 "such as" those enumerated. The words "such as" render the list of crimes merely illustrative rather than exhaustive. See Turnpike Authority v. Pine Island, 265 N.C. 109, 143 S.E.2d 319 (1965); 2A J. Sutherland, Statutes and Statutory Construction § 47.25 (4th ed. C. Sands 1973). This jurisdiction does not follow the rule that penal statutes are to be construed strictly. RSA 625:3. Our task is to construe the criminal code provisions according to the fair import of their terms and to promote justice. State v. McPhail, 116 N.H. 440, 362 A.2d 199 (1976); Doe v. State, 114 N.H. 714, 328 A.2d 784 (1974). Given the substantive similarities between the defendant's forgery and the crime described in the false pretenses statute, it is within the fair import of RSA 637:1 to hold that the fraudulent obtaining of money by forging a check was a crime "such as" false pretense. The ultimate resultthat the defendant's crime in 1967 amounted to theft and that the instant offense is transformed from a misdemeanor to a class B felony by virtue of the operation of RSA 637:11is consistent with the spirit of RSA 637:1 and :11 and promotes justice. State v. Lemire, 116 N.H. 395, 359 A.2d 644 (1976).
In view of our decision it is unnecessary to consider whether the defendant's other offenses could have formed the basis for the decision of the trial judge.
Defendant's exceptions overruled.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576190/ | 35 So. 3d 36 (2010)
CARRASCO
v.
STATE.
No. 4D09-3213.
District Court of Appeal of Florida, Fourth District.
June 11, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576187/ | 612 F. Supp. 935 (1985)
MARTIN E. SEGAL COMPANY, Plaintiff,
v.
John W. BARTON, Defendant.
No. 84 Civ. 9259 (RWS).
United States District Court, S.D. New York.
June 27, 1985.
*936 Simpson Thacher & Bartlett, New York City, for plaintiff; Barry R. Ostrager, New York City, of counsel.
Willkie Farr & Gallagher, New York City, for defendant; Lawrence O. Kamin, Arthur S. Gabinet, New York City, of counsel.
OPINION
SWEET, District Judge.
Defendant John Barton ("Barton") has moved to dismiss this diversity-based action pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. Plaintiff Martin E. Segal Co. ("Segal") alleges that Barton has sufficient contacts with New York to support jurisdiction pursuant to CPLR § 302(a)(1). The motion to dismiss is granted.
Facts
For the purposes of this motion, the facts will be accepted as alleged by Segal. See Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55 (2d Cir.1985). This case arises from Barton's former employment with Segal and allegations that Barton has breached certain provisions of a non-competition agreement by continuing to render consulting and actuarial services to Segal's clients through Barton's current employer.
Segal is a national firm which has its headquarters in New York City. Barton is a citizen and resident of California. In 1974 Barton was hired by Segal as a corporate division representative for the Western region, working in Segal's San Francisco office. During the ten years Barton worked for Segal, he was stationed in California, and he worked with clients based exclusively in California, Washington, or other Western states. On January 1, 1978, while in California, Barton executed a non-competition agreement with Segal.
During his employment with Segal, Barton consulted with corporate officials in New York, and Barton made several trips to New York at company expense. Segal characterizes these trips as frequent; Barton limits their number. Two such trips were for company-wide meetings of all Segal executives. During other trips, meetings focused on client development, and, at least once, Barton discussed projects and presentations for California clients.
Barton's paychecks and reimbursements for expenses were paid by checks drawn on a New York account. Barton, however, neither owns nor rents real estate in New York; he has no bank accounts in New York; and he does not maintain an office, home or telephone in New York.
In July 1984 Barton left Segal and was employed by Mercer-Meidinger Corp. in San Francisco. In working for Mercer, Barton has worked exclusively for California clients and has had no contact with New York.
Discussion
Personal jurisdiction in a diversity action is determined by the law of the jurisdiction in which the court sits. United States v. First National City Bank, 379 U.S. 378, 381-82, 85 S. Ct. 528, 530, 13 L. Ed. 2d 365 (1965). The burden of establishing jurisdiction over a defendant rests on the plaintiff, and in the absence of an evidentiary hearing; the plaintiff need make only a prima *937 facie showing that jurisdiction exists. Hoffritz For Cutlery, supra; Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757 (2d Cir.1983).
Segal asserts jurisdiction under CPLR § 302(a)(1), which states:
As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state ...
When jurisdiction is based upon § 302(a)(1), the cause of action sued upon must arise from the transaction of business within the state. McGowan v. Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321 (Ct.App. 1981) (requiring an articulable nexus between the business transacted and the cause of action sued upon). In Faherty v. Fender, 572 F. Supp. 142 (S.D.N.Y.1983) the Court held:
A defendant is subject to jurisdiction in New York if he transacts business within the state and there is a "substantial relationship" between this transaction of business and plaintiff's causes of action. This "substantial relationship" test is not satisfied by a remote causal connection between defendant's forum activity and plaintiff's claim. (citations omitted)
In Pavlo v. James, 437 F. Supp. 125 (S.D. N.Y.1977) the plaintiff attempted to assert jurisdiction pursuant to CPLR § 302(a)(1) to recover for alleged breaches of a non-competition agreement. Plaintiff alleged that the non-resident defendant employee while in the employ of plaintiff had established competing corporations in Kentucky and Indiana. Although the plaintiff alleged that the employee frequently visited New York on business, the Court declined to exercise jurisdiction, holding that the absence of a specific linkage between the New York activities and the cause of action made jurisdiction improper.
Similar reasoning compels a finding in this action that jurisdiction based on CPLR § 302(a)(1) would be improper. There is no meaningful dispute about the extent of Barton's New York contacts. However, Segal has not established, or even alleged, that the visits to New York or the business conducted during those visits is related in a substantial or proximate manner to the alleged violations of the non-competition agreement. Although Segal claims that Barton "performed in New York numerous purposeful acts in relation to his employment," Segal does not allege that these acts were substantially or proximately connected to the alleged breach. No allegation or showing is made that the Segal clients for whom Barton now provides services were in any manner connected with Barton's New York contacts. Nor is there an allegation that any confidential information which Barton has used improperly was obtained during his New York visits.
In Hoffritz, supra, the Court stated that to establish jurisdiction under 302(a)(1) it was necessary to show "that the cause of action is sufficiently related to the business transacted [in New York] that it would not be unfair to deem it to arise out of the transacted business ..." Id. at 59. Segal has alleged only a connection between business transacted in New York and the employment contract generally. No allegation is made with respect to a nexus between the business transacted in New York and the specific breaches alleged in the complaint.
Conclusion
Segal has failed to allege a prima facie case that would establish proper jurisdiction under CPLR § 302(a)(1). The clerk is directed to enter judgment dismissing the case.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576191/ | 731 S.W.2d 822 (1987)
James David MORRISON, Appellant,
v.
KENTUCKY CENTRAL INSURANCE CO., Appellee.
KENTUCKY CENTRAL INSURANCE CO., Appellant,
v.
GREAT AMERICAN INSURANCE CO., Appellee.
Court of Appeals of Kentucky.
April 17, 1987.
*823 William A. Dykeman, W.T. Ingerton, Lexington, for James David Morrison.
Gregg Neal, Neal & Davis, Shelbyville, for Kentucky Cent. Ins. Co.
Raymond G. Smith, Edward H. Stopher, Alice Herrington, Boehl, Stopher, Graves & Deindoerfer, Louisville, for Great American Ins. Co.
Before CLAYTON, MILLER and WILHOIT, JJ.
WILHOIT, Judge.
These appeals concern interpretation of the Motor Vehicle Reparations ("no-fault") Act. The summary judgments on appeal are from a personal injury action initiated to recover damages resulting from a one-car accident.
James Morrison was injured August 19, 1980, when he allegedly lost control of his car as he attempted to avoid hitting a road construction sign placed along I-64 in Shelby County by Shamrock Construction Company. Mr. Morrison collected basic reparations benefits (BRB) from his insurer, Kentucky Central Insurance Company. Morrison filed a complaint in August 1981 against Shamrock Construction Company, whose liability insurer was Great American Insurance Company. The accident occurred during the scope and course of Morrison's employment, and Morrison also pursued workers' compensation benefits. Morrison entered into an agreement as to compensation in 1982 with his employer's compensation carrier, Insurance Company of North America (INA). Both Kentucky Central and INA filed intervening complaints in the personal injury action seeking reimbursement of the no-fault and workers' compensation benefits paid to Morrison. Kentucky Central also filed a cross-claim against INA seeking contribution or indemnity for the no-fault benefits paid.
Great American filed a motion for summary judgment against Kentucky Central, arguing that Kentucky Central's right of reimbursement was solely from Morrison, as the payments made by Kentucky Central were not required by the no-fault act because Morrison received workers' compensation benefits. Great American's motion was granted and the order was made final pursuant to CR 54.02. This order is the subject of Kentucky Central's appeal. *824 Shortly after the entry of this order, Morrison settled with Shamrock.
After Kentucky Central's claim against Great American was dismissed, Kentucky Central filed a third-party complaint against its insured (Morrison) seeking recovery of the no-fault benefits. Kentucky Central filed a motion for summary judgment, asserting that Morrison received a double recovery with his workers' compensation benefits and no-fault benefits. Its motion was granted and the order was made final pursuant to CR 54.02. Morrison appeals from this order. The appeals were consolidated for consideration by this Court. We will first address Morrison's appeal.
The most important issue raised by Morrison concerns the effect of his workers' compensation benefits on his right to BRB. Morrison argues that summary judgment was improper because his net loss was never determined. Kentucky Central asserts in response that calculation of net loss has nothing to do with its right to reimbursement of BRB, and that reimbursement is necessary to avoid a double recovery.
Basic reparation benefits are reimbursement for net loss. KRS 304.39-020(2). Net loss is defined in KRS 304.39-020(10) as "loss less benefits or advantages, from sources other than basic or added reparation insurance, required to be subtracted from loss in calculating net loss." Work loss, as well as medical expense, are elements of loss.[1] KRS 304.39-120(1) requires workers' compensation benefits be subtracted from loss in calculating net loss.
The no-fault act places a $200 per week limit on BRB payable for work loss. KRS 304.39-130. This $200 limit is not a limit on loss or net loss, but is a limit on weekly work loss benefits to be paid by the reparation obligor. United States Fidelity & Guaranty Co. v. Smith, Ky., 580 S.W.2d 216, 220 (1979); see also Uniform Motor Vehicle Accident Reparations Act, Sec. 13, Comment, 14 U.L.A. 81 (1980). Workers' compensation wage benefits should be subtracted from the insured's actual wage loss in calculating net loss. The difference would be the amount the reparation obligor must pay its insured for work loss, subject to the $200 weekly limit. Other jurisdictions have held that workers' compensation benefits should be subtracted from an insured's actual wage loss to determine net loss. See, e.g., Motley v. State Farm Mutual Insurance Co., 502 Pa. 335, 466 A.2d 609 (1983); Record v. Metropolitan Transit Commission, Minn., 284 N.W.2d 542 (1979). (We note that Pennsylvania repealed its no-fault act effective October 1, 1984.)
The legislature had the prerogative to preclude persons receiving workers' compensation benefits from receiving BRB. It did not do this. The Act is worded so that workers' compensation benefits are deducted from a person's loss. The effect of KRS 304.39-120(1) is to make workers' compensation benefits primary in relation to no-fault benefits. Basic reparation benefits reimburse a person's loss not covered by workers' compensation benefits. Cf. Affiliated FM Insurance Cos. v. Grange Mutual Casualty Co., Ky.App., 641 S.W.2d 49, 51 (1982).
Kentucky Central argues that Morrison received a double recovery when he *825 received workers' compensation benefits and BRB. It is true that in Kentucky we have a strong policy against a double recovery for the same element of loss. Hargett v. Dodson, Ky.App., 597 S.W.2d 151 (1979). However, nothing prevents recovering benefits from separate sources for different elements of loss. Affiliated FM Insurance Cos., 641 S.W.2d at 51. See also Blue Cross & Blue Shield of Kentucky, Inc. v. Baxter, Ky.App., 713 S.W.2d 478, 480 (1986). In the instant case Morrison's recovery would be "double" only to the extent that the payments for work loss exceeded his actual work loss.
Kentucky Central also argues that KRS 304.39-210(3) operates to entitle it to reimbursement of all the BRB paid to Morrison. This section provides as follows:
A claim for basic or added reparation benefits shall be paid without deduction for the benefits which are to be subtracted pursuant to the provisions on calculation of net loss if these benefits have not been paid to the claimant before the reparation benefits are overdue or the claim is paid. The reparation obligor is entitled to reimbursement from the person obligated to make the payments or from the claimant who actually receives the payments.
The purpose of this section is to ensure prompt payment of full benefits to an insured while securing a reparation obligor's right to reimbursement where appropriate. Insofar as the BRB paid to Morrison for work loss exceeded his loss of income minus workers' compensation disability benefits paid, then Kentucky Central is entitled to reimbursement from him.
Upon remand, the circuit court should calculate Morrison's net loss to determine his right to BRB. Morrison's workers' compensation wage benefits should be subtracted from his average weekly wage, the difference being BRB work loss benefits Morrison is entitled to, with a weekly maximum of $200. Likewise, the medical benefits received from the compensation carrier should be subtracted from Morrison's actual medical expenses. Any impermissible duplicative payments, resulting in a double recovery for the same medical expenses, should be reimbursed to Kentucky Central. KRS 304.39-210(3). Of course, Kentucky Central is liable only for BRB up to $10,000. KRS 304.39-020(2).
Morrison also appeals the circuit court's award of prejudgment interest. Kentucky Central paid no-fault benefits to Morrison in installments, with the first installment of $631.35 being paid September 17, 1980. The circuit court awarded 12% interest on the entire amount of BRB ($9,957.00) from September 17, 1980.
In Kentucky, it is well-established that prejudgment interest is allowed as a matter of law on a liquidated claim, while interest on an unliquidated claim rests within the discretion of the court. General Accident Fire & Life Assurance Corp. v. Judd, Ky., 400 S.W.2d 685 (1966). We believe the circuit court erred in allowing interest on the total amount of BRB from the date of the earliest installment.
KRS 304.39-210(3) directs the reparations obligor to pay BRB without deducting workers' compensation benefits if the benefits have not been paid to the claimant before BRB are paid. Morrison was entitled by statute to BRB when they were paid. When Morrison received the workers' compensation benefits reimbursing him for the same element of loss previously paid by BRB, he effected a double recovery. Prejudgment interest should be awarded, if at all, from the dates and to the extent Morrison received a double recovery. Cf. Alexander Hamilton Life Insurance Co. v. Lewis, Ky., 550 S.W.2d 558 (1977).
We now turn to Kentucky Central's appeal of the judgment dismissing its subrogation claim against Great American. Kentucky Central argues that its statutory right of subrogation must be allowed by the circuit court. Great American argues that Kentucky Central's admission that its *826 payments duplicated INA's (the compensation carrier's) payments bars the subrogation claim and that KRS 304.39-210(3) requires Kentucky Central to look to Morrison for reimbursement of BRB. Great American argued in circuit court that Kentucky Central was not obligated to make BRB payments because workers' compensation benefits covered Morrison's net loss.
Our disposition of Morrison's appeal makes clear that Great American's arguments in the circuit court were erroneous. We reject Great American's argument that Kentucky Central's subrogation claim cannot succeed because of Kentucky Central's admission that BRB payments duplicated workers' compensation benefits. Kentucky Central's argument is that it is entitled to subrogation to the extent of BRB.
This issue is one of statutory interpretation. Basic reparation benefits were properly payable to Morrison for his losses not compensated by workers' compensation benefits. KRS 304.39-070 creates a statutory right of subrogation to the extent of BRB. Grange Mutual Casualty Co. v. McDavid, Ky., 664 S.W.2d 931 (1984); Stovall v. Ford, Ky., 661 S.W.2d 467 (1983). Kentucky Central is the real party in interest with regard to BRB and "the only party who could give the tortfeasor and his insurer a release for elements of damages covered by BRB." Stovall, 661 S.W.2d at 467. Morrison's settlement with Shamrock does not defeat the subrogation claim. Id.; Grange Mutual Insurance Co., 664 S.W.2d 931. Kentucky Central should be allowed to pursue its subrogation claim for the amounts of BRB properly payable.
The summary judgments are reversed and this cause is remanded to the circuit court for proceedings consistent with this opinion.
All concur.
NOTES
[1] Work loss, defined in KRS 304.39-020(5)(b), is "loss of income from work the injured person would probably have performed if he had not been injured, and expenses reasonably incurred by him in obtaining services in lieu of those he would have performed for income, reduced by any income from substitute work actually performed by him."
Medical expense, defined in KRS 304.39-020(5)(a), is "reasonable charges incurred for reasonably needed products, services, and accommodations, including those for medical care, physical rehabilitation, rehabilitative occupational training, and other remedial treatment and care. `Medical expense' may include nonmedical remedial treatment rendered in accordance with a recognized religious method of healing. . . . Medical expense shall include all healing arts professions licensed by the Commonwealth of Kentucky. There shall be a presumption that any medical bill submitted is reasonable." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576650/ | 35 S.W.3d 166 (2000)
Janice HAYNES, Appellant,
v.
CITY OF BEAUMONT, Paula Labrie, Individually and in her official capacity as Controller for the City of Beaumont, and Beverly Hodges, Individually and in her official capacity as Finance Director for the City of Beaumont, Appellees.
No. 06-00-00023-CV.
Court of Appeals of Texas, Texarkana.
Submitted July 13, 2000.
Decided December 8, 2000.
*172 Jon A. Haslett, Larry W. Watts, Watts & Associates, PC, Houston, for appellant.
Tyrone E. Cooper, Asst. City Atty., Beaumont, for City of Beaumont.
Dewwy J. Gonsoulin, Mehaffy & Weber, Beaumont, for Paula Labrie & Beverly Hodges.
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
OPINION
CORNELIUS, Chief Justice.
Janice Haynes appeals from an adverse summary judgment in her wrongful termination suit against the City of Beaumont, Paula Labrie, and Beverly Hodges. The suit arose from Haynes' termination from employment as a grant accountant for the City.
Haynes alleged in her petition that she was denied certain rights in violation of 29 U.S.C.A. § 2601 (West 1999), 42 U.S.C.A. § 1983 (West Supp.2000), and the United States and Texas Constitutions. She alleged that Labrie, who is the City's Controller and Haynes' former supervisor, pressured her into forgoing her rights under the Family and Medical Leave Act, 29 U.S.C.A. § 2601, harassed her when she asserted those rights, and ultimately terminated her for speaking out about those rights. She also alleged that Hodges, who is the City's Finance Director and Labrie's supervisor, was responsible for Labrie's actions and made the final decision to terminate her employment. All the defendants denied Haynes' allegations and asserted defenses of immunity. They also moved for summary judgment, which the trial court granted on all claims and as to all defendants.
Haynes challenges the trial court's summary judgment because she contends a genuine issue of fact exists in her causes of action under the FMLA, the First and Fourteenth Amendments to the United States Constitution, Article I, Sections 8 and 19 of the Texas Constitution, and her tort claim of negligent supervision against Hodges. Haynes also contends that Labrie and Hodges were not entitled to the affirmative defense of qualified immunity, and that the trial court erred in refusing to consider her late-filed response to the motions for summary judgment. We affirm the judgment of the trial court as to Haynes' causes of action under Section 1983 against Labrie and Hodges in their individual capacities, and affirm the judgment in favor of all defendants as to Haynes' free speech and due process claims under Section 1983. We also affirm the judgment as to the money damages portion of Haynes' Texas Constitutional claims. We sever and reverse the judgment as to Haynes' remaining claims and remand those claims to the trial court for trial.
Out-of-Time Response
Haynes contends that the trial court abused its discretion by denying her motion for leave to file an out-of-time response to the motions for summary judgment. Labrie and Hodges filed their motions for summary judgment on August 20; the City filed its motion for summary judgment on August 23. The court set a hearing on the motions for September 17, but continued it until October 6 at Haynes' request.
Under Tex.R.Civ.P. 166a(c),[1] Haynes had until September 29 to file her response, but that time could be extended under Tex.R.Civ.P. 5 to the date received if she mailed her response on or before September 29. See Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex.1995); Clendennen v. Williams, 896 S.W.2d 257, 259 (Tex. App.-Texarkana 1995, no writ). Haynes' response was mailed on September 30 *173 along with a motion for leave to file it out of time, but it was not received and filed until October 5, one day before the scheduled hearing.
In her motion, Haynes stated that on September 29 the law firm representing her discharged the attorney most familiar with her case, that another attorney at the firm discovered late the same day that the response had not been completed, and that despite his best efforts the attorney could not complete the response in time to get it in the mail on September 29. Haynes' attorney contacted opposing counsel, who agreed not to oppose an extension if the response was faxed to their office by 10:00 a.m. on September 30. It was not. In its order granting summary judgment, the trial court explicitly stated that it did not consider Haynes' response to the motions for summary judgment.
Whether to grant the nonmovant additional time to file a response to a motion for summary judgment is within the trial court's discretion. Tex.R.Civ.P. 166a(c). We therefore review the trial court's decision under an abuse of discretion standard. See Jatoi v. Decker, Jones, McMackin, Hall & Bates, 955 S.W.2d 430, 433 (Tex.App.-Fort Worth 1997, pet. denied); Atkins v. Tinning, 865 S.W.2d 533, 535 (Tex.App.-Corpus Christi 1993, writ denied); Folkes v. Del Rio Bank & Trust Co., 747 S.W.2d 443, 444 (Tex.App.-San Antonio 1988, no writ).
In Atkins, the court held that the trial court did not abuse its discretion in refusing to file a late response. Atkins v. Tinning, 865 S.W.2d at 535. In that case, the plaintiff received the defendant's motion on March 15 and a hearing was scheduled for April 3. The hearing was continued to April 10 at the plaintiff's request, but the plaintiff did not file his response until April 9. The court held that eighteen days was sufficient time for the plaintiff to file a response.
In Jatoi, the appellant's attorney was not retained until January 29, thirty-five days before a scheduled hearing on March 4. Jatoi v. Decker, Jones, McMackin, Hall & Bates, 955 S.W.2d at 433. His client neglected to inform him about the hearing. The appellant was placed in intensive care two weeks later, making communication between the attorney and the appellant impossible. Four days before the hearing, the attorney learned of the hearing and immediately filed a motion for an extension and, later, a motion for leave to file an out-of-time response. Nevertheless, the court held that the trial court did not abuse its discretion in refusing to grant a new trial.
In Folkes, the court found no abuse of discretion in refusing an out-of-state appellant's motion to file an untimely response, where the appellant received a month's continuance for the summary judgment hearing and where he had over three months to file a response. Folkes v. Del Rio Bank & Trust Co., 747 S.W.2d at 444.
Haynes had ample time to file a response. She had thirty-seven days, while in the cases just cited, Atkins had eighteen days, Jatoi had twenty-eight days, and Folkes had over three months. Haynes received a continuance from the first hearing, as did Atkins and Folkes. In Jatoi, the court found no abuse of discretion on facts more compelling than those here.
Haynes analogizes this situation to a motion for leave to file an untimely response to requested admissions.[2] She cites Credit Car Ctr., Inc. v. Chambers, 969 S.W.2d 459, 461 (Tex.App.-El Paso 1998, no pet.), where the defendants failed to file requested admissions because their outside counsel failed to timely forward the request to them. The attorney attributed *174 the failure in part to a change in secretaries in his office and in part to his own negligence. The court of appeals found that the trial court abused its discretion by not allowing the untimely filing because, under former Tex.R.Civ.P. 169, a party could successfully file untimely admissions by showing good cause. "Good cause," the court held, meant a showing that the party's failure to file was not intentional or in conscious disregard of its obligation to answer the request. Even a slight excuse for failure to answer will suffice.
Rule 166a(c) is different from former Rule 169 in that former Rule 169 required a showing of good cause. Neither current Rule 166a(c) nor its predecessor contains such a requirement. Nevertheless, there is authority that a showing of good cause is required under Rule 166a(c). See Diaz v. Rankin, 777 S.W.2d 496, 500 (Tex.App.-Corpus Christi 1989, no writ); Rhodes v. City of Austin, 584 S.W.2d 917, 922 (Tex. Civ.App.-Tyler 1979, writ ref'd n.r.e.).
Even measured by the standard she suggests, however, Haynes has not demonstrated good cause or that the trial court abused its discretion in failing to allow the late filing. The trial court had already continued the case at the request of her attorney. Haynes had eighteen days to file a response before the first scheduled hearing, and an additional nineteen days before the second hearing. Her attorneys could have avoided the late filing by ensuring that discharging the attorney most familiar with Haynes' case would not operate to her disadvantage.
Haynes also analogizes this situation to the imposition of death penalty sanctions. When a court issues sanctions, a direct relationship must exist between the offensive conduct and the sanction imposed, and the sanction must not be excessive. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). In TransAmerican, the Texas Supreme Court was construing the meaning of Tex. R.Civ.P. 215's requirement that a sanction be "just."
Rule 166a(c) does not envision a trial court's refusal to accept an untimely response as a death penalty sanction. In fact, the filing of a response is not even required under Rule 166a(c). The rule states that the adverse party may file a response. It cannot be a death penalty sanction to refuse to allow a party to do late what it is not required to do at all.
This is not to say that the failure to file a response is without consequence. If the nonmovant fails to respond to the summary judgment motion with evidence raising a fact issue that would preclude summary judgment, the nonmovant may not contend on appeal that there is a disputed issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). However, the trial court may not grant summary judgment by default when the movant's summary judgment proof is legally insufficient. The only ground for reversal the nonmovant may assert on appeal is the legal insufficiency of the motion for summary judgment and the supporting proof. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339-342 (Tex.1993); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d at 678.
Haynes contends that the trial court should have imposed a lesser sanction that punished the attorney rather than the party. Were we to say that the trial court should punish the offending attorney while accepting the late-filed response, we would be creating a new rule that would leave the trial court without the discretion Rule 166a(c) clearly allows. We cannot say in light of the above-cited cases that the trial court in the present case abused its discretion by refusing to consider Haynes' late-filed response.
In view of our holding that the court did not abuse its discretion in failing to allow the filing of the untimely response, we need not consider Haynes' tenth through *175 fifteenth points of error, which contend that summary judgment was improper because genuine issues of material fact exist.
Qualified Immunity
Haynes also contends that the trial court erred in granting summary judgment and in failing to grant her motion for new trial because Labrie and Hodges failed to prove they were entitled to qualified immunity as a matter of law. Qualified immunity is an immunity from suit available to government officials sued in their individual capacities under 42 U.S.C.A. § 1983. Gordon v. Scott, 6 S.W.3d 365, 369 (Tex.App.-Beaumont 1999, no pet.); Carrera v. Yepez, 6 S.W.3d 654, 661 (Tex.App.-El Paso 1999, pet. dism'd w.o.j.); Lewis v. Guerrero, 978 S.W.2d 689, 693 (Tex.App.-Corpus Christi 1998, no pet.); Bexar County v. Giroux-Daniel, 956 S.W.2d 692, 694 (Tex. App.-San Antonio 1997, no pet.).
Government officials performing discretionary functions have qualified immunity from liability for actions that do not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Wilson v. Layne, 526 U.S. 603, 614, 119 S. Ct. 1692, 1699, 143 L. Ed. 2d 818, 830 (1999); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982). In practice, whether an official protected by qualified immunity may be held personally liable turns on the objective legal reasonableness of the action assessed in light of clearly established legal rules at the time the action was taken. Wilson v. Layne, 526 U.S. at 614, 119 S.Ct. at 1699, 143 L.Ed.2d at 830. The right is clearly established if it is sufficiently clear that a reasonable official would understand that his acts violate that right. Id. (citing Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523, 530 (1987)).
Initially, Haynes contends that Labrie and Hodges failed to adequately plead qualified immunity. We find, however, that Labrie's and Hodges' amended answers adequately pleaded qualified immunity because each alleges that she was acting in good faith and within the scope of her authority.
Haynes also contends that although Labrie's and Hodges' motions for summary judgment assert that they have qualified immunity, the cases they cite in their motions pertain to the defense of official immunity. The defenses, though similar, are distinct. Qualified immunity generally applies to claims under Section 1983; official immunity applies to state law tort claims. See Bexar County v. Giroux-Daniel, 956 S.W.2d at 695 n. 4; Hudson v. Vasquez, 941 S.W.2d 334, 338 (Tex.App.-Corpus Christi 1997, no writ); Robinett v. Carlisle, 928 S.W.2d 623, 625 (Tex.App.-Fort Worth 1996, writ denied).
We construe Labrie's and Hodges' motions as pleading the defense of qualified immunity. Their motions asserted their immunity defense in the same form and citing the same cases. Haynes brought most of her claims under Section 1983; in fact, the only state law tort claim she alleged is the negligent supervision claim against Hodges. Consequently, official immunity would have aided Hodges only on a single claim and would not have aided Labrie at all because she was not sued under state tort law. Further, there is no indication that the trial court relied on Labrie's and Hodges' citations of law in granting summary judgment.
When a defendant pleads qualified immunity to a Section 1983 claim and shows she is a governmental official whose position involves the exercise of discretion, the plaintiff then has the burden to rebut the defense. Carrera v. Yepez, 6 S.W.3d at 661; Montana v. Patterson, 894 S.W.2d 812, 816 (Tex.App.-Tyler 1994, no writ); Thomas v. Collins, 860 S.W.2d 500, 503 (Tex.App.-Houston [1st Dist.] 1993, writ denied); see also Pierce v. Smith, 117 F.3d 866, 872 (5th Cir.1997); Salas v. Carpenter, *176 980 F.2d 299, 306 (5th Cir.1992). The plaintiff must show that (1) the official's conduct violated a federally guaranteed right, (2) the right was clearly established, and (3) the official's conduct was objectively unreasonable in light of the clearly established right. Carrera v. Yepez, 6 S.W.3d at 661; Montana v. Patterson, 894 S.W.2d at 816; Thomas v. Collins, 860 S.W.2d at 503; see also Pierce v. Smith, 117 F.3d at 872; Salas v. Carpenter, 980 F.2d at 306.
Haynes contends that summary judgment was improper on this basis because Labrie and Hodges failed to present any argument or authority that the rights at issue were not clearly established, or that their conduct was objectively reasonable. However, as stated above, the burden was on Haynes to demonstrate that Labrie and Hodges were not entitled to the qualified immunity defense. She failed to do this when she failed to file a timely response to their motions for summary judgment. The trial court was therefore authorized to grant summary judgment to Labrie and Hodges in their individual capacities on Haynes' claims under Section 1983.
Haynes contends that her petition alleges facts with sufficient specificity to overcome Labrie's and Hodges' qualified immunity defense. In Schultea v. Wood, 47 F.3d 1427, 1432-33 (5th Cir.1995), the Fifth Circuit altered its heightened pleading requirement in cases involving qualified immunity. The court had required that complaints in such cases be pleaded with "factual detail and particularity." Id. at 1430 (quoting Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir.1985)). In Schultea, the court gave district courts discretion to require the plaintiff to file a reply tailored to the assertion of qualified immunity when the defendant raises a qualified immunity defense. Id. at 1433. Regardless of the pleading rules in federal courts, in Texas the facts alleged in the plaintiff's pleadings do not constitute competent summary judgment evidence. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d at 678.
The City contends that if its employees did not violate Haynes' rights under Section 1983, then it likewise cannot be held liable under Section 1983. We do not address this contention because the City did not raise the issue in its motion for summary judgment in the trial court.
Governmental Immunity
Labrie and Hodges contend they are not liable for actual or punitive damages in their official capacities because they qualify for governmental immunity. They made the same assertion in substantially the same form in their motions for summary judgment. We do not know whether the trial court granted summary judgment on this basis; however, we find the contention improperly briefed before this Court. Their argument consists of a single assertion accompanied by citations to three cases, Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985), Brandon v. Holt, 469 U.S. 464, 105 S. Ct. 873, 83 L. Ed. 2d 878 (1985), and Colvin v. McDougall, 62 F.3d 1316, 1317 (11th Cir.1995). It does not contain supporting argument demonstrating how these three cases should govern our decision. Indeed, it is not immediately apparent from these cases what the governing rule is when the governmental immunity defense is raised. None of these authorities addresses the governmental immunity defense raised by Labrie and Hodges in the trial court. Because Labrie and Hodges fail to demonstrate how this defense applies, we will not consider their contention that governmental immunity was a proper basis for granting summary judgment.
Section 1983 Claims
Anticipating our holding under issue fivethat the trial court did not err in refusing to consider Haynes' late-filed responseHaynes contends the trial court's grant of summary judgment on these *177 claims is improper. The only ground for reversal Haynes may now assert on appeal, however, is the legal insufficiency of the motion for summary judgment and the supporting proof. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d at 339-42; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d at 678.
The motions for summary judgment attacked the evidentiary basis only of Haynes' federal law claims made pursuant to Section 1983. Therefore, we will limit our review to the evidence of these claims.
Under Section 1983, a city may be treated as a person and may be held liable for the deprivation of a citizen's federal rights. See Monell v. Dep't of Social Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611, 635 (1978); Brooks v. Ctr. for Healthcare Servs., 981 S.W.2d 279, 284 (Tex.App.-San Antonio 1998, no pet.). However, a city may be successfully sued directly only if the action alleged to violate the plaintiff's federal rights implements a decision officially adopted and promulgated by the city's officers. Monell v. Dep't of Social Servs., 436 U.S. at 694, 98 S.Ct. at 2037-38. A city is not liable merely because it employs a tortfeasor. As the United States Supreme Court recently stated, "it is not enough for a § 1983 plaintiff merely to identify conduct attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged." Bryan County Comm'rs v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388, 137 L. Ed. 2d 626, 639 (1997).
The initial analysis in any Section 1983 action is whether the two essential elements under that section are present. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420, 430 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 330, 106 S. Ct. 662, 664, 88 L. Ed. 2d 662 (1986). These elements are: (1) the conduct complained of was committed by a person acting under color of state law and (2) the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or the laws of the United States. Id. (citing Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979)).
The parties do not contest Haynes' position that the acts on which the suit is based were made under color of state law, so that issue is not before us. The further questions are (1) whether her allegations are not based on conduct that deprived her of rights, privileges, or immunities secured by the Constitution or the laws of the United States, or (2) whether there is uncontroverted summary judgment proof disproving some element of her allegations, thus conclusively disproving the existence of wrongful conduct.
Appellees have directed us to summary judgment evidence they allege shows (1) that Haynes' application for maternity leave under the FMLA was approved; (2) that Haynes made numerous trips to her doctor during working hours with Labrie's approval; (3) that Haynes took nine weeks of maternity leave with appellees' approval; and (4) that Haynes had never been cleared by her doctors to return to work on an interim basis. This evidence, they allege, demonstrates that they afforded Haynes the benefits to which she was entitled under the FMLA.
Even if this is true, it does not disprove Haynes' allegation that she was terminated for asserting her rights under the FMLA. In short, appellees could have granted her the leave she requested under the FMLA, but then punished her for requesting it and taking it. On that issue, their summary judgment evidence shows (1) that Bob Foster, an investigator with the Department of Labor whose duty was to investigate and determine whether violations of the FMLA existed, did not find any violations; (2) that the Equal Employment Opportunity Commission (EEOC) and the Texas Commission on Human Rights did not find evidence of harassment; (3) that Labrie's affidavit states *178 that Haynes was fired because of her unacceptable behavior; and (4) that Hodges' affidavit states that she fired Haynes because of Haynes' behavior.
This evidence does not conclusively disprove Haynes' allegations. Haynes stated in her deposition that Foster had not investigated the situation and believed the City was "blowing smoke." Further, at most Haynes stated in her deposition that the EEOC and the Commission on Human Rights had not found evidence of harassment, but she did not state whether they found any evidence that she was terminated for asserting her rights under the FMLA. She also stated that neither the EEOC nor the Commission had investigated the situation.
As to Labrie's and Hodges' affidavits, Haynes contends they are not notarized and therefore are incompetent summary judgment proof. However, she did not object to this defect of form, so it is waived. Tex.R.Civ.P. 166a(f). Haynes also contends that these affidavits state mere conclusions. An objection that an affidavit is conclusory is an objection to the substance of the affidavit that can be raised for the first time on appeal. Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex.App.-Houston [1st Dist.] 1999, no pet.). An affidavit of an interested party may serve as competent summary judgment proof so long as such affidavit evidence is clear, positive, direct, credible, free from contradiction, and susceptible of being readily controverted. Gordon v. Western Steel Co., 950 S.W.2d 743, 749 (Tex.App.-Corpus Christi 1997, pet. denied). Conclusory statements in affidavits are not competent evidence to support a summary judgment. A conclusory statement is one that does not provide the underlying facts to support the conclusion. Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex.App.-Houston [14th Dist.] 2000, no pet. h.) (quoting Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App.-Houston [1st Dist.] 1997, no pet.)).
Both affidavits make self-serving, conclusory statements without any underlying factual detail. Hodges' affidavit states that she decided to fire Haynes "on November 30, 1994 because of her poor and unacceptable behavior to Paula Labrie" and that she based her decision primarily on Labrie's recommendation and her own observation of Haynes on November 29 and 30. Labrie's affidavit states that Hodges terminated Haynes on Labrie's recommendation, that she believed Haynes was terminated for poor and unacceptable behavior, and that Haynes was not terminated for her exercise of her free speech rights. Neither affidavit gives examples of Haynes' poor and unacceptable behavior. Consequently, they are not readily controvertible.
Haynes also contends that her right to free speech guaranteed by the United States Constitution was infringed because she was terminated for exercising that right. In order to establish such a claim Haynes must show that (1) she suffered an adverse employment decision; (2) her speech involved a matter of public concern; (3) her interest in commenting on matters of public concern outweighs the defendants' interest in promoting efficiency, and (4) her speech was a motivating factor in the defendants' decision. Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir.1999).
The First Amendment protects speech by an employee commenting as a citizen on a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708, 720 (1983). Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record. Connick v. Myers, 461 U.S. at 147-48, 103 S.Ct. at 1690; Upton County, Texas v. Brown, 960 S.W.2d 808, 814 (Tex.App.-El Paso 1997, no pet.).
Appellees sought summary judgment on this claim based solely on *179 their position that Haynes' speech did not involve a matter of public concern. Haynes informed federal authorities of her employer's and supervisors' alleged violations. Thus, she reported alleged misbehavior to higher authorities, and there is evidence from which a jury might conclude that she was terminated for those acts. We are to determine de novo from the entire record whether that kind of speech is protected. Rankin v. McPherson, 483 U.S. 378, 386 n. 9, 107 S. Ct. 2891, 2898 n. 9, 97 L. Ed. 2d 315, 325 n. 9 (1987). The basis for awarding constitutional protection to private speech on the part of employees of a governmental agency is to allow the employees to participate freely in public affairs and avoid chilling their use of speech that the employer might find objectionable. Pickering v. Bd. of Educ., 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). When a public employee speaks not as a citizen but as an employee on a matter of personal interest, constitutionally protected speech is not involved. Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708. In determining whether the speech is protected, we focus not on the inherent importance of the matter discussed, but whether the speech was made primarily in the plaintiff's role as a citizen or primarily in her role as an employee. Terrell v. Univ. of Texas Sys. Police, 792 F.2d 1360 (5th Cir.1986). The mere fact that the subject of the speech is one in which the public may have a great interest is not controlling. Id. at 1362. As said by the United States Supreme Court in Connick, "To presume that all matters which transpire within a government office are of public concern would mean that virtually every remarkand certainly every criticism directed at a public officialwould plant the seed of a constitutional case." Connick v. Myers, 461 U.S. at 149, 103 S.Ct. at 1691. We find that Haynes' speech in this regard did not involve a matter of public concern. Haynes spoke only about a private grievance against her employer. Although her complaints involved alleged violations of the Family and Medical Leave Act, they related only to her private treatment and did not implicate any general policy consideration of public concern. Thus, we find that summary judgment on this issue was proper.
Haynes also contends that she was deprived of due process in the loss of her property interest in her job and in the procedures regarding termination of city employees. Appellees respond that Haynes was employed at-will and could be summarily terminated regardless of the reason. The long-standing rule in Texas is that employment relationships are terminable at any time by either party, with or without cause, unless there is an express agreement to the contrary. Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex.1993); Curtis v. Ziff Energy Group, Ltd., 12 S.W.3d 114, 117 (Tex.App.-Houston [14th Dist.] 1999, no pet.).
Haynes' contentions are based on the City's employee handbook, which provides a detailed disciplinary regimen for termination of employees. The handbook does not, however, expressly create a contract or a protected interest in continued employment. Instead, it grants discretion to department heads and final authority to the City Manager. This kind of language does not expressly, clearly, and specifically modify the at-will employment status of city employees. Byars v. City of Austin, 910 S.W.2d 520, 524 (Tex.App.-Austin 1995, writ denied).
The existence of a grievance procedure for employee complaints has been held not to alter the at-will nature of employment. Byars v. City of Austin, 910 S.W.2d at 524; Renken v. Harris County, 808 S.W.2d 222, 225 (Tex.App.-Houston [14th Dist.] 1991, no writ); see also Evans v. City of Dallas, 861 F.2d 846, 850 (5th Cir.1988). In fact, the City's manual explicitly states in its introduction that the policies do not create a contract or limit the City's power to terminate an employee in any way. Because the existence of *180 grievance procedures alone does not create substantive property rights or alter an employee's at-will status, the City conclusively proved that Haynes had no protected property interest in her employment that would entitle her to more procedural protection than she received. Byars v. City of Austin, 910 S.W.2d at 524; see also Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 503 (Tex.1998). There is no summary judgment evidence to the contrary. Therefore, no issue of material fact has been raised in this context, and summary judgment was appropriate on this claim.
FMLA Claim
Haynes also contends that the trial court erred in granting summary judgment on her claims under Section 1983 for violations of the FMLA because appellees presented no argument, authority, or evidence in their motions for summary judgment addressing these claims.
We begin by noting that Haynes' petition is not a model of clarity concerning her claims under the FMLA. In fact, under Section IV of her petition, titled "Causes of Action," she does not specifically allege that she was deprived of her rights under the FMLA.
The purpose of pleadings is to give fair and adequate notice of the facts on which the pleader bases her claim. Tex.R.Civ.P. 45, 47; Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982). We also must construe pleadings liberally in favor of the pleader if special exceptions have not been filed. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 186 (Tex.1977). Defects in pleadings not excepted to are waived. Tex.R.Civ.P. 90.
Appellees did not file special exceptions to Haynes' petition in the trial court. However, one who is sued on specific theories of recovery is not required to except to the petition and ask whether there are other theories that the pleader wants to allege. Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 920 (Tex. App.-San Antonio 1997, writ denied); Roberts v. Southwest Texas Methodist Hosp., 811 S.W.2d 141, 145 (Tex.App.-San Antonio 1991, writ denied).
Haynes' claims under the FMLA are arguably indistinguishable from her other causes of action. Yet, appellees do not contend on appeal that Haynes' petition failed to raise a cause of action for violations of the FMLA. Faced with appellees' silence on this point in both the trial court and on appeal, we review Haynes' petition deferentially. Construing Haynes' petition liberally, we find that the facts she alleges in Section III could raise a cause of action for violations of the FMLA. Under 29 U.S.C.A. § 2615(a)(1) (West 1999), "It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." The facts in Haynes' petition allege that appellees pressured her into forgoing her rights under the FMLA and punished her when she asserted those rights.
We now turn to Haynes' contention that appellees' motions for summary judgment do not contain argument concerning her FMLA claim. A court may not properly grant summary judgment on a ground not expressly set out in the motion for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d at 339-342; City of Houston v. Clear Creek Basin Auth., 589 S.W.2d at 677.
Here, also, we note that appellees' motions for summary judgment are not models of clarity concerning their responses to Haynes' claims under the FMLA. Specifically, each motion contains a separate section rebutting the specific causes of action raised by Haynes in Section IV of her petition, but there is no separate section addressing Haynes' claims under the FMLA. However, their motions also allege facts, with corresponding citations to their summary judgment evidence, demonstrating *181 their compliance with Haynes' rights under the FMLA. The question is whether these facts, unaccompanied by argument showing why they are entitled to summary judgment on the FMLA claim, are sufficient to constitute a ground for summary judgment. We hold they are not.
The motion for summary judgment must itself state specific grounds on which judgment is sought and must stand or fall on the grounds it specifically sets forth. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d at 339.
In Lochabay v. Southwestern Bell Media, Inc., 828 S.W.2d 167, 170 (Tex.App.-Austin 1992, no writ), the appellee moved for summary judgment on the appellant's counterclaim on the grounds that "[Appellant's] counterclaim citing [appellee's] use of deceptive trade practices is wholly unsupported by legal authority. [Appellant] [also] claims a breach of [appellee's] alleged duty to advise and warn as to the advertisement's effectiveness; however, no such implied duty exists under Texas law." The court of appeals found appellee's grounds were stated broadly but expressly. The court also found that the appellant waived any complaint by failing to object to the motion for summary judgment for lack of specificity.
In Conquistador Petroleum, Inc. v. Chatham, 899 S.W.2d 439, 442 (Tex.App.-Eastland 1995, writ denied), the appellee's motion for summary judgment stated its grounds as "the affirmative defense of unenforceability pursuant to the Rule Against Perpetuities." The court of appeals held that, in the absence of a special exception, the motion sufficiently set forth the ground on which summary judgment was sought.
Here, appellees' motions do not contain specific contentions that they are entitled to summary judgment on Haynes' FMLA claim. In contrast, the motions clearly allege facts and argument as grounds for summary judgment on Haynes' other claims.
Arguably, Haynes should have been required to file special exceptions to their motions, as the Lochabay and Conquistador courts suggest. However, when the motion for summary judgment clearly presents certain grounds but not others, a nonmovant is not required to except. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d at 339; Roberts v. Southwest Texas Methodist Hosp., 811 S.W.2d at 145-46. We therefore hold that the trial court erred in granting appellees' motions for summary judgment concerning Haynes' claims under Section 1983 for violations of the FMLA.
Negligent Supervision
In her third and fourth points of error, Haynes contends that the trial court erred in granting summary judgment and in failing to grant her motion for new trial regarding her claim of negligent supervision against Hodges, because Hodges failed to present any argument, authority, or evidence in her motion for summary judgment addressing this claim. In her petition, Haynes claimed that Hodges had actual and constructive knowledge of Labrie's harassment and denial of Haynes' rights under the FMLA.
Hodges contends that Haynes failed to allege specific facts concerning which rights under the FMLA Labrie violated. She also contends that her summary judgment evidence shows that she only supervised Labrie for fourteen days before Haynes went on maternity leave. The evidence also shows, she contends, that she terminated Haynes based on specific problems she observed when Haynes returned to work from maternity leave. Finally, Hodges contends that a supervisor cannot be sued under a theory of respondeat superior under Section 1983.
Even if all of the above is correct, these arguments were not before the trial court when it granted the motion for summary *182 judgment. Therefore, the trial court erred in granting summary judgment and in failing to grant Haynes' motion for new trial regarding her claim of negligent supervision against Hodges.
Texas Constitutional Claims
Haynes next contends that the trial court erred in granting summary judgment and denying her motion for new trial regarding her causes of action under the Texas Constitution. In her petition, she contended that the appellees retaliated against her for engaging in speech of public concern, specifically the proper interpretation of the FMLA. She also contended that, without due course of law, she was deprived of her property interests in her job, in the City's established procedures regarding termination, and in the proper application of the FMLA. These actions, she maintained, violated her rights under Tex. Const. art. I, §§ 8, 19.[3]
In their motions for summary judgment, appellees contended that Texas law does not provide a private right of action for damages arising under Article I, § 8, nor a common law cause of action for damages to enforce constitutional rights in general. On appeal, Haynes asserts that Texas law does provide for equitable relief for violations of constitutional rights. She maintains that she pleaded for equitable relief in the form of declaratory and injunctive relief, including reinstatement with back pay and benefits. She also pleaded that appellees be enjoined from depriving her of her constitutional rights.
Appellees contend that even if Texas law allows equitable relief for constitutional claims, Haynes would still need to demonstrate an underlying violation of her constitutional rights. While undoubtedly true, that is not the basis on which either the City or Labrie and Hodges moved for summary judgment.
Texas recognizes neither an implied private right of action nor a common law cause of action for damages. City of Beaumont v. Bouillion, 896 S.W.2d 143, 149-50 (Tex.1995). However, equitable remedies for violation of constitutional rights may be enforced. Id. at 149. Though the holding in Bouillion applied only to claims under Article I, § 8, other courts have extended its reasoning to apply to claims under Article I, § 19. O'Bryant v. City of Midland, 949 S.W.2d 406, 413 (Tex.App.-Austin 1997), aff'd in part and rev'd in part on other grounds, 18 S.W.3d 209 (Tex.2000); Univ. of Texas Sys. v. Courtney, 946 S.W.2d 464, 468 (Tex.App.-Fort Worth 1997, writ denied); see also Vincent v. W. Texas State Univ., 895 S.W.2d 469, 475 (Tex.App.-Amarillo 1995, no writ).
Whether reinstatement and back pay are recognized equitable remedies has been addressed by Texas courts. In O'Bryant, the court of appeals characterized a request for back pay to remedy a constitutional violation as an action at law rather than in equity. Id.; see also Jackson v. Houston Indep. Sch. Dist., 994 S.W.2d 396, 400 (Tex.App.-Houston [14th Dist.] 1999, no pet.). In that case, the appellants were seeking money because they were prevented from conferring a benefit, rather than as compensation for services rendered or to prevent unjust enrichment. Id. at 414. That reasoning is analogous to the present case, and we hold that granting summary judgment was appropriate to the extent that Haynes requested money damages, including back pay.
*183 The O'Bryant court also held that reinstatement is an equitable remedy per se. On appeal to the Texas Supreme Court, the appellants did not challenge that holding, but contended that they could not reinstate the appellee. City of Midland v. O'Bryant, 18 S.W.3d at 218. The Supreme Court held that appellants had not raised the issue in their motion for summary judgment and reversed the trial court's decision to grant summary judgment.
The posture of the present case is similar to what confronted the Supreme Court. Appellees did not contend in their motions for summary judgment or on appeal that reinstatement is not a proper equitable remedy. We therefore hold that the trial court erred in granting summary judgment on Haynes' Texas Constitutional claims because she requested reinstatement and other equitable remedies.
For the reasons stated, we affirm the judgment for the City, and for Hodges and Labrie on all causes of action except the claim against the City, and Labrie and Hodges in their official capacities for violations under Section 1983 of the FMLA, the claim against Hodges for negligent supervision, and the claim against the City, Labrie, and Hodges for equitable relief from violations of the Texas Constitution. Those portions of the judgment are severed, and are reversed and remanded to the trial court for trial.
NOTES
[1] Tex.R.Civ.P. 166a(c) states in part, "Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response."
[2] In response, the City contends that Haynes has chosen to analogize to an area of law in which good cause is relatively easy to show. The City recommends that we use the standard of good cause for supplementing discovery at trial. As the City observes, courts have found inadvertence of counsel alone is not good cause for allowing an untimely-disclosed witness to testify. Sharp v. Broadway Nat'l Bank, 784 S.W.2d 669, 672 (Tex.1990).
[3] Tex. Const. art. I, § 8 states:
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.
Tex. Const. art. I, § 19 states:
No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576517/ | 346 S.W.2d 364 (1961)
ANCHOR CASUALTY COMPANY, Appellant,
v.
Blanche CRISP, Appellee.
No. 7042.
Court of Civil Appeals of Texas. Amarillo.
May 1, 1961.
*365 Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
R. S. Sutton, Amarillo, for appellee.
DENTON, Chief Justice.
This is an appeal from a judgment allowing recovery on a fire insurance policy. On April 22, 1958, appellant insurance company, through its agent Howard Williams, issued a fire insurance policy to appellee covering her residence. The policy was for a period of five years and provided coverage for the sum of $4,000. It is admitted that appellee's house was totally destroyed by fire on November 18, 1959. The insurance company denied liability on the ground the policy sued on was canceled by a written notice mailed by its agent to the insured on June 10, 1959, some five months prior to the fire. The trial court, without the intervention of a jury, rendered judgment for the plaintiff and the insurance company brought this appeal.
The premium for the insurance policy was $98.70 of which only a portion was paid by the insured. There is conflicting testimony as to exactly how much had been paid; however, we are of the opinion the evidence supported the trial court's finding that the insured had made no payment on the installment note executed to the insurance company's agent. It is undisputed that she had made a down payment but the amount of such payment is in dispute. It is apparent from the record that appellee was in default on the premium payments at the time the cancellation notice was mailed, and at the time her house was destroyed by fire. The trial court further found, and it was conceded by appellee, that appellant's agent properly mailed a cancellation notice addressed to Mrs. Crisp at 1018 North Hughes Street, Amarillo, Texas. This was the correct address of her residence and also the address placed in the insurance policy. The trial court further found the notice was not returned to the agent by the post office authorities, but he *366 further found the notice was not received by the insured. The court concluded that the policy was in effect on November 18, 1959, the date of the fire loss and that the insurance company was indebted to Mrs. Crisp in the amount of $4,000 plus interest.
The controlling question to be determined here is whether or not the insurance policy was in fact cancelled in accordance with the provisions of the policy. The policy provided: "The insured may cancel this policy by notice to this company; upon surrender of the policy this company shall refund the short rate unearned paid premium. This company may cancel this policy by giving the insured five days written notice; such notice shall state that the pro rata unearned paid premium, if not tendered, will be refunded on demand."
It is the established rule in Texas that to effect a cancellation the conditions of the policy upon which rests the insurer's right of cancellation must be complied with and followed strictly. Duff v. Secured Fire & Marine Ins. Co., Tex.Civ.App., 227 S.W.2d 257 (no writ history); United States Ins. Co. v. Brown, Tex.Civ.App., 285 S.W.2d 843 (no writ history); Buffalo Ins. Co. v. Best, Tex.Civ.App., 312 S.W.2d 270 (n. r. e.).
A careful examination of the statement of facts reveals only one basic dispute between the parties. Although the insurance agent and Mrs. Crisp are in disagreement as to how much was paid by Mrs. Crisp on the premium due, it is conceded by both parties that the house was a total loss and that the cancellation notice was properly mailed to the insured on June 10, 1959. It is also undisputed that the letter containing the cancellation notice was not returned by the post office. The dispute arises over whether or not the insured actually received the cancellation notice. Mrs. Crisp testified positively she did not receive it. Appellant is relying on the well settled rule that when a letter properly addressed and with postage prepaid is mailed, a presumption of fact arises that it was duly received by the addressee. In support of its position appellant cites Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854. We agree that this is a well settled rule in this State, but the Greenwade case itself is authority that such a presumption is rebuttable and such presumption has the force of a rule of law only in the absence of evidence to the contrary. See also McCormick and Ray, "Texas Law of Evidence," Second Edition, Sections 52 and 53.
When Mrs. Crisp denied that she ever received the cancellation notice we think the above presumption was rebutted, and it then became a fact issue. Brewer v. Maryland Cas. Co., Tex.Civ.App., 245 S.W.2d 532; Anderson v. Nat. Aid Life Ass'n, Tex.Com.App., 140 Tex. 308, 167 S.W.2d 739 (opinion adopted). The trial court resolved this issue against the insurance company. The court, as the trier of the facts, found the notice of cancellation was not in fact received by Mrs. Crisp. This finding had the effect of overcoming the presumption that it was received. Appellate courts are bound by the trial court's findings of fact which are supported by some evidence of probative value and we are required to view the evidence in a light most favorable to the successful party. John Hancock Mut. Life Ins. Co. v. Stanley, Tex.Civ.App., 215 S.W.2d 416 (no writ history); Walton v. Woolworth, Tex.Civ.App., 222 S.W.2d 347 (no writ history). We are of the opinion the evidence is sufficient to support the trial court's finding that the notice of cancellation was not received by the insured.
We will now consider the question of whether or not actual receipt of the cancellation notice by the insured is a condition precedent to the cancellation of the policy by the insurer. This requires an inspection of the cancellation clause of the policy. It will be noted that the policy permitted the company to cancel *367 the policy "* * * by giving the insured five days written notice." This clause is clearly distinguishable from those permitting an insurer to cancel the policy "* * * by mailing written notice to the insured's address," or similarly phrased clauses. Where the policy requirement is the "mailing" of the notice to the insured, the universally accepted rule is that the actual receipt by the insured of such notice is not a condition precedent to the cancellation of the policy. The mere mailing of the letter containing the cancellation notice is sufficient to effect cancellation. California-Western States Life Ins. Co. v. Williams, Tex.Civ.App., 120 S.W.2d 844 (error dismissed); Duff v. Secured Fire & Marine Ins. Co., supra; Texas Cas. Ins. Co. v. McDonald, Tex.Civ.App., 269 S.W.2d 456 (no writ history).
As pointed out above, the insurer in the instant case was required to give five days notice in order to complete the cancellation. When the policy is so worded it is also the settled rule that the actual receipt by the insured of the cancellation notice is a condition precedent to a cancellation of the policy by the insurer. See 64 A.L.R. 2d 996, and cases there cited. This rule was applied in Republic Ins. Co. v. Inverness Estates, Tex.Civ.App., 252 S.W.2d 251 (error refused). In that case the fire insurance policy contained the identical cancellation provision we have before us. Although the Inverness Estates case can be distinguished on the facts from the instant case, it held in effect that it was necessary for the cancellation notice to have been delivered to the insured five days prior to the date of the fire in order to cancel the policy by the insurer. There the cancellation notice was mailed to insured and it was delivered on December 13, 1950. A fire which destroyed property covered in the policy occurred on December 16, 1950. The court held the policy was in full force and effect as the five days notice requirement had not been complied with. It is significant that the date of the mailing of the cancellation notice was not considered by the court in determining whether or not the cancellation was effective.
The burden was on the appellant to prove its alleged defense of cancellation. Being of the opinion the terms of the policy required actual receipt of the notice by the insured, we conclude appellant did not discharge its burden by proving the mere mailing of such notice. Under the provisions of the policy in question we therefore hold the mailing of the cancellation notice, but which was found by the trial court not to have been received by the insured, was not effective as a cancellation of the insurance policy.
Having considered all points of error brought forward, we are of the opinion the record reflects no reversible error. The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576528/ | 346 S.W.2d 359 (1961)
HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant,
v.
Douglas F. GANT, Appellee.
No. 15826.
Court of Civil Appeals of Texas. Dallas.
March 31, 1961.
Rehearing Denied May 5, 1961.
Jackson, Walker, Winstead, Cantwell & Miller and L. P. Bickel, Dallas, Gullett & Gullett, Denison, for appellant.
Slagle, Hughes & Kennedy, Sherman, for appellee.
WILLIAMS, Justice.
This is a workmen's compensation case. Appellee, Douglas F. Gant, alleged that on *360 May 1, 1959, while engaged in his duties for his employer, Anderson-Clayton Company, he sustained a strain while engaged in parking and unloading his truck, said strain and exertion causing an injury to his heart and resulting in total and permanent disability. Based upon the verdict of the jury the trial court rendered judgment for appellee for total permanent disability benefits.
At the outset appellee has filed a motion to strike appellant's "amended brief". Appellant's original brief contained 12 points of error and in its amended brief it brings forth 22 points of error. Appellant states, both in the amended brief and in oral argument, that the sole purpose and effect of filing the amended brief is to eliminate original points of error 6, 7 and 8 which are no longer relied upon, and thereby waived, and also to cure possible objections that points of error 4 and 5 of the original brief are multifarious. No new points of error are assigned in the amended brief. Appellant, in the amendment, merely eliminates 3 points and then breaks down into separate points the identical questions raised in its original points 4 and 5. We see no possible harm or damage to appellee by this method of briefing and therefore overrule appellee's motion to strike the amended brief.
Both in its amended brief and in oral submission before this Court, appellant frankly states that it predicates its appeal solely on two contentions, (1) that there is no evidence; or (2) the evidence is wholly insufficient to establish (1) that appellee sustained an injury within the meaning of the Workmen's Compensation Law of Texas, and (2) that there was a causal connection between any alleged injury and the resulting heart attack sustained by appellee on the occasion in question. By its points 1 to 8 inclusive, appellant sets forth "no evidence" points. These have to do with the alleged error of the court in failing to grant appellant's motion for instructed verdict, motion for judgment non obstante veredicto, and also in overruling appellant's objections to the submission of special issues 1, 1A, 1B, 2 and 4. Appellant's second group of points being numbered 9 to 22 inclusive, are "insufficiency evidence" points. They have to do with the alleged error of the court in overruling appellant's motion for new trial based on complaints of the insufficiency of the evidence to support the jury's findings to material factual issues concerning the injury and the causal connection thereof with the heart attack sustained by appellee.
In considering these "no evidence" and "insufficient evidence" points of error we are guided by the rules which are so carefully and explicitly explained by Chief Justice Robert W. Calvert of the Supreme Court in his Article entitled "No Evidence" and "Insufficient Evidence" Points of Error, Texas Law Review, Vol. 38, April 1960, pp. 361-372. There, in discussing the "no evidence" points Justice Calvert said:
"It is in deciding `no evidence' points in situation (c) that the courts follow the further rule of viewing the evidence in its most favorable light in support of the findings of the vital fact, considering only the evidence and the inferences which support the finding and rejecting the evidence and the inferences which are contrary to the finding."
In Higginbotham v. O'Keeffe, Tex.Civ. App.1960, 340 S.W.2d 350, 354, (no writ history) the rule applicable to consideration of "no evidence" points is stated:
"Appellants' first two points of error complain of the trial court's refusal to instruct a verdict for defendants, and its failure to render judgment in the defendants' favor, not withstanding the verdict. These two points of error deal only with the question of law of `no evidence'. Any points of errors relating to motions for instructed verdict or motions for judgment not withstanding the jury's verdict are said to be `no evidence' points of error regardless *361 of the language used in the points of error. (Citing Judge Calvert's Article in Law Review.) The sufficiency of the evidence is therefore not raised by the appellants' first two points of error. It follows that this Court has no jurisdiction to pass on the question of sufficiency of the evidence to support the findings of the jury. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660; Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164. We must examine the evidence to determine whether there is evidence of probative value which with the reasonable inferences therefrom will support the findings of the jury in answer to special issues submitted. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359; Hall v. Medical Building of Houston, 151 Tex. 425, 251 S.W.2d 497."
See also Gregory v. Tyler Grain & Storage Co., Tex.Civ.App.1960, 341 S.W.2d 221, (no writ history) wherein the same rule is announced.
Bearing in mind these principles of judicial interpretations we proceed to consider first the "no evidence" points raised by appellant. To do so requires a summary of the testimony.
Appellee, Douglas F. Gant, testified that he was 40 years of age and had been employed by Anderson-Clayton Company, as a truck driver since 1944, or a period of 17 years. As a part of his duties he was required to drive a truck and deliver shortening and margarine products to various places. During the period of employment with Anderson-Clayton Company he had never lost work or was caused to leave his job because of any type of heart condition or other illness, other than the "flu". He testified positively that prior to May 1, 1959, he had never had any heart trouble or other illness or disease; that he had never filed a previous claim for workmen's compensation benefits. While returning from a trip to Hope, Arkansas on the morning of May 1st, 1959 he stopped at Texarkana, and after eating his lunch, went to the Ritchie Wholesale Company to unload merchandise. He backed his truck and trailer to the loading dock, such operation requiring from ten to fifteen minutes, and then started to unload packaged shortening. He utilized a two-wheel buggy or dollie and was assisted by other employees on the dock. On the dollie or buggy were cases of packages weighing approximately 53 pounds each, and there were approximately 10 of these packages which made a total of about 530 pounds. While working he got pretty hot and went and got a swallow of water. With reference to the accident, he said: "so I went ahead to load this one up. And as I loaded it up, or got it loaded, rather, I reached down and picked up the handles and started out to the back of the trailer with it. Just as I picked it up, something I don't know how it did feel, but something felt like it hit me as I raised it up." He said a sharp pain started through his arms which occurred while he was picking up the load or reaching down to pick it up. The pains in his arms became worse, and he began to break out in perspiration and began to feel sick at his stomach, and his legs began to become weak. He stood by until the loading operations were completed and then got into his truck and drove to another wholesale grocery company where he started backing up to the dock. While backing the truck his hands became paralyzed to where he could not use them on the steering wheel. He got out of the truck and almost fell because of weakness, so he sat down on the dock. He went to the hospital at Texarkana where he was treated in the emergency room and remained in the hospital for a few hours when two of his company officials came and picked him up and carried him back to Sherman. He stated that on the way back to Sherman he told the two Anderson-Clayton Company officials what had happened to him at Texarkana. "Did you tell them more or less the same story that you told the jury here today? A. Yes, Sir." The following *362 morning he went to the hospital at Sherman and was treated by his family physician, Dr. Hardy, who had treated his family for the past 15 years. He remained in the hospital for 28 days and since that time he has not resumed his former employment but has done several jobs requiring very little exertion. While in the hospital the employer's personnel man, Mr. Arnold Dutton, came to the hospital and had appellee sign some papers, which he was told was for his compensation. On May 7, 1959, appellee signed a claim form for disability benefits from Travelers Insurance Company, said form specifically asking the claimant to state when, where and how the accident occurred, if the disability resulted from an accident. Appellee left a blank space in response to this question. This was a form that appellee contended was presented to him which he thought was an application for workmen's compensation benefits. Later, in October 1959, appellee received a letter from Travelers Insurance Company advising appellee that he was not entitled to group disability benefits from that company if he was claiming a compensable accidental injury. In response to this letter appellee wrote the Travelers Insurance Company and told them he had not filed a claim for compensation. Some 10 days thereafter he did file a notice of injury and claim for compensation with the Industrial Accident Board based upon the facts herein-before related.
Dr. Hardy, appellee's medical witness, testified that he had been appellee's family physician over a period of years and had seen, examined and treated appellee following May 1, 1959. He testified that appellee had suffered a coronary thrombosis, or blood clot, and that, in his opinion, the exertion caused by the incident described by appellee had precipitated this heart condition. He testified that appellee had previously had arteriosclerosis.
The material portions of this testimony concerning causal connection between the exertion and the formation of the blood clot, is as follows:
"A. This patient we subsequently proved by subsequent examination had a certain degree of arteriosclerotic heart disease. He suffered a clot of blood at the posterior wall of his heart. It is my opinion that the exertion contributed to the formation of that clot."
Again he testified:
"Q. Alright. One final question Doctor. Doctor Hardy, in your opinion would the exertion of Mr. Gant in unloading the truck, backing the truck up to the dock (as you testified) on May 1st, 1959, be a precipitating cause, or a contributing cause of the injury to his heart and a condition you found him in on May 2nd, 1959?
"A. Yes."
The doctor, on cross-examination, admitted that several things could cause a blood clot, but he remained firm in stating that in his opinion the exertion was a precipitating cause in this particular case. The doctor admitted that he had filled out the forms for Travelers Insurance Company instant to furnishing hospital benefits wherein he had not related an accident. He explained this by stating that he did not know that exertion which precipitated the heart attack was considered an injury under the compensation law, and had he known this he would have so stated in the form.
Doctor John M. Dodge, the doctor who saw appellee in the emergency room at the hospital in Texarkana, testified for appellant and stated that the history which the appellee had given him on the date of the accident was that he had eaten his lunch and that after lunch his arms began to feel heavy and ache; that he got out of his truck and felt dizzy, following which he was brought to the hospital. The doctor testified that appellee gave him a history of having prior emotional disturbances, and that there was a probability that the emotional disturbances and the heavy meal *363 combined with an artery disease would cause a coronary occlusion.
Appellant called as its principal expert witness, Doctor Neal Tripplett, a heart specialist. Doctor Tripplett admitted that he had never seen appellee nor examined him, but based his testimony upon examination of the records furnished, and also hypothetical questions. It was Doctor Tripplett's opinion that he did not consider any strain or exertion received on the job to be contributing factor to the heart attack in this case. The basis of his opinion was mainly on the fact that appellee had done the same kind of work for a great number of years and that he had never had this trouble before, therefore, he concluded that in reasonable medical probability the attack was caused by the disease of arteriosclerosis in and of itself through its natural development.
With this testimony, together with all of its inferences, considered in a light most favorable to the verdict, we conclude, without difficulty, that there was ample evidence sufficient to justify the submission of the material issues concerning injury and causal connection thereof to the jury. Appellee testified positively that he did sustain an injury while lifting the heavy load, and also while maneuvering his truck in parking operations. While he did not relate, in detail, this history to the doctor in the emergency room at the Texarkana hospital, this fact is easily explainable, as it was by appellee when he said that he was suffering intense pain at the time he was in the emergency room. He testified positively he related these facts to his employers on the trip back to Sherman. No rebuttal was made to this statement. He gave reasonable explanation for his omission of the history to the Travelers Insurance Company as did Dr. Hardy, who explained his misunderstanding of the compensation law in failing to give such history of injury to the Travelers Insurance Company. That a strain or exertion is an accidental injury within the meaning of the Workmen's Compensation Law of Texas is no longer open for dispute. 45 Tex.Jur. 494: "Included among accidental injuries received in the course of employment, for which compensation has been allowed, are those resulting from strain * * *." Furthermore, the fact that appellee may have been suffering with this heart condition for many years, but which had not given him any trouble or prevented him from working, does not alter the basis for recovery. 45 Tex.Jur. p. 496; Traders & General Insurance Company v. Rooth, Tex.Civ.App., 268 S.W.2d 539; Carter v. Travelers Insurance Company, 132 Tex. 288, 120 S.W.2d 581. See also 45 Tex. Jur. § 98, p. 492; Texas Employers' Insurance Ass'n v. Parr, Tex.Comm.App., 30 S.W.2d 305; and Texas Indemnity Insurance Company v. Staggs, 134 Tex. 318, 134 S.W.2d 1026, all holding that compensation will not be denied even though the injury may be activated or enhanced by the effect of disease existing at the time or even afterwards occurring. In our opinion the testimony of Dr. Hardy was amply sufficient to support the causal connection between the exertion caused by lifting and straining with the resultant disability. See Texas Employers' Insurance Ass'n v. Talmadge, Tex.Civ.App., 256 S.W.2d 945; Aetna Insurance Company v. Hart, Tex. Civ.App., 315 S.W.2d 169; Traders & General Insurance Company v. Bass, Tex.Civ. App., 193 S.W.2d 848.
Accordingly, we hold that there was evidence to support the submission of issues of injury and the causal connection between injury and disability to the jury, and therefore, the trial court did not err in overruling appellant's motions for instructed verdict and judgment notwithstanding the verdict. Appellant's "no evidence" points 1 through 8 are therefore overruled.
We next consider appellant's "insufficiency evidence" or "contrary to the great weight and preponderance" points 9 through 22. In considering these points we are required to apply a different rule than that utilized in considering the "no evidence" *364 points above. The Supreme Court, in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661, announces this rule:
"The question (`sufficiency' of the evidence) requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and Texas Rules of Civil Procedure Nos. 451, 453 and 455, to consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust this, regardless of whether the record contains some `evidence of probative force' in support of the verdict. The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict."
See also Chief Justice Calvert's statement in the Texas Law Review Article, supra.
Giving due application to this rule we have carefully considered all of the evidence, both favorable to and contrary to the verdict. While there is a definite conflict between the medical witnesses who testified for appellant and appellee, and while there are certain inconsistencies in appellee's testimony concerning his revelation of the history of his injury, we cannot, and do not, conclude that the verdict in this case is so against the great weight and preponderance of the evidence as to be manifestly unjust. The trial court fairly submitted the issues on behalf of appellee, and likewise fairly submitted the defensive issues of appellant. The jury found that appellee sustained an injury in the course of his employment as a result of having strained the muscles of his heart and thereby causing a heart attack, which resulted in total and permanent disability. They also found that the incapacity was not due solely to pre-existing conditions, or diseases, and was not caused by a progressive condition of the pre-existing heart trouble, wholly disassociated with the injury of May 1st, 1959. We hold that the answers to these issues are amply supported by evidence of probative force. As in all cases the jury in this case heard the testimony, weighed it, and found against appellant on every issue. We hold that the evidence was sufficient not only to submit the issues to the jury, but to justify the trial court in refusing to grant a new trial based upon the insufficiency of said issues as they were answered by the jury. Accordingly, appellant's "insufficient evidence" points 9 through 22 are overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576539/ | 35 So. 3d 561 (2010)
Francis MURRAY, Appellant
v.
INGALLS SHIPBUILDING/NGSS and Continental Casualty Company, Appellees.
No. 2009-WC-01221-COA.
Court of Appeals of Mississippi.
May 25, 2010.
James Thomas Dulin, Jr., attorney for appellant.
*562 Andrew Glen McCullough, attorney for appellees.
Before MYERS, P.J., ISHEE, and ROBERTS, JJ.
MYERS, P.J., for the Court:
¶ 1. Francis Murray appeals from the Jackson County Circuit Court's judgment affirming the decision of the Mississippi Workers' Compensation Commission (Commission) that her claim for benefits was barred by the two-year statute of limitations. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. On April 7, 1999, Murray slipped and fell, striking her head, while working at Ingalls Shipbuilding, in Mississippi, where she was employed as a logistics analyst. Murray was examined at Ingalls's onsite medical facility and, subsequently, by her family physician, Dr. Gary Groff. She was released to return to her regular duties after missing approximately four hours of work as a result of the injury. Ingalls and/or Continental Casualty Company (collectively "Ingalls") treated the incident as compensable and provided medical benefits associated therewith.
¶ 3. On May 18, 2004, Murray came under the care of Dr. Terry Millette after experiencing "vertigo" and "dizzy spell" symptoms. Dr. Millette noted a prior history of a closed-head trauma, and he diagnosed Murray with "occipital trauma" and "cerebral hematoma," which had caused her to suffer "central disequilibrium" and tension-type headaches. Dr. Millette referred Murray to Dr. Kent Ozon, who diagnosed her on June 18, 2004, as having "central disequilibrium syndrome with vertigo." Dr. Ozon prescribed medication to help alleviate Murray's symptoms and to help her sleep.
¶ 4. On August 2, 2006, Murray filed a petition to controvert. Ingalls timely filed an answer and affirmative defenses, admitting the occurrence of a work-related accident on April 7, 1999, but disputing continued compensability based upon the running of the two-year statute of limitations set forth in Mississippi Code Annotated section 71-3-35 (Rev.2000). Ingalls thereafter filed a motion to dismiss based upon section 71-3-35. A ruling was withheld by the administrative law judge (ALJ) at the initial hearing of the motion in order to fully develop the record with medical records and depositions. Following discovery, the ALJ dismissed Murray's claim, finding it time-barred pursuant to section 71-3-35. The Commission affirmed the ALJ's order, and the circuit court affirmed the Commission's decision. Murray appeals.
STANDARD OF REVIEW
¶ 5. In workers' compensation cases, a decision by the Commission is afforded great deference; facts determined by the Commission may not be disturbed on appeal when those facts are supported by substantial, credible evidence. Raytheon Aerospace Support Servs. v. Miller, 861 So. 2d 330, 335 (¶ 11) (Miss.2003) (citations omitted). On questions of law, our standard of review is de novo. Harrison County v. City of Gulfport, 557 So. 2d 780, 784 (Miss.1990).
DISCUSSION
¶ 6. Murray argues that the Commission misapplied the two-year statute of limitations in this instance, as she was misdiagnosed in April 1999 by her treating physicians following the injury she sustained at Ingalls. Murray contends that the injury she sustained at Ingalls caused discreet brain damage, and she had no duty to file her petition to controvert until *563 her "latent brain injury" was evaluated, ascertained, and related to her employment by Drs. Millette and Ozon. Murray further contends that Ingalls never filed a requisite B-3 First Report of Injury with the Commission.
¶ 7. Section 71-3-35 provides that if no payment for compensation is made other than medical treatment or burial expense, and no application for benefits is filed with the Commission within two years from date of the injury or death, the right of compensation shall be barred. Our supreme court has interpreted section 71-3-35 relative to latent compensable injuries. Pepsi Cola Bottling Co. of Tupelo, Inc. v. Long, 362 So. 2d 182, 184 (Miss.1978) (citing Struthers Wells-Gulfport, Inc. v. Bradford, 304 So. 2d 645 (Miss.1974); Tabor Motor Co. v. Garrard, 233 So. 2d 811 (Miss. 1970)). The court explained that, in most cases, the time of a work-related injury will be found to coincide with the accident; however, there may be instances where the extent of the injury could not reasonably have been ascertained by medical evidence at the time of the accident. Id. at 185. Accordingly, "the two-year limitation statute does not begin to run until by reasonable care and diligence it is discoverable and apparent that a compensable injury has been sustained." Id. at 184 (citations omitted); see also Quaker Oats v. Miller, 370 So. 2d 1363, 1366 (Miss.1979) (holding the time period for filling a claim does not begin to run until the claimant, judged by the standard of a reasonable person, recognizes the nature, seriousness, and probable compensable character of his injury).
¶ 8. Here, the ALJ determined that based on the evidence presented, Murray was aware of the existence and appreciated the extent and nature of her injury as a result of the 1999 fall immediately post-injury. The ALJ further found that even if Murray did not fully recognize the nature, seriousness, and probable compensable character of her injury in 1999, she did so at the latest on May 18, 2004, when Dr. Millette diagnosed her with a "brain stem contusion" and associated the condition with Murray's fall in 1999. Therefore, her petition to controvert filed on August 2, 2006, was time-barred by the two-year statute of limitations set forth under section 71-3-35. We agree.
¶ 9. According to her own deposition, Murray was diagnosed with a "cerebral hematoma," immediately following the injury. Because she did not show signs of a concussion, her treating physician felt that an x-ray was unnecessary and gave her permission to go back to work. Murray now alleges that had an x-ray been taken immediately following the injury, it would have shown that she was bleeding around her brain stem. Yet, by her own admission, had an x-ray been taken in 1999, the "brain stem contusion" would have been discovered. Thus, the injury for which Murray contends she was misdiagnosed, reasonably could have been ascertained by medical evidence at the time of the accident. Long, 362 So.2d at 185. When this factor is coupled with Murray's testimony stating that the pain associated with the blow to her head has never resolved itself and that the symptoms of dizziness began soon after the injury, we fail to see the discreet nature involved with this particular injury. Further, according to Murray, Dr. Millette informed her that there is no cure for the ill-effects of the type of injury she had sustained, only treatment through medication. Thus, we find there is substantial evidence that Murray did not suffer a latent injury, as contemplated by Long and Miller.
¶ 10. But, even if it could be said that Murray, when judged under the reasonable-person standard, did not know the *564 nature, seriousness, and probable compensable character of her injury in 1999, she knew or should have known, as the ALJ found, on May 18, 2004. Thus, the statute began to run, at the latest, on that date. Accordingly, we find that Murray's petition to controvert, filed on August 2, 2006, was rightly dismissed pursuant to the limitations provision set forth in section 71-3-35.
¶ 11. Also, we find no merit to Murray's argument that the limitations period should be tolled due to Ingalls's failure to file a first report of injury with the Commission (commonly referred to as a B-3 form). Section 71-3-67 of the Mississippi Code Annotated (Rev.2000) requires an employer, if self-insured, or its carrier, to file a report to the Commission within ten days of the occurrence of any injury that disables an employee for five days or more, or where "the employer or carrier knows, or reasonably should know, that an injury has resulted, or likely will result, in permanent disability or serious head or facial disfigurement, but which does not cause a loss of time in excess of the prescribed waiting period. ..." According to the record, Murray missed approximately four hours of work as a result of the injury, and there is no indication that Ingalls had any reason to suspect that Murray had sustained a permanent disability. There also is no indication that Murray suffered a serious head or facial disfigurement as a result of the fall. According to the evidence presented, Ingalls was not required to report Murray's injury to the Commission.
¶ 12. Lastly, Murray asserts that Ingalls failed to file a notice of final payment (known as a B-31 form), which is required to be filed in order to close the Commission file; accordingly, she contends that her claim remains open. This argument, however, is raised for the first time on appeal; thus, it was not properly preserved for review. We, therefore, decline to address this issue. Winter v. Wal-Mart Supercenter, 26 So. 3d 1086, 1090 (¶ 14) (Miss.Ct.App.2009).
¶ 13. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576125/ | 731 S.W.2d 630 (1987)
Larry Michael MARTIN, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-86-00744-CR.
Court of Appeals of Texas, Houston (1st Dist.).
April 30, 1987.
Jim Heaney and Blaise J. Heaney, Houston, for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., William J. Delmore, III and John Boone, Harris County Asst. Dist. Attys., Houston, for appellee.
Before EVANS, C.J., and SAM BASS and LEVY, JJ.
*631 OPINION
SAM BASS, Justice.
This is an appeal from a conviction for speeding.
We reverse and order acquittal.
Trial was held before a municipal court judge, and punishment was a fine of $55. Appellant gave notice of appeal to the County Criminal Court at Law. Trial was before the bench, appellant was found guilty, and was fined $101.
In points of error one and two, appellant contends that the trial court erred in denying his motion for directed verdict because the State failed to prove and introduce into evidence the Taylor Lake Village municipal traffic ordinance.
The record reveals that the appellant was charged by a complaint filed pursuant to an ordinance of Taylor Lake Village. The only evidence in the record regarding the ordinance is from Officer J.D. Stone. Officer Stone testified that there were signs posted in Taylor Lake, with a speed limit of 20 miles per hour.
The ordinance was not introduced into evidence, there was no agreement to stipulate to the contents of the municipal ordinance, nor was there a request that judicial notice be taken of the ordinance. See Tex. R.Crim.Evid. 204.
In Howeth v. State, 645 S.W.2d 787, 788 (Tex.Crim.App.1983), the defendant was charged with speeding and was convicted in municipal court under a municipal ordinance. He appealed and at the trial de novo, the State and defendant stipulated to the contents of the municipal ordinance; however, the contents were never stated into the record. The county court found him guilty and assessed punishment. On appeal, however, the Court of Criminal Appeals reversed and acquitted because the contents of the ordinance, although stipulated to, were not introduced into evidence.
Points of error one and two are sustained.
This cause having been decided upon points of error one and two, there is no necessity to rule upon the remaining point of error.
The conviction is reversed and acquittal ordered.
EVANS, C.J., dissents.
EVANS, Chief Justice, dissenting.
I agree with the holding of the majority that the judgment should be reversed, but I disagree that an order of acquittal should be entered.
The complaint alleges in pertinent part:
Larry Michael Martin, defendant, did then and there drive and operate a motor vehicle, to-wit: Volvo, in and upon 4100 block Manorfield, a public street contrary to the ordinances of said city, and, within an urban district and the corporate limits of said city, at a speed which was greater than was then and there reasonable and prudent under the conditions then existing, having regard to the actual and potential hazards, to-wit: at a speed of 31 miles per hour; at which time and place the maximum prima facie reasonable and prudent speed limit applicable was 20 miles per hour. [Emphasis added.]
The State contends that this complaint charged violations of both the municipal ordinance and a violation of state law, Tex. Rev.Civ.Stat.Ann. art. 6701d, sec. 166(a)(1) (Vernon 1977), which provides, in pertinent part, that a speed in excess of "30 miles per hour in any urban district" shall be prima facie unlawful. Because there was evidence that the appellant exceeded the prima facie maximum limit while driving in an urban district, I agree with the State's analysis that there was evidence supporting the appellant's conviction under the allegations of the complaint. See Abrams v. State, 563 S.W.2d 610 (Tex.Crim.App.1978). I also agree with the State's analysis of Howeth v. State, 645 S.W.2d 787 (Tex.Crim. App.1983), relied upon by the majority. In that case, there was no contention that the defendant's speeding conviction could be sustained under state law, and therefore, it is not controlling here.
However, I would grant the appellant's third point of error, complaining of the trial *632 court's action in overruling his motion to quash. The appellant's motion to quash asserts that the complaint is vague because it alleges that the appellant, while driving in an urban area, violated the speed law, art. 6701d, sec. 166(a), by traveling 31 in a 20 mile per hour zone, but does not describe the authority on which the prima facie speed limit had been altered. In my opinion, this was sufficient to call to the trial court's attention the fact that the complaint charged offenses under both the municipal ordinance and the state law, and that the charge was vague and misleading because it alleged a prima facie speed limit of 20 miles per hour. In my opinion, the trial court erred in overruling the motion to quash, and I would reverse the conviction and remand the cause for a new trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576127/ | 731 S.W.2d 766 (1987)
292 Ark. 528
Charles GREGG, Appellant,
v.
Terry C. HARTWICK, North Little Rock Mayor; Martin Gibson, Aubrey Blanks, Otha Warren, Olen Thomas, William E. George, John Evans, Stuart Vess & Charles Kimbrell, North Little Rock Aldermen, Appellees.
No. 87-146.
Supreme Court of Arkansas.
June 29, 1987.
*767 Charles L. Carpenter, North Little Rock, for appellant.
Jim Hamilton, City Atty. by Thomas J. Pendowski, Asst. City Atty., North Little Rock, for appellees.
HOLT, Chief Justice.
This expedited appeal seeks a writ of mandamus ordering the appellees, North Little Rock's mayor and aldermen, to conduct a special referendum election on the voluntary annexation of certain lands by the city. The circuit court denied the request for the writ. It is from that order that this appeal is brought. We find that amendment 7 to the Arkansas Constitution requires the city to hold an election and accordingly, reverse the trial court and direct it to issue the writ of mandamus.
The history of this case is as follows. On October 21, 1986, the Pulaski Circuit Court ordered a petition for the voluntary annexation of approximately 1,500 acres into the City of North Little Rock be granted and approved. That judgment was filed on November 21, 1986. On November 24, 1986, the North Little Rock City Council adopted Resolution No. 3075, accepting the proposed area into the city on the effective date of the circuit court judgment. Appellant, Charles Gregg, and other citizens, filed a referendum petition on December 22, 1986, to refer Resolution No. 3075 to a vote of the people for their approval or rejection. The petition contained a sufficient number of signatures to be a valid petition. The city council has not referred the resolution to a vote of the people because the council does not regard the resolution as "municipal legislation" properly subject to a referendum. When the council refused to act, Gregg filed this action in Pulaski Circuit Court on March 20, 1987, seeking a declaratory judgment that the resolution was "municipal legislation" and therefore subject to the referendum, and a writ of mandamus, directing the council members to call a special election. The trial court denied the requested relief.
The purpose of a writ of mandamus is to enforce an established right or compel the performance of a duty. Lewis v. Conlee, Mayor et al., 258 Ark. 715, 529 S.W.2d 132 (1975). Amendment 7 provides in pertinent part:
The initiative and referendum powers of the people are hereby further reserved to the local voters of each municipality and county as to all local, special and municipal legislation of every character in and for their respective municipalities and counties, ...
....
Every extension, enlargement, grant, or conveyance of a franchise or any rights, property, easement, lease, or occupation of or in any road, street, alley or any part thereof in real property or interest in real property owned by municipalities, exceeding in value three hundred dollars, whether the same be by statute, ordinance, resolution, or otherwise, shall be subject to referendum and shall not be subject to emergency legislation.
*768 We first address whether the city council's resolution must be considered "local, special and municipal legislation" to which referendum powers apply. This court has explained that the test for determining whether a resolution is municipal legislation "is to determine whether the proposition is one that makes new law or to execute a law already in existence. The power or authority to be exercised is legislative in its nature if it prescribes a new policy or plan; while on the other hand, it is administrative in its nature if it simply pursues a plan already adopted by the legislative body ..." City of North Little Rock v. Gorman et al., 264 Ark. 150, 568 S.W.2d 481 (1978); Greenlee et al. v. Munn, Clerk et al., 262 Ark. 663, 559 S.W.2d 928 (1978); and Scroggins v. Kerr, 217 Ark. 137, 228 S.W.2d 995 (1950).
In applying this test, however, we are mindful of the fact that we have long held that amendment 7 is to be liberally construed in order that its purposes may be effectuated. Leigh & Thomas v. Hall, Secretary of State, 232 Ark. 558, 339 S.W.2d 104 (1960). In that case we stated:
Amendment No. 7 permits the exercise of the power reserved to the people to control, to some extent at least, the policies of the State, but more particularly of counties and municipalities, as distinguished from the exercise of similar power by the Legislature, and, since that residuum of power remains in the electors, their acts should not be thwarted by strict or technical construction.... In construing this amendment, it is our duty to keep constantly in mind the purpose of its adoption and the object it sought to accomplish. That object and purpose was to increase the sense of responsibility that the lawmaking power should feel to the people by establishing a power to initiate proper, and to reject improper legislation.
In Lewis v. Conlee, Mayor, et al., supra we quoted Cochran, Mayor v. Black, 240 Ark. 393, 400 S.W.2d 280 (1966) as follows:
We are firmly committed to a liberal construction of constitutional Amendment No. 7, bearing in mind the purpose of its adoption and the object it sought to accomplish. This amendment provides a necessary and potent protection against ill-advised, oppressive or improvident legislative functions, and actions of the electors thereunder, in attempting to obtain relief, should not be thwarted by strict or technical construction.... We are neither authorized nor remotely inclined to disturb the proper application of this wholesome constitutional reservation of power to the people.
Applying the aforementioned test under the terms of the amendment, we hold that the resolution approving the annexation was municipal legislation in that it was a new law. The statutory procedure for annexing land provides that, before the annexation is final, the city council must pass an ordinance or resolution accepting the territory. Ark.Stat.Ann. §§ 19-305, 19-306 (Repl.1980). Since confirmation of the annexation is dependent on this action by the city council, such action cannot be considered merely the execution of a law already in existence. Rather the power exercised by the city council prescribes a new law and is municipal legislation. In addition, amendment 7, by its terms, provides that any resolution enlarging or extending a franchise shall be subject to referendum. A resolution approving an annexation pertains to an enlargement or extension of the services offered by the city to a new area. Therefore, when the city passed the resolution approving the annexation, the voters acquired a right to hold an election. Since the voters have an established legal right, mandamus should issue to compel the election.
The North Little Rock mayor and alderman argue that, if an election is ordered, it should be postponed until a decision has been handed down by this court in an appeal that was taken of the circuit court judgment entered November 21, 1986. We decline to postpone the election. We explained in Lewis v. Conlee, Mayor et al., supra, that the matter of setting a date for an election is normally a matter of legislative discretion, but that that discretion cannot be exercised in a fashion that *769 would nullify the intent of amendment 7. The same is true here. The people have a right, under amendment 7 to an election on the resolution passed by the city council. It is therefore up to the city to hold the election within a reasonably prompt period of time.
Accordingly, the judgment is reversed and the cause is granted with directions to the Pulaski Circuit Court to issue its writ directing the North Little Rock City Council to set the referendum election, involved herein, within a reasonably prompt period of time. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576165/ | 743 N.W.2d 872 (2007)
ZAHN
v.
SCHOLL
No. 06-1964.
Court of Appeals of Iowa.
December 12, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576210/ | 35 So. 3d 501 (2010)
Floyd ROBINSON
v.
STATE of Mississippi.
No. 2007-CT-02202-SCT.
Supreme Court of Mississippi.
May 13, 2010.
*502 Office of Indigent Appeals by Leslie S. Lee, Justin Taylor Cook, Glenn S. Swartzfager, Latisha Nicole Clinkscales, attorneys for appellant.
Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
EN BANC.
ON WRIT OF CERTIORARI
RANDOLPH, Justice, for the Court:
¶ 1. Floyd Robinson was indicted for the murder of his on-again, off-again girlfriend, Bridget Moore. Following a jury trial in the Circuit Court of Oktibbeha County, Mississippi, Robinson was found guilty as charged and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections ("MDOC"). Following denial of his "Motion for Judgment Notwithstanding the Verdict," Robinson filed notice of appeal. The Mississippi Court of Appeals, in a five-four split, affirmed.[1]See Robinson v. State, 35 So. 3d 524, 525-26 (Miss.Ct.App. 2009). This Court granted Robinson's "Petition for Writ of Certiorari."
FACTS
¶ 2. On the afternoon of November 30, 2005, Moore's body was discovered inside her home. Moore had a gunshot wound, a bruise on her head, a bruise and minor scratches on her right arm, scrape marks on the backs of her calves, and a scratch and dried grass on her right knee. Officers from the Starkville Police Department found, inter alia, an unused .25 caliber shell casing in Moore's front yard. On the right side of Moore's front steps, the officers found two of Moore's broken fingernails.
¶ 3. That same evening, Robinson was arrested at his home in Columbus, Mississippi, and taken to the interview room at the Columbus Police Department. A subsequent four-and-one-half-hour interrogation spanned into the early morning hours of December 1, 2005, and parts were videorecorded. The interrogation included prior domestic-violence allegations against Robinson by Moore and another former *503 girlfriend, Marilyn McKinney. For example:[2]
Detective 1: . . . Let me read this one to you. . . .
I, Officer Williams, took a report from [McKinney]. . . . It said . . . her boyfriend, [Robinson], . . . constantly keeps threatening her about killing her. He's always . . . taking her in the middle of nowhere putting a gun to her head and throat and telling her what he would do to her. On the last evening 5-24-03 at approximately 16:30 to 17:00 hours, he took her to his house and started washing dishes. And when she told him that she was going home, he went ballistic, and started to push, kick and pull out her hair. He pulled a gun on her then, and once he settled down he just told her to leave.
. . .
Detective 1: Okay, you've got two women saying they felt like you were going to kill them at one point or time. Two separate women.
. . .
Detective 1: . . . I got two different women saying . . . you are doing these things to them. What do you say to them? . . . Firsttell us what happened with [McKinney]? She said you were washing dishes. She said she was going home and you go ballistic. You take her to the middle of nowhere, you pull a gun on her, threaten her.
(Emphasis added.)
¶ 4. During the interrogation, Robinson signed a statement, which he subsequently supplemented. On December 2, 2005, Robinson signed a second statement. These statements provided that, after an argument at Moore's home, Moore had pulled a gun on Robinson and, in the ensuing struggle, they had fallen to the ground, the gun had discharged, and the bullet had struck Moore.
¶ 5. On January 18, 2006, Robinson was indicted for "unlawfully, wilfully, and feloniously, with deliberate design to effect death, kill[ing] and murder[ing] . . . [Moore], without authority of law and not in necessary self defense, in violation of [Mississippi Code] § 97-3-19. . . ." Trial commenced on January 29, 2007.
¶ 6. During the State's case-in-chief, a DVD recording of Robinson's November 30, 2005, interrogation was tendered as an exhibit.[3] Counsel for Robinson objected and moved to suppress the DVD recording. According to counsel for Robinson, outside the jury's presence, "[t]here is inadmissible information concerning a possible criminal background of [Robinson].[[4]] I don't know if we can redact those portions." The circuit court overruled Robinson's objection and motion to suppress, stating that "[t]he completeness of the issue that I have, that's what they're doing is interrogating a homicide. That is different than eliciting evidence of a prior crime or criminal act." The DVD recording was received into evidence and played before the jury in its entirety.
¶ 7. After the State rested and Robinson's motion for directed verdict was overruled, Robinson took the witness stand. On direct examination, Robinson acknowledged *504 that he had a prior physical confrontation with Moore in 2004 when "she stuck her fingernail in my eye. . . ." Despite that altercation, Robinson continued to live with Moore until July 2005, when she "called the police on me to come and get my clothes out of her house." During this incident, Robinson admitted to pushing Moore. Thereafter, Robinson moved back to his home in Columbus, although he continued to stay at Moore's home "[t]wo or three times out of a week. . . ." On the evening of November 29, 2005, Robinson testified that the same McKinney brought food to his home and stayed for a few minutes when "[t]he phone rang, and it was [Moore] calling." Robinson went over to Moore's home. According to Robinson, while in bed, watching television with Moore:
I said [referring to a television character] that's an ugly lady there, and she said probably like your [bitch] look like. . . . And I said, oh Lord, here we go. I said, well, we ain't fixing to start all this. She said no, that's where you were. That's why you really didn't want to come over here because you just want to be with her. In my mind I said, yeah, I did, but . . . we just kept on talking. I said, well, I don't know.
After an argument ensued, Robinson claimed that he got up to leave, and Moore struck him in the back. As Robinson proceeded to leave, he realized he had forgotten his keys, and as he turned around, he saw "she had the gun." According to Robinson:
she got up close to me. That's when I grabbed her hand, and we started wrestling with the gun. And we fell outside the house[,] . . . and that's when the gun went off. . . . I thought I was shot, and she said she thought she was shot. . . . I walked her back up to the steps. And she told me, . . . she was kind of tired. . . . I said, I'm fixing to go. I seen the gun. I grabbed the gun. I said I'm fixing to go. You know, the police come around here. I'm already on probation.[[5]]. . . And I said I'll call you back.[[6]]
In claiming that Moore's death was the result of an accident arising out of his act of self-defense, Robinson maintained that he loved Moore and had no reason to harm her.
¶ 8. On cross-examination, the prosecutor was warned by the circuit court for the following argumentative questions, "[g]ot any scratches on you face, nose bleeding? Did you look like Marilyn McKinney?" (Emphasis added.)
¶ 9. The jury found Robinson guilty of murder, and he was sentenced to life imprisonment by the circuit court. Following denial of his "Motion for Judgment Notwithstanding the Verdict," Robinson filed notice of appeal.
COURT OF APPEALS PROCEEDINGS
¶ 10. The Court of Appeals affirmed Robinson's conviction. See Robinson, 35 *505 So.3d at 530. Regarding "Issue II. Prior Bad-Acts Evidence," the Court of Appeals found that:
the challenged portion of the DVD at issue was that Robinson had previously been violent with [McKinney], rather than [Moore]. That evidence does not tend to demonstrate a continuing or escalating pattern of violence against [Moore]. Instead, it tends to persuade the jury that, because Robinson was violent with [McKinney] on May 24, 2003, he was more likely to have been violent with [Moore] on November 30, 2005, andby extensionhe was more likely to have been guilty of the allegations against him. Accordingly, we find that the circuit court erred when it allowed the prosecution to submit that evidence to the jury.
Id. at 528 (emphasis added). However, based upon Robinson's testimony, the Court of Appeals held that this error was harmless. Specifically:
Robinson said he . . . told [Moore] that he was going to leave because he was on probation. Robinson's own attorney then asked Robinson to elaborate on his prior convictions that led to his being on probation. Robinson responded and testified that he had prior domestic violence convictions for abusing [Moore] and [McKinney]. Because Robinson testified as to his prior conviction for domestic violence against [McKinney], and used that prior conviction as his justification for leaving [Moore's] house after [she] was shot,[7]we find that Robinson did not experience any prejudice based on the revelation during the interrogation that he had a prior conviction for domestic assault against [McKinney].
Id. at 528 (emphasis added).
¶ 11. The Court of Appeals' dissent countered:
[i]t is Robinson's efforts at blunting the prejudicial effect of the improper prior-bad-acts testimony that the majority now claims turns the admission of that improper evidence into harmless error. Such a claim can only be the result of syllogistically faulty circular reasoning. The prosecution's prior-bad-acts evidence was admitted prior to any testimony from Robinson. The damage from this improper prior-bad-acts evidence was completed prior to any testimony from Robinson. The testimony by Robinson as to prior bad acts was presented in an effort to place into perspective the improper prior-bad-acts evidence that was previously introduced by the prosecution. Because the damage was done before Robinson's attempt at mitigation, I would reverse and remand for a new trial.
. . .
The fallacy in the majority's attempt at blaming Robinson is simple and straight forward. Robinson did not present any defense until after the State had rested its case in chief. The improper prior-bad-acts evidence was introduced by the State in its case-in-chief. The State's sole purpose in introducing this improper prior-bad-acts evidence was to prove that Robinson killed [Moore]. Before Robinson uttered the first word in his defense, the State had introduced the improper prior-bad-acts evidence, and the damage had been done. Contrary to the opinion of the majority, once the *506 damage has been done, it cannot be undone. It especially cannot be undone by attempting to blame Robinson for the improper actions of the prosecutor.
Id. at 535 (King, C.J., dissenting) (emphasis added).
ISSUE
¶ 12. This Court will consider:
Whether the circuit court abused its discretion in admitting evidence of Robinson's prior bad acts.
ANALYSIS
¶ 13. "The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused. . . . The discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence." Johnston v. State, 567 So. 2d 237, 238 (Miss.1990) (citations omitted).
¶ 14. Robinson argues that "it's impossible to un-ring a bell[,]" and "it was impossible for the jury to disregard the highly prejudicial prior-bad-acts evidence." According to Robinson, the Court of Appeals' "harmless error determination creates a `pre-impeachment' exception to the [Rules'] prohibition on the admission of prior-bad-acts evidence[,]" such that defendants are left with two undesirable options:
either take the stand and attempt to explain away and/or mitigate the prejudice already caused by the evidence, or, sit on one's hands, ignore one's Constitutional right to testify, assure one's own conviction based on the prejudicial prior-acts-evidence, and hope that the [a]ppellate court rules in his or her favor.
¶ 15. Mississippi Rule of Evidence 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. . . ."[8] Miss. R. Evid. 404(b). See also Eubanks v. State, 419 So. 2d 1330, 1331 (Miss.1982) ("Mississippi follows the general rule that proof of a crime distinct from that alleged in the indictment should not be admitted in evidence against the accused."). "This rule exists to prevent the State from suggesting that, since a defendant has committed other crimes previously, the probability is greater that he is also guilty of the offense for which he is presently charged." Jasper v. State, 759 So. 2d 1136, 1141 (Miss.1999). See also Floyd v. State, 166 Miss. 15, 148 So. 226, 230 (1933) ("[s]uch evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and, while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him.").
¶ 16. We agree with the Court of Appeals that the circuit court erred in admitting the disputed portions of the DVD recording. See Robinson, 35 So.3d at 527-28, 530 (King, C.J., dissenting). Robinson was indicted only for Moore's murder, arising out of the November 29, 2005, incident. Nonetheless, the circuit court admitted evidence that Robinson previously had "constantly ke[pt] threatening [McKinney] about killing her[,]" and that "[h]e's always . . . taking her in the middle of nowhere putting a gun to her head and *507 throat and telling her what he would do to her." Moreover, regarding the specific incident of May 24, 2003, involving McKinney, the jury was presented with evidence that Robinson "went ballistic, and started to push, kick and pull out [McKinney's] hair. He pulled a gun on her. . . ." As stated by the Court of Appeals, "[t]hat evidence . . . tends to persuade the jury that, because Robinson was violent with [McKinney] . . ., he was more likely to have been violent with [Moore] on November 30, 2005, and by extension he was more likely to have been guilty of the allegations against him." Id. at 528. Given the facts of this case, the evidence clearly was inadmissible under Rule 404(b). Therefore, its admission was outside the boundaries of the circuit court's discretion. See Miss. R. Evid. 404(b); Jasper, 759 So.2d at 1141; Johnston, 567 So.2d at 238; Floyd, 148 So. at 230.
¶ 17. The question then becomes, is this error harmless? This Court rejects the Court of Appeals' reasoning that Robinson's subsequent testimony cured this error. As cogently explained by the Court of Appeals dissent, "[b]efore Robinson uttered the first word in his defense, the State had introduced the improper prior-bad-acts evidence, and the damage had been done." Robinson, 35 So.3d at 535 (King, C.J., dissenting). Not only had the damage been done with respect to the jury being presented with inadmissible, prejudicial evidence, but also, Robinson's constitutional right to testify (or refrain therefrom) had been compromised. See U.S. Const. amend. V ("[n]o person shall . . . be compelled in any criminal case to be a witness against himself. . . ."). Based upon the admission of this evidence, Robinson was presented with the options of either taking the witness stand in an attempt to mitigate the prejudice caused, or foregoing that right and permitting the jury's consideration of such evidence without response. Subsequent testimony does not cure this error.
¶ 18. In sum, the disputed portions of the DVD recording were inadmissible under Rule 404(b). See Miss. R. Evid. 404(b); Jasper, 759 So.2d at 1141; Floyd, 148 So. at 230. The circuit court's error in admitting such prejudicial evidence was not rendered harmless by Robinson's subsequent testimony. Therefore, the circuit court's admission of such evidence constituted an abuse of discretion, requiring that this Court reverse and remand for a new trial.
CONCLUSION
¶ 19. We reverse the circuit court and the Court of Appeals and remand for a new trial.
¶ 20. REVERSED AND REMANDED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.
NOTES
[1] Judge Maxwell, not participating.
[2] A more complete version of the following discussion can be found in the dissenting opinion in Robinson. See Robinson, 35 So.3d at 531-33 (King, C.J., dissenting).
[3] While the interrogation lasted four-and-one-half hours, the DVD recording included only three of those hours. However, the prior domestic-violence allegations, see ¶ 3 supra, were included on the DVD recording.
[4] Specifically, "[t]here is evidence of a criminal proceeding involving another young lady, which had nothing to do with [Moore]."
[5] Regarding his probation, Robinson testified that it arose from the domestic-violence incidents involving Moore and McKinney, to which he had pleaded guilty. In explaining those guilty pleas, however, Robinson stated that the "only reason I pled guilty [was] because I had just started working at Weyerhauser. And I said, well, . . . since I can't take off work to be coming back to court, . . . I'll go ahead and plead guilty and pay the fine and be through with it."
As to why his probation compelled him to leave Moore's home, Robinson explained on cross-examination that his probation prohibited him from seeing Moore, even though they were still in a relationship.
[6] Robinson stated that Moore was not bleeding when he left her home. He could not explain how Moore got back into her home following the shooting.
[7] The Court of Appeals later stated that "Robinson interjected on his status as a prior convicted domestic-violence offender on probation, which logically prohibited him from possessing a weapon or being present at [Moore's] home, as a strategic trial decision to attempt to explain his otherwise unexplainable flight." Id. at 529.
[8] Rule 404(b) also lists several exceptions to this rule, providing that such evidence "may. . . be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Miss. R. Evid. 404(b). Regarding the disputed portions of the DVD recording, however, none of these exceptions applies. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576303/ | 731 S.W.2d 555 (1987)
Margaret Young MURRAY, et al.
v.
DEVCO, LTD.
No. C-5278.
Supreme Court of Texas.
April 29, 1987.
Rehearing Denied July 15, 1987.
*556 James N. Phenix, Phenix and Phenix, P.C., Henderson, for petitioners.
Joe E. Shumate, Henderson, for respondent.
OPINION
GONZALEZ, Justice.
This is a condemnation suit. Devco originally filed two condemnation suits to acquire an easement for a pipeline through two contiguous tracts of land owned by Murray and others. Devco later discovered that not all of the gas line was located on the described easements. Devco filed two more suits with the correct legal descriptions and moved to dismiss the first set. The trial court denied the motion to dismiss but granted Devco's motion to consolidate the proceedings. The jury awarded damages on the four suits and the trial court rendered judgment for Murray based on the jury findings. The court of appeals reversed as to the first set of condemnations. 705 S.W.2d 836. We granted writ of error to primarily consider the propriety of the court of appeals reversal in the absence of a statement of facts of the dismissal hearing. We affirm the judgment of the court of appeals.
Devco owns an oil and gas lease that allows for the installation of gas gathering lines for production of gas from the tracts in question. In 1981, in order to transport off unit gas from the tracts, Devco filed two condemnation proceedings: 81-749 on a 45-acre tract and 81-750 on a 95-acre tract. The Commissioners awarded $2,800.00 for the land condemned in 81-749 and $1,500.00 for the land condemned in 81-750. Devco deposited the money awards into the registry of the court. Murray objected to the Commissioner's awards as being inadequate and withdrew the money pending litigation. In 1982, during preparation for trial, Devco discovered that the pipeline easements were not correctly described in the condemnation proceedings and that the pipeline was only partially located on the described easements. To correct the error, Devco filed new condemnation proceedings which correctly described the easements sought: 82-545 on the 45-acre tract and 82-544 on the 95-acre tract. The Commissioners awarded $2,800.00 and $1,500.00, respectively. Devco did not deposit these amounts into the registry of the court but filed a motion to dismiss the 1981 proceedings alleging "the right-of-way condemned in such original condemnation proceeding is not the actual situs of the pipeline as it exists on the ground and therefore condemnor has no need for such condemnations." After a hearing, the trial judge overruled the motion, and the four cases proceeded to trial.
The court of appeals affirmed the judgment of the trial court as to the 1982 *557 takings. It also reversed and remanded as to the 1981 proceedings with instructions to dismiss them after a hearing to determine Murray's expenses and fees in connection with the 1981 proceedings. Tex.Prop.Code Ann. § 21.019 (Vernon 1984).[1] It is the court of appeals reversal despite the lack of a record of the dismissal hearing that piqued our curiosity when writ was granted.
Missing Record
Murray first complains that the court of appeals erred in reversing the trial court's ruling on the motion to dismiss because there was no statement of facts or findings of fact and conclusions of law from the motion to dismiss hearing.
Generally, in the absence of a statement of facts, it must be presumed that sufficient evidence was introduced to support the findings of the jury and the judgment of the court. Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683, 685 (1951). Also, the burden is on a party appealing from a trial court judgment to show that the judgment is erroneous in order to obtain a reversal. Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex. 1968). However, here we do have a complete record of the jury trial. This enables us to evaluate whether the court of appeals correctly applied sections 21.019 and 21.020 of the Property Code to the facts of this cause.
The record before us supports Devco's position that Devco took only one strip of land, cleared one path and laid one pipeline. Furthermore, during oral arguments, counsel for Murray admitted that only one path was cut and one pipeline was laid. He also admitted that there was no physical possession by Devco of the property in the 1981 proceedings except to the extent of the overlap with the 1982 proceedings where there was no error in the description.
PossessionWaiver of Right to Dismiss
After the Commissioners have made an award in a condemnation proceeding, a condemnor may take possession of the condemned property pending litigation if the condemnor pays the award to the property owner or the court and executes a bond. Tex.Prop.Code Ann. § 21.021 (Vernon 1984). Also, a condemnor has a right to refuse to take the property sought to be condemned and move to dismiss the condemnation proceeding. Lower Nueces River Water Supply Dist. v. Cartwright, 160 Tex. 239, 328 S.W.2d 752, 757 (1959). See Tex.Prop.Code Ann. § 21.019 (Vernon 1984).
However, a condemnor may lose the right to dismiss "by taking possession of the property." Brazos River Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842, 845 (Tex.Comm'n App.1943, opinion adopted). See State v. Able, 369 S.W.2d 520, 523 (Tex.Civ.App. Texarkana 1963, writ ref'd n.r.e.). A "taking" is an actual physical invasion or an appropriation of the property. Brunson v. State, 444 S.W.2d 598, 601 (Tex.1969) (citing Tex. Const. art. I, § 17). A taking is complete when the owner is prejudiced and the status quo cannot be restored. Id. A landowner is prejudiced where the land is physically possessed and used by the condemnor. See, e.g., Fort Worth Concrete Co. v. State, 400 S.W.2d 314, 316 (Tex. 1966); City of Rockwall v. Mitchell, 497 S.W.2d 378, 380-81 (Tex.Civ.App.Waco 1973, writ ref'd n.r.e.).
A condition precedent to the condemnor's right to dismissal is to restore the status quo by surrendering possession of the land to the condemnee. Thompson v. *558 Janes, 151 Tex. 495, 251 S.W.2d 953, 955 (1952). However, a condemnor is not required to take more land than it needs nor secure unnecessary easement rights in the absence of showing prejudice to the landowner. Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524, 531 (1958).
Here, Devco took possession of the strip of land in question by clearing the land and laying the pipeline. In filing the 1982 condemnation proceedings and seeking to dismiss the 1981 proceedings, Devco was merely correcting the legal descriptions in the 1981 proceedings to correspond to where the pipeline lay. Devco did not deposit into the registry of the court the Commissioner's award for the 1982 proceedings. Neither the trial court nor the court of appeals ordered Murray to return the deposit.
Murray argues that Devco may not dismiss the 1981 condemnation proceedings because Devco took "possession" of the property described in the 1981 proceedings. The record does not support this assertion. It is undisputed that all Devco possessed was the strip of land which was cleared and where the pipeline was laid. Murray and the other owners were the ones in actual possession of the two tracts except for the strip of land in question. Mac Young, one of the property owners, testified that he would selectively cut timber on the tracts "where the pipeline wasn't." By seeking dismissal of the 1981 proceedings, Devco was simply correcting field note descriptions and returning to Murray the property which was in Murray's possession and which Devco did not need. Murray is not entitled to a double recovery for the taking of one strip of land. Murray was returned to the status quo and was not prejudiced by the dismissal of the 1981 proceedings. See Texas Power & Light Co. v. Cole, 313 S.W.2d at 530 (where condemnor had not physically occupied land and made no use of it as contemplated by the condemnation which would interfere with condemnee's rights, condemnee has shown no prejudice). In regards to the money award, Murray was not prejudiced by the alleged taking in the 1981 proceedings because Murray received the security of the Commissioner's award.
Penalty Provision
Murray also asserts that the court of appeals erred by not applying the penalty provision of Tex.Prop.Code Ann. § 21.020 (Vernon 1984).[2] As previously discussed, the 1981 proceedings do not involve substantially the same property as the 1982 proceedings within the meaning of the Property Code; thus, the penalty provision does not apply.
Conclusion
Murray does not present us with any legal theory to support the trial court's ruling on the motion to dismiss the 1981 condemnation proceedings other than Devco's failure to include a transcript of the dismissal hearing in the record. While the better practice would have been for Devco to have done so, there is other evidence before us by which we can evaluate Murray's points of error.
The judgment of the court of appeals is affirmed.
MAUZY, J., not sitting.
NOTES
[1] § 21.019. Dismissal of Condemnation Proceedings
(a) A party that files a condemnation petition may move to dismiss the proceedings, and the court shall conduct a hearing on the motion. However, after the special commissioners have made an award, in an effort to obtain a lower award a condemnor may not dismiss the condemnation proceedings merely to institute new proceedings that involve substantially the same condemnation against the same property owner.
(b) A court that hears a motion to dismiss a condemnation proceeding shall make an allowance to the property owner for reasonable and necessary fees for attorneys, appraisers, and photographers and for the other expenses incurred by the property owner to the date of the hearing.
(emphasis added).
[2] § 21.020. Reinstatement of Condemnation Proceedings.
If a condemnor moves to dismiss a condemnation proceeding and subsequently files a petition to condemn substantially the same property interest from the same property owner, the court may not appoint new special commissioners but shall enter the award of the special commissioners in the first proceeding as the award in the second. The court shall award the property owner triple the amount of the expenses that were allowed the property owner prior to the dismissal of the first proceeding. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1735913/ | 727 N.W.2d 34 (2006)
STATE EX REL. VAN HOUT
v.
ENDICOTT
No. 2004AP1192-W
Supreme Court of Wisconsin
December 5, 2006.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/726352/ | 95 F.3d 1158
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.ST. KATHERINE INS. CO.; Lexington Insurance Company;Assicurazioni Generali S.P.A.; El Paso InsuranceCompany; Dart & Kraft Insurance Co., etal., Plaintiffs-Appellants,v.Edward A. SHAY; Sheldon L. Pollack; E.R. McCollum;Norbert W. Pieper; Sheldon L. Pollack Corp.; PacificArchitects and Engineers Inter'l, Inc.; Norbert W. Pieper,A.I.A., Inc.; Biomass-One, L.P., et al., Defendants-Appellees.
No. 95-55397.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 10, 1996.Decided Aug. 21, 1996.
1
Before: FERNANDEZ and TASHIMA, Circuit Judges, and MERHIGE, Senior District Judge.*
2
MEMORANDUM**
3
Plaintiffs, insurance underwriters in London, brought suit against the Biomass defendants1 and the S-P defendants2 to recover out-of pocket expenses and the $2.2 million paid to Biomass One, L.P. ("Biomass") to settle an errors and omissions claim against S-P Construction ("S-P") alleging fraud by it. Plaintiffs appeal the district court's grant of a directed verdict and summary judgment in favor of S-P on Plaintiffs' fraud claim based on nondisclosure. They also appeal the grant of certain motions in limine in favor of S-P. Finally, Plaintiffs appeal the district court's Order dismissing the action against Biomass for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). We AFFIRM.
I.
4
To be effective, a reservation of rights which had been asserted by the insurer must clearly and unambiguously inform the insured of the insurer's position. Val's Painting & Drywall, Inc. v. Allstate Ins. Co., 53 Cal.App.3d 576, 588 (1975); Miller v. Elite Ins. Co., 100 Cal.App.3d 739, 754 (1980); Transamerica Ins. Group v. Beem, 652 F.2d 663, 666 (6th Cir.1981). The adequacy of the reservation is determined, not by the insurer's subjective intent, but by whether the reservation "fairly informs" the insured of the insurer's position. Transamerica, 652 F.2d at 666. An insurer that agrees to pay a claim with either constructive or actual knowledge of the applicable facts, and without reserving the right to assert a claim of fraud or nondisclosure in the insurance application, waives or is estopped from asserting these defenses unless it has specifically reserved its right to do so. See City of Carter Lake v. Aetna Cas. & Surety Co., 604 F.2d 1052, 1059-1060 (8th Cir.1979); Dillingham Corp. v. Employers Mut. Liab. Ins. Co., 503 F.2d 1181, 1185 (9th Cir.1974).
5
In granting summary judgment, the district court held that plaintiffs had failed to adequately reserve their rights to assert claims based on fraud or nondisclosure and, therefore, by virtue of their actions, including payment of the Biomass claim, plaintiffs had waived any right to recover from the defendants based on alleged fraud or nondisclosure in the insurance application. We agree.
6
On November 2, 1988, Plaintiffs expressly reserved their right to deny, based on nondisclosure, coverage of the errors and omissions claim. The letter, however, stated that the "underwriters are reserving their right to fully investigate the issues set forth in this correspondence." Essentially, the letter was a general statement that the plaintiffs were reserving all rights while they investigated all possible defenses, and stated that plaintiffs "expressly reserved the right to later assert those defenses."
7
In a letter dated January 6, 1989, plaintiffs stated again that the "Underwriters have concluded that the reservation will remain in effect at this time, pending further investigation and analysis." During this time, plaintiffs' counsel was fully aware that a decision to tender policy limits in settling the Biomass action would cause a waiver of their nondisclosure claim. (In a June 10, 1989, opinion letter, plaintiffs' counsel advised their clients that they had a clear choice between continuing to assert the nondisclosure claim and settling the Biomass action.)
8
On August 22, 1989, plaintiffs issued a new reservation of rights letter, this time reserving the right "to pursue S-P for potential recoupment as a result of the Underwriters' payment for noncovered damage claims." (emphasis added). The letter made no mention of reserving the right to pursue the nondisclosure claim. Plaintiffs then tendered $2.2 million of policy limits to settle the Biomass action.
9
Plaintiffs argue that the district court mistakenly focused only on the August 22, 1989, letter, and failed to properly evaluate the August 26, 1988 letter, the November 2, 1988 letter, and the January 6, 1989 letter. These previous letters, however, specifically limit the reservation of the nondisclosure claim to the investigatory period prior to settlement. Once plaintiffs decided to settle on the policy, and authored another letter that failed to reserve the nondisclosure claim, that defense was effectively waived. This is not a case where plaintiffs' counsel forgot to renew the nondisclosure reservation, rather, plaintiffs' counsel was well aware that by tendering the policy limits, the only claim that it could then pursue was for recoupment for payment on noncovered claims.3 That was the intent of the August 22, 1989, letter, and that intent was clearly conveyed to S-P. The law is clear that a specific basis for recoupment in a reservation letter is not sufficient to recoup on other grounds. Val's, 53 Cal.App.3d at 588. Furthermore, a reservation must be communicated to the insured to be effective. Id.
10
Plaintiffs also argue that during their investigation, S-P failed to turn over the "missing paragraph" that was omitted from the Biomass Letter of November 4, 1985. Therefore, plaintiffs argue they were not fully apprised of all relevant facts and were tricked into withdrawing their reservations. Plaintiffs, however, made a full investigation into their claim of nondisclosure. They now focus on a single paragraph that was deleted because Biomass believed that a potential delay claim was not relevant in terms of E & O insurance. Plaintiffs essentially argue that if the "missing paragraph" had been disclosed, they would not have settled the underlying action and would have reserved their rights to recoup based on nondisclosure. We disagree. The subject of the "missing paragraph" involved a delay problem that would have been covered by a contract claim, not E & O insurance, and plaintiffs clearly wanted to cap their potential liability through settlement.
11
As the district court correctly stated in its Conclusions of Law, "a reservation of rights that, by its terms, is limited to the period of the investigation of the underlying claim and that is followed by another reservation on a different ground is inadequate to reserve an insurer's right to recover payments that the insurer makes on the policy." Accordingly, we AFFIRM the grant of summary judgment as to S-P and, therefore, do not address plaintiffs' arguments relating to the directed verdict and motions in limine.
12
Furthermore, we find that no actionable fraud was pled against Biomass, and therefore AFFIRM the district court's order dismissing plaintiffs' complaint against Biomass pursuant to Federal Rule of Civil Procedure 12(b)(6).
II.
13
In conclusion, we AFFIRM the grant of Summary Judgment in favor of S-P. Additionally, we AFFIRM the district court's dismissal of the complaint against Biomass for failure to state a claim under Rule 12(b)(6). AFFIRMED.
*
The Honorable Robert R. Merhige, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation
**
This disposition is not suitable for publication and may not be cited to or by the courts of this Circuit except as provided by 9th Cir.R. 36-3
1
Biomass-One, L.P., Biomass-One Operating Company, Lee D. Weisel, D. Sam Scheele, and Marc D. Rappaport
2
Edward A. Shay, Sheldon L. Pollack, E.R. McCollum, Norbert W. Pieper, Sheldon L. Pollack Corporation, Pacific Architects & Engineers, Inc., Pacific Architects & Engineers, Inc., Norbert W. Pieper, AIA, Inc., S-P Construction, Pacific Architects & Engineers, Inc
3
Plaintiffs' counsel recommended to its client that the "course of action which presents the least risk to the Underwriters requires settlement based upon the demand of Biomass One. To do so will cap the exposure of the Underwriters, yet retain their right of action against S-P for noncovered claims." (emphasis added) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1544316/ | 68 B.R. 413 (1986)
In re EDGEHILL NURSING HOME, INC., Debtor.
JMF ACQUISITIONS CO., Plaintiff,
v.
Fred V. BOCCELLA, Defendant.
Bankruptcy No. 85-03690G, Adv. No. 86-0495G.
United States Bankruptcy Court, E.D. Pennsylvania.
December 31, 1986.
*414 W. Thomas Berriman, Leonard P. Goldberger, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, Pa., for plaintiff, JMF Acquisitions Co.
Lawrence F. Flick, Norristown, Pa., for defendant, Fred V. Boccella.
Walter B. Dunsmore, Lansdale, Pa., for debtor, Edgehill Nursing Home, Inc.
Marvin Krasny, Adelman, Lavine, Krasny, Gold & Levin, Philadelphia, Pa., for Official Creditors' Committee.
OPINION
EMIL F. GOLDHABER, Chief Judge:
The issues for consideration are whether the defendant, Fred V. Boccella ("Boccella"), should be held in contempt for his delay in complying with the terms of our May 5, 1986, order which authorized the sale of the assets of the debtor, Edgehill Nursing Home, Inc. ("Edgehill"), and whether Boccella's appeal of said order was filed in bad faith. For the reasons set forth below, we find that Boccella was in contempt for his refusal to comply with our order but that his appeal was not filed in bad faith, and therefore we will reduce the requested sanction from $5,768.00 to $500.00.
The facts of this case are as follows:[1] In April, 1986, the plaintiff, JMF Acquisitions Co. ("JMF"), was the successful purchaser of a sixty-bed nursing home facility from *415 Edgehill, and Boccella controlled Edgehill as its sole officer, director, and shareholder. On May 8, 1986, we entered an order authorizing the sale of the home to JMF pursuant to an agreement of sale. The order states in pertinent part:
ORDERED, that Edgehill be and is hereby authorized and directed to sell and/or assign the assets to JMF Acquisitions Co. substantially upon the terms and conditions of the agreement; and it is further
. . . . .
ORDERED that Edgehill, its officers and directors be and are hereby authorized and directed to execute, assume, assign and deliver all contracts, leases, agreements, assignments, conveyances or other documents necessary to consummate the sale of the assets, and to take such other actions as may be necessary to perform the terms and provisions of the Agreement; . . .
On or about May 16, 1986, Boccella appealed the aforementioned order but never filed a Designation of Contents and Statement of Issues pursuant to Bankruptcy Rule 8006. Moreover, Boccella failed to obtain a stay of our order pending appeal as required by § 363(m) of the Bankruptcy Code ("the Code"), and eventually the appeal was dismissed for failure to prosecute. Boccella stated that he never prosecuted the appeal because of the financial hardship in posting the requisite bond, and because he did not want to interfere with the welfare of the patients in the nursing home.
On June 5, 1986, in order to enforce its rights pursuant to our May, 1986 order, JMF filed a motion for a preliminary mandatory injunction to direct Boccella to comply with the order. During the hearing on the matter, we directed the defendant to sign the Sales Agreement and he complied. Boccella stated that his reasons for the delay were that he was unable to obtain legal advice concerning certain warranties and he needed to obtain clarification before he would sign the agreement.
JMF has now requested that we find Boccella in contempt for his delay in signing the order and that we find that the aforementioned appeal was filed in bad faith. Counsel for JMF requests that we sanction Boccella for legal fees incurred in the amount of $5,768.00.
The civil contempt power of the Bankruptcy Court is derived from 11 U.S.C. § 105(a) which enables the court to issue orders necessary to carry out the provisions of the Code. In re Damon, 40 B.R. 367, 374 (Bankr.S.D.N.Y.1984). See also 2 Collier on Bankruptcy, § 105.03 (15th ed. 1986). Before a party can be in contempt of court, there must be a specific and definite order of the court which the party has violated, and the party must have had actual knowledge of that order. In re Petro, 18 B.R. 566, 568 (Bankr.E.D.Pa. 1982) (citing Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47 (2d Cir.1976), cert. denied, 429 U.S. 1093, 97 S.Ct. 1107, 51 L.Ed.2d 540 (1977); United States v. Christie Industries, Inc., 465 F.2d 1002 (3d Cir.1972)). Willfulness is not required, and intent is irrelevant because of the remedial and coercive nature of civil contempt. Damon, supra at 374; Petro, supra at 569.
In the case at bench, Boccella stated that his failure to comply with the order was due to his confusion about certain warranties contained in the sales agreement. However, Boccella's intentions, although not made in bad faith, are not valid defenses to civil contempt because willfulness is irrelevant. Boccella's conduct is nonetheless contemptuous because it is clear that he knew about the order and what it required, but nevertheless failed to comply with it. Furthermore, with respect to Boccella's appeal, even if it was filed in good faith it did not excuse his non-compliance. Absent a court-obtained stay, one who is ordered to perform an act must comply promptly with the order. Petro, supra at 568 (citing Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590, 42 L.Ed.2d 574 (1975); United States v. Stine, 646 F.2d 839, 845 (3d Cir.1981). In the case at *416 bench, although the defendant appealed, he failed to request a stay, and again his intentions for doing so are irrelevant.
Finally, Boccella argues that the order was not specific in that it did not set forth a date upon which the agreement had to be signed. Therefore, he contends that his delay in signing the agreement did not constitute contempt. However, even assuming without conceding that the order was unclear, the absence of a specific date in the order is not sufficient justification for Boccella's actions. The language of the order was implicit in directing that the sales agreement be signed forthwith. Furthermore, a party cannot disobey an order and later attempt to assert the invalidity of the order as a defense to contempt. Petro, supra at 568. Even if an order is later determined to have been incorrect, or even unconstitutional, defiance of an order prior to a judicial determination of its invalidity will nevertheless constitute contempt. Id. at 569 (citing United States v. Stine, 646 F.2d 839, 845 (3d Cir.1981)). As such, Boccella's argument that the order was silent as to the specific date upon which the contract was to be executed is without merit. Accordingly, we find that Boccella was in contempt for his refusal to comply with our order and he will be sanctioned for attorney's fees in the amount of $500.00. We find this amount to be reasonable in light of the time spent in preparation for the instant proceedings. See generally In re Woerner, 67 B.R. 685, (E.D.Pa.1986).
Although we do find Boccella in contempt, we disagree with JMF's assertion that the defendant filed a bad faith appeal under Bankruptcy Rule 9011 for the purpose of delaying the sale of the debtor's assets. Bankruptcy Rule 9011 requires the imposition of sanctions when the document in question is not, after reasonable inquiry, well grounded in fact or law; and when it is interposed for any improper purpose, such as to harass, to cause delay, or to increase the cost of litigation. (emphasis added). Here, there has been no showing that the appeal was not well grounded in fact of law or that the appeal was filed in order to delay the proceedings. Boccella failed to prosecute the appeal due to financial hardship, and his failure to timely withdraw the appeal was due to his belief that the appeal was rendered moot as of June 5, 1986, when this court directed him to sign the agreement. The evidence shows that Boccella at all times intended to sign the agreement but that he simply needed clarification with regard to certain matters. As such, Boccella's conduct clearly did not approach the level of bad faith contemplated under Bankruptcy Rule 9011.
NOTES
[1] This opinion constitutes the findings of fact and conclusions of law required by Bankruptcy Rule 7052. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544318/ | 68 B.R. 278 (1986)
In the Matter of FOUR J'S LEASING & RENTALS, INC., Debtor.
Bankruptcy No. 86-3791.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
December 18, 1986.
H. Robert Dowd, Jr., Sarasota, Fla., for debtor.
Larry Foyle, Tampa, Fla., for Goldome Sav. Ass'n.
ORDER ON MOTION TO DISMISS CHAPTER 11 PROCEEDING WITH PREJUDICE
ALEXANDER L. PASKAY, Chief Judge.
THE MATTER under consideration is a Motion to Dismiss Chapter 11 Proceeding with Prejudice filed by Goldome Savings Association (Goldome), a creditor in the above-captioned case. Goldome seeks an order dismissing the bankruptcy case under § 1112(b) of the Bankruptcy Code for "cause" claiming that Four J's Leasing & Rentals, Inc. (Debtor) filed this Chapter 11 *279 Petition in bad faith. The Court has considered the Motion, together with the record, heard arguments of counsel, and finds as follows:
At the time relevant to the issue raised by Goldome's Motion, J.C. Condrack (Condrack) was the owner of four residential real properties and a condominium unit (Unit 202) in an office complex known as Ringling Professional Center. All these properties are located in Sarasota County, Florida. The four residences have been encumbered by two mortgage liens, one in favor of Goldome, the other in favor of Alliance Mortgage Co. (Alliance). Alliance, the holder of the first mortgage on the four residences, commenced an action to foreclose its mortgage lien on these properties and was proceeding to an entry of an Summary Final Judgment of Foreclosure and, of course, ultimately to a foreclosure sale of the four residences.
Goldome also joined in the foreclosure and filed a Lis Pendens in the public records of Sarasota County. Before Alliance and Goldome were able to complete the foreclosure action, Condrack, who was the owner of these properties, transferred his interest by quit claim deed to the Debtor without consideration. Ringling Professional Center Condominium Association, Inc., (Association) is a Florida non-profit corporation charged with the responsibility for operating and managing Ringling Professional Center, an office condominium, located in Sarasota County, Florida. On October 16, 1985, the Association filed a lien foreclosure action against the office condominium (Unit 202) owned by J.C.C. Company & Son, Inc. In addition, the Association filed a Lis Pendens in connection with its foreclosure action. On July 14, 1986, the Circuit Court for Sarasota County entered an Amended Final Judgment of Foreclosure in the amount of $3,685.37 and ordered the property to be sold on August 29, 1986. On August 28, 1986, one day prior to the foreclosure sale, J.C.C. Company & Son, Inc., the Defendant in the foreclosure action, transferred the subject property to the Debtor by quit claim deed for no consideration. Condrack is the president of both J.C.C. Company & Son, Inc. and the Debtor. The Chapter 11 Petition was filed by the Debtor on August 28, 1986.
The Association and the Clerk of the Circuit Court were not properly notified of the purported transfer of the subject property to the Debtor or of the filing of the Chapter 11. As a result, the foreclosure sale was held as scheduled on August 29, 1986, at which time the Association purchased the office condominium. On September 11, 1986, a Certificate of Title was issued to the Clerk which conveyed title of the office condominium to the Association. In addition, two other foreclosure actions were filed by the first and second mortgage holders on the same property, Case Nos. 86-1584 and 86-2423 in the Circuit Court for Sarasota County, Florida. The total indebtedness owed to the first and second mortgage holders far exceeds the value of Unit No. 202.
It is undisputed that these transfers of the properties involved by quit claim deed were for the specific purpose of obtaining the protection of the § 362 automatic stay of the Bankruptcy Code in order to thwart the foreclosure proceedings. It is also without dispute that the Debtor corporation never had any assets prior to acquiring title to the properties involved without any consideration; it never had any employees; never operated any business of any sort, and in fact was nothing more than a dormant corporate shell.
As indicated earlier, the dismissal sought by Goldome of this Chapter 11 case is based on § 1112(b) of the Bankruptcy Code, which inter alia provides as follows:
11 U.S.C. § 1112(b) Conversion or dismissal.
Except as provided in subsection (c) of this section, on request of a party in interest, and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title or may dismiss a case under this chapter, whichever is in the best interest of creditors and the estate, for cause. . . . *280 Goldome seeks a dismissal for "cause." The term "cause" as used in this section is not defined and it was obviously intended to be a flexible concept. This is evident from the legislative history of this section which includes the following statement discussing the concept of "cause" as used in this section: "The Court will be able to consider other equitable powers to reach an appropriate result in individual cases." H.R.Rep. No. 595, 95th Cong., 1st Sess. 406 (1977); U.S. Code Cong. & Admin. News 1978, at 5787, 6362. It is now universally recognized that it is appropriate to dismiss a Chapter 11 case for "cause" if it appears that the petition was filed in bad faith. In re Waldron, et al., 785 F.2d 936 (11th Cir.1986); In re Albany Partners, Ltd., 749 F.2d 670 (11th Cir.1984); In re Thirtieth Place, Inc., 30 B.R. 503 (9th Cir.1983); In re Wamsganz, 54 B.R. 759, 13 B.C.D. 973 (Bankr.E.D.Miss.1985); In re Levinsky, 23 B.R. 210 (Bankr.E.D.N.Y.1982); In re Spenard Ventures, Inc., 18 B.R. 164 (Bankr.D.Alaska 1982); In re Victory Construction Co., Inc., 9 B.R. 549 (Bankr.C.D. Cal.1981).
This Court recently addressed the issue of dismissal of a Chapter 11 case for "cause" in In re Welwood Corporation, 60 B.R. 319 (Bankr.M.D.Fla.1986). In Welwood, supra, this Court, citing Little Creek Development Co. v. Commonwealth Mortgage Corp., 779 F.2d 1068 (5th Cir. 1986), articulated several factors which are usually present in chapter 11 cases not filed in good faith and which may be considered in a motion to dismiss for cause:
1) debtor has one asset such as a tract of undeveloped or developed real property;
2) the secured creditors' liens encumber this tract;
3) there are generally no employees except for the principals;
4) little or no cash flow, and no available sources of income to sustain a plan of reorganization or to make adequate protection payments;
5) few, if any, unsecured creditors whose claims are relatively small;
6) the property has usually been posted for foreclosure because of arrearages on the debt;
7) the debtor has been unsuccessful in defending actions against the foreclosure in state court;
8) the debtor and one creditor may have proceeded to a standstill in state court litigation, and the debtor has lost or has been required to post a bond which it cannot afford;
9) allegations of wrongdoing by the debtor or its principals; and
10) the "new debtor syndrome" in which a one-asset equity has been created or revitalized on the eve of foreclosure to isolate the insolvent property and its creditors.
A comparison of the factors outlined above with the facts of this case leaves the Debtor in a virtually indefensible position. It is without dispute that the sole assets of the Debtor are five parcels of real estate subject to foreclosure sale. It is conceded that the primary purpose of filing the bankruptcy petition was to frustrate the foreclosure sales. The Debtor has no income and there is no viable business entity to rehabilitate. While it is true that this Debtor was not created on the eve of bankruptcy, nevertheless, it is clear that as noted it was nothing more than a bare corporate shell without any justification for its existence. This is a classic case of "new debtor syndrome" and the Debtor has no available sources of income to sustain a plan of reorganization or to make adequate protection payments.
It is now well established that courts are not required to retain cases on their dockets which were not filed to achieve the valid and legitimate purposes designed by Congress through the enactment of the rehabilitative provisions of Chapter 11. To do so would be a total disregard of the basic overriding purpose of the system designed by Congress which was to enable a financially distressed debtor to achieve rehabilitation. Therefore, if it is evident from the outset that there is no reasonable *281 expectation that the financial situation of the Debtor can be successfully repaired through the reorganization process, and the case is filed solely to use the bankruptcy forum to hide under the protective umbrella of the automatic stay in order to gain time and prevent secured creditors from enforcing their legitimate claims is "cause" which warrants a dismissal because such case was obviously filed in bad faith. In re Albany Partners, Ltd., 749 F.2d 670 (11th Cir.1984) Based on the foregoing, this Court is not required, nor is it inclined, to retain this case on its docket.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Motion to Dismiss Chapter 11 Proceeding with Prejudice be, and the same is hereby, granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544321/ | 68 B.R. 647 (1986)
In re Marlene Joyce WEST faw Executive Equities, Inc., faw West Wiens Development Corporation, Debtor.
Marlene Joyce WEST, faw Executive Equities, Inc., faw West Wiens Development Corporation, Movant,
v.
Lionel Daniel WEST, Defendant.
Bankruptcy No. SA 85-02283 JR.
United States Bankruptcy Court, C.D. California.
December 22, 1986.
*648 Slate and Leoni, Santa Ana, Cal., for debtor.
John K. York, Orange, Cal., for creditor.
MEMORANDUM OPINION
JOHN E. RYAN, Bankruptcy Judge.
The issue before this court is the extent to which the debtor may avoid a judgment lien on the debtor's residence (the "Property"). The judicial lien is held by Lionel Daniel West in the amount of $76,795 (the "West Lien").
The debtor filed a petition for relief under Chapter 7, Title 11, U.S.C., on June 18, 1985 and listed on her schedules the value of the Property at $116,840. Mr. West has not contested this valuation. Therefore, I find that the value of the Property is $116,840.
The Property is subject to a first deed of trust in the amount of $64,334, which lien has priority over the West Lien. The Property is also subject to second, third and fourth deeds of trust in the amounts of $22,500, $15,000 and $12,881, respectively. These deeds of trust follow the West Lien in priority. The debtor in her schedules listed her homestead exemption at $1,525.
On May 12, 1986, the debtor filed a Motion to Avoid Judicial Lien pursuant to 11 U.S.C. § 522(f)(1). The parties stipulated to have the matter heard by motion. A hearing was held on December 2, 1986.
Section 522 of the Bankruptcy Code sets forth exemptions from property of the estate. Section 522(f)(1) states in part that:
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;. . . .
In presenting their respective positions, the parties cite a number of cases interpreting § 522(f)(1). Judicial interpretations of § 522(f)(1) vary significantly. I begin my review with the language of § 522(f)(1). It grants the debtor the right to avoid a judicial lien on her exempt property. See In re Durham, 33 B.R. 23, 25 (Bankr.D.Tenn.1983); 3 Collier on Bankruptcy, ¶ 522.29[1] at 522-80 (15th Ed. 1985). Debtor declared a homestead exemption of $1,525. See Cal.Civ.Proc.Code (West 1983) § 704.730. However, avoidance of a judicial lien under § 522(f)(1) is limited "to the extent that such lien impairs an exemption to which the debtor would have been entitled." When interpreting statutory language, I should give the words their plain meaning unless there is convincing evidence that Congress intended something different. See Watt v. Alaska, 451 U.S. 259, 266; 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981).
I do not find such contrary evidence in the legislative history of section 522(f) or other provisions of the Bankruptcy Code. Therefore, I am comfortable in giving section 522(f)(1) its plain meaning. Accordingly, I believe avoidance of a judicial lien is limited by the amount of the exemption because the amount of the exemption establishes *649 the outside boundary of impairment. See In re Blevins, 53 B.R. 74, 75 (Bankr.W.D.Va.1985); In re Grosso, 51 B.R. 266, 272 (Bankr.D.N.M.1984); In re Losieniecki, 17 B.R. 136, 138 (Bankr.W.D. Penn.1981); contra In re Braddon, 57 B.R. 677, 679 (Bankr.W.D.N.Y.1986); In re McMaster, 55 B.R. 379, 380 (Bankr.W.D. Penn.1985); In re Durham, 33 B.R. 23, 27 (Bankr.D.Tenn.1983). Therefore, any avoidance of the West Lien must be equal to or less than $1,525.
However, the debtor claims that the full amount of the West Lien should be avoided. The debtor contends that the "fresh start" principle dictates this result. She cites three cases to support her position: In re Braddon, supra; In re McMaster, supra; In re Blevins, supra. In the Braddon case, the debtor brought a motion to avoid a judicial lien. The judicial lien creditor objected to avoidance for any amount exceeding the $20,000 homestead exemption. The property's value was $155,000 and it was subject to two mortgages aggregating $148,998. The judicial lien was approximately $139,469. The court used the following three-step process to avoid the judicial lien in its entirety: (1) It ranked the liens on the property in order of their priority; (2) it subtracted the amount of the homestead exemption from the value of the property; and (3) it subtracted all the liens from the remainder from step two in order of priority. Braddon, 57 B.R. at 679. All judicial liens which exceeded the remainder in step two were avoided. The court rationalized that this process would permit the future accumulation of equity by debtors and thus insure a fresh start in accordance with the overall purpose of the Bankruptcy Code. Id.
Applying this approach to the case at hand, the calculation would proceed as follows: $1,525 would be subtracted from $116,840 leaving a remainder of $115,315. From this remainder, the first trust deed would be subtracted leaving a balance of $50,981. The West Lien of $76,795 would then be subtracted from $50,981 leaving a negative equity of $25,814. According to Braddon, the amount of the West Lien would be reduced by $25,814 leaving the Property subject to the West Lien in the amount of $50,981. My problem with this result is that the West Lien would be reduced by an amount ($25,814) significantly greater than the amount of the homestead exemption ($1,525). This is inconsistent with the plain meaning and intent of § 522(f)(1). In any event, Braddon does not support avoidance of the full amount of the West Lien as urged by debtor's counsel.
In In re McMaster, supra, the residential property was encumbered by senior mortgages aggregating approximately $43,000 followed by a judicial lien for approximately $14,379. The debtor claimed a homestead exemption of $7,500. The court stated that "It is apparent from the above figures that the judgment lien . . . must be avoided in its entirety unless the property has a value greater than $50,530.39. . . ." 55 B.R. at 379. Thus, McMaster supports the debtor's position.
In In re Blevins, supra, the residence had a value of $34,000. There was a first deed of trust and a judicial lien for approximately $26,959 and $3,294, respectively, on the property. The debtor claimed a homestead exemption of $7,500. The court held that the judicial lien was avoided in its entirety because there was no equity in the property above the deed of trust and exemption. This conclusion is consistent with Braddon which would likewise avoid the lien to the extent there was no equity in the property. But, unlike Braddon, the court in Blevins indicates that where the value of the lien is greater than the amount exempted, the creditor is allowed to enforce its lien for the excess amount. 53 B.R. at 75. This is consistent with my view that the language of § 522(f)(1) limits avoidance to the amount of the exemption.
The debtor asks this court to add the second, third and fourth trust deeds on the Property (approximately $50,000) to find that there is no equity in the Property and hold that the full amount of the West Lien *650 is avoidable in accordance with the Braddon and McMaster decisions. To support its position, the debtor cites In re Losieniecki, supra. In applying section 522(f)(1), the court in Losieniecki added consensual liens with a lower priority than the judicial liens to determine if there was equity in the property. The effect was to improve the position of the consensual lienholders. To this extent, Losieniecki supports debtor's position that the lower priority consensual liens should be included to determine the degree of impairment. If this were done in this case, there would only be $600 of equity and according to Braddon the West Lien would be avoided in its entirety less $600. On the other hand, Losieniecki also stands for the proposition that avoidance is limited to the amount of the exemption. As the court stated,
Section 522(f)(1) gives the debtors the power to avoid judicial liens to the extent they impair the exemption; i.e., to divest that amount of equity ownership from the lien holders in favor of the estate. Id. at 138 (emphasis added)
In this regard, the Losieniecki decision is consistent with my view of § 522(f)(1).
Mr. West cites In re Fiore, 27 B.R. 48 (Bankr.Conn.1983); In re Durham, supra; and In re Grosso, supra, for the principle that consensual liens should not be given priority over previously existing judicial liens. In the Grosso case, the court reduced the amount by which a judicial lien was avoided under § 522(f)(1) by the amount of junior consensual liens on the property. 51 B.R. at 271. The basis for these holdings is the view that the debtor should not be in a position to "alter the order of payment among creditors claiming a lien interest, be it a judgment lien or a mortgage." Id. at 270.
Summing up the positions of the parties, the debtor contends that after the exemption and all the trust deeds on the Property are subtracted from the Property's value, only $600 is available to offset the West Lien. Therefore, the full amount of the West Lien is avoidable because there isn't sufficient equity in the Property to satisfy it. On the other hand, Mr. West contends that the equity applicable to the West Lien is $50,981 ($116,840 minus $1,525 minus $64,334). Accordingly, the avoidable position of the West Lien is $25,814 ($76,795 minus $50,981). The basis for Mr. West's position is that the lower priority consensual liens should not be counted in determining equity and the degree of impairment.
I do not agree with either position. I would first determine if there is actual impairment of the homestead exemption by subtracting the aggregate amount of all liens on the Property ($191,510) from the Property's value ($116,840). Because there is a negative equity ($74,770) in the Property, the West Lien does impair the homestead exemption. My approach does not distinguish between consensual liens having different priorities. To that extent, I support the view of the Losieniecki court. I believe Congress intended to give the debtor a fresh start to the extent a judicial lien impairs an exemption even if it means reordering the priority of creditors. Just because the debtor has the power to affect secured creditors in this way is not sufficient reason to write into the provision a limitation which Congress did not see fit to express.
Having decided that the debtor's homestead exemption is impaired, the next step is to determine the degree of impairment and, accordingly, the amount by which the West Lien is avoided. Because the Property has a negative equity which exceeds the amount of the homestead exemption the full amount of the exemption is impaired.
I therefore conclude that pursuant to section 522(f)(1) the West Lien is avoided in the amount of $1,525.
Separate findings of fact and conclusions of law with respect to this ruling are unnecessary. The within memorandum opinion shall constitute my findings of fact and conclusions of law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1736204/ | 519 So. 2d 128 (1988)
John H. CREECH and Denice S. Creech
v.
AETNA CASUALTY & SURETY COMPANY, Curtis R. Hawkins, Hawkins Painters & Decorators, Inc., Martha H. Young and Allstate Insurance Company.
No. 88-C-0011.
Supreme Court of Louisiana.
February 5, 1988.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577285/ | 790 S.W.2d 883 (1990)
EXXON CORPORATION, Intercontinental Terminals Company, and Rescar, Inc., Relators
v.
The Honorable Larry STARR, Judge, 188th Judicial District Court, Gregg County, Texas, and the Honorable Alvin G. Khoury, Judge, 124th Judicial District Court, Gregg County, Texas, Respondents.
No. 12-90-00150-CV.
Court of Appeals of Texas, Tyler
June 18, 1990.
*884 John M. Smith, Longview, Frank B. Davis, A. Thomas Kajander, Houston, for relators.
G.R. Akin, Longview, Paul M. Boyd, Tyler, for respondents.
PER CURIAM.
This original mandamus proceeding arises out of a personal injury action in which the relators are the defendants. Steven Lafollett is the plaintiff below and real party in interest here. State Farm Fire and Casualty Company, an intervenor below, is also a real party in interest. Respondent Judge Khoury is the presiding judge of the court in which the underlying action is pending. Respondent Judge Starr was sitting when one of the orders complained of in this mandamus action was entered.
LaFollett filed his original petition on February 18, 1988, alleging that as a result of an explosion caused by the negligence of relators he suffered injuries and damages. LaFollett's claim is that while he was working at an unrelated business, the explosion occurred on December 30, 1987, which caused him to fall. As a result of that fall, LaFollett contends that he has suffered physical and mental injury which has required institutionalization. Discovery has revealed that LaFollett has been seen by some forty-two medical doctors, psychologists, dentists, osteopaths and chiropractors since the alleged injury.
In January, 1990, LaFollett's medical records were turned over to the relators. According to the parties, the records comprise approximately 1,300 pages of information. In February, relators began taking depositions in the case. Sometime in March, the parties agreed to have LaFollett submit to a medical examination by relators' doctors in Houston. The examination was scheduled to take place on April 16-18, 1990. Relators agreed to pay all expenses for the examination. The examining doctor was to provide a report to LaFollett's attorney by April 23 and be available for deposition on April 26. On the afternoon of Friday, April 6, 1990, LaFollett's attorney informed relators that LaFollett's doctor had determined that LaFollett should not undergo the examination, that the doctor had decided such an examination would cause "decompensation" (heart failure).
On April 10, 1990, relators filed a motion for a medical examination pursuant to Tex. R.Civ.P. 167a. It was, and still is, their position that they need the examination to meet LaFollett's case because it is his contention that as a result of the alleged injury he will need care for the rest of his life at an expense of some $100,000.00 a year. Relators contend that good cause exists for the examination because LaFollett has stated his intent to use expert medical and *885 psychological testimony to prove his case and that further examination is necessary to throw light on perceived problems with the treatment and testing that has been provided.
On April 12, 1990, a hearing was held before Judge Starr sitting in the 124th District Court. LaFollett argued that his doctors concluded that it was unsafe for him to travel to Houston and further that relators sought only re-runs of several of the tests that had already been completed. From the argument of counsel it became apparent that one test, sought by relators, an MRI,[1] had never been done. Although no written order was entered on that date, Judge Starr indicated that relators could have LaFollett examined by one doctor in Dallas[2] and an MRI performed.
On April 20, a second hearing was held before Judge Starr to determine whether more time would be allowed for the designation of experts to testify at trial. Relators stated that a separate doctor was needed to perform and interpret the MRI and that person, who had not yet been identified, would need to be designated in supplemental answers to interrogatories. At the end of that hearing, Judge Starr indicated that he would allow relators to designate the examining doctor as well as the doctor who performs the MRI.
On May 4, 1990, Judge Starr signed an order directing LaFollett to appear for a physical examination before relators' doctor, Alan Levinstone, a neurologist who practices in Dallas, and who, in turn, would select a doctor to conduct an MRI. The order states:
(c) Even if Dr. Alan Levingstone [sic] believes it is necessary from a medical viewpoint to perform any other diagnostic tests or consult with any doctor other than the doctor who performs such magnetic resonance image test, he shall not have the right to do so.
(d) The Plaintiff is required to undergo a physical examination from the two persons referred to hereinabove and no other persons.
(e) The Court finds that the Plaintiff should not be required to undergo a physical examination from a psychiatrist or a psychologist or any other doctor other than the two doctors mentioned hereinabove even though the Plaintiff has been examined by several psychiatrists and psychologists, all of whom have been designated as testifying experts by the Plaintiffs.
On May 1, 1990, relators filed a motion to compel the production of all of "State Farm's records pertaining to Mr. LaFollett's medical condition." They also sought "[a]ll correspondence [of] Plaintiffs' attorneys and other parties such as doctors, health care providers, State Farm, or other insurance companies pertaining to Mr. LaFollett's medical condition." State Farm intervened in the suit on June 6, 1988 to recover medical expenses they had paid for LaFollett's treatment. On approximately May 11, 1990, relators cross-claimed against State Farm alleging negligence in the treatment provided to LaFollett on State Farm's recommendation.
On May 1, 1990, relators filed a motion for additional medical examinations. Relators sought thereby to obtain an order directing LaFollett to submit to a mental examination. Dr. Levinstone, who had conducted the court-ordered physical examination, reported that he found no evidence of physical injury, and therefore required consultations from psychiatrists and psychologists because he is not certified in those areas.
On May 14, 1990, Judge Khoury held a hearing on the pending motions. In response to the motion to compel, State Farm asserted that the documents that had not been voluntarily produced were privileged as work product and tendered the file to the court for an in camera inspection. Relator Rescar's attorney then told the court, "We don't want you to wade through this." After a lengthy exchange between the court and counsel to determine exactly what it was that relators wanted that had *886 not already been produced, Rescar said it wanted State Farm's daily logs. Judge Khoury orally denied the motion to compel production of those documents.
On their motion for additional medical examination, relators argue that since LaFollett has been examined by numerous psychiatrists and psychologists, in consultation with neurologists, they are entitled to obtain court ordered examinations by the same type of specialists to defend the case. Relators also argue that the raw data, and some of the tests relied upon by LaFollett and his doctors, were questionable. LaFollett's response is to the effect that relators are seeking to delay the trial, noting that although the case has been on file for some two years, relators began discovery in the last several months. LaFollett further replied that even relators' doctor had said that it would be difficult to accurately examine LaFollett psychologically because he was over-medicated. By written order signed on May 15, 1990, Judge Khoury overruled the motion for additional medical examination.
On May 16, 1990, relators filed this mandamus action seeking to compel the trial judge to set aside his order denying an additional medical examination, and to enter an order requiring LaFollett to submit to a mental examination, and compelling State Farm to produce its daily activity logs as requested in relators' motion.
This court granted relators' request for temporary relief and stayed the May 21 trial setting. The matter was heard on June 5, 1990. We will grant the petition in part and deny it in part.
STATE FARM ACTIVITY LOGS
At the time this mandamus action was filed, State Farm, asserting a privilege, had tendered the documents in question to the trial court for an in camera inspection. But relators had expressly told the trial court that they did not want the court to "wade" through the documents. Relators then asked this court to order the documents produced, complaining, among other things, that Judge Khoury had abused his discretion by not conducting an in camera inspection of the documents.
On May 24, 1990, subsequent to the filing of this mandamus action, Judge Khoury conducted an in camera inspection of the documents in question. On that same date, Judge Khoury signed an order wherein he found, after reviewing the documents and State Farm's affidavit evidence, that "material not heretofore produced relates to State Farm Fire and Casualty Company's efforts in this third party action and is privileged."
On the day of argument, relators sought to have the documents in question forwarded to this court for review. We are of the opinion that relators' petition in this case does not cover such a request. The question presented at the time of argument does not include the question of whether the trial court's determination of privilege after the in camera inspection constituted an abuse of discretion. For this reason, we deny relator's motion insofar as it requests relief from the trial court's order, entered on May 14, 1990, overruling the motion to compel, because that question is moot.
MOTION FOR ADDITIONAL MEDICAL EXAMINATION
Relators seek psychiatric and psychological examinations of LaFollett pursuant to Tex.R.Civ.P. 167a. They contend that the trial court abused its discretion in denying their request for an order directing LaFollett to submit to such examinations.
We begin by disposing of relators' claim that they are entitled to an examination of LaFollett by a psychologist. This claim is without merit. The Texas Supreme Court expressly rejected such a claim in Coates v. Whittington, 758 S.W.2d 749, 751 (Tex.1988) holding that a psychologist is not a "physician" within the meaning of Rule 167a.[3]See also Landry v. Green Bay & Western R.R. Co., 121 F.R.D. 400, 401 (E.D.Wis.1988); Comastro v. Tourtelet, 118 F.R.D. 442, 443 (N.D.Ill. *887 1987). That part of relators' petition for a writ of mandamus to compel the respondents to order a compulsory examination by a psychologist is denied.
The request for mandamus relief to compel an examination by a psychiatrist involves other issues. In order to obtain an order that a party undergo a compulsory psychiatric examination under Rule 167a, the movant must show (1) the party's mental condition is "in controversy"; and (2) there is good cause for a compulsory mental examination. Coates, 758 S.W.2d at 751; Tex.R.Civ.P. 167a.
This case, unlike Coates, does not involve allegations of simple mental anguish or emotional distress. Despite LaFollett's assertions to the contrary, his claims as elucidated by discovery include allegations of severe mental injury. His past treatment has included extensive psychiatric and psychological evaluation and treatment. His claim for damages is supported by a "Life Care Plan" prepared by a psychologist, which projects continued psychiatric, psychological and neuropsychological treatment. He has indicated, in response to discovery request, that his evidence at trial will include testimony of psychiatric and psychological experts. LaFollett's mental condition is clearly in controversy in this case.
To obtain a compulsory mental examination, relators must also have shown "good cause". To satisfy this requirement, relators must show three elements. Coates, 758 S.W.2d at 753. These elements are (1) that an examination is relevant to issues that are genuinely at issue in the case; (2) that there is a reasonable nexus between the condition in controversy and the examination sought; and (3) that it is not possible to obtain the information sought through some other, less intrusive, means. Id. The Supreme Court has said that "[i]f ... a plaintiff intends to use expert medical testimony to prove his or her mental condition, that condition is placed in controversy and the defendant would have good cause for an examination under Rule 167a." Id.
In a case remarkably similar to that before us, the First Court of Appeals found that denial of a request for a compulsory psychiatric examination of the plaintiff was such an abuse of discretion as to require granting mandamus relief.[4] In Sherwood Lane Associates v. O'Neill, 782 S.W.2d 942 (Tex.App.Houston [1st Dist.] 1990) (orig. proceeding), the minor plaintiff had been treated by two psychologists and admitted to a psychiatric hospital. The plaintiff had designated the psychologists as expert witnesses. The records of one psychologist were provided to the defendants who had a psychiatrist review them. The trial court denied the defendants' motion for a psychiatric examination by a psychiatrist of their choice. The defendants sought reconsideration and the trial court again denied the examination.
In deciding the trial court abused its discretion and that mandamus was proper in Sherwood Lane, the 1st Court said:
The facts and circumstances compel a decision contrary to the one reached by respondent [trial judge]. The minor has already been examined by her expert witnesses. Unless relators are allowed the requested relief, their expert's analysis will be limited to a review of the minor's records and the testimony of the minor's psychologists. Relators' expert would be precluded from examining matters not covered by the minor's psychologists' examinations and would be precluded from making his own observations. The trial court's action severely restricts relators' opportunity to discover facts that may contradict the opinions of the minor's expert witnesses. In turn, such restriction severely limits relators' ability to contest the minor's claim for mental injury damages.
The ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed. Fundamental *888 fairness dictates that relators' psychiatrist be allowed to examine the minor; otherwise, relators will be at a severe disadvantage in the "battle of experts."
Id. at 945 (citations omitted).
We agree with the First Court of Appeals. In this case, the facts and circumstances compel the decision that relators are entitled to have LaFollett examined by a psychiatrist of their own choosing. To deny such a psychiatric examination presents precisely the dangers outlined by the First Court; in effect it would be to deny them a fair trial.
The petition for a writ of mandamus is in part conditionally granted. It will issue only if respondent Judge Khoury fails to vacate his previous order to the extent it denies relators a mental examination of Steven LaFollett by a psychiatrist and fails to enter an order granting relators such an examination to be conducted by one psychiatrist in Dallas, Texas. In all other respects the petition for a writ of mandamus is denied.
NOTES
[1] A magnetic resonance image test.
[2] LaFollett was residing in a half way house in Dallas.
[3] Relators' attempts to somehow bring themselves within the ambit of the amended version of Rule 167a, which becomes effective on September 1, 1990, cannot be sustained. The very fact that the new rule is not effective at this time precludes the relief they seek.
[4] LaFollett attempts to distinguish the case, saying that the primary injuries in the case before the 14th Court were mental trauma. We do not believe that the case, as reported, supports that interpretation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576164/ | 35 So. 3d 94 (2010)
Richard RAMCHARITAR, Appellant,
v.
Erzulie DEROSINS and Sky Chefs, Inc., a foreign corporation, Appellees.
No. 3D09-1313.
District Court of Appeal of Florida, Third District.
May 12, 2010.
*95 Feiler & Leach and Martin E. Leach, for appellant.
Carlton Fields, Nancy C. Ciampa, Stephanie C. Zimmerman and Emmet J. Schwartzman, Miami, for appellee.
Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
WELLS, Judge.
In this personal injury action, Richard Ramcharitar appeals the entry of a final summary judgment in favor of the defendants below, Erzulie Derosins and Sky Chefs, Inc., claiming that the lower court erred in finding that the defendants were immune from tort liability pursuant to Florida's Workers' Compensation Law. We agree and reverse.
Richard Ramcharitar is a flight operations manager for American Airlines responsible for overseeing movement of airplanes to and from terminals at Miami International Airport. On July 14, 2001, while directing an aircraft pulling away from a terminal gate, Mr. Ramcharitar allegedly was struck by a Sky Chefs vehicle being operated by Erzulie Derosins. Sky Chefs, which provides beverages and food, is an American Airlines subcontractor; Ms. Derosins is a Sky Chefs employee.
Following this incident, Mr. Ramcharitar received workers' compensation benefits from American Airlines. He also filed suit against Sky Chefs and Ms. Derosins. Both Sky Chefs and Ms. Derosins denied responsibility for the accident and asserted workers' compensation immunity as a defense.
In December 2008, Sky Chefs and Ms. Derosins moved for summary judgment arguing that Sky Chefs, as a subcontractor of American Airlines (the general contractor), along with Ms. Derosins its employee, were immune from tort liability under the 2001 version of sections 440.10(1) and 440.11 of the Florida Statutes, which were in effect at the time Mr. Ramcharitar was injured. These provisions of Florida's Workers' Compensation Law afforded certain *96 tort immunity to subcontractors where the contractor provided workers' compensation coverage for the employees of both the contractor and its subcontractors. See §§ 440.10(1) and 440.11, Fla. Stat. (2001).[1] Summary judgment was granted. We reverse this final judgment because the Florida Supreme Court's opinion in Employers Insurance of Wausau v. Abernathy, 442 So. 2d 953 (Fla.1983), which interprets this version of section 440.10, mandates this result.
In 1937, Florida's Workers' Compensation Law was amended to confer statutory immunity on a subcontractor against tort claims brought by an employee of either the general contractor (vertical immunity) or another subcontractor (horizontal immunity) where the general contractor had secured workers' compensation insurance for the subject employee, the rationale being that the employees of both the general contractor and the subcontractor(s) were all engaged in a common enterprise. See Carter v. Sims Crane Serv., Inc., 198 So. 2d 25, 26-27 (Fla.1967) (finding that a subcontractor had horizontal immunity from a tort claim brought an employee of another subcontractor); Younger v. Giller Contracting Co., 143 Fla. 335, 196 So. 690, 693 (1940) (finding that a subcontractor had vertical immunity from a tort claim brought by an employee of the general contractor).
In 1974, the law was amended to expressly eliminate horizontal immunity, that is, to eliminate the statutory immunity for claims brought by an employee of one subcontractor against another subcontractor:
A subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness-of-liability provisions of s. 440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor.
See Ch. 74-197, § 6, at 546, Laws of Fla.; § 440.10(1), Fla. Stat. (1974).
While this amendment terminated horizontal immunity between subcontractors, subcontractors continued to enjoy vertical *97 immunity from actions brought by a contractor's employees as recognized in Carter and Younger. However, in 1983, the Florida Supreme Court decided Employers Insurance of Wausau v. Abernathy, 442 So. 2d 953 (Fla.1983), in which it held that the 1974 amendment to section 440.10 modified the "common employment premise" set forth in Younger and Carter, so that subcontractors were no longer immune from suit by a contractor's employee (eliminating vertical immunity), even if that employee had received workers' compensation benefits from the contractor:
The justification for limiting liability or granting immunity is the substitution of something else in its place, a quid pro quo. The duty to provide workers' compensation benefits supplants tort liability to those injured on the job. If the duty to provide such coverage does not exist, then one has no reason to expect immunity from wrongdoings committed against a third party.... [W]e recede from Younger ..., thus allowing a third-party action against one who has no duty to afford compensation benefits.
Abernathy, 442 So.2d at 954 (citations omitted).
This interpretation of the 1974 amendment to the workers' compensation law, section 440.10, remained in effect for the next twenty years. See Bruno v. Destiny Transp., Inc., 921 So. 2d 836, 841 (Fla. 2d DCA 2006) (citing Abernathy for the proposition that statutory immunity does not apply "to situations where a general contractor's employee is injured by the negligence of a subcontractor's employee"); Sherrill v. Corbett Cranes Servs., Inc., 656 So. 2d 181, 183 (Fla. 5th DCA 1995) (citing Abernathy and finding that "[i]t is now well established under Florida law that a subcontractor or independent contractor can be liable in tort for injuries sustained by the employees of a general contractor on a construction site"). In 2003, the Florida Legislature amended section 440.10 to restore subcontractor immunity from tort claims brought by either a general contractor or another subcontractor's employee (vertical and horizontal immunity):
A subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for payment of compensation to the employees of another subcontractor or the contractor on such contract work and is protected by the exclusiveness-of-liability provisions of s. 440.11 from any action at law or in admiralty on account of injury to an employee of another subcontractor, or of the contractor, provided that:
1. The subcontractor has secured workers' compensation insurance for its employees or the contractor has secured such insurance on behalf of the subcontractor and its employees ...; and
2. The subcontractor's own gross negligence was not the major contributing cause of the injury.
Ch. 2003-412, § 8, at 3879, Laws of Fla. (emphasis added).
Sky Chefs and Ms. Derosins do not dispute the fact that Mr. Ramcharitar was injured before the 2003 amendment to the workers' compensation law and that under the 1974 amendment as interpreted by Abernathy, they would not be immune from suit. They instead point to the fact that Mr. Ramcharitar filed the underlying lawsuit in 2005, after the statute was amended, and argue that we may conclude that they enjoy immunity because Abernathy was wrongly decided or alternatively because the 2003 revision should be applied retroactively. We decline to adopt either proposition.
*98 It is axiomatic that stare decisis obligates this court to follow Florida Supreme Court precedent. See Hoffman v. Jones, 280 So. 2d 431, 440 (Fla.1973) ("We hold that a District Court of Appeal does not have the authority to overrule a decision of the Supreme Court of Florida."). This obligation extends to the circuit courts of this state as well, which are further obligated to follow the decisions of the district courts of appeal "unless and until they are overruled by the supreme court." See Chapman v. Pinellas County, 423 So. 2d 578, 580 (Fla. 2d DCA 1982). We therefore decline the appellees' invitation to simply ignore Abernathy as either an aberration in the decisional lawwhich it clearly was not given its repeated application over some twenty yearsor as being wrongly decided. See Breed Tech. v. AlliedSignal Inc., 861 So. 2d 1227, 1231 (Fla. 2d DCA 2003) (finding that the trial court erred in disregarding existing case law based on its view that the case "was wrongly decided and therefore not binding on it"). At the time Mr. Ramcharitar was injured, prevailing Supreme Court precedent provided no immunity to subcontractors sued by their contractor's employees for workplace injuries.
Sky Chefs and Ms. Derosins are also not immune from suit by virtue of the 2003 amendment to section 440.10 because it does not apply retroactively. "In the absence of clear legislative intent to the contrary, a law is presumed to operate prospectively." Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass'n One, 986 So. 2d 1279, 1284 (Fla.2008). Therefore, in determining whether a statute applies retroactively, we must consider: "(1) whether the statute itself expresses an intent that it apply retroactively; and, if so, (2) whether retroactive application is constitutional." Id. With respect to the first prong, when considering legislative intent "both the terms of the statute and the purpose of the enactment must be considered." Fla. Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478, 488 (Fla.2008) (quoting Metro. Dade County v. Chase Fed. Housing Corp., 737 So. 2d 494, 500 (Fla.1999)). If the first prong is not satisfied, there is no need to consider the second prong. Id.; see also Mem'l Hosp.-W. Volusia, Inc. v. News-Journal Corp., 784 So. 2d 438, 441 (Fla.2001) (finding it unnecessary to determine whether the retroactive application of a statute was constitutional because the statute did not "set forth the clear legislative intent" that it be applied retroactively).
To this end, we find that while the 2003 amendment to section 440.10 effectively abrogated Abernathy with respect to vertical immunity for a subcontractor, there is no clear legislative intent that the amendment be applied retroactively. Neither the language of section 440.10 nor the enacting legislation evinces such intent. On the contrary, the enacting legislation expressly provided that the revisions to section 440.10 were to become effective on January 1, 2004, see Ch. 2003-412, § 8, at 3879, Laws of Fla., which was some three months later than the effective date provided for most all other revisions that were addressed in this legislation. See Ch. 2003-412, § 50, at 3969, Laws of Fla. ("Except as otherwise provided herein, this act shall take effect October 1, 2003."). The inclusion of this effective date rebuts the suggestion that the 2003 revision of section 440.10 was intended to apply retroactively. See State, Dep't of Revenue v. Zuckerman-Vernon Corp., 354 So. 2d 353, 358 (Fla.1977) (finding that the Legislature's inclusion of an effective date in enacting legislation amending existing law "effectively rebuts any argument that retroactive application of the law was intended"); see also Feraci v. Grundy Marine Constr. *99 Co., 315 F. Supp. 2d 1197, 1205 n. 11 (N.D.Fla.2004) (citing Zuckerman-Vernon Corp. for the proposition that because Chapter 2003-412 of the Laws of Florida set an effective date of October 1, 2003 for an amendment to section 440.11 with respect to the intentional tort exception to workers' compensation immunity, "such inclusion rebuts an argument that a retroactive application was intended").
However, at the summary judgment hearing, the trial court was persuaded to find otherwise because of "the cases that say if there is a legislative change that was intended to clarify what the legislative intent was before an intervening Supreme Court of Florida case, [the court] can apply that legislative change retroactively without doing violence to the constitution or to the Florida Supreme Court." We disagree, given that the 2003 revision to section 440.10 occurred twenty years after the Court decided Abernathy and some twenty-nine years after the 1974 amendment to section 440.10. As was held by the Court in similar circumstances, given that the membership between the 1974 and 2003 Legislatures was substantially different, it would be absurd to consider the 2003 revision as a clarification of the Legislature's original intent in 1974:
The Laforets, citing Lowry v. Parole and Probation Commission, 473 So. 2d 1248 (Fla.1985), and other cases, also argue that the Legislature was perfectly within its rights to clarify its intent and to apply the statute retroactively. We did state in Lowry that a clarifying amendment to a statute that is enacted soon after controversies as to the interpretation of a statute arise may be considered as a legislative interpretation of the original law and not as a substantive change. It would be absurd, however, to consider legislation enacted more than ten years after the original act as a clarification of original intent; the membership of the 1992 legislature substantially differed from that of the 1982 legislature. Compare Kaisner v. Kolb, 543 So. 2d 732 (Fla.1989) (subsequent legislatures, in the guise of "clarification" cannot nullify retroactively what a prior legislature clearly intended).
State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 62 (Fla.1995); M.W. v. Davis, 756 So. 2d 90, 103 n. 26 (Fla.2000) (finding that "due to the [thirteen year] gap between when the language was originally placed in the statute and the most recent amendment, the 1999 amendment cannot be seen as clarifying the Legislature's intent in 1986"); Parole Comm'n v. Cooper, 701 So. 2d 543, 544-45 (Fla.1997) ("[I]t is inappropriate to use an amendment enacted ten years after the original enactment to clarify original legislative intent.").
Having found no clear legislative intent that the 2003 revision of 440.10 be applied retroactively, it is unnecessary to determine if the retroactive application of the statute would be constitutional. Mem'l Hosp.-W. Volusia, Inc., 784 So.2d at 441.
In the absence of a clear legislative intent, the appellees alternatively argue that the 2003 revision should nevertheless be applied retroactively because the law is remedial in nature, and does not affect substantive rights. See, e.g., Basel v. McFarland & Sons, Inc., 815 So. 2d 687, 692 (Fla. 5th DCA 2002) ("In the absence of clear legislative intent, a law affecting substantive rights is presumed to apply prospectively only while procedural or remedial statutes are presumed to operate retrospectively."). We disagree, as the Florida Supreme Court has rejected an almost identical argument on a sufficiently analogous set of facts with respect to the 1974 amendment to section 440.10. See *100 Walker & LaBerge, Inc. v. Halligan, 344 So. 2d 239 (Fla.1977).
In Halligan, the plaintiff, an employee of a subcontractor, was injured due to the alleged negligence of another subcontractor's employee on the jobsite. Under the version of section 440.10 in effect at the time of the injury, see § 440.10, Fla. Stat. (1971), the defendant subcontractor had horizontal immunity from a negligence action by the plaintiff. However, after the Legislature amended section 440.10 in 1974 to eliminate a subcontractor's horizontal immunity, the plaintiff filed a negligence action against the defendant subcontractor. The trial court determined that the 1974 amendment was remedial and that it should be applied retroactively to the date of the plaintiff's injury, so that the defendant subcontractor no longer enjoyed immunity from suit under the 1971 statute. The trial court therefore denied the defendant subcontractor's motion for summary judgment, which had relied on the law as it existed at the time the alleged tort was committed.
On appeal, the Florida Supreme Court reversed, finding that the immunity at issue was a "substantive right which vested before the passage of the new statute" and that this substantive statutory right could not be retroactively withdrawn. Id. at 243. We see no distinction between the Halligan court's treatment of an amendment expressly eliminating tort immunity to the detriment of the employer, and the instant amendment which reinstates tort immunity to the detriment of the injured employee. As the Halligan Court explained:
"It is well established in Florida that the substantive rights of the respective parties under the Workmen's Compensation Law are fixed as of the time of the injury to the employee. This is so because the acceptance of the provisions of the Workmen's Compensation Law by the employer, the employee, and the insurance carrier constitutes a contract between the parties which embraces the provisions of the law as of the time of the injury. Consequently, a subsequent enactment could not impair the substantive rights of the parties established by this contractual relationship."
Id. (quoting Sullivan v. Mayo, 121 So. 2d 424, 428 (Fla.1960)).[2] The 2003 amendment, being substantive, does not apply retroactively.
Accordingly, because Sky Chefs and Ms. Derosins were not immune from suit under the version of section 440.10 in effect at the time of Mr. Ramcharitar's injury, as interpreted by Abernathy; because there is no clear legislative intent that the 2003 revision of the statute be applied retroactively to this case; and because the 2003 revision is not remedial, summary judgment should not have been entered in their favor.
The order on review is, therefore, reversed.
NOTES
[1] Section 440.10(1) of the Florida Statutes (2001) provides, in relevant part:
(a) Every employer coming within the provisions of this chapter ... shall be liable for, and shall secure, the payment to his or her employees .. . the compensation payable under ss. 440.13, 440.15, and 440.16 ...
(b) In case a contractor sublets any parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.
....
(e) A subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness-of-liability provisions of s. 440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor.
Section 440.11 of the Florida Statutes (2001) provides, in relevant part:
The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee... and anyone otherwise entitled to recover damages from such employer at law ... on account of such injury or death.... The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer's business and the injured employee is entitled to receive benefits under this chapter.
[2] We further note that the Florida Supreme Court previously determined that the 2003 codification of the intentional tort exception to workers' compensation immunity, which was enacted by the Florida Legislature in the very legislation that is at issue here, effective October 1, 2003, see Ch. 2003-412, § 14, at 3890, Laws of Fla., and which abrogated existing Florida Supreme Court precedent in order to heighten the standard for applying said exception, does not apply retroactively. See Bakerman v. The Bombay Co., Inc., 961 So. 2d 259, 262 n. 3 (Fla.2007); Cabrera v. T.J. Pavement Corp., 2 So. 3d 996, 998 n. 3, 999 n. 4. (Fla. 3d DCA 2008) (citing Bakerman, and applying the version of the workers' compensation law in effect at the time of the employee's death on the jobsite). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576558/ | 346 S.W.2d 349 (1961)
Samuel Leroy MOORE, Appellant,
v.
STATE of Texas, Appellee.
No. 33163.
Court of Criminal Appeals of Texas.
April 19, 1961.
Percy Foreman, Alan Haley, Raeburn Norris, Houston, for appellant.
Frank Briscoe, Samuel H. Robertson, Jr., Fred M. Hooey, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
McDONALD, Judge.
Murder with malice is the offense, with punishment assessed at life imprisonment in the penitentiary.
In view of our disposition of this case, we shall pretermit a discussion of the other contentions raised by appellant and confine ourselves solely to the contention of jury misconduct.
In his motion for new trial, appellant urged that during the jury's deliberations they received other testimony; that shortly after the jury retired they agreed upon a "guilty" verdict; that there was a ballot taken as to punishment, wherein several *350 jurors were for a suspended sentence, several were for a short sentence up to ten years, and only two were for death or a long sentence. It was further alleged that several jurors then brought up the Selby murder case, about which they had read in the newspapers, to the effect that Selby was given lifewhich meant that he would serve only seven or eight years; that, after several hours of this type argument and the receipt of other testimony about the Selby case and other cases, it was this argument about what "life" meant that finally brought the ten jurors from a suspended sentence, or a short term, up to a life sentence.
The motion was supported by affidavits from two of the jurors.
Seven of the jurors who served in the case testified upon the hearing of the motion, six of them being witnesses for the appellant and one being a witness for the state. The same two jurors who had executed affidavits in support of appellant's motion for new trial were among the seven testifying at the hearing of the motion.
The state answered, controverting appellant's motion, and in support of its answer attached thereto affidavits from all seven of the jurors who testified in the hearing upon such motion.
The two affiants whose affidavits were attached to the motion for new trial executed the instruments on August 19 and August 20, 1960. All seven affidavits attached in support of the state's answer were executed on September 16, 1960, which was the same date on which the motion for new trial was heard and denied by the trial court.
We observe that all the affidavits attached to the state's answer are practically identical in length and in meaning. The state did not directly nor conclusively controvert appellant's fact issuesunless resort is to be made to the affidavits attached to the state's answer and the statement of facts adduced at the hearing for new trial is to be disregarded.
The evidence adduced from the seven witnesses testifying on the motion for new trial is summarized as follows:
The witness Goode testified, without dispute, that he and the other jurors voted by the secret code system; that they first determined appellant's guilt and then on the first ballot or so there was a rather wide variance in the verdict, some being for a suspended sentence, some up to several years, some up to life imprisonment, and two or three for the electric chair; that after this vote and before a unanimous decision the jurors discussed what "life in the penitentiary" meant, and interpreted it as meaning confinement in the penitentiary for seven or eight years; and that the Selby murder case was mentioned. The witness's further testimony was that all the jurors agreed on a ten-year sentence except one man, who held out for fifteen or twenty years; that they believed "that a parole could be possible within the same length of time if it was life or ten years"; that after further discussion the jurors all finally agreed on a life sentence.
Coley, the next witness, testified that he remembered the Selby case being mentioned in the discussion concerning the meaning of life imprisonment and the number of years a man "would stay in the pen" and that a life sentence, with good behavior, would mean seven or eight years; that they, the jurors, then arrived at a verdict of life imprisonment.
The next witness, Mrs. Richardson, testified that the Selby murder case, which had recently been tried, "was mentioned as an example" in the discussion as to punishment; that the first few times the jurors voted there were over three in favor of a two-to-five year sentence, some for five to ten years, "some 10; some 25, some life, two or three death."
Another witness, Mrs. Meadows, testified that on the first ballot she was for a five-year suspended sentence and then for a *351 four-year suspended sentence; that, regarding the length of time a person under a life sentence would serve, there was a discussion to the effect that "it would be possible for a parole at 9 years and on good behavior, less"; that it was after this discussion that she voted for "life."
Patrick K. Duffy, the state's only witness, and foreman of the jury on the trial of the case, testified that he voted for the death penalty on the first ballot; that the Selby case was only mentioned when someone said: "if [Selby] was in Houston he would have gotten the death penalty, and someone said they read in the newspaper that he could be eligible for parole in 8 or 10 years or something of that nature." The witness repeated that the Selby case was mentioned only in that one instance in a two or three-minute discussion as to how much time a person would have to serve if he got "life." The witness further stated that he recalled the Selby case coming up before any vote was ever taken on a verdict.
The next witness, J. W. Mann, testified that his first ballot was for forty years; that he heard the Selby murder case mentioned only after they (the jury) had cast several ballots and had found appellant guilty; that Selby had been given a life sentence "and could get out in 7 or 8 years"; that before the jury arrived at a unanimous sentence of life there was a discussion as to the meaning of "life" being seven or eight years.
Lucas, the last witness, testified that he was for a life sentence on his first ballot; that the jury took about eighteen or twenty more ballots; that at one point he came down to ten years. He further testified that the Selby murder case was mentioned very briefly in the deliberations; that a discussion about the length of time Selby would have to serve was used as an example of a life sentence; that there was a possibility of a person with a life sentence being eligible for parole in seven or eight years "upon good behavior and the Board of Trustees [sic] and the Governor putting him on parole."
It is the state's position that the exact question here presented was decided adversely to the appellant's contention in Montello v. State, 160 Tex. Crim. 98, 267 S.W.2d 557, 558, and the facts in this case are identical with the reported facts in Montello's case.
In examining Montello, we find that, while deliberating, the foreman brought to the attention of the jury the fact that he had read a newspaper article which, in substance, said that the average person who received a life sentence served an average of eight years prior to the time he was pardoned by the "`Parole Board of the State of Texas.'" This matter was brought up two or three times but there was no appreciable discussion about it.
It is not clear from the facts in the Montello case as to when any discussion was had, but the dissenting opinion indicates that it must have occurred before the vote on the question of punishment.
Be that as it may, while Montello may be regarded as authority for the proposition that it is common knowledge that we have in Texas a board of pardons and paroles and that, together with the governor, they exercise the power vested in them to grant clemency in the matter of pardons and paroles and commutation of punishment, such "common knowledge" must be correct as a matter of law in order to be properly employed by a jury in reaching a verdict.
We do not feel that the question here presented is in any way identical with the facts in Montello.
In Roberson v. State, 160 Tex. Crim. 381, 271 S.W.2d 663, in passing upon the question of jury misconduct directly growing out of the receipt of other testimony after retirement of the jury, it was held that this court's primary concern was to determine whether or not the information received by the jury was untrue or was harmful to *352 the appellant. This court held that the statements made in the jury room were not untrue and that appellant was not harmed thereby. Consequently, the judgment in that case was affirmed.
If statements are untrue, the making of them clearly constitutes misconduct warranting reversal. Mays v. State, Tex.Cr. App., 320 S.W.2d 13. The Mays case was reversed because a juror said that appellant would have to serve one year and three months on a five-year sentence, when, actually, he would have to serve one year and eight monthswhich was a longer period than that stated by the juror.
In Farias v. State, Tex.Cr.App., 322 S.W.2d 281, the foreman of the jury, who was opposed to the suspended sentence law, told his fellow jurors that the judge would probably place appellant upon probation. This was a misstatement of the law on the part of the jury foreman, since a judge can not place a defendant on probation who has been convicted of murder.
In the instant case, we feel that most of the statements made by the various witnesses in their testimony on the motion for new trial constituted misstatements of law which no doubt caused the sentence imposed to be enhanced beyond what it would have been had the statements not been made.
Art. 781d, Sec. 15, Vernon's Ann.C.C.P., authorizes all persons confined in penal institutions of this state, except those persons under the sentence of death, to be released on parole after recommendation by the pardons board and the approval of the governor, when one-third of the maximum sentence imposed has been served, with the further provision that one may be paroledin any caseafter serving fifteen years.
Under this record, we are of the opinion that the incorrect statements made by the various jurors in their discussions and the subsequent vote on the part of some of the jurors to increase the penalty constituted misconduct to the extent that this appellant has not received a fair and impartial trial.
For other cases in point, see: Price v. State, 150 Tex. Crim. 161, 199 S.W.2d 168, and Spriggs v. State, 160 Tex. Crim. 188, 268 S.W.2d 191.
For the reasons stated, the judgment is reversed and the cause is remanded.
WOODLEY, P. J., absent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576537/ | 346 S.W.2d 479 (1961)
James Hilman MONTGOMERY, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
March 17, 1961.
Rehearing Denied June 9, 1961.
Frank E. Haddad, Jr., Louisville, for appellant.
John B. Breckinridge, Atty. Gen., Wayne J. Carroll, Asst. Atty. Gen., for appellee.
STANLEY, Commissioner.
To reverse a judgment of conviction of armed robbery with a penalty of life imprisonment, KRS 433.140, the appellant, James Hilman Montgomery, contends the evidence proved him to be guilty only of grand larceny.
*480 Mrs. Bonnie L. Trimble, who was in charge of a grill and restaurant owned by James H. Arnold, testified that about three o'clock in the morning of November 19, 1959, the appellant, Montgomery, and another young man, John Louis Busby, came to the restaurant. They drank coca-colas and acted so as to arouse her suspicion of an evil purpose. Busby spent about a half hour using the telephone while Montgomery walked around "looking things over" and watching her movements. Montgomery spread a newspaper on the counter and read or pretended to read it. Busby ordered another coca-cola and started toward the door. When the witness called his attention to the fact that he had not paid for it, he came back and gave her a dime. As she started to ring it up in the cash register, Montgomery was standing near by. She heard a noise behind her and turned and saw Busby leaning over the counter and lifting up a box from the floor behind the counter. The box contained $58. Montgomery went through a swinging door in the counter to where she was. She took a step or two toward Busby, and then Montgomery stepped up with a knife in his hand and called her "a bad name" and said, "If you move, I'll cut your G____ d____ throat." He had a small knife opened in his hand. She further testified, "And then they took the money and run out the door. I didn't move because I was very scared." On cross-examination the witness stated that Montgomery had made no threatening "gestures or maneuvers" toward her at any time before Busby got the box of money.
Police officers testified that when they arrived at the restaurant they found Mrs. Trimble frightened, nervous and excited. When Montgomery was arrested about a month later the officers told him he was charged with armed robbery. He admitted that he and Busby had taken the money from Arnold's restaurant and that he had talked to the woman to keep her attention away while Busby grabbed the money box. He denied that he had used a knife or any other weapon.
The cooperative activities of the two men, of course, made one of them as guilty as the other of any felony committed at the time. Waggner v. Commonwealth, 298 Ky. 153, 182 S.W.2d 661. The appellant contends that the taking of the box of money had been accomplished before the threat and violence described by the witness, Mrs. Trimble, so that the crime proved was only grand larceny. Larceny, which is a generic term, is a degree of robbery. Cosby v. Commonwealth, 186 Ky. 503, 217 S.W. 357; Southerland v. Commonwealth, 217 Ky. 94, 288 S.W. 1051; Roberson's Ky. Criminal Law, § 603. Our statutes do not define either crime but merely prescribe the penalties. KRS 433.120, 433.220, 433.230. The maximum penalty for robbery is ten years' imprisonment, but if the crime is committed by the use or display of a firearm or a "deadly weapon" (commonly called "armed robbery"), the punishment is death or imprisonment for life. KRS 433.120, 433.140. The knife described by the witness was a deadly weapon. Williams v. Commonwealth, 304 Ky. 359, 200 S.W.2d 926. So, we look to the common law for the distinction between the two crimes. Burks v. Commonwealth, Ky., 259 S.W.2d 68.
Larceny implies a taking of property by stealth, with an absence of such fear or force as would constitute robbery. Jones v. Commonwealth, 115 Ky. 592, 74 S.W. 263; Waggner v. Commonwealth, 298 Ky. 153, 132 S.W.2d 661.
The distinguishing characteristics of robbery are that the taking of the property is from the person or in the immediate presence of one in possession thereof and accomplished either by force or violence or by intimidation, actual or constructive of such a nature as to put the person in fear or cause reasonable apprehension of danger. Jones v. Commonwealth, 112 Ky. 689, 66 S.W. 633, 23 K.L.R. 3081, 57 L.R.A *481 432, 99 Am. St. Rep. 330; Armstrong v. Commonwealth, 190 Ky. 217, 227 S.W. 162; Howard v. Commonwealth, 313 Ky. 667, 233 S.W.2d 282; Roberson's Ky.Criminal Law, § 603.
The appellant contends that the removal of the box of money from its place behind the counter was asportation, and thereby the crime of grand larceny was complete before his knife was displayed. Technically, that may be sufficient in some circumstances to consummate the crime of larceny. Commonwealth v. Metcalfe, 184 Ky. 540, 212 S.W. 434; Wombles v. Commonwealth, Ky., 317 S.W.2d 169. Even that claim is tenuous, for there was scarcely a distinct measurable period of time between the removal of the property from the floor and the violence. Adams v. Commonwealth, 153 Ky. 88, 154 S.W. 381, 34 L.R.A.,N.S., 637. It is generally recognized that the requisite element of force or putting in fear must either precede or be contemporaneous or concurrent with the taking of the property. Jones v. Commonwealth, 115 Ky. 592, 74 S.W. 263; Howard v. Commonwealth, supra, 313 Ky. 667, 233 S.W.2d 282; 2 Wharton's Criminal Law and Procedure, §§ 545, 559; 77 C.J.S. Robbery §§ 3, 11; Annotation, 58 A.L.R. 656, 662. Particularly, in Armstrong v. Commonwealth, supra, 190 Ky. 217, 227 S.W. 162, 163, we stated that it is not indispensable "that the force employed or the putting of the person robbed in fear should precede the taking of the property. It will be sufficient if both or either accompany the taking of the property, and that was the case here." See also Peck v. Commonwealth, 286 Ky. 347, 150 S.W.2d 919.
In the present case it would be an unsubstantial conception of the facts to say that the taking of the box of money was completed, or that the larceny had already been consummated, when the defendant made his threat and displayed his knife. The acts originated and occurred in the same period of time, that is to say, were contemporaneous.
Under appropriate instructions on armed robbery, robbery, and grand larceny, the jury decided the defendant was guilty of the higher degree of crime. We think the verdict is sustained by the law and the facts.
The point is made that the prosecuting attorney, in his closing argument, prejudicially commented on the failure of the defendant to testify in his own behalf in contravention of his constitutional privilege to refrain from giving evidence in his own behalf, § 11, Kentucky Constitution, and his statutory right to have the prosecution keep silent about his failure to testify. KRS 455.090(1). Adams v. Commonwealth, Ky., 264 S.W.2d 283.
In his preceding argument the defendant's attorney commented on his statements or admissions to the police officers when he was arrested, as above related. The attorney said, "Now I submit that that is unusual, and you ladies and gentlemen have been on the jury long enough to agree with this, that it is unusual for a person to come in and admit before a jury that he is guilty of an offense." The prosecuting attorney interrupted to say to the court, "There has been no admission before the jury." In a colloquy it was cleared up that the admission was to the officer. Further along the defendant's attorney said, "Now he doesn't come before you and insult your intelligence by telling you that `I wasn't there; this woman has made a wrong identification; that I was arrested a month later,' and all that sort of business. He doesn't insult your intelligence by that, but his admission to the officer and the officer has testified the same thing as what this defendant could have told you " The prosecuting attorney interrupted to object to the statements.
During the closing argument, the prosecuting attorney said, "I cannot resist telling you this at the very outset: Mr. Haddad tells you that the defendant did not come to you and tell you a cock and bull story, that the defendant admits that the defendant *482 does this or the defendant doesn't do that. The cold fact of the matter, ladies and gentlemen, is, not one witness, not one witness was called to that witness chair except by the Commonwealth." Following an objection, the attorney said, "The Commonwealth is the only one that produced a witness from that chair." This too was objected to.
It seems to us apparent that when the questionable statements of the prosecuting attorney, with their attendant circumstances, are considered, they were provoked by and made in response to previous statements of the defendant's attorney before the jury. That being the case, they cannot be deemed prejudicially objectionable. Rogers v. Commonwealth, 161 Ky. 754, 171 S.W. 464; Brooks v. Commonwealth, 281 Ky. 415, 136 S.W.2d 552.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454950/ | 480 S.W.2d 430 (1972)
John G. SEAMAN, Appellant,
v.
Adrienne NEEL, Independent Executrix of the Estate of C. B. Neel, Deceased, Appellee.
No. 526.
Court of Civil Appeals of Texas, Corpus Christi.
April 27, 1972.
Rehearing Denied May 25, 1972.
*431 Davis & Hale, Allen V. Davis, Corpus Christi, for appellant.
Allison, Maddin, White & Brin, David Yancey White, Corpus Christi, for appellee.
OPINION
NYE, Chief Justice.
This is a suit by Adrienne Neel in her capacity as independent executrix of the estate of her deceased husband C. B. Neel to recover a portion of attorney fees due from the surviving member of the law firm in which her husband was senior member. The case was tried before a jury. Based on special issues answered, the trial court entered judgment for Mrs. Neel in the amount of $21,900.00. This was the amount the jury found to be her share of the reasonable value of the legal services rendered by the law firm up to the time of her husband's death. The succeeding member of the law firm appeals, complaining principally that the judgment in favor of the widow is excessive. We affirm.
Appellant Seaman's first point of error is:
"Judgment should not have been rendered on the verdict because $36,500.00 as the fee for the amount and kind of the work done in the short period involved is excessive to the point being unconscionable."
Rule 440, Texas Rules of Civil Procedure, provides:
"In civil cases appealed to a Court of Civil Appeals, if such court is of the opinion that the verdict and judgment of the trial court is excessive and that said cause should be reversed for that reason only, then said appellate court shall indicate to such party, or his attorney, within what time he may file a remittitur of such excess. If such remittitur is so filed, then the court shall reform and affirm such judgment in accordance therewith; if not filed as indicated then the judgment shall be reversed."
The Supreme Court of Texas has held that a determination of excess by a Court of Civil Appeals is one of fact. Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950); Carter v. Texarkana Bus Company, 156 Tex. 285, 295 S.W.2d 653 (1956). Our high court has reaffirmed that such a determination is factual when it made clear that the responsibility of the various courts of civil appeals is the same as that of the trial courts. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959); see also Coastal States Gas Producing Company v. Locker, 436 S.W.2d 592 (Tex.Civ.App. Houston 14, 1968).
The Honorable Eugene L. Smith, in an article entitled Texas Remittitur Practice, 14 Southwestern Law Journal 150, agrees that a determination of an excess judgment in an unliquidated damage case is one of fact. He suggests that a prudent lawyer who wishes to attack a verdict as excessive would do well to allege that the verdict was "so excessive as to be manifestly unjust", *432 "without support in the evidence", and/or "against the overwhelming weight and preponderance of the evidence." However "All the Court of Civil Appeals can do, and all that is required of it to do... is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation ..., and treat the balance as excess...." Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993 (1916); Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959).
A review of the evidence shows that Judge C. B. Neel was a distinguished lawyer and practitioner in Corpus Christi. He died in January 1965. For some twenty-five years prior to his death, Dr. J. H. Harvey had been a friend and client of Judge Neel. In 1951 Judge Neel employed John G. Seaman, the defendant, to work in his law office. Less than a year and a half prior to Judge Neel's death, he and Seaman entered into an agreement whereby their respective interests and ownership in the future operation of their law office were set out and agreed upon. In a three-page, single-spaced letter agreement, Judge Neel proposed to Seaman certain terms for the settlement and termination of their association as lawyers in the event of death, illness, disability or retirement of either of them. It was evident from such agreement, that the firm and law practice belonged to Judge Neel up until this particular time. The letter, for instance, acknowledges that the library belonged to Judge Neel and the administration of the office and bank account was carried in Judge Neel's name. The agreement authorized Seaman to carry on the firm in the firm name in the event of Judge Neel's disability or upon his death, if Seaman was still practicing with Judge Neel at such time. The agreement gave Seaman the option to purchase the law library, title opinions and files. It provided specifically for the settlement of contingent fees, property taken in as fees and gave to Seaman all the fees for work performed by him, one month after Judge Neel's death. It then stated, however, that:
"... If any work has been done upon any matters in the office prior to my death or retirement, then you and my representatives, in the event of my death, or myself upon retirement, shall agree upon the division of these fees (that had accrued up until the time of his death (upon an equitable basis taking into consideration the amount of work theretofore done, and as to the amount of work thereafter to be done." (Emphasis and Parenthesis supplied)
Seaman accepted Judge Neel's proposal.
On December 17, 1963, a will for Dr. J. H. Harvey was drawn by the firm of Neel & Seaman in which the Corpus Christi Bank & Trust Company was named Independent Executor of the Estate and trustee of a perpetual type trust set up principally for various charitable organizations. In the next to the last article of the will, it stated that:
"The executor and trustee shall employ Neel and Seaman (C. B. Neel and/or John G. Seaman) as attorneys, or attorney, for the estate of J. H. Harvey, deceased, and the trust created herein; but upon the refusal or inability of the survivor of them to act, then the executor and/or trustee shall employ counsel of their own choosing and pay to the attorneys acting for such executor and trustee reasonable fees for their services." (Emphasis supplied)
On January 8, 1965, Dr. Harvey died leaving an estate consisting primarily of land and oil, gas and mineral interests valued in excess of 2½ million dollars. Immediately upon Dr. Harvey's death, the Corpus Christi Bank & Trust Company employed Neel and Seaman as their attorneys. Judge C. B. Neel commenced at once the business of representing the independent executor in the probate of this estate. Judge Neel conducted the initial interview with the executor relative to Dr. *433 Harvey's estate; prepared the application for the probating of the will; set the hearing for such application; and attended and conducted the hearing in the probate court on behalf of the estate which culminated in admitting the will to probate. He prepared the order probating the will. He secured the necessary judicial approval of the order, and prepared and filed the oath of the independent executor.
On January 29, 1965, Judge Neel died. Seaman succeeded to the law practice of Neel and Seaman conducting the same under the firm name. He continued to represent the executor of Dr. Harvey's estate. All matters relative to the financial arrangement of the law firm were settled and concluded with Seaman buying the library and settling all accounts with Judge Neel's widow, except the Harvey estate. Seaman continued his law practice by himself for several months and then joined the firm of Keys, Russell, Keys & Watson. He became a partner in their firm.
In January 1966 Seaman billed the executor for $15,000.00 for "professional services rendered." This was promptly paid by the Bank. On January 4, Seaman wrote to Mrs. Neel stating that he had collected the sum of $15,000.00 from the Bank as executor of Dr. Harvey's Estate for services in connection with the estate. He stated that:
"In accordance with the letter agreement between Judge and myself, and taking into consideration the services rendered to the Estate prior to the Judge's death, and after careful consideration and much study, it appears to me that your fair share of the total fee to be charged in the Harvey Estate would be the sum of $5,000.00, and I hand you herewith check of this firm in the said amount as payment in full in connection with said estate." (Emphasis supplied)
A few days later, Mrs. Neel returned the check to Seaman stating that she was returning the check because:
"... I feel the present time and this check in the amount of $5,000.00, is premature.
"After the Harvey Estate is finally and completely settled, I will be happy to fully discuss the Neel and Seaman partnership settlement of this matter with you and Mr. Keys."
In July 1966, Seaman billed the executor for another $15,000.00 for "professional services rendered." This was also promptly paid without question. Seaman made no further written offer then, or any time thereafter, to settle the fee with Mrs. Neel except upon the initial unilateral proposal made in January 1966. Whereupon Mrs. Neel, as independent executrix of the estate of C. B. Neel, brought suit against Seaman to determine and adjust the contractual rights which grew out of the letter agreement between Judge Neel and Seaman while they were practicing together.
During the trial, the Honorable Robert W. Blount, an attorney and head of the Trust Department of the Corpus Christi Bank & Trust, testified relative to the Harvey Estate. He stated that he was Vice President of the Bank as well as the trust officer. He said he had the primary responsibility for the handling of the Harvey Estate. He testified that the Bank as executor had employed Neel and Seaman as their attorneys to probate the Harvey estate. He testified in effect that the Bank had always employed the lawyer or lawyers named in a will as a matter of policy; that this was also the same policy of the two other institutions where he had worked. He testified that although Seaman had joined a new firm, the Bank would continue to employ Mr. Seaman as their attorney for the estate and the subsequent trust as directed by the will. On direct examination he said that, the only way the Bank would discharge the attorney so employed, would be if the attorney totally failed to carry out the wishes of the deceased.
*434 Turning now to the evidence concerning the fee arrangement: The will called for the payment of a reasonable fee. Both trust officers of the Bank stated that the executor would be willing to pay a reasonable attorney fee in connection with the probate of the estate. Blount stated that he had always adhered to the policy of approving the fee of an attorney, if the attorney submitted his fee based upon the recommended minimum set by the State Bar; that they would honor such fee as he had always felt that an attorney could enforce such a fee in a court of law, anyway, if it was based upon the minimum fee set forth by the State Bar of Texas. He testified further that most attorneys that he had dealt with throughout the years, based their fee upon the recommended minimum set by the State Bar. Evidence later received was, that the State Bar minimum fee was 3% of the gross estate.
Mr. Morrison, the Bank's trust officer at the time of the trial and who had been with the Bank about ninety days, acknowledged that the Bank would have the duty to pay a reasonable fee in connection with the Harvey estate. He stated that he had practiced law in San Antonio before coming to Corpus Christi; that basically the recommended fee in San Antonio, was 3% of the gross estate as is contained on the estate tax return. Although he did state that the Harvey fee would require some substantial study, he admitted that the 3% fee "would be in the ball park". The minimum fee schedule adopted by the State Bar, calls for additional fees for additional services. This may account for Morrison's statement requiring substantial study.
Mrs. Neel called the Honorable Richard B. Stone, a practicing attorney in Corpus Christi as an expert witness. He was presently serving as President of the Nueces County Bar Association. He testified that 3% of the gross estate would be a fair minimum fee for handling an estate of between 2½ and 3 million dollars. That so far as lawyers in Nueces County were concerned, they had, by and large, been following the 3% figure. He also testified that in his opinion and from his experience that one of the factors in the division of fees between attorneys, is the consideration of who actually produced the work or the client. After a lengthy direct and cross-examination, witness Stone testified that he had an opinion as to a reasonable fee for the work done by Neel and Seaman up to the time of Judge Neel's death. The following hypothetical question was put to him:
"Q I would like for you to assume the following facts as being true, that there was two lawyers associated in the practice of law in Corpus Christi, Neuces County; that a client came and asked that a will be prepared; that this will provided that the Corpus Christi Bank & Trust would be the independent executor of that estate; that the will also provided that this law firm shall be appointed as attorneys for the estate and as attorneys for a trust which was created by the instrument which provided that the bulk of the estate would go to charitable institutions, the income from the estate would go to charitable institutions, and that the remainder ofthat the money would remain in trust and only the income would go these beneficiaries; that it was to be perpetuity, the trust. I would like for you to further assume that the testator of this will died and that the estate had a gross value for the purpose of taxation of not less than $2,539,000; that one of the attorneys gathered the initial information concerning getting the material ready for probating the will; that a responsible officer, a trust officer of this bank and trust has testified under oath that he would pay or be agreeable to paying a three per cent of the gross taxable fee as an attorneys' fee; that after the death of the testator, one of the lawyers did the following things: That he conducted the initial interview and gather the material relevant to filing of the application; that he prepared the application for the probating of the will. He had the application set down for a *435 hearing. He attended and conducted, on behalf of the estate, a hearing on the above application; that he prepared the order probating the will. He secured the necessary judicial approval of such order and that he prepared and filed the oath of the executor; that thereafter, he died. Now, taking into account those factors, what, in your opinion do you believe would be a fair" (objection)
"* * * fee for the work done up until that time, the time of the death of the lawyer that I have referred to?
A In my opinion, the reasonable value for those services downup to that time would be $38,000."
The testimony was virtually undisputed that a reasonable minimum fee for the probate of an estate of the size of the Harvey estate would be 3% of the gross estate. This would amount to a reasonable minimum fee of from $76,000.00 to $80,000.00. The Bar Association's minimum fee schedule further provides for additional fees for additional work in connection with an estate. There is absolutely no question that a reasonable fee would be charged and collected in this case. The testator in his will directed the executor bank to pay a reasonable fee. The Bank acknowledged its duty and willingness to pay a reasonable attorney's fee. The appellant admits he will charge only a reasonable fee.
Appellant, on the other hand, throughout his brief attempts to equate the fee to an hourly charge. Only one witness testified that a reasonable fee for the work performed should be based on an hourly basis. However, all of the other witnesses (four in number) plus the appellant himself rejected this basis. One of the reasons that we consider that the Bar Association's recommended minimum fee is based on a percentage, is that a fee based on strictly an hourly rate would not be fair to the lawyer or the client. Numerous times throughout the trial the appellant was given an opportunity to testify as to what a reasonable fee would be in the case at hand. He steadfastly refused. He admitted that he had collected $30,000.00 on two billings without the same being set on an hourly basis. He admitted that he would expect to receive an additional $30,000.00 for a total of at least $60,000.00.
There was evidence that approximately one half of the items necessary to be performed by attorneys in connection with the probate of an estate, had been performed by Judge Neel. This included the very important initial interview with the client, and the securing of the employment for the law firm. We recognize the importance of this initial interview by Judge Neel on behalf of the law firm. First the testator must have complete trust and confidence in a particular attorney or attorneys to recommend in his will that they be employed as attorneys for the executor. The executor must then re-confirm this confidence, recognizing the skill and competence of the attorney and his firm, by placing the handling of such an important item of business with such attorneys. Following this important stage of the work, Judge Neel individually performed four of the nine agreed necessary items for the probate of a typical estate. Of the remaining five items to be performed after Judge Neel's death, some were done solely by the executor bank, some were performed by the executor bank with the aid and assistance of the testator's accounting firm and some by Seaman individually and some by Seaman with the help of the accounting firm. There was no attempt by Seaman to account for the importance of the work performed by others or value the work performed by himself. Although there was testimony that Seaman's law firm had performed approximately 500 hours of work in connection with the estate, the evidence was that most of this work was in the nature of extra services that would not necessarily be included as a part of a minimum fee. These were services in connection with a settlement of a will contest, ancillary administration, and other related matters. If you considered the 500 hours performed were routine then at a *436 minimum fee of $30.00 per hour, this would amount to only $15,000.00 and would leave unaccounted some $61,000.00 ($76,000.00 minimum, less $15,000.00) as a minimum fee for the handling of the routine matters in connection with the probate of the estate.
The legal work in connection with the Harvey estate was to be continued on after the initial probate in representing the perpetual trust. The initial employment included employment thereafter by Seaman as attorney for the perpetual trust. Although this evidence was not to be taken into account directly in figuring the amount of fee due Mrs. Neel as her husband's share during the time that he lived, it was relevant in consideration of the importance in securing the initial item of business and the prompt work performed by Judge Neel in getting the will admitted to probate, prior to his death.
Other evidence showed that Seaman's prior firm (Neel and Seaman) had received a fee of $55,000.00 for the handling of an estate of less than one-fifth the size of the Harvey estate. Although the appellant stated that this fee also included some extra work performed by the firm prior to the handling of the estate, Seaman was uncertain as to how much this amounted to and did not attempt to clarify it later.
As to the value of the services that were rendered by Judge Neel and appellant Seaman to the Harvey estate between the time of Harvey's death and the death of Judge Neel, testimony was received valuing these services from $400.00 upwards to $38,000.00. The jury found from the evidence that the reasonable value of such services for this period of time was $36,500.00. The jury further found that an equitable division of this amount, taking into consideration the amount of work theretofore done as to the amount of work to be done, would be sixty percent for Mrs. Neel (i. e. $21,900.00) leaving $14,600.00 for Seaman during this same period of time. Of course, the jury was authorized to consider the fact that Seaman would be permitted to collect an additional amount of approximately $40,000.00, plus such reasonable charges for the extra work performed in connection with the estate for work done after Judge Neel's death.
We have carefully considered the question of excessiveness and have determined from the entire record and in the exercise of our judicial judgment and discretion that the verdict was not excessive so that this Court would be justified in disturbing the jury's findings. Dallas Ry. & Terminal Co. v. Farnsworth, supra; Southland Life Ins. Co. v. Norton, 5 S.W.2d 767 (Tex.Com.App.1928, opinion adopted). Following the guidelines announced by our Supreme Court, we hold that the amount found by the jury was reasonable. Appellant's first point of error is overruled.
Appellant's second point is that a money judgment should not have been rendered against Seaman because it is based on jury findings of the value of legal services rendered for the executor bank and the fee for such services had not been agreed upon or paid by the executor and the executor is not bound by the verdict and judgment. This point is without merit. On the first appeal of this case (Seaman v. Neel, 461 S.W.2d 659, Tex.Civ.App. Corpus Christi 1970, reversed 466 S.W.2d 278, Tex.Sup.1971) appellant sought reversal of the trial court's judgment, primarily contending that the executor bank was an indispensable party because it had a joint interest in the controversy and therefore a money judgment should not be rendered against Seaman individually. The argument here is essentially the same argument that was presented in the prior appeal. The Supreme Court held in reversing this Court on the first appeal, that:
"... The Bank as independent executor does not have a `joint interest' in the settlement of the controversy between petitioner and respondent, and a judgment in this case would not be res judicata of a subsequent suit against the *437 Bank for the recovery of legal fees incurred in connection with the administration of the estate of J. H. Harvey, deceased...." Neel v. Seaman, 466 S.W.2d 268 (Tex.Sup.1971).
The written agreement between Judge Neel and Seaman required Seaman to share the fee with Mrs. Neel in her representative capacity, on an equitable basis, considering the amount of work performed and the work thereafter to be done. This he refused to do, which gave rise to Mrs. Neel's cause of action. This suit has always been a suit by Mrs. Neel against Attorney Seaman for the share of the attorney fees due her husband's estate in connection with the representation of the executor bank. It was Attorney Seaman who chose not to make the Bank a party to the suit. The undisputed evidence shows the Bank is looking only to Seaman as its attorney and will continue to look to Seaman in the future, regardless of his partnership affiliation. It was through the efforts of Seaman that Seaman had already collected $30,000.00 from the executor bank. This was a sufficient amount to have paid Mrs. Neel the amount found to be due her by the jury. Seaman testified that he expects to charge an additional $30,000.00. He originally offered to give Mrs. Neel only $5,000.00 of the amount he collected. He has never suggested that she is not entitled to some percentage of the fee. In fact he admits in his brief that special issue number 2 was proper. It stated:
"What do you find from a preponderance of the evidence to be an equitable division of fees for work done on the J. H. Harvey Estate prior to January 29, 1965, taking into consideration the amount of work theretofore done and as to the amount of work thereafter to be done?
"Answer by stating a percentage.
"Answer: Plaintiff 60 per cent.
"Answer: Defendant 40 per cent."
He now suggests that Mrs. Neel's fair share of the total fee should be approximately $6,000.00.
Seaman was in control of and will eventually dictate the amount he will finally charge the independent executor. The jury verdict only set the reasonable amount that should be charged for the interim term in which Mrs. Neel was interested. The Bank had no interest as a divisor of the fee between the parties. It was and is obligated to pay a reasonable fee. It has agreed to do so. Seaman stated that he would charge a reasonable fee. We believe that he will do this. Since it is undisputed that the Bank will pay a reasonable fee, and, since the jury found from the evidence that the amount owed by Seaman to Mrs. Neel was a portion of such a reasonable fee, we see no basis for reversal. This point of error is also overruled.
Appellant's third point complains of the trial court in permitting the filing of a trial amendment after both parties had rested and the evidence had been completed. The case went to trial on Mrs. Neel's fourth amended petition. It alleged that she was entitled to recover because of a partnership that existed between Judge Neel and Attorney Seaman and that certain provisions of the Texas Uniform Partnership Act had been violated. Alternatively, she sought her share of the fee of the Harvey estate based as a result of the joint venture between Judge Neel and Attorney Seaman in their firm. Additionally, she sought and again in the alternative, that Seaman had breached the letter agreement which entitled her to damages; finally, she pled that she was entitled to recover from Seaman a fair fee of the fee of the Harvey estate as a result of the association between her husband, Judge Neel, and Attorney Seaman.
One of the witnesses for Mrs. Neel was Attorney Richard Stone. His testimony in part was based upon the hypothetical question. Attorney Stone stated that the reasonable value of the services for the work performed until the time of the death of *438 the lawyer involved would be $38,000.00. No complaint is made of this hypothetical question on appeal. Each item of work performed by Judge Neel was detailed in the hypothetical question. There was evidence admitted during the trial without objection as to each item. The trial amendment listed all of the same items of work performed by Judge Neel. The trial amendment then alleged that apart and aside from any agreement that may have existed between C. B. Neel and the defendant John Seaman, C. B. Neel, from the period of Dr. Harvey's death on January 8 until the time of C. B. Neel's death on January 29, 1965, rendered legal services to the J. H. Harvey estate and that a reasonable fee in and around Nueces County for such services was in the amount of $38,000.00. Plaintiff then prayed for judgment of this amount in addition to the other damages alleged in this petition. The trial court refused the plaintiff any other issues relative to the additional damages or relative to any other theory of the case.
Appellant argues that by inferences the trial amendment asked for judgment against Mr. Seaman for the fee for services performed by Judge Neel prior to his death, plus 60% of the entire fee of the entire administration. The special issues submitted by the trial court settled this argument.
A review of the entire pleadings and all of the evidence upon which the case was tried indicates to us that the trial amendment was proper. It is universally recognized that Rule 66, T.R.C.P., expressly authorizes trial amendments. The law vests in the trial court judicial discretion with regard to the filing of trial amendments. The court's order permitting a trial amendment will not be disturbed on appeal unless an abuse of discretion clearly appears. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605 (1948); Cox v. Piwonka, 257 S.W.2d 955 (Tex.Civ.App. Galveston 1953, err. dism.); Texas Employers Ins. Ass'n v. Sanders, 265 S.W.2d 219 (Tex.Civ.App.Texarkana 1954, wr. ref'd n. r. e.); Kolacny v. Pelech, 201 S.W.2d 257 (Tex.Civ.App.Galveston 1947); Keelin v. Hamilton, 430 S.W.2d 268 (Tex. Civ.App.Dallas 1968) and authorities therein cited. See particularly Rose v. Shearrer, 431 S.W.2d 939 (Tex.Civ.App. San Antonio 1968) and Rule 67, T.R.C.P.
The appellant has not in any way demonstrated to us how the trial amendment caused or probably caused rendition of an improper judgment, (Rule 434, T.R.C.P.) or that the trial judge abused his discretion in permitting the filing of the same. (Rules 66 and 67, T.R.C.P.). Appellant's third point is overruled.
The appellant's fourth point complains of the ruling of the trial court in overruling his plea in abatement to the effect that the law firm of Keys, Russell, Watson & Seaman should have been made parties to this suit. This point has been decided adversely to the appellant by this court in the original and dissenting opinions during the first appeal. The law partnership was not a party to the contract between Neel and Seaman. Appellant's relationship to the law firm came about as an effort of his own doing. The association commenced after Judge Neel's death. The plaintiff did not seek recovery against the law firm and the defendant made no effort to make them a party. The present law firm is in no way bound by the present judgment. A defendant may not complain on appeal of the non-joinder of a proper party when he could have impleaded the party himself. Jasper & E. Ry. Co. v. Peek, 102 S.W. 776 (Tex.Civ.App.1907, err. ref'd).
The judgment of the trial court is affirmed.
SHARPE, Justice (dissenting).
I respectfully dissent.
This appeal is from a judgment rendered after jury trial in favor of appellee against appellant in the amount of $21,900.00. The case is now before us on remand by the *439 Supreme Court. See 466 S.W.2d 278 (1971). We originally held that the judgment of the trial court must be reversed and the cause remanded for the joinder of a necessary and indispensable party. 461 S.W.2d 659 (1970). Other questions were not decided. After the case was remanded to this Court, we ordered the parties to file amended briefs. The contentions of the parties have been considerably narrowed as will be more fully hereinafter pointed out. In order to place the issues in proper context, portions of the original opinion will be repeated.
Appellee, Adrienne Neel, as Independent Executrix of the estate of C. B. Neel, deceased, sued appellant, John G. Seaman, to recover a portion of legal fees for services rendered in connection with administration of the estate of Dr. J. H. Harvey, deceased. Corpus Christi Bank & Trust was the independent executor of said estate, but was not made a party to the suit.
Appellee's Fourth Amended Original Petition alleged in substance the following: Appellant, John G. Seaman is an attorney at law. Appellee, Adrienne Neel, is the widow of C. B. Neel, deceased, and the legal representative of his estate. C. B. Neel was for many years a practicing attorney at law in Corpus Christi, Texas, and for some years prior to his death maintained an office in that city with appellant John G. Seaman for the practice of law. On September 11, 1963, C. B. Neel and John G. Seaman entered into a written agreement, in the form of a letter from Neel to Seaman, concerning their respective interests and the operation of their law office. The provision most directly involved reads as follows:
"It is distinctly understood that the fees accruing during the calendar month in which I die, or retire, shall be divided upon the basis above indicated, and fees for all work done after the said calendar month shall belong to you. If any work has been done upon any matters in the office prior to my death or retirement, then you and my representatives, in the event of my death, or myself upon retirement, shall agree upon the division of these fees upon an equitable basis taking into consideration the amount of work theretofore done, and as to the amount of work thereafter to be done."
Appellee further alleged in substance the following: A partnership existed between Neel and Seaman under which they shared all expenses related to operation of the law practice and Neel received 60% and Seaman 40% after the deduction of the operating expenses from gross fees that were received. C. B. Neel died on January 29, 1965, leaving his estate to appellee. All matters concerning the law practice were resolved except as to the estate of Dr. J. H. Harvey. Neel and Seaman had prepared a will in 1963 for Dr. Harvey who died on January 8, 1965. The will named Corpus Christi Bank & Trust as independent executor for the estate of J. H. Harvey, deceased. Appellee further alleged that appellant had billed and received $30,000.00 from Corpus Christi Bank & Trust, the independent executor of the Harvey estate, as partial fee prior to the filing of this suit; that appellant had breached the contract between him and C. B. Neel because he had failed to divide the fee in the Harvey estate on an equitable basis; that certain provisions of the Texas Uniform Partnership Act had been violated; that, alternatively, a joint venture existed between Neel and Seaman and appellee was entitled to share in the fee from the Harvey estate on such basis; that, alternatively, if the contract between Neel and Seaman was not breached by the latter, that appellee should be entitled to recover C. B. Neel's fair share of the attorneys' fees from the Harvey estate based on an equitable division of the fee taking into consideration the amount of work theretofore done and the amount of work thereafter to be done, which share would be a sum of at least $60,000.00.
After the evidence had closed, appellee, over objection of appellant, was granted *440 leave to file a trial amendment which, omitting formal portions, reads as follows:
"Plaintiff says that subsequent to the death of Dr. J. H. Harvey on January 8, 1965, the Plaintiff's deceased husband, C. B. Neel, performed certain services for the J. H. Harvey estate which were as follows: he conducted the initial interview concerning the application for probating the estate of J. H. Harvey; he prepared an application for the probating of the will of Dr. J. H. Harvey; he had such application set down for hearing; he attended and conducted on behalf of the estate of J. H. Harvey the hearing on the above application; he prepared the order admitting the will to probate; he secured the necessary judicial approval of such order; he prepared and filed the oath of the independent executor nominated in such will; further, he wrote such letters and performed other services connected with the initiation of probate proceedings in connection with the J. H. Harvey estate.
Apart and aside from any agreement which may have existed between C. B. Neel and the Defendant John G. Seaman, Plaintiff says that C. B. Neel from the period of Dr. Harvey's death on January 8, 1965 until the time of C. B. Neel's death on January 29, 1965, that C. B. Neel rendered legal services to the J. H. Harvey estate and that a reasonable fee in and around Nueces County, Texas, for such services is the amount of THIRTY EIGHT THOUSAND AND NO/100 ($38,000.00) DOLLARS and Plaintiff does hereby pray judgment of the Court in this amount, in addition to the other damages alleged and pled in the Plaintiff's Fourth Amended Original Petition."
The trial court submitted two special issues to the jury which were answered as follows:
"SPECIAL ISSUE NO. 1
What do you find from a preponderance of the evidence to be the reasonable value of the legal services rendered on behalf of the J. H. Harvey Estate for the period from January 8, 1965 to January 29, 1965?
Answer in Dollars and Cents.
Answer 36500.00
SPECIAL ISSUE NO. 2
What do you find from a preponderance of the evidence to be an equitable division of fees for work done on the J. H. Harvey Estate prior to January 29, 1965, taking into consideration the amount of work theretofore done and as to the amount of work thereafter to be done?
Answer by stating a percentage.
Answer: Plaintiff 60 per cent.
Answer: Defendant 40 per cent."
The trial court rendered judgment based on the verdict that appellee recover from appellant the amount of $21,900.00, which sum represents 60% of $36,500.00.
The material facts relating to the appellant's points may be summarized as follows: Appellant, John G. Seaman, and C. B. Neel, began practicing law together in 1951. From 1951 until 1963 appellant was an associate or employee of C. B. Neel and worked with him on a salary arrangement. At the time appellant joined C. B. Neel, Mr. Neel had a very active oil and gas practice. Also, at this time, C. B. Neel had a long-time friend and client named Dr. J. H. Harvey. On September 11, 1963, appellant Seaman and C. B. Neel executed a letter agreement by which the nature of the association was changed from one in which appellant was paid a salary to one under which, in substance, he was to receive 40 per cent of the net profits from the operation of their legal association. Appellant and C. B. Neel operated under this agreement from September 11, 1963, until the time of C. B. Neel's death. On January 8, 1965, Dr. J. H. Harvey died leaving a will dated the 17th day of December 1963, in which the Corpus Christi *441 Bank & Trust Company was named the independent executor. This will also provided that "The executor and trustee shall employ Neel and Seaman (C. B. Neel and/or John G. Seaman) as attorneys, or attorney, for the estate of J. H. Harvey, deceased, and the trust created herein." Upon Dr. Harvey's death, Neel and Seaman commenced to represent the Corpus Christi Bank & Trust Company, as the independent executor of the J. H. Harvey estate. The value of that estate was approximately 2½ million dollars. On the 29th of January, 1965, C. B. Neel died. All matters relative to the financial arrangements between C. B. Neel and the appellant were concluded with the one exception which constitutes the subject matter of the present lawsuit, to-wit, the extent to which the appellee was to participate in the fee from the J. H. Harvey estate. Representation of the Executor Bank was continued by appellant following C. B. Neel's death until approximately June of 1965 when appellant formed a partnership for the practice of law with the members of the firm of Keys, Russell, Keys & Watson, which thereafter practiced under the name of Keys, Russell, Watson & Seaman. Subsequent to the formation of that partnership, various members of it performed legal services in connection with the estate of J. H. Harvey. In January and July, 1966, the firm of Keys, Russell, Watson & Seaman billed the Corpus Christi Bank & Trust for $15,000.00 or a total of $30,000.00. Each of these billings, which were paid by the bank, was on an interim basis and did not designate for what legal services such bills were being rendered. On January 4, 1966, the appellant Seaman wrote the appellee, Mrs. Neel, a letter on the stationary of Keys, Russell, Watson & Seaman and enclosed therewith a check in the amount of $5,000.00, which purported to represent Mrs. Neel's share in the fee from the J. H. Harvey estate. Mrs. Neel, by letter dated January 17, 1966, returned the check stating in substance that she felt it was premature and that after the Harvey estate was finally settled she would be happy to discuss settlement of the matter with appellant and Mr. Keys. No agreement was ever made between Neel and Seaman or John G. Seaman or Keys, Russell, Watson & Seaman and the Corpus Christi Bank & Trust Company as to the total fee to be charged for the legal services connected with the administration of the Harvey estate. The interim billings of $15,000.00 each were made without any negotiations with the Corpus Christi Bank & Trust Company and in these billings there was no indication of what amount remained to be paid nor any indication as to what services the billings applied to. Since July of 1966 no further bill has been submitted to the Corpus Christi Bank & Trust Company for the legal work which has been done on the Harvey estate by appellant or the law firm of which he is a member. The record shows that counsel for appellee wrote a letter to the Executor Bank stating in substance that further payments of attorneys fees to appellant or his new firm would be made at the peril of said Executor Bank. Appellant testified that he or members of the law firm with which he is is now associated had spent over 500 hours in handling legal matters in connection with the administration of the estate. The J. H. Harvey estate is still in administration. All matters other than routine are referred to the trust committee of the executor bank, which makes the final decision and Mr. Morrison, the bank trust officer at the time of trial testified that without substantial study he would not recommend to the trust committee a fee in the Harvey estate. The firm of Keys, Russell, Watson & Seaman continued to represent said bank, as independent executor of said Dr. J. H. Harvey estate, and was still doing so at the time of trial of this cause.
Appellant's amended brief asserts four points of error as follows:
"First Point
Judgment should not have been rendered on the verdict because $36,500.00 as the *442 fee for the amount and kind of the work done in the short period involved is excessive to the point of being unconscionable.
Second Point
A money judgment should not have been rendered against Seaman because it is based on a jury finding of the value of legal services rendered for the Executor Bank, and the fee for such services had not been agreed upon or paid by the Executor and the Executor is not bound by the verdict and judgment.
Third Point
The trial court erred in permitting the filing of Plaintiff's Trial Amendment after both parties had rested and the evidence had been completed.
Fourth Point
The trial court erred in overruling the pleas in abatement setting forth that the law firm of Keys, Russell, Watson & Seaman should have been made parties to this suit."
Before specifically considering appellant's points, some of the matters which are not now involved and need not be decided in the present posture of the case will be discussed. First, we are not concerned with the value of legal services rendered on behalf of the Harvey estate after the death of Mr. Neel on January 29, 1965. Special issue No. 1 limited the time for which the value of such legal services could be considered to the period from January 8, 1965 to January 29, 1965. Appellee did not object to special issue 1, and has not complained of its submission in the trial court or in this court in any way. Appellee's brief clearly shows that this position was deliberately taken and, therefore, we are not faced with any cross-appeal or cross-points asserted by appellee. Throughout the trial until the evidence was closed appellee took the position that she was entitled to 60% of the total fee to be charged for legal services in the Harvey estate. Appellee's trial amendment was tendered after the evidence was closed and was filed over objection of appellant. Special issue 1 was based on appellee's trial amendment and not on any of the theories included in appellee's fourth amended petition on which the case was tried.
We are also not now concerned with the percentages found by the jury answer to special issue number two. Appellant does not complain of that answer because under the contract between Neel and Seaman the appellee's portion of the fee for the work done before the death of Mr. Neel should be 60% of the total fee properly fixed for the period prior to January 29, 1965, which percentage was the same as that found by the jury.
Appellant's first point, which asserts in substance that the jury finding of $36,500.00 as the fee for the amount and kind of work done in the short period involved (January 8 to 25, 1965) is excessive, will now be considered. Appellee called two witnesses in connection with the questions concerning attorney's fees. Her principal expert witness was Hon. Richard B. Stone, a Corpus Christi attorney who was at the time of trial serving as President of the Nueces County Bar Association. The other witness was Mr. Robert W. Blount who testified by way of deposition. It is undisputed that Mr. Blount was no longer connected with the executor bank at the time of trial. In addition to his own testimony, appellant called as witnesses on the question of attorney's fees, Hon. James C. Martin and Hon. David M. Coover, both practicing attorneys of Corpus Christi, Texas.
Mr. Stone testified in substance that in his opinion three (3%) percent of the gross estate would be a fair minimum fee for handling an estate the size of the Harvey Estate; that so far as lawyers in Nueces County were concerned they had by and large been following the three (3%) percent figure. He also testified that in his *443 opinion and from his experience that one of the factors in the division of fees between attorneys is the consideration of who actually produced the work or the client. Mr. Stone testified in answer to the hypothetical question, hereinafter set out, that in his opinion the reasonable value of the services rendered to the executor bank from the date of the death of Dr. Harvey until Judge Neel's death would be $38,000.00.
On cross-examination, Mr. Stone was shown the instruments prepared by Mr. Neel during the 21-day period prior to his death, to-wit, the application for probate of the will and for letters testamentary, the order probating the will and granting letters testamentary, and the oath of the executor. Mr. Stone testified in substance that those instruments are standard documents that would be filed in an estate and are ordinary instruments in any estate; that he noticed nothing in those instruments different or unusual except one big factor, to-wit, the amount of the estate; that it is a considerably large estate, but that as to the phraseology in the instruments themselves they are standard, ordinary, that would be involved in any probate; that the actual preparation of the papers is not any more difficult than in a $10,000 estate. When asked what was a reasonable period of time in which to actually sit down and prepare those papers, Mr. Stone stated that "I would estimate probably from the time of death to the contact with the executor, the initial conference, probably 12 to 15 hours". He testified that when the application is filed it is the responsibility of the attorney to see that the citation has been issued correctly, that it is the practice of the clerk to send a copy to the attorney and it is up to the attorney to examine it and be sure that correct citation has been issued, and that the citation can be examined in not more than 30, 45 minutes. He further testified that the fact that the will was a self-proved will facilitates the probate, that witnesses do not have to be called in and from the pure time element it does facilitate the probate of the will.
On direct examination Mr. Stone had been asked to assume that the law firm of Neel and Seaman had been requested by a provision of the will to be appointed attorneys for the independent executor, that Dr. Harvey had been Judge Neel's client for many years, that the value of the gross estate for the purpose of taxation was no less than $2,539,000, and then to state what in his opinion would be a fair minimum fee for the handling of the estate, and he stated that he would apply the 3% of gross estate percentage. On re-direct examination Mr. Stone was asked the following question:
"Q I would like for you to assume the following facts as being true, that there was two lawyers associated in the practice of law in Corpus Christi, Nueces County; that a client came and asked that a will be prepared; that this will provided that the Corpus Christi Bank & Trust would be the independent executor of that estate; that the will also provided that this law firm shall be appointed as attorneys for the estate and as attorneys for a trust which was created by the instrument which provided that the bulk of the estate would go to charitable institutions, the income from the estate would go to charitable institutions, and that the remainder ofthat the money would remain in trust and only the income would go these beneficiaries; that it was to be perpetuity, the trust. I would like for you to further assume that the testator of this will died and that the estate had a gross value for the purpose of taxation of not less than $2,539,000; that one of the attorneys gathered the initial information concerning getting the material ready for probating the will; that a responsible officer, a trust officer of this bank and trust has testified under oath that he would pay or be agreeable to paying a three percent of the gross taxable fee as an attorneys' *444 fee; that after the death of the testator, one of the lawyers did the following things: That he conducted the initial interview and gather the material relevant to filing of the application; that he prepared the application for the probating of the will. He had the application set down for a hearing. He attended and conducted, on behalf of the estate, a hearing on the above application; that he prepared the order probating the will. He secured the necessary judicial approval of such order and that he prepared and filed the oath of the executor; that thereafter, he died. Now, taking into account those factors, what, in your opinion do you believe would be a fair
THE COURT: Do you have an opinion first, and then if there be objections
Q Based on those factors, can you give an opinion of what would be a fair attorneys' fees up until the time of the death of the first lawyer?
A I have an opinion, yes."
After objections to the question were overruled, Mr. Stone answered: "In my opinion, the reasonable value for those services downup to that time would be $38,000." It is apparent that Mr. Stone was saying that for the work done as outlined in the question a reasonable fee would be one-half of the entire fee for representing the executor throughout the entire administration of the estate, since the figure of $38,000 is almost exactly half of 3% of the value of the estate as used in the question, and Mr. Stone had previously testified that a reasonable fee for handling the entire estate would be 3% of the gross value.
On further extended cross-examination, Mr. Stone testified that he had taken into consideration in stating his opinion that a reasonable fee would be $38,000 the fact that he understood that the executor had agreed upon a total fee of 3%, but in answer to other questions worded in various ways (because there was no evidence that a fee of 3% had been agreed upon) Mr. Stone did not change his opinion that the reasonable fee for the work done as outlined in the hypothetical question would be $38,000. Mr. Stone ended his answers to that line of questioning by saying: "I would base it upon a three per cent if there had been no priorassuming that there had been no prior communications with the executor as to what it would be, I would applyI would apply the three per cent standard to the entire probate matter, and again, it's my opinion that when you have reached that stage in the yardstick of a probate matter that you are kind of downhill a little bit and fifty per cent of the job has been done and I would apply the three per cent standard to it and use half of that."
Mr. Stone later testified that there are other factors which go along with the administration of an estate where a lawyer has to render services other than filing the application, getting the order admitting the will to probate, the inventory, and the tax return, and that a reasonable hourly charge for those other matters and the customary charge there is either forty or thirty dollars an hour. He was then asked "And in connection with any serious problems like will contest and that sort of thing, that is still what you would think would be reasonable?" Mr. Stone's answer was "Yes, if you were using strictly an hourly basis, I think that charge would be reasonable".
Mr. Stone, acknowledged on cross-examination that the Nueces County Bar Association rejected the State Bar Minimum Fee suggestion of 3% and agreed that it be changed to 3% or $30.00 an hour, whichever was the lesser, with a minimum of $250.00, and that there has been no change in the Nueces County Bar Association's Minimum Fee Schedule. Mr. Stone also testified that if a fee arrangement is worked out on an hourly basis, the Nueces County Bar minimum fee would be a reasonable fee and that there are definitely a number of lawyers that work out an hourly fee arrangement on probate matters.
*445 Mr. Robert W. Blount, an attorney, and at one time head of the Trust Department and Vice President of the Corpus Christi Bank & Trust testified by deposition relative to the Harvey estate. Mr. Blount was not connected with the executor bank at the time of trial. He testified in substance that he was Vice President of the bank as well as the trust officer; that he had the primary responsibility for handling the Harvey estate; that he had always employed a lawyer or lawyers named in a will as a matter of policy; that this was the same policy the two other institutions used where he had worked previously; that although Mr. Seaman had joined a new firm the bank would continue to employ Mr. Seaman as their attorney for the estate and subsequent trust as directed by the will. He further testified that the only way the bank would discharge the attorney so employed would be if the attorney totally failed to carry out the wishes of the deceased. Mr. Blount stated that he had always adhered to the policy of approving the fee of an attorney if the attorney submitted his fee based on the recommended minimum set by the State Bar; that they would honor such a fee as they always felt that an attorney could enforce such a fee in Court anyway if it were based upon the minimum set forth by the State Bar of Texas. He further testified that most attorneys whom he had dealt with throughout the years based their fees upon the recommended minimum set by the State Bar.
Mr. James C. Martin, a Corpus Christi attorney, called as a witness by the defendant, in response to a hypothetical question testified that in his opinion a reasonable fee for the work done prior to the death of C. B. Neel, as outlined in the question, would be "In the neighborhood of $10,000."
Mr. David M. Coover, a Corpus Christi attorney who had been practicing in Nueces County thirty-five years, was called as a witness by defendant. He stated that his practice had been limited largely to corporate matters, real estate, and probate, and that his probate practice was 50% or more of his practice, and that he had handled estates both large and small. In response to a hypothetical question as to what would be a reasonable fee for the enumerated services performed prior to the death of Mr. Neel, stated that the preparation of the application and order, seeing that the notices are properly posted and returned, and the hearing for the purpose of securing the admission of the will, are all elementary in the probate practice and that he personally put it on a hourly basis, somewhere thirty to fifty dollars an hour, that such services require nothing special, "It's almost perfunctory", and that he thought fifty dollars per hour "would be tops". On cross-examination Mr. Coover testified that to calculate it in money, at thirty dollars an hour, it would be four hundred and twenty dollars for twelve hours and at fifty dollars an hour it would be seven hundred dollars on a fourteen-hour basis.
As hereinabove stated, after the death of Mr. Neel, Mr. Seaman continued to represent the executor bank. In June, 1965, Mr. Seaman formed a partnership with the members of the firm of Keys, Russell, Keys & Watson, which thereafter practiced law under the name of Keys, Russell, Watson & Seaman. About the first of March, 1965, Mr. Seaman received a letter from a Houston lawyer threatening a will contest by certain nieces and nephews of Dr. Harvey. The questions were whether Dr. Harvey, who was 94 years of age when he executed the will, and had been sick, was of sound mind and whether he had been unduly influenced by anyone. There were numerous conferences with attorneys from other cities, representing beneficiaries under the will, and with the Attorney General, and Mr. Jim Watson and Mr. Seaman, and possibly others in the firm, worked on the will contest matter. They hired a former FBI man from Houston as an investigator and he worked out of Mr. Seaman's office over quite a period of time. The threatened will contest matter extended over a period of about 23 months and was finally settled on the last *446 day upon which a will contest could have been filed. There were various other matters that arose during the administration, such as oil and gas leases. The estate had property in Arkansas. They had various problems with individual beneficiaries named in the will some of whom were in his office frequently wishing to obtain their bequest under the will. There was property in Louisiana. Mr. Seaman estimated that he had spent 300 or 400 hours, and very likely even more, in work done for the estate after the death of Mr. Neel, and that others in his present firm, Mr. Watson, Mr. Meredith, and Mr. Donnell had spent 100, 150 hours of their time, making a total of 500 or more hours. Three applications for an extension of time within which to file an inventory and appraisement in the estate of Dr. Harvey were filed, the first on March 25, 1965, the second on December 7, 1965 (long after Mr. Seaman became a member of the firm of Keys, Russell, Watson & Seaman), and the third on June 2, 1966. The inventory, appraisement and list of claims was filed on October 26, 1966. The difficulty was that the properties were quite extensive and scattered, and the problem of getting an appraisal of the value of the various properties. At the time of the trial, Mr. Seaman did not know what the total fee for the administration would be. The question of fees had not been discussed by Mr. Seaman with the bank, and there had been no agreement about the fee. In January of 1966 or December of 1965, the firm of Keys, Russell, Watson & Seaman billed the executor bank for $15,000 and in July, 1966 billed the bank for an additional $15,000, both bills being interim bills to be applied upon the total fee. Counsel for Mrs. Neel notified the executor bank that further payments to Seaman or his firm would be at its peril.
Mr. Lucian L. Morrison, Vice President and Trust Officer of the executor bank at the time of trial testified that the estate was still in administration at the time of the trial (in April, 1969), and that they had some serious tax problems. He said such problems would require a great deal of research to determine questions of law, and that there would be a substantial amount of work in connection with the mere transfer of assets from the estate into the charitable trust. Mr. Morrison further testified that the work such as was done prior to the death of Mr. Neel is the routine and mechanical portion of the administration of an estate, and in his opinion should be charged only on an hourly basis. The next question asked Mr. Morrison was whether for that work $36,000 or $38,000 was a reasonable fee, and his answer was "Absolutely unrealistic".
Appellant argues that analysis of the testimony concerning attorney's fees demonstrates that the verdict of the jury ($36,500.00 for work over a period of three weeks) is grossly excessive. If it be assumed that Mr. Neel worked 8 hours a day for the full 21-day period from the death of Dr. Harvey to the death of Mr. Neel, including even Saturdays and Sundays and each of the two dates of death, that would be a total of 168 hours of work for which $36,500 would be $217 per hour or $1738 per day. If the more realistic figure of 15 hours (as testified by plaintiff's witness) is used, a fee of $36,500 would be approximately $2,433 per hour. If the figure testified to by Mr. Martin, something in the neighborhood of $10,000.00, then at the figure of 15 hours' work that would be about $667 per hour.
It is apparent from appellant's brief that the use of those figures was not intended to be a contention that the fee for the work done before the death of Mr. Neel should be calculated on the basis of $30.00 an hour. Those figures were used to illustrate the alleged excessiveness of what the jury found to be a reasonable fee. There is nothing in appellant's brief which suggests that the fee for the work done prior to the death of Mr. Neel, about 15 hours at the most, should be arrived at on the basis of $30.00 an hour so as to make a fee of about $450.00. Appellant does not contend that this is a case in which the very minimum *447 of $30.00 an hour should be charged. However, appellant does strenuously argue that what any suggested amount might be on an hourly basis is the one most important factor in determining whether a fee is reasonable. Using the figure of 15 hours work and a fee of $10,000.00 as testified to by Mr. Martin, and which appellant contends is adequate, the fee amounts to about $667.00 per hour. The amount of $500.00 tendered to Mrs. Neel by Mr. Seaman is the equivalent of 60% of $8,333.00, and a fee of $8,333.00 for 15 hours work would amount to $555.55 per hour. The work done by Mr. Seaman after the death of Mr. Neel, and by Mr. Seaman's new partners, including preparation for and settlement of a serious will contest threat, required much more skill than the work done before the death of Mr. Neel. If we treat the total work done after the death of Mr. Neel on the basis of 500 hours, then a charge of $555.55 per hour would call for a total fee of $277,775.00; and a charge of about $667.00 per hour, which the testimony of Mr. Martin would calculate, would call for a total fee for the work done after the death of Mr. Neel of $333,330.00. However, the highest fee mentioned in the statement of facts by anyone, including the witness offered by appellee, Mr. Stone, and the testimony of Mr. Seaman, would be a fee based on about 3% of the gross estate, or a total fee of about $76,000 to $80,000. If the fee allocated for the work done by Mr. Neel before his death is treated as $10,000, it will calculate to many times more per hour than the total fee which Mr. Seaman and his new partners could or would expect to be paid for the many hours of work performed by them.
Appellee's amended brief states in part that "It was Seaman who was in control and who should dictate the amount of the fee to be charged the Independent Executor. The widow of Judge Neel, a non-lawyer, could not negotiate with the bank,..." This suit shows that Mr. Seaman could not unilaterally fix the fee for the work done prior to the death of Mr. Neel and have his decision accepted as final. By tendering to Mrs. Neel as Executrix a check for $5,000, Mr. Seaman showed his determination, after giving the matter consideration and discussing it with Mrs. Neel's brother-in-law, who had acted for her in all other matters in winding up the office affairs, that he considered a reasonable fee for the work done by Mr. Neel before his death to be about $8,333.00. Mrs. Neel showed by her reply and return of the check that she was not in agreement with Mr. Seaman's views as to the amount of the fee, and that she did not want to discuss the matter until the entire administration of the estate of Dr. Harvey was concluded. Appellant says that Mrs. Neel could have negotiated with the Bank as Executor of the Harvey Estate, in an effort to determine and collect for the services rendered by Mr. Neel before his death. Of course, the Executor Bank probably would not have agreed upon and paid a fee without Mr. Seaman also being agreeable both as to the amount and as to the division between Mr. Seaman and the Executrix of Mr. Neel's estate, but Mrs. Neel had as much right to negotiate as did Mr. Seaman. The only pleading in this case as to a fee for the work done before the death of Mr. Neel is in the Trial Amendment asserting a quantum meruit claim "apart and aside" from the agreement between Mr. Neel and Mr. Seaman and "in addition to the other damages alleged and pled in Plaintiff's Fourth Amended Original Petition".
In the case of Landa v. Shook, 87 Tex. 608, 30 S.W. 536, Emmy Dittmar, as devisee and independent executrix of the estate of Albert Dittmar, deceased, joined Albert Dittmar's former partners in the suit against Landa to collect for the services performed by Dittmar prior to his death. The Supreme Court held that the contract of employment was at an end upon the death of Mr. Dittmar and that Landa had the right to decline to accept the services of one of the other partners, that the cause of action arose incidentally, as a result of the contract, but it was not a cause of action upon the contract and was not regulated *448 by the terms of the agreement. In other words, it was a claim in quantum meruit, the Court stating: "The case is not distinguishable from any other action for the value of services performed in which there is no express contract for the services. The cause of action accrues when the services are rendered." In our case, after the death of Mr. Neel, the Executor Bank in the Harvey Estate did not have to accept the services of Mr. Seaman alone, regardless of what the will said. Mason & Mason v. Brown, 182 S.W.2d 729 (Tex. Civ.App., Dallas, 1944, err.ref.w.m.).
At all times material to this case The State Bar Rules, Article XIII, Sections 11 and 31 were in effect. (Such Rules have recently been amended effective December 20, 1971).
Canons 11 and 31 provided as follows:
"11. Fixing the Amount of the Fee. In fixing fees, members should avoid charges which over-estimate their advice and services. A client's ability to pay cannot justify a charge in excess of the value of the service, though his poverty may require a less charge, or even none at all.
In determining the amount of the fee, it is proper to consider: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite properly to conduct the cause; (2) whether the acceptance of employment in the particular case will preclude the member's appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of other employment while employed in the particular case or antagonisms with other clients; (3) the customary charges of the bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the services; (5) the contingency or the certainty of the compensation, whether casual or for an established and constant client. No one of these considerations in itself is controlling. They are guides in ascertaining the real value of the service."
* * * * * *
"31. Division of Fees. No division of fees for legal services is proper, except with other lawyers, based upon a division of service or responsibility, or with a forwarding attorney. But sharing commissions between forwarder and receiver, at a commonly accepted rate upon collections of liquidated commercial claims, though one be a member and the other not, is not condemned hereby, where it is not prohibited by statute."
The new and amended Rules effective December 20, 1971, set out here for purposes of information, provide in part (under Article XII, Section 8, Code of Professional Responsibility) as follows:
"DR 2-106 Fees for Legal Services.
(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
*449 (5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent."
We have not been cited to any Texas case which supports the jury answer of $36,500.00 to special issue No. 1 in this case. There are several cases holding the fees there involved to be excessive. See, among others, the following: Southland Life Insurance Co. v. Norton, 5 S.W.2d 767 (Tex.Com.App., 1928, holdings approved); Brand v. Denson, 81 S.W.2d 111 (Tex.Civ.App., Austin, 1935, wr.dism.); Guthrie v. Flock, 360 S.W.2d 804 (Tex. Civ.App., Amarillo, 1962, n.w.h.). Few, if any, of the cases add anything to the formula provided in The State Bar Rules, Section 11, Article XIII, hereinabove set out.
The application of Canon No. 11 to the facts in this case will now be considered. Concerning factor No. (1), appellee's evidence shows that approximately 15 hours of work was done by Mr. Neel between January 8th, 29th, 1965. No novel or difficult questions were involved. The work done did not require any special skill. It was routine work which could have been accomplished by an attorney without any great amount of experience with the use of a form book and the Probate Code. Factor (2) of Canon 11 is not shown to be involved here. Factor (3) of Canon 11 involves "the customary charges of the bar for similar services." The highest amount mentioned in the evidence for the work done prior to Mr. Neel's death on an hourly basis was about $750.00. The highest amount testified to, based upon the question propounded to Mr. Stone, hereinbefore set out, was $38,000.00. The jury finding of "the reasonable value of the legal services rendered on behalf of the J. H. Harvey Estate for the period from January 8, 1965 to January 29, 1965" was $36,500.00. That finding was necessarily based upon the opinion that the work done prior to the death of Mr. Neel on January 29, 1965 would entitle Neel & Seaman to charge a fee in that amount to the Executor Bank (who was not a party to the suit and not bound by the judgment); which sum of $36,500.00 amounted to a little less than one-half of the total attorney's fee to be charged for the entire administration of the Harvey Estate. This case went to trial on April 16, 1969, more than four years after the death of Mr. Neel, during which period of time Mr. Seaman and his partners worked approximately 500 hours for the Harvey Estate, including work done in the settlement of a serious will contest. I am unwilling to hold that under all the evidence in this case that "the customary charges of the bar for similar services" would authorize a fee of $36,500.00 for the work done between January 8th and 29th, 1965. I would hold that such amount is not reasonable under the circumstances of this case. Factor number (4) of Canon 11 is material on the question of reasonableness of the fee which can be charged in this case. A large amount is involved and this factor would tend to authorize a higher fee than would be charged on an hourly basis. The benefits to the client from the services rendered are not unusual and, indeed, the work done prior to Mr. Neel's death was required and routine regardless of the amount involved. Factor number (5) of Canon 11 when applied to this case leads to the conclusions that the compensation was not contingent but was reasonably certain and the services were not casual but were rendered for an established and constant client. These considerations would tend to lower the fee charged rather than causing it to be increased.
The Court of Civil Appeals may review the award and amount of an attorney's fee just as it is authorized to review other determinations of fact made by the trial court, and may require a remittitur if it determines that the award of the trial *450 court is excessive. See International Security Life Insurance Company v. Spray, 468 S.W.2d 347 (Tex.Sup.1971); Southland Life Ins. Co. v. Norton, 5 S.W.2d 767 (Tex.Com.App., 1928, holdings approved); Missouri Pacific Railroad Company v. Kimbrell, 160 Tex. 542, 334 S.W.2d 283 (1960).
In Atchison, Topeka & Santa Fe Railway Company v. Ham, 454 S.W.2d 451 (Tex.Civ.App., Austin, 1970, wr.ref.n.r.e.) the court held in part:
"Under Rule 440, Texas Rules of Civil Procedure, a court of civil appeals, if the `court is of the opinion that the verdict and judgment of the trial court is excessive,' may suggest remittitur of the excess, and if remittitur is not filed, the appellate court may reverse the trial court's judgment. The court of civil appeals is required to exercise `its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation.' Kansas City Southern Railway Company v. Powell, 411 S.W.2d 633 (Tex.Civ.App., Beaumont, 1967, no writ), and cases cited.
. . . . . .
... For the court of civil appeals to exercise such judgment there need not be extraneous proof of passion, prejudice, sympathy, or any other proof showing that the jury was improperly motivated. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959); Dallas Railway and Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950). In determining whether the verdict of the jury was excessive, the court of civil appeals must first arrive at a conclusion, after review of the evidence, as to what sum would be held to be reasonable if it had been assessed by the jury. Texas and New Orleans Railroad Co. v. Syfan, 91 Tex. 562, 44 S.W. 1064 (1898); Flanigan v. Carswell, supra."
In Flanigan our Supreme Court held in part that:
"... The trial court, in deciding whether a verdict is excessive and a remittitur required to cure the error, should be governed by the same standard as the courts of civil appeals. See World Oil Co. v. Hicks, 1937, 129 Tex. 297, 103 S.W.2d 962, opinion adopted by the Supreme Court; Galveston, H. & S. A. Ry. Co. v. Johnson, 1900, 24 Tex.Civ. App. 180, 58 S.W. 622, writ refused. This standard was set forth by this Court in Wilson v. Freeman, 108 Tex. 121, 185 S.W.993, 994, as follows:
`All the Court of Civil Appeals can do, and all that is required of it to do * * * is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained, and treat the balance as excess * * * (Having) decided upon an amount that would be reasonable compensation * * * it should authorize a remittitur of the excess * * in accordance with its sound judgment.'"
I agree with appellant's contention under his first point that the verdict is excessive. In the trial court error was duly assigned in the motion for new trial by grounds numbers 62, 63, 64, 65 and 66, setting up that there was no evidence to support the jury's answer to Issue No. 1; that the answer to Issue No. 1 was against the great weight and overwhelming preponderance of the evidence; that the total fee found by the answer to that issue should not have exceeded $10,000.00; that the trial court should have taken judicial knowledge that $36,500 was an excessive amount, and that a remittitur should be required of plaintiff or else a new trial granted. Where there is a holding that the verdict and judgment are excessive, Rule 440, T.R.C.P., requires that before reversing the case the Court of Civil Appeals shall indicate to appellee the time in which a remittitur of the excess may be filed. Appellant argues that it has been demonstrated that a remittitur of $15,900, at least, should be ordered so as to *451 reduce the judgment to 60% of a fee of $10,000. Appellant has never contended that appellee is not entitled to recover part of what would be a reasonable fee for the services rendered prior to the death of Mr. Neel, and appellant does not complain of the percentages contained in the answer of the jury to Special Issue No. 2 because he agrees that in accordance with the contract the appellee's portion of the fee for the work done before the death of Mr. Neel should be 60%.
The final determination concerning remittitur which I would make will be stated after discussion of appellant's remaining points.
Appellant's third point, which asserts that the trial court erred in permitting the filing of appellee's trial amendment after both parties had rested and the evidence had been completed, will now be discussed. Appellee's trial amendment, omitting formal parts, has been herein before set out. The Statement of Facts reflects that following appellee's tender of her trial amendment counsel for appellant made extended objections to its filing which were overruled by the trial court.
Among other things, counsel for appellant objected to the filing of the trial amendment as coming too late, and on the ground that the letter agreement between Neel and Seaman fixed the relationship of the parties and that it was far too late for plaintiff to change her cause of action. In reply to the objections, counsel for appellee stated that Mr. Neel rendered services for the Harvey Estate "and apart and above from any consideration of the agreement, he is entitled to recover for those services from Mr. Seaman who has collected and will collect the money for the services that he performed and thus it's simply stating the case in terms of the work actually done or in terms of the law, a theory of quantum meruit...."
In addition to the objections reflected by the Statement of Facts, appellant filed separate exceptions to appellee's trial amendment which were overruled by the court. Appellant's written objections and exceptions were as follows:
"Defendant specially excepts to Trial Amendment filed herein by plaintiff, after the testimony is closed, for these reasons:
1. It comes too late. Any evidence in the record which might remotely be said to support the allegations of said trial amendment were placed in evidence without notice to defendant that such alternative claim would be made.
2. It is not supported by any evidence in this cause for the reason that all the competent testimony before the jury establishes as a matter of law that any legal services rendered the Harvey Estate prior to the death of C. B. Neel was done as Neel and Seaman, and there is no evidence that any work was done by C. B. Neel solely as an individual practitioner separate and apart from the letter agreement of September 11, 1963.
3. If we assume plaintiff is correct in its position that all the fee belonged to C. B. Neel, then its claim is against the Corpus Christi Bank and Trust and not against the defendant. The Bank is not a party to this suit.
WHEREFORE, defendant moves that such Trial Amendment be stricken."
This case went to trial on April 16, 1969 on plaintiff's fourth amended petition which was filed on that same date. By that petition plaintiff pleaded a portion of the contract between Mr. Neel and Mr. Seaman and alleged that Mr. Seaman was in violation of the contract; that Mr. Seaman had violated the Uniform Partnership Act, Secs. 20 and 21; that the attorney's fee for representing the Harvey Estate would exceed $90,000 and plaintiff claimed $60,000 damages for breach of contract and violation of the Partnership Act; and pleaded in the alternative that Mr. Neel's fair share of the attorney's fees from the Harvey Estate based on an equitable division *452 thereof would be not less than $60,000. The case was tried before a jury on that pleading, and it was not until April 22, 1969, after the evidence had been concluded that plaintiff-appellee filed her trial amendment over the objection of defendant-appellant, as hereinabove set out.
The filing of the trial amendment should not have been permitted by the trial court and abuse of discretion is reflected in allowing that amendment at the time in question. It came after the evidence had been closed and it was too late to review and correct many rulings of the trial court made in the light of the pleadings existing during the course of the trial. The trial amendment set forth a completely new cause of action "apart and aside" from the contract between Neel and Seaman, and prayed for damages in addition to those prayed for in the pleadings upon which the case had been tried. It came at a time when there was no opportunity for a reasonable amount of contemplation, study and research as to questions it raised. The case as tried before the jury was entirely on plaintiff's fourth amended original petition seeking to recover part of the entire fee or damages based upon the anticipated amount of the entire fee. Many rulings of the court as to admission of evidence were made because of the pleadings upon which the case went to trial and was tried. Assignment of Error No. 22 was to the overruling by the trial court of defendant's exception to the prayer, stating that plaintiff should have been required to specifically allege all causes of action sued on, and it is obvious that a prayer for general relief did not give notice of the quantum meruit plea in the trial amendment. Assignments 39, 40, 41, 42, 43 and 44 of appellant's motion for new trial were claims of error in admitting evidence as to what would be a reasonable fee for the work done before the death of Mr. Neel, including that there were no pleadings as a basis for such evidence, the Executor bank was not a party and was not bound, that the claim for services during that period was one against the Bank and not defendant, and that Mr. Seaman might not be able to collect from the Bank a fee for that period in the amount plaintiff sought to prove. Assignments 54 and 55 presented the error in admitting evidence as to who produced the business of the Harvey Estate and as to the past personal relationship between Mr. Neel and Dr. Harvey. Even though the evidence did not sustain the allegations, the jury had read to it pleadings of the plaintiff alleging breach of contract and violation of the Uniform Partnership Act, coupled with pleas for recovery of damages, and no pleading whatsoever was read to the jury showing a claim based on only what was probably about 15 hours of work. Based on the pleadings the jury heard and the only pleadings prior to the closing of the testimony, a picture was painted to the jury which the verdict shows caused prejudice in the minds of the jury against Mr. Seaman.
The contentions made by appellant under his third point are supported by several decisions. In Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422 (1954), our Supreme Court held in part as follows:
"The trial court did not abuse its discretion in refusing to allow plaintiff to file the trial amendment.
Rule 66, Texas Rules of Civil Procedure, provides: `If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading * * * the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits.' The provision is a salutary one, directed at arriving at the true legal rights of the parties under the true facts, but we cannot hold that the trial court abuses its discretion in denying the right to file a trial amendment when the record discloses *453 a probable resulting prejudice to the opposite party `in maintaining his action or defense.'
It seems quite clear to us that the trial court was justified in concluding on the record before it that the proffered amendment and testimony supporting it would have prejudiced the defendants in maintaining their defense. Plaintiff's suit was filed on March 27, 1951. Trial of the suit began on November 18, 1952. In the meantime plaintiff gave his testimony by deposition on two occasions. In his last two pleadings and in his testimony in both depositions he definitely fixed the manner in which he was injured by the rays from the lamp. The defendants had a right to assume that the case as made by the pleadings and testimony was the case and the only case they were called upon to defend and to prepare their defense accordingly. Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 254; Erisman v. Thompson, 140 Tex. 361, 167 S.W.2d 731, 733; Texas Employers' Ins. Ass'n v. Dillingham, Tex.Civ.App., 262 S.W.2d 748, writ refused, N.R.E. This they did; and the record reflects that they were prepared with witnesses and experiments to convince the jury that plaintiff could not have sustained an injury in the manner in which he claimed to have sustained it as a basis for his suit. In his testimony on the trial, in making out his case, plaintiff confirmed his previous pleadings and testimony of the manner in which he was injured. It was not until after he was confronted with the full force of defendants' evidence that he sought to change the factual basis of his case. He and his attorneys were in possession of the lamp at all times after the alleged injury and it was therefore within their power at all such times to reenact the circumstances under which the injury was supposed to have occurred, thus enabling them to obtain different evidence as to the distance involved and to change the factual basis of the suit affording the defendants notice of the change in time to allow defendants full and fair opportunity to prepare for trial on a different factual basis." (Emphasis supplied).
Appellant's position in connection with the filing of appellee's trial amendment particularly as it relates to quantum meruit or implied contract is also supported by the cases of Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707 (1901); Booth v. Houston Packing Co., 105 S.W. 46 (Tex.Civ.App., 1907, n.w.h.); and G. R. Scott, Boone & Pope v. Willis, 194 S.W. 220 (Tex.Civ.App., San Antonio, 1917, n.w.h.). Appellant's third point should be sustained.
Appellant's second point, which asserts that a money judgment should not have been rendered against Mr. Seaman because it is based on a jury finding of the value of legal services rendered for the Executor Bank, and the fee for such services had not been agreed upon or paid by the Executor and it is not bound by the verdict and judgment in this case, will now be discussed.
In reviewing our original decision the Supreme Court has passed only upon one question, i. e. that Corpus Christi Bank & Trust the Executor Bank, was not an indispensable party to this suit. Other questions presented on the original appeal were not decided. In the present posture of this case the parties are in agreement that the fee for the work done between January 8, 1965 and January 29, 1965 should be divided 60% to appellee (as Executrix of Mr. Neel's Estate) and 40% to appellant. However, there is no jury finding nor conclusive evidence establishing that the Executor Bank has agreed to pay any particular amount as a fee for the services rendered between January 8, 1965 and January 29, 1965. The evidence is to the contrary, that is, no such fee has been agreed upon by the Executor-Bank and the payments by it on the two interim billings were made to *454 the firm of Keys, Russell, Watson & Seaman, it being shown that several members of that firm other than Mr. Seaman did a substantial amount of the work on the Harvey Estate between the date of death of Mr. Neel and the time of trial. In this situation a money judgment should not have been rendered against appellant. If the pleadings had been framed in terms of an action for declaratory judgment, appellee would, on the present record in the light of the position taken by appellant, have been entitled to a declaration that she recover 60% of the fee agreed to or paid by the Executor-Bank for the period January 8, 1965 to January 29, 1965, or a fee for such period established by judgment of a court which is binding on the Executor-Bank. But we do not have pleadings here which would support such a judgment. Appellant's second point should also be sustained.
Appellant's fourth point should be overruled in view of the discussion in our original opinion. See 461 S.W.2d 659, 665, 667. However, if the judgment herein is ultimately reversed and the cause remanded for new trial, such ruling should be without prejudice to the renewed assertion of appellant's plea in abatement.
Since I would hold that reversible error is presented by appellant's first three points, the question of disposition of the case in view of the position taken by appellant as to remittitur will now be considered.
Although appellant contends it was not proper to render a money judgment against Mr. Seaman for any amount he takes the position that if his first point should be sustained in such a way as to reduce the judgment to a reasonable amount, this case can be concluded without further complaint by him. Appellant further says in substance that if the judgment of the trial court should stand, the harm and unfairness to him and his partners is quite evident; they cannot be expected to obtain from the Executor Bank a fee large enough to fairly compensate them for their many hours of service if approximately one-half of the fee for the entire administration is allocated to payment for approximately 15 hours of work done between January 8, 1965 and January 29, 1965; that the Executor Bank is not bound by this judgment and would violate its trust and fiduciary relationship with the devisees and legatees of the Harvey Estate if without litigation it paid a much larger fee than would otherwise be reasonable, in order to compensate for the verdict of the jury and the judgment herein of the trial court.
After consideration of the evidence and the authorities and in view of the agreement of appellant that he would be willing to assent to a judgment which would amount to 60% of a fee of $10,000.00, representing the fee to be charged for work done prior to the death of Mr. Neel, I have reached the conclusion that a remittitur of $15,900.00 should be suggested; and that if such remittitur is filed by appellee within 15 days from date of this opinion and judgment, the judgment herein should be reformed so as to provide that appellee shall recover from appellant the sum of $6,000.00, together with interest at the rate of 6% per annum from May 19, 1969, the date of the original judgment in the lower court, and as so reformed the judgment should be affirmed; and that if remittitur is not so filed, the judgment should be reversed and the cause remanded for new trial.
For the reasons stated, I respectfully dissent from the unqualified affirmance of the judgment below. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454972/ | 480 S.W.2d 196 (1972)
Douglas A. CHAIRES, Appellant,
v.
The STATE of Texas, Appellee.
No. 44717.
Court of Criminal Appeals of Texas.
March 29, 1972.
Rehearing Denied June 7, 1972.
*197 Earl L. Yeakel, III, Wallace A. McLean, Austin, for appellant.
Robert O. Smith, Dist. Atty., Herman Gotcher and Michael J. McCormick, Asst. Dist. Attys., and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is possession of marihuana; the punishment, fifteen (15) years.
Civilian employees of Braniff Airways and the air terminal testified that the appellant and two young women arrived in company with each other at the airport shortly before a flight to Washington, D. C., was scheduled to depart. The appellant carried a grey suitcase and each woman had one white suitcase and a footlocker. While issuing the tickets and baggage checks an attendant detected the odor of marihuana coming from appellant's baggage. He followed the baggage to the baggage room and pushed the sides of the appellant's suitcase together, creating a bellows effect, which produced a strong odor of marihuana. He then smelled the other luggage on the baggage cart and also detected an odor of marihuana escaping from the womens' luggage. He pried open the corner of the footlockers and was able to see cellophane bags, and further clearly detected the odor of marihuana. Another agent unlocked appellant's suitcase and found it filled with plastic bags containing a grassy substance which he identified as marihuana. The agents then called their superior who, in turn, called the Austin police. Captain Gann of the narcotic section arrived shortly before the plane was due to depart. The bags in question had been put aboard the plane, but Gann and airport officials boarded the plane, examined the bags and after confirming the fact that they contained marihuana arrested appellant and the two women.
Appellant's first six grounds of error relate to the failure of the court to charge in accordance with Article 38.23, Vernon's Ann.C.C.P.[1] Appellant's contention *198 is predicated upon the assumption that the evidence raised an issue as defined in paragraph 2 of said Article. The appellant did not testify and offered only evidence that he had not heretofore been convicted of a felony.
After the Braniff employees, by sight and smell, determined that the bags contained marihuana, and reported their findings to the police, the police, upon seeing the bags and smelling the contraband, clearly had probable cause to seize the luggage and to arrest the offenders. There is no evidence to dispute these facts and, therefore, no issue for the jury's determination. Jones v. State, Tex.Cr.App., 458 S.W.2d 654; Corbitt v. State, Tex.Cr.App., 445 S.W.2d 184.
Appellant's first grounds of error are overruled.
Appellant's remaining ground of error is that the court erred in admitting the suitcases and trunks containing marihuana on the ground that they were recovered pursuant to an illegal search. He claims that there were actually two searches; one by airline officials and one by police, and that both were illegal.
Appellant first contends that the airline officials were acting in concert with the police. The evidence indicates that the Braniff agents, on their own initiative, suspected the presence of marihuana and made a discovery inspection which sustained their initial suspicions after which they alerted the police.[2] Appellant's reliance on Corngold v. United States, 9 Cir., 367 F.2d 1, is misplaced. In that case, custom officials followed a suspected shipper of contraband to the airport and, after the shipper left, requested the carrier's agents to open the containers. In Gold v. United States, 378 F.2d 588, the Ninth Circuit Court of Appeals in dealing with a similar situation distinguished Corngold, supra, and concluded, as we do here, that the initial search of the luggage by airline officials was not undertaken at police request but was an independent investigation by the carrier for its own purpose. Clearly, the police did not open, induce the opening of, or participate in the opening of the appellant's baggage necessary to bring him within the Corngold, supra, rule. United States v. Averell, D.C., 296 F. Supp. 1004; State v. Wolfe, 5 Wash.App. 153, 486 P.2d 1143. Recently in Yantis v. State, 476 S.W.2d 24 (1972) we overruled appellants' contention that under the circumstance presented there, a private party was acting in the role of a police agent.
Appellant next suggests that the carrier's search was illegal because it was acting pursuant to an unconstitutional C. *199 A.B. provision.[3] He claims that when the C.A.B. enacted the regulation now in question, it exceeded its permissible bounds by not restricting the carrier's right to search to situations where it felt the aircraft was in danger. In the case at bar, the agents smelled the odor of marihuana which aroused their suspicions. We have concluded that under the circumstances the carrier was not required to pass on luggage without further inspection. As the court said in United States v. Averell, D. C., 296 F. Supp. 1004 (1969), the "airline had the right and perhaps the duty to discover if its facilities were being used for the commission of a crime."
Appellant finally contends that the warrantless search of the luggage by the Austin police at the airport was illegal.
As we concluded earlier, once the airline agents communicated their findings to law enforcement officials and verified these suspicions, the police clearly had probable cause to seize the contraband and arrest its owners. It is uncontested that the airliner was scheduled to leave for Washington, D. C., at 9:00 A.M. and that the entire episode began shortly after 8:30 A.M. when appellant arrived at the airport. We, therefore, find no merit in appellant's contention that since the Austin police knew the craft would be continually airborne for over two and one half hours, they should have refrained from action and instead wired their suspicions ahead to Washington, D.C., officials. Likewise, we find no merit in his other contention that since the airline officials had the authority to withhold the luggage from the flight, they should have done so, and thereby afforded officials an opportunity to obtain a warrant. Such an approach disregards the practical aspects of law enforcement. When the Austin police were informed that the contraband was aboard an airliner, due to depart in minutes, they had probable cause to inspect the suspect cargo and, after verifying the agents' suspicions, to seize it and arrest its owners, before one or all were flown from their jurisdiction.
We are further inclined to conclude that the rationale of the United States Supreme Court in Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, should control here. In dealing with the propriety of an on-the-spot warrantless search of a moveable vehicle, the court concluded that the requisite "exigent" circumstance for a warrantless search existed where peace officers had sufficient probable cause and the moveable object was "a fleeting target for a search." Cf. Cash v. Williams, 455 F.2d 1227 (1972).
In Chambers, supra, the Court also considered the question of whether a peace officer with sufficient probable cause should make an immediate warrantless search of a moveable vehicle or whether he should immobilize it and obtain a warrant and said:
"For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment."
In People v. McGrew, 1 Cal. 3d 404, 462 P.2d 1, cited by appellant, the footlocker containing the contraband was left with the airline to be forwarded to appellant when "space" was "available" and, therefore, the element of haste, so paramount in the case at bar, was absent in McGrew. It should further be noted that the odor of marihuana was the first thing that attracted the agent's attention in the instant case while in McGrew, supra, the attendant's attention was first directed to McGrew's long hair which called to mind his superior's *200 admonishment to be on the lookout for footlockers and suspicious people. Without discussing McGrew, supra, further, we observe it is persuasive only and not authoritative in this jurisdiction.
Appellant's second contention is overruled.
The judgment is affirmed.
NOTES
[1] Article 38.23 states: "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
"In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained."
[2] At the examining trial Braniff's Customer's Service Agent, Wilkerson, testified that on the day prior to the day in question, he and his fellow employees had occasion to intercept a shipment of marihuana which they had discovered with the aid of their sense of smell, and that Braniff employees had notified the police who, in turn, seized the contraband. He testified that his actions on the day before and on the day in question were not at the request or direction of any law enforcement agent and that no police officer had ever asked him to be on the alert in order to detect marihuana being shipped. He testified that he opened appellant's bag on his own volition because he detected a distinct odor of marihuana emitting therefrom. We venture the conclusion, though the question is not before us in the case at bar, that under the facts here presented, that Wilkerson had the authority to arrest appellant under the authority of Art. 14.01, V.A.C.C.P., which authorized an arrest by a private citizen for a felony committed in his presence.
[3] According to the record, the Civil Aeronautics Board rule is, "All baggage are subject to inspection by the carrier, but the carrier shall not be obligated to perform such inspection." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454976/ | 480 S.W.2d 685 (1972)
Willie James HAMILTON, Appellant,
v.
The STATE of Texas, Appellee.
No. 45000.
Court of Criminal Appeals of Texas.
June 7, 1972.
*686 Gerald T. Calhoun, Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell and Jim Skelton, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is murder with malice; the punishment sixty-five (65) years.
The record reflects that three men attempted to rob a Harris County liquor store but were foiled in their effort by an off-duty police officer who was shopping at the store with his wife. The officer testified that after he felled one of the robbers, who had just shot a customer, he saw the appellant, armed with a .25 caliber pistol, holding the deceased as an apparent hostage-shield. He stated that when the deceased resisted, Robert Tezeno, the third robber, carrying a .32 caliber gun, came to appellant's aid and a struggle between the appellant, the deceased and Tezeno ensued during which they fell behind some boxes. He further testified that he heard a muffled shot come from behind those boxes and then saw the appellant and Tezeno raise up from behind the boxes. Both were captured shortly thereafter in the adjacent parking lot. The bullet which killed the deceased came from Tezeno's gun.
Appellant's first ground of error is that the evidence is insufficient to support his conviction as a principal. The Court instructed the jury on the law of principals and under the facts of the case and the law, and the law as declared by this Court in Fantroy v. State, 474 S.W.2d 490, the evidence is amply sufficient to support the conviction.
Appellant's second ground of error is that the evidence is insufficient to show that the murder was committed with malice. The court properly defined malice in its charge under Article 1257b, Vernon's Ann.P.C., and also instructed the jury under Article 42, V.A.P.C., that if they found *687 from the evidence beyond a reasonable doubt that the deceased was killed during the commission, or the attempted commission, of a robbery in which appellant was participating that they should find him guilty of murder with malice and if they did not so believe they should find him not guilty. Further, the record reflects that appellant made no objection to the charge and did not request any special instructions. Jackson v. State, Tex.Cr.App., 474 S.W.2d 237; Hill v. State, Tex.Cr.App., 466 S.W.2d 791.
Appellant's third ground of error is that the "penalty is excessive and not supported by the evidence, in trial courts (sic) failure to properly instruct the jury, permitting the jury to draw an inference of the appellant's guilt.' If we understand appellant's contention, he claims that the jury would not have assessed the penalty it did if the State had not improperly cross-examined him concerning extraneous offenses during the punishment phase of the trial.
On direct examination, appellant made the blanket claim that he had "never been inside a burglary before, I didn't know nothing about how to rob or nothing." On cross-examination he reiterated this statement whereupon the prosecutor questioned him concerning other robberies in which he was identified as a participant. The extraneous offense became admissible in rebuttal to appellant's blanket claim that he had never been involved in a robbery before. Davis v. State, Tex.Cr.App., 478 S.W.2d 958 (1972); Kemp v. State, 157 Tex. Crim. 158, 247 S.W.2d 398; Alexander v. State, Tex.Cr.App., 476 S.W.2d 10 (1972).
Further, no objection was made to the cross-examination in question. Jackson v. State, supra; Bitela v. State, Tex.Cr.App., 463 S.W.2d 738.
Appellant's third ground of error is overruled.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3037090/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REGINALD CHAVIS, No. 01-17072
Petitioner-Appellant, D.C. No.
v. CV-00-02496-
MIKE EVANS, Acting Warden, WBS/GGH
Eastern District
Respondent-Appellee.
of California,
Sacramento
ORDER
Filed April 25, 2006
Before: Betty B. Fletcher, Stephen S. Trott, and
Raymond C. Fisher, Circuit Judges.
ORDER
Appellant’s motion to file supplemental briefs is DENIED.
The judgment of the district court is reinstated.
4587
PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2006 Thomson/West. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1919895/ | 91 B.R. 639 (1988)
In re BLONDHEIM REAL ESTATE, INC., Debtor.
Bankruptcy No. 85-221.
United States Bankruptcy Court, D. New Hampshire.
September 16, 1988.
Joseph Foster, Manchester, N.H., for Creditors' Committee.
Daniel Callaghan, Manchester, N.H., for trustee.
R. Timothy Phoenix, Portsmouth, N.H., for Equity Committee.
MEMORANDUM OPINION ON MOTION FOR SUBORDINATION OF NOTE-HOLDER CLAIMS TO TRADE CREDITOR CLAIMS
JAMES E. YACOS, Bankruptcy Judge.
On August 8, 1988 the United States Trustee filed in this chapter 11 reorganization proceeding a "Motion For Subordination Of Investor Claims To Trade Creditor Claims" in which she sought an order determining that "the claims of unsecured creditors who invested in debtors' notes be subordinated to the claims of trade creditors." Because of the pendency of a complex plan of reorganization, which shortly awaits approval of a fourth amended disclosure statement involving a fourth amended plan of reorganization, the aforesaid motion of the U.S. Trustee was heard on an expedited schedule before this court on September 13, 1988. The U.S. Trustee's motion, if granted, would conflict with the classification of claims provided in the pending plan of reorganization, and would necessitate a further revision of the plan before it could be submitted to creditors and equity-holders for approval.
The motion as originally filed relies on both § 510(b) and § 510(c) of the Bankruptcy Code as justification for the requested relief. However, at the hearing on September 13, 1988 the U.S. Trustee withdrew the § 510(c) contention in open court. This removes the equitable subordination issue under § 510(c) which involves various factual questions now not necessary for decision.[1]
Accordingly the sole issue before this court for decision is a question of law as to whether subordination is mandatory under the following particular provision of § 510(b) of the Code:
For the purpose of distribution under this title, a claim . . . for damages arising from the purchase or sale of [a security of the debtor] . . . shall be subordinated to all claims or interests that are senior to or equal the claim or interest represented *640 by such security, except that if such security is common stock, such claim has the same priority as common stock.
The quoted language follows an earlier clause directing subordination of claims "arising from rescission" of a purchase or sale of a security.[2]
Assuming without deciding that the U.S. Trustee has standing to pursue a motion for subordination in a chapter 11 case,[3] I note that her position is bottomed basically upon her reading of the statutory words "security" and "damages" in the statute involved. I agree with her contention as to the former but disagree as to the latter.
There is no question that each note issued by the debtor in this case constituted a "security" within the meaning of the statutory language. See 11 U.S.C. § 101(43) (definitional provision). There is considerable question however with regard to the "damages" contention as will be developed below.
The U.S. Trustee reads "damages" to include the claim for recovery of the liquidated, unpaid amount due and owing on the instrument itself, i.e., the promissory note, even though the claimant is not claiming any further consequential or other damages caused by the failure to repay the note when due.
The Bankruptcy Code does not define "damages" and the legislative history with regard to § 510(b) (enacted as part of the 1978 Bankruptcy Code) also gives no indication as to any special meaning to be accorded to that word in the statute. Turning to a recognized legal dictionary, we find "Damages" defined as follows:
A pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his person, property, or rights, through the unlawful act or omission or negligence of another. A sum of money awarded to a person injured by the tort of another. Restatement, Second, Torts, § 12A.
Damages may be compensatory or punitive according to whether they are awarded as the measure of actual loss suffered or as punishment for outrageous conduct and to deter future transgressions. Nominal damages are awarded for the vindication of a right where no real loss or injury can be proved. Generally, punitive or exemplary damages are awarded only if compensatory or actual damages have been sustained.
Compensatory or actual damages consist of both general and special damages. General damages are the natural, necessary, and usual result of the wrongful act or occurrence in question. Special damages are those "which are the natural, but not the necessary and inevitable result of the wrongful act." [Black's Law Dictionary, 351-52 (5th ed. 1979)]
It is apparent from this definition, and I believe from common legal parlance, that the concept of "damages" has the connotation of some recovery other than the simple recovery of an unpaid debt due upon an instrument.[4]
The legislative history makes it clear that § 510(b) was enacted as a result of the thorny question which had caused conflicts in the courts as to whether an equity security-holder alleging fraud in the purchase of the security could share on the resulting fraud claim on an equal basis with general unsecured creditors as opposed to the inferior position of equity holders. See Matter *641 of Stirling Homex Corp., 579 F.2d 206 (2nd Cir.1978).
The pertinent legislative history appears in House Report No. 95-595, at pages 194-196, U.S.Code Cong. & Admin.News 1978, pp. 5787, 6154-6157, under the heading "Subordination Of Security Purchase Decision Claims", and is entirely focused upon the question of appropriate treatment of inferior-level claims that arguably might be upgraded to a higher level by virtue of some fraud ground justifying recovery by the security holder against the debtor. There is no discussion whatsoever in the legislative history as to priority questions between "trade creditors" and "investors" who are same-level unsecured creditors to support the U.S. Trustee's reading of the statutory language.
The House Report reference above closes with the following comment:
The bill generally adopts the Slain/Kripke position, but does so in a manner that is administratively more workable. The bill subordinates in priority of distribution rescission claims to all claims that are senior to the claim or interest on which the rescission claims are based. Thus, a rescission claim resulting from the purchase of a subordinated debenture would share in the proceeds of the estate before equity security holders but after general unsecured creditors. The bill also provides for some case-by-case adjustment. The court is given general authority to subordinate claims on equitable grounds. If those that would take before subordinated rescission claim holders had been involved in some activity that led to the fraudulent issue of the securities on which the rescission claims were based, the court would be able to subordinate those with dirty hands below the rescission claim holders, thus restoring the recision claim holders to nearly a creditor position.
Not surprisingly, all cases to date construing § 510(b) involve shareholder claims for rescission or damages based on fraudulent sale of securities. See In re Stern-Slegman-Prins Co., 86 B.R. 994, 999-1000 (Bankr.W.D.Mo.1988).
The U.S. Trustee recognizes that the "rescission" language in the first portion of § 510(b) does not support her contention, but she argues that the additional "for damages arising" language must mean something more and can encompass the subordination of noteholders to trade creditors in the present case. My opinion however is to the contrary, since I believe that the "for damages arising" language has a more natural and obvious purpose of including within the statutory provision those former holders of securities who technically would not have a "rescission" claim (as present holders would have) but would still have a fraud claim at common law or as "Rule 10b-5" fraud claimants for damages under the Securities Exchange Act of 1934. See 17 C.F.R. 240.10b-5.
The U.S. Trustee also fastens upon the language in the House Report quoted above to the effect that "The bill generally adopts the Slain/Kripke position. . . ." and apparently believes this reference somehow incorporates into the statutory language all comments included by Professors Slain and Kripke in the referenced law review article, The Interface Between Securities Regulation And Bankruptcy Allocating The Risk Of Illegal Securities Issuance Between Securityholders And The Issuer's Creditors, in 48 N.Y.U. L.Rev. 261 (May 1973). However, a review of that article indicates that it too focuses on the fraud transaction context, and is no support for inferring a congressional intent to provide for mandatory subordination of noteholder or debentureholder unsecured creditor claims to trade creditor unsecured claims.
Moreover, the actual statutory language enacted, as indicated above, has a natural meaning which requires no strained interpretation of the "for damages arising" language to accomplish the fundamental change in priority distribution rules in bankruptcy reorganization proceedings that would result from upholding the U.S. Trustee's reading of § 510(b) of the Code.
The creditors' committee comments convincingly in its Memorandum as to certain clearly inappropriate results, far from any demonstrated Congressional intent, that *642 would follow from approval of United States Trustee's construction of § 510(b):
The position of the United States Trustee ignores basic assumptions made in business and commercial transactions. The contention that a trade creditor has priority because the unsecured lender holds a note is absurd. Two hypotheticals help illustrate this point. If the United States Trustee's position were adopted the undersecured portion of an secured creditor's claim would be subordinated to a trade creditor's claim. While presumably the secured creditor's lien on collateral would remain, any deficiency claim because it is evidenced by a note, would be subordinated to trade debt.
Similarly, a trade creditor that chooses to allow a slow paying debtor to issue a note and accepts payment over time would be prejudiced. If, after accepting the note the debtor filed bankruptcy, the trade creditor would be making a "claim on a note" and be subordinated to other trade creditors under the United States Trustee's theory. This obviously would be an unfair result trade creditors who are dilatory pursing (sic) legal remedies would come ahead of creditors pursuing their rights. If adopted, the United States Trustee's position would discourage trade creditors from working with financially distressed debtors.
The United States Trustee argues that noteholders are really "investors" in the Blondheim entities and therefore subordination is fair. As support for her position she points to the "high" rates of interest note holders were receiving four to five percent over prevailing rates for certificates of deposits. This argument ignores the fundamental difference between a certificate of deposit and an unsecured loan. Certificates of deposit are generally F.D.I.C. insured risk of nonpayment does not exist. While individuals technically loan money to a bank when a certificate of deposit is purchased, it is the safest "unsecured" loan imaginable and therefore a lower rate of interest is paid. However, unsecured loans are typically made at a much higher rate of interest because risk of nonpayment is greater. For example, banks typically pay five percent on statement savings account, which are F.D.I.C. insured, but charge ten to eleven percent for 30-year fixed rate mortgages and 15-20% for loans made on credit cards. The higher rate of interest charged on unsecured loans does not convert debt instruments into equity instruments. No case subordinating unsecured loans or the undersecured portion of a secured loan to trade debt pursuant to Section 510(b) has been cited by the United States Trustee. Banks are sometimes equitably subordinated under Section 510(c), but not under Section 510(b). To adopt the United States Trustee's position would fundamentally change the understanding bankers and other lenders have about lending transactions.
In my judgment the mandatory subordination rule which the U.S. Trustee seeks to extract from the referenced language in § 510(b) of the Bankruptcy Code would be truly revolutionary and not within any required reading of the statutory language and its underlying legislative history. For all of the reasons set forth above, a separate order will be entered denying the U.S. Trustee's Motion To Subordinate.[5]
NOTES
[1] There also would have been a serious procedural question had § 510(c) remained before the court, inasmuch as the U.S. Trustee did not seek to serve all affected noteholders with an appropriate motion or adversary proceeding seeking subordination of their claims on that ground.
[2] There is no reliance by the U.S. Trustee on the alternative "rescission" language in the present case.
[3] The U.S. Trustee cites 28 U.S.C. § 586(a) and 11 U.S.C. § 307 in that regard.
[4] Indeed as the creditors' committee points out in its memorandum, under New Hampshire common law pleading an action upon the instrument itself would have to be an "Action in Debt" and an action for a fraudulent sale of a security would be a tort action as a "Trespass On The Case" under New Hampshire practice. Newhall, J.B., Justice And Sheriff, pp. 78-79, 95, 101 (1931). The committee notes further: "An Action in Debt is the same claim a trade creditor could bring for nonpayment. Both involve claims for liquidated amounts; an Action for Trespass On The Case involves a claim for an unliquidated sum."
[5] The U.S. Trustee has incorporated by reference with her Motion various prior pleadings and matters of record in this case with regard to prior hearings on consolidation and intercompany claims which were litigated between the parties before the presently pending consensual plan of reorganization was submitted. The withdrawal of the § 510(c) contention by the U.S. Trustee, at the September 13, 1988 hearing, as noted above, renders those factual contentions irrelevant inasmuch as the sole matter remaining for decision by this court involved the § 510(b) contention. The court in the present decision expresses no view as to any possible application of § 510(c) in future cases with regard to the unsecured trade creditor/unsecured noteholder context. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919902/ | 91 B.R. 1008 (1988)
In re William Joseph BENAK, Debtor.
Stewart P. CHAMBERS, Trustee, Plaintiff,
v.
William Joseph BENAK, Defendant.
Bankruptcy No. 87-04422-BKC-SMW, Adv. No. 88-0260-BKC-SMW-A.
United States Bankruptcy Court, S.D. Florida.
October 21, 1988.
*1009 Michael Frank, North Bay Village, Fla., for debtor.
Gary J. Rotella, Fort Lauderdale, Fla., for Trustee.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
SIDNEY M. WEAVER, Bankruptcy Judge.
THIS CAUSE having come before the Court upon the complaint of Stewart P. Chambers (the "trustee") against William Joseph Benak (the "debtor") to revoke the debtor's discharge, pursuant to 11 U.S.C. § 727(d)(1), and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments of counsel, and being otherwise fully advised in the premises, does hereby make the following Findings of Fact and Conclusions of Law:
Jurisdiction is vested in this Court pursuant to 28 U.S.C. § 1334(b) and § 157(a), (b) and the district court's general order of reference. This is a core proceeding in which the Court is authorized to hear and determine all matters relating to this case in accordance with 28 U.S.C. § 157(b)(2)(J).
The trustee filed an adversary complaint to revoke the debtor's discharge on May 24, 1988. Before the commencement of the trial on September 14, 1988, the debtor moved this Court for bifurcation of the trial proceedings in order to first determine, pursuant to 11 U.S.C. § 727(d)(1), whether the trustee had knowledge of the alleged fraud prior to the debtor's discharge on April 29, 1988.
In March 1988 counsel for the trustee, Gary J. Rotella, represented a creditor in another adversary ("Fredwest" 88-0146-BKC-SMW-A) filed against the debtor, under 11 U.S.C. § 727, and based on the same allegations raised in the instant adversary action. During the pendency of the Fredwest adversary the trustee received copies of the pleadings and was present during some of the hearings which transpired. The Fredwest adversary was dismissed in April 1988 because the Court determined that the plaintiff was not a creditor of the estate. Thereafter, Mr. Rotella was appointed by the Court as trustee's attorney and on May 24, 1988, the trustee filed this adversary action alleging that the debtors discharge should be revoked under 11 U.S.C. § 727(d)(1).
Under 11 U.S.C. § 727(d)(1) a creditor may seek the revocation of a debtor's discharge when "such discharge was obtained through fraud of the debtor, and the requesting party did not know of such fraud until after the granting of such discharge." Govaert v. Topper (In re Topper), 85 B.R. 167 (Bankr.S.D.Fla.1988). A discharge will not be revoked where the creditor fails to demonstrate that he lacked the knowledge of the transactions on which he based the allegations of fraud, prior to the granting of the discharge. In re Kirschner, 46 B.R. 583 (Bankr.E.D.N.Y.1985). See also Continental Builders v. McElmurry (In the Matter of McElmurry), 23 B.R. 533 (W.D.Mo.1982). Furthermore, a request to revoke the debtor's discharge based on fraud should be denied when the requesting party is guilty of laches "by failing to show proper diligence in attempting to discover the necessary facts before *1010 discharge. In the Matter of McElmurry, 23 B.R. at 536.
The trustee testified that he received a copy of the Fredwest complaint, as well as other pleadings, and was present at several of the hearings prior to the debtor's discharge. The trustee further testified that because he was not directly involved in the Fredwest adversary he did not proceed to investigate any of the allegations contained in the complaint until after its dismissal. In addition, the trustee received notice of a 2004 examination of the debtor in April 1988, prior to the debtor's discharge, and chose not to attend the examination. Therefore, this Court finds that the trustee knew of the debtor's alleged fraud prior to the debtor's discharge on April 29, 1988 and failed to take proper action.
Based upon the foregoing, this Court finds that the debtor's discharge is not revoked under 11 U.S.C. § 727(d)(1).
A separate Final Judgment of even date has been entered in conformity herewith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919922/ | 91 B.R. 524 (1988)
In re Geraldine Helen FEY, Debtor.
Gerald A. RIMMEL, Trustee, Plaintiff,
v.
Geraldine Helen FEY and Arthur E. Fey, Defendants.
Bankruptcy No. 87-01788-BKC-JJB, Adv. No. 88-0069-BKC-JJB.
United States Bankruptcy Court, E.D. Missouri, E.D.
October 7, 1988.
Deborah Benoit, St. Louis, Mo., for plaintiff/trustee.
David Waltrip, Joseph R. Burcke, Clayton, Mo., for Geraldine Fey.
Edward Lander, St. Louis, Mo., for Arthur Fey.
FINDINGS AND CONCLUSIONS
JAMES J. BARTA, Chief Judge.
This matter is before the Court on the Trustee's Complaint to Compel Turnover of Property. The parties have stipulated to certain facts in this case; and this Court has determined other facts as necessary to the issue before the Court and makes the following Findings and Conclusions:
1. This matter is a core proceeding over which this Court has jurisdiction pursuant to 28 U.S.C. § 157 and § 1334 and Rule 29 of the Local Rules of Court for the Eastern District of Missouri.
2. Geraldine Fey is the Debtor in a voluntary Chapter 7 proceeding, having filed for relief on June 18, 1987.
3. Arthur B. Fey is the non-debtor spouse of the Debtor.
4. As of the date of filing this petition, Geraldine H. Fey and Arthur B. Fey were the owners of shares of Anheuser Busch common stock.
5. About one year prior to their marriage, Geraldine Fey originally purchased a small number of shares of Anheuser Busch stock in her and Arthur's name as joint tenants. These shares were acquired exclusively with the funds of the Debtor as a single person.
6. Subsequent to this initial purchase, stock dividend splits, and payments of interest in the form of stock were received by the Debtor and her spouse. No additional sums were contributed to purchase any of the stock at issue here.
7. The face of each stock certificate at issue here reflects that the Defendants own the stock as joint tenants, but does not refer to them as husband and wife.
8. No change was ever made to reflect any different ownership interest in the stock certificates, although the Defendants did convey the real estate they purchased prior to their marriage to themselves as *525 tenants by the entireties after their marriage.
9. The testimony revealed that the Defendants intended to hold these shares jointly with rights of survivorship. This conclusion is supported by the fact that the Defendants held the shares in joint names, and not as tenants by the entirety; and that although they elected to transfer other property to the entirety estate after marriage, they elected to continue the joint tenancy in the shares through the commencement of this case.
10. At the time of the purchase of these certificates, the Defendants were not married, and, thus, a tenancy by the entirety could not have been created.
11. All subsequent issues of stock are controlled by the form of the original purchase, as each subsequent issue arose from that original ownership interest.
12. There is a rebuttable presumption in Missouri law that a married couple take property as tenants by the entireties. Nelson v. Hotchkiss, 601 S.W.2d 14, 18 (Mo. banc 1980).
13. There is no dispute with the conclusion that the original purchase was as joint tenants.
14. Missouri law recognizes married couples can hold property as tenants in common or as joint tenants. Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 299-300 (1945).
15. The later acquired shares of stock were conveyed to the same joint tenants and reflect the identical interest as the original shares as no change was ever authorized by the Defendants.
16. The evidence considered by the Court includes the information on the face of the instruments and the surrounding circumstances of the purchase of the stock and subsequent issues of stock resulting therefrom.
17. This Court finds the original purchase to have been made by the Defendants as joint tenants.
18. The subsequent issues of stock were also to the Defendants as joint tenants.
19. Therefore, the Court concludes that at the commencement of this case, the Debtor held a one-half interest in these certificates; and that the Debtor's interest is property of this Bankruptcy estate pursuant to 11 U.S.C. § 541; and that the Trustee shall be directed to administer upon this asset.
Therefore, by separate order, judgment is entered in favor of the Trustee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919931/ | 245 Pa. Superior Ct. 487 (1977)
369 A.2d 733
COMMONWEALTH of Pennsylvania, Appellant,
v.
Barbara JONES, Appellee.
Superior Court of Pennsylvania.
Argued November 17, 1975.
Decided February 18, 1977.
*490 Charles W. Johns, Assistant District Attorney, Pittsburgh, with him John J. Hickton, District Attorney, Pittsburgh, for appellant.
Larry P. Gaitens, Pittsburgh, for appellee.
Before WATKINS, P.J., and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
SPAETH, Judge:
The Commonwealth appeals from an order granting defendant's motion to suppress evidence seized pursuant to a search warrant. The lower court ordered the evidence suppressed because the police officer who served the warrant failed to verify the inventory of items seized when he made return of the warrant to the issuing authority.
I
Rule 2009(a) of the Pennsylvania Rules of Criminal Procedure provides:
An inventory of items seized shall be made by the law enforcement officer serving a search warrant. The inventory shall be made in the presence of the person from whose possession or premises the property was taken, when feasible, or otherwise in the presence of at least one witness. The inventory shall be verified by said officer.
(Emphasis added)
The Rules of Criminal Procedure do not define verification. It is generally recognized, however, that for legal purposes verification means confirmation of the truth of a statement by oath or affirmation.[1] It is evident, *491 moreover, that the draftsmen of the inventory form understood verification in this sense. Thus the form, which appears on the reverse side of the warrant, specifically provides that the officer upon return of the warrant to the issuing authority shall swear to the correctness of the inventory before the issuing authority. Here, the officer signed the inventory but not before the issuing authority. Accordingly, the inventory was not verified.
The Commonwealth does not dispute this conclusion. However, it argues that verification is merely an "administrative requirement", and that failure to comply with such a requirement should not result in suppression of the evidence. To this defendant responds that unless the evidence is suppressed, the police may ignore the rule as it was ignored here with impunity.
II
In appraising the parties' respective arguments it is necessary to distinguish between the powers of the Supreme Court and of this court and a trial court.
Under Article 5, Section 10, of the Pennsylvania Constitution the Supreme Court has "general supervisory and administrative authority over all the courts", Section 10(a), including "the power to prescribe general rules governing practice, procedure and the conduct of all courts, * * * and all officers serving process," Section 10(c). In exercising these powers, the Supreme Court may impose requirements beyond the minimum requirements of constitutional law. Thus in Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974), *492 the Court in forbidding double prosecutions went beyond the limits of the double jeopardy clause of the Fifth Amendment. In explaining this action, the Court collected cases illustrating its power to go beyond the minimum requirements of constitutional law. Id. at 624-26 nn. 4-7, 314 A.2d at 855-56 nn. 4-7. Illustrative of these cases is Commonwealth v. McIntyre, 417 Pa. 415, 208 A.2d 257 (1965). There the Court exercised its general supervisory power to control the order in which cases should be tried, holding that the Commonwealth could not impeach a defendant on trial for murder by evidence of convictions for burglaries committed subsequent to the murder, where the Commonwealth had tried the burglary cases before the murder case for the purpose of developing evidence of a criminal record that it could then use to impeach the defendant in the trial of the murder case.
In Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973), the Supreme Court exercised its general supervisory power with respect to the requirements of a valid search warrant. The issue was whether probable cause for the warrant could be proved by oral testimony. Mr. Justice POMEROY and Mr. Justice MANDERINO were of the opinion that as a matter of constitutional law, probable cause had to appear in a written affidavit sworn to by the officer before the issuing authority. The majority of the Court disagreed with this opinion, but announced, in an exercise of the Court's general supervisory power, that it would go beyond minimum constitutional requirements and provide by amendment of the Rules of Criminal Procedure that probable cause must thereafter appear in the written affidavit. Following the effective date of such an amendment, the Court said, a search conducted pursuant to a warrant not supported by a sufficient written affidavit would be held invalid. Id. at 315 n. 3, 300 A.2d at 81 n. 3.
From these decisions it is arguable that the Supreme Court might hold that the evidence in the present case *493 was properly suppressed; the Court might reason that unless it exercised its general supervisory power to impose such a sanction, the requirement of Rule 2009(a) that the inventory be verified would become meaningless.
We do not suggest that the Supreme Court would so hold; it might, for example, decide upon some less severe sanction, or conclude that Rule 2009 should be amended. The point is that it would be within the Supreme Court's power to take such action as ordering the evidence suppressed.
Such an order, however, is not within our power, and was not within the power of the lower court. This is so because, unlike the Supreme Court, neither this court nor the lower court has any general supervisory or rule making power on the basis of which an order directing the suppression of evidence may be entered. If such an order is to be entered, some other source of power must be found.
In some instances this court or a trial court may find the power to order the suppression of evidence by reference to a rule of court. For example, on the civil side a party who has disobeyed a discovery order may be "prohibit[ed] . . . from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition." Pa.R.C.P. 4019(c)(2). On the criminal side the general rule is that the accused has no right to discovery of evidence in the possession of the Commonwealth except where compelling circumstances exist. Pa.R.Crim.P. 310.[2]Commonwealth v. Bederka, 459 Pa. 653, 331 A.2d *494 181 (1975); Commonwealth v. Senk, 412 Pa. 184, 194 A.2d 221 (1963); Commonwealth v. Caplan, 411 Pa. 563, 192 A.2d 894 (1963). However, the Commonwealth's failure to endorse on the indictment the name of a witness examined before the grand jury may result in an order dismissing the indictment. Pa.R.Crim.P. 216; Commonwealth v. Phillips, 208 Pa.Super. 121, 220 A.2d 345 (1966), aff'd per curiam on the basis of the opinion below, 424 Pa. 641, 226 A.2d 863 (1967); Commonwealth v. Emmel, 194 Pa.Super. 441, 168 A.2d 609 (1961); Commonwealth v. Brownmiller, 137 Pa.Super. 261, 9 A. 2d 155 (1939). A comparable order may be entered if the Commonwealth offers evidence inconsistent with its bill of particulars. Pa.R.Crim.P. 221(c); Commonwealth v. Albanesi, 234 Pa.Super. 111, 338 A.2d 610 (1975). In Albanesi the court ordered the indictment dismissed, but the broad discretionary authority granted to the court by Rule 221(c) would have allowed the court to order evidence suppressed. Subsection (c) provides:
When an application for relief is made [by the defendant], the court may make such orders as it deems necessary in the interests of justice.
In Commonwealth v. Jackson, 457 Pa. 79, 319 A.2d 161 (1974), the Court was confronted with fashioning a remedy for a defendant who had before trial notified the Commonwealth of the names and addresses of the witnesses he intended to call to establish an alibi but whose request for the names and addresses of the witnesses the Commonwealth intended to call to refute his alibi had been denied.[3]
*495 The Court stated:
Because appellant was not granted reciprocal discovery, even after his express request, the enforcement of rule 312 violated appellant's right to due process. It was constitutional error to require appellant to supply the names of his alibi witnesses, without directing the Commonwealth to afford appellant reciprocal discovery rights.
Id. at 83, 319 A.2d at 163.
The Court awarded appellant a new trial but pointed out that other remedies had been available to the trial court:
It could have directed the Commonwealth, at some ample time prior to trial, to give appellant the names and addresses of all witnesses it would call to refute appellant's alibi. . . . Or, if the Commonwealth did not provide appellant with the names of the witnesses who would be called to refute his alibi, the trial court could have precluded the Commonwealth from introducing their testimony. . . .
Id. at 83, n. 7, 319 A.2d at 163, n. 7.
This court or a trial court may also order the suppression of evidence obtained in violation of a defendant's constitutional rights. The power to enter such an order derives from the duty to ensure that no person accused of crime is denied his constitutional rights. Thus in Mapp v. Ohio, 367 U.S. 643, 648, 81 S.Ct. 1684, 1687, 6 L.Ed.2d 1081 (1961), the Court quoting from Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 58 L.Ed. 652 (1914), said:
"If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment. . . is of no value . . .."
And in McNabb v. United States, 318 U.S. 332, 339, 63 S.Ct. 608, 612, 87 L.Ed. 819 (1943), the Court said:
And this Court has, on Constitutional grounds, set aside convictions, both in federal and state courts, *496 which were based upon confessions "secured by protracted and repeated questioning of ignorant and untutored persons, in whose minds the power of officers was greatly magnified", . . .
As examples of the exercise of this power to order the suppression of evidence unconstitutionally obtained, see Commonwealth v. Kline, 234 Pa.Super. 12, 335 A.2d 361 (1975); Commonwealth v. Williams, 229 Pa.Super. 390, 323 A.2d 862 (1974); Commonwealth v. Williams, 224 Pa.Super. 464, 307 A.2d 288 (1973); Commonwealth v. Abbruzzese, 223 Pa.Super. 452, 302 A.2d 853 (1973); and Commonwealth v. Burgos, 223 Pa.Super. 325, 299 A.2d 34 (1972).
III
In the present case, defendant has not cited any authority enabling either the lower court or this court to order the suppression of evidence simply because the inventory prepared incident to seizure of the evidence was not verified. There is no rule conferring such authority. Neither does it appear that there has been any violation of defendant's constitutional rights; defendant does not contend that the search warrant in question was obtained without probable cause, or that it was improperly executed. In these circumstances, we find ourselves unable to uphold the lower court's order suppressing the evidence.
We are quite aware that to a degree this conclusion may appear unsatisfactory; if the lower court initially, and then this court on appeal, may not order the suppression of evidence for failure to verify the inventory, one may perhaps anticipate that the requirement of Rule 2009(a) that the inventory be verified will be generally ignored. In response to this anticipation, however, several observations may be made.
The first observation is that to some extent at least Rule 2009(a) is self-enforcing. The careful police officer will recognize that by verifying the inventory he will gain protection against possible subsequent claims that *497 he lost or misappropriated some of the items seized. It appears, in fact, that the draftsmen of the rule intended this result, for their comment states, in part:
The inventory is required to assure that all items seized are accounted for in the return to the issuing authority.
From this it follows that the careful police commissioner will insist, if necessary by appropriate disciplinary procedures, that any officer executing a search warrant does verify the inventory.
The second observation is that failure to verify the inventory may have evidentiary consequences. Suppose, for example, that a defendant testifies in support of his motion to suppress that an item on the inventory was in fact not seized but "planted" by the officer serving the warrant. Upon the officer's contrary testimony, an issue of credibility will be presented. In resolving that issue, the hearing judge may find the officer's failure to verify the inventory important.
The final observation returns the discussion to where it began. As an intermediate appellate court of limited jurisdiction, we can only do so much. If more is to be done, it must be by the Supreme Court pursuant to its general supervisory and rule making powers, either upon allowance of an appeal in this case, or by amendment of the rules, or both. We only add that one should not be discouraged by this conclusion; one may have some confidence that the Supreme Court did not promulgate rules in the expectation that they could be violated with impunity.
The order of the lower court suppressing the evidence is reversed.
JACOBS, J., did not participate in the consideration or decision of this case.
PRICE and VAN der VOORT, JJ., concur in the result.
NOTES
[1] Black's Law Dictionary defines verification as: "Confirmation of correctness, truth or authenticity by affidavit, oath or deposition." See also Rule 1024 of the Pennsylvania Rules of Civil Procedure, which uses verification in this sense:
Every pleading containing averments of facts not appearing of record in the action or containing denials shall be verified by oath or affirmation that the averments or denials are true upon the affiant's personal knowledge or information and belief. Pa. R.C.P. 1024(a) (emphasis added).
[2] Pa.R.Crim.P. 310 provides in part:
All applications of a defendant for pretrial discovery and inspection shall be made not less than five days prior to the scheduled date of trial. The court may order the attorney for the Commonwealth to permit the defendant or his attorney . . . to inspect and copy . . . any written confessions and written statements made by the defendant. No other discovery or inspection shall be ordered except upon proof by the defendant, after hearing of exceptional circumstances and compelling reasons.. . . In no event, however, shall the court order pretrial discovery or inspection of written statements of witnesses in the possession of the Commonwealth. (Emphasis added)
[3] At the time, Pa.R.Crim.P. 312 required the defendant to give the Commonwealth notice of his intention to claim an alibi along with the details of the alibi and the identification of the witnesses who would substantiate the alibi. On June 29, 1973, the Supreme Court suspended the rule. A new rule has not been promulgated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919942/ | 91 B.R. 27 (1988)
In re Kevin C. and Catherine L. INGLE, Clyde J. and Aletha J. Coffee, Janis Goodlow, Gary White, Marcellus L. and Anne D. Gambril, James H. Tisdale, Arthur J. Hautala, Debtors.
Bankruptcy Nos. 88-01627-R, 88-01944-R, 88-02055-R, 88-02592-R, 88-02604-R, 88-03190-R and 88-03629-R.
United States Bankruptcy Court, E.D. Michigan.
September 23, 1988.
David Lewiston, John Lange, Southfield, Mich., Michael Bolton, Warren, Mich., J. Michael Hill, Allen Park, Mich., Rose Mons Hooper, Detroit, Mich., James Rowe, Flint, Mich., for debtors/respondents.
Michael Khoury, Detroit, Mich., for DMR Financial Services, Inc.
Craig Schoenherr, Sterling Heights, Mich., for GMAC.
SUPPLEMENTAL OPINION
STEVEN W. RHODES, Bankruptcy Judge.
I.
In these seven Chapter 13 cases, a common question of law is raised: Is a secured creditor entitled to pre-confirmation payments? On July 27, 1988, following the arguments of counsel and the trustee, the Court announced its decision that secured creditors are entitled to their regular monthly payments as adequate protection under 11 U.S.C. §§ 361, 362, and 363. This opinion supplements that decision.
The issue is raised by DMR Financial Services, Inc. (DMR), and General Motors Acceptance Corporation (GMAC). DMR holds the first mortgage on the personal residences of the debtors in In re Ingle (No. 88-01627), In re Coffee (No. 88-01944), and In re Goodlow (No. 88-02055). DMR seeks orders compelling payment of the regular monthly mortgage payments, arguing that otherwise these debtors will be several months further behind when (and if) their plans are confirmed.
GMAC holds security interests in automobiles owned by the debtors in In re White (No. 88-02592), In re Gambril (No. 88-02604), In re Tisdale (No. 88-03190), and In re Hautala (No. 88-03629). It seeks the same relief as DMR.
The trustee objects to the relief sought in each case, arguing that pre-confirmation distributions to creditors are prohibited by 11 U.S.C. § 1326(a)(2).
The debtors take varying positions. In Gambril and Goodlow, the debtors' attorneys argue that the relief sought would violate the priority accorded to administrative expenses (primarily attorney fees) pursuant to 11 U.S.C. § 507(a)(1). In the Coffee *28 case, the debtors agreed with the trustee that 11 U.S.C. § 1326(a)(2) prohibits preconfirmation distributions. The other debtors indicated their agreement with the relief sought.
II.
11 U.S.C. § 1306 provides:
(a) Property of the estate includes, in addition to the property specified in section 541 of this title
(1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under Chapter 7, 11, or 12 of this title whichever occurs first; and
(2) earnings from services performed by the debtor after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first.
(b) Except as provided in a confirmed plan or order confirming a plan, the debtor shall remain in possession of all property of the estate.
Thus, in the post-petition, pre-confirmation period, a debtor's home and automobile are property of the estate, although the debtor remains in possession of them. Also, the debtor has certain additional rights pursuant to 11 U.S.C. § 1303:
Subject to any limitations on a trustee under this chapter, the debtor shall have, exclusive of the trustee, the rights and powers of a trustee under sections 363(b), 363(d), 363(e), 363(f), and 363(l), of this title.
11 U.S.C. § 363(e), to which reference is made in section 1303, provides:
Notwithstanding any other provision of this section, at any time, on request of an entity that has an interest in property used, sold, or leased, or proposed to be used, sold, or leased, by the trustee, the court, with or without a hearing, shall prohibit or condition such use, sale, or lease as is necessary to provide adequate protection of such interest.
Thus, a Chapter 13 debtor has an obligation to provide adequate protection to a creditor who holds a security interest in property used by the debtor in the pre-confirmation time period. See In re English (General Motors Acceptance Corp. v. English), 20 B.R. 877, 879 (Bankr.E.D.Pa.1982); In re Brickel (Brickel v. Merchants National Bank of Manchester), 11 B.R. 353, 355 (Bankr.D.Me.1981); In re Williams (ABD Federal Credit Union v. Williams), 6 B.R. 789, 792 (Bankr.E.D.Mich.1980).[1]See also In re Johnson, 63 B.R. 550 (Bankr.D.Colo.1986).
DMR and GMAC assert that in the circumstances of a home loan or an automobile loan, adequate protection should consist of the debtor's regular monthly loan payment. The Court agrees. Such a requirement is consistent with 11 U.S.C. § 361(1),[2] and none of the parties in these seven cases have argued for any different *29 adequate protection requirement.[3]
The Court further concludes that the debtors should make these pre-confirmation adequate protection payments to the secured creditors through the trustee's office. This will allow the trustee to fulfill his duties to monitor the debtors' compliance and to report to the Court at the confirmation hearing. After confirmation, the secured creditors' claims will be paid through the trustee in most cases, and confusion will be minimized if the debtors make all of the required Chapter 13 payments that way. See also 11 U.S.C. § 363(e).
III.
The Court must reject the trustee's argument that the relief sought is prohibited by 11 U.S.C. § 1326(a), which provides:
(a)(1) Unless the court orders otherwise, the debtor shall commence making the payments proposed by a plan within 30 days after the plan is filed.
(2) A payment made under this subsection shall be retained by the trustee until confirmation or denial of confirmation of a plan. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan. If a plan is not confirmed, the trustee shall return any such payment to the debtor, after deducting any unpaid claim allowed under section 503(b) of this title.
The issue is whether an adequate protection payment, ordered by the Court pursuant to 11 U.S.C. §§ 1303 and 363(e), is "a payment made under [subsection (a)]," so that it must be "retained by the trustee until confirmation or denial of confirmation." 11 U.S.C. § 1326(a)(2). Because subsection (a) refers to "payments proposed by the plan," and not to court ordered adequate protection payments, it must be held that 11 U.S.C. § 1326(a) does not apply.
Beyond that, the Court recognizes that the protection accorded a secured creditor's property interest in collateral has roots in the Fifth Amendment. See Wright v. Union Central Life Ins. Co., 311 U.S. 273, 61 S.Ct. 196, 85 L.Ed. 184 (1940); In re Johnson, 63 B.R. 550, 551 (Bankr.D.Colo.1986). See also United States v. Security Industrial Bank, 459 U.S. 70, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982). Thus, the Court must reject any interpretation of section 1326(a) that prohibits pre-confirmation adequate protection payments.
IV.
Likewise, the Court rejects the debtors' arguments in Gambril and Goodlow that granting the relief sought would violate the priority accorded to administrative expenses pursuant to 11 U.S.C. § 507(a)(1). In fact, section 507(a) sets forth no priority at all for secured creditors' claims. Accordingly, there is no priority violation. A debtor's obligation to provide adequate protection to the secured creditor before a plan is confirmed is independent of the debtor's obligation to pay the other claims according to the priorities of section 507(a).
Accordingly, the motions of DMR and GMAC are granted.
NOTES
[1] Regrettably, none of these decisions were cited by any of the attorneys.
[2] 11 U.S.C. § 361(1) provides:
When adequate protection is required under section 362, 363, or 364 of this title of an interest of an entity in property, such adequate protection may be provided by
(1) requiring the trustee to make a cash payment or periodic cash payments to such entity, to the extent that the stay under section 362 of this title, use, sale, or lease under section 363 of this title, or any grant of a lien under section 364 of this title results in a decrease in the value of such entity's interest in such property.
In this regard, the Court must also conclude that mere filing of a plan does not adequately protect the secured creditor. In re Hinckley, 40 B.R. 679, 681 (Bankr.D.Utah 1984). Nor is it sufficient protection to the secured creditor that the debtor makes the pre-confirmation plan payments to the trustee, as required by 11 U.S.C. § 1326(a)(1). Under section 1326(a)(2), all payments to the trustee are returned to the debtor if the plan is not confirmed. Thus, if on the eve of confirmation, often 4-6 months after filing, the debtor dismisses the petition, the secured creditor will have received no payments for the debtor's use of the secured property. But see In re Redick, 81 B.R. 881 (Bankr.E.D.Mich.1987), regarding the distribution of funds upon conversion to Chapter 7.
[3] The Court foresees that the regular monthly payments ordinarily would be adequate protection for the secured creditor; in any given case, however, the regular monthly payment may be too much or too little. In any event, the parties remain free to litigate the amount of the adequate protection payments in any particular case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1735964/ | 727 N.W.2d 373 (2006)
2007 WI App 19
STATE
v.
WISNIEWSKI[1].
No. 2005AP1435.
Wisconsin Court of Appeals.
December 12, 2006.
Unpublished opinion. Affirmed.
NOTES
[1] Petition for Review Filed | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576222/ | 731 S.W.2d 143 (1987)
Mirella L. ADELMAN, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-86-0117-CR.
Court of Appeals of Texas, Houston (1st Dist.).
May 21, 1987.
*144 Ronald N. Haynes, Houston, for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., William J. Delmore, III, Gladys A. Guero, Harris County Asst. Dist. Attys., Houston, for appellee.
Before SAM BASS, COHEN and DUNN, JJ.
OPINION
COHEN, Justice.
Appellant was convicted of falsely imprisoning her 25-year-old son at a time when he was mentally incompetent and she served as his court-appointed guardian. She waived a jury, pleaded not guilty, and represented herself at trial with assistance from a lawyer. The trial court found her guilty and assessed punishment at confinement for 180 days, probated.
Appellant, now represented by counsel, challenges the sufficiency of the evidence.
The information alleged that appellant:
On or about October 10, 1985 did ... unlawfully, intentionally, and knowingly restrain Daniel Adelman, hereafter styled the complainant, by force, intimidation or deception by using handcuffs and a foot shackle to prevent the liberation of the complainant.
The information alleged the class B misdemeanor offense condemned in Tex.Penal Code Ann. sec. 20.02 (Vernon 1974). Section 20.02 provides:
A person commits an offense if he intentionally or knowingly restrains another person.
Section 20.01 of the Penal Code provides:
In this chapter: (1) "Restrain" means to restrict a person's movements without consent, so as to interfere substantially with his liberty, ... by confining him. Restraint is "without consent" if it is accomplished by: (A) force, intimidation, or deception;....
The first point of error asserts that the trial court erred in finding appellant guilty because her conduct was justified under Tex.Penal Code Ann. sec. 9.63 (Vernon 1974). Section 9.63 provides:
The use of force ... against a mental incompetent is justified: (1) if the actor is the incompetent's guardian or someone similarly responsible for the general care and supervision of the incompetent; and (2) when and to the degree the actor reasonably believes the force is necessary: (A) to safeguard and promote the incompetent's welfare; ...
The use of justified force is a defense to prosecution. Tex.Penal Code Ann. sec. 9.02 (Vernon 1974). If the evidence raises an issue of justification concerning a guardian's use of force, a reasonable doubt on the issue requires that the guardian be acquitted. Tex.Penal Code Ann. sec. 2.03(d) (Vernon 1974). In other words, the State must prove beyond a reasonable doubt that the guardian had no reasonable belief that the force used was necessary for the incompetent's welfare.
Moreover, Tex.Penal Code Ann. sec. 9.03 (Vernon 1974) provides that confinement is justified when "force" is justified under sec. 9.63. Section 9.03 provides:
Confinement is justified when force is justified by this chapter if the actor takes reasonable measures to terminate the confinement as soon as he knows he safely can unless the person confined has been arrested for an offense.
Finally, whenever the use of force is justified, the threat of force is also justified. Tex.Penal Code Ann. sec. 9.04 (Vernon 1974).
The undisputed evidence showed that Daniel Adelman was incompetent and that the appellant was his guardian and was responsible for his general care and supervision. Thus, appellant's confinement of, and use or threat of force against, Daniel was justified when and to the degree she *145 reasonably believed that it was necessary for his welfare.
Section 9.63 does not justify a guardian's use of force based solely upon a subjective belief in its necessity. Rather, force, threats of force, and confinement are justified only when the guardian "reasonably believes" that they are necessary to the incompetent's welfare. A "reasonable belief" is a "belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Tex.Penal Code Ann. sec. 1.07(31) (Vernon 1974).
In resolving this challenge to the sufficiency of the evidence, we are guided by the analogous standard set out in Van Guilder v. State, 709 S.W.2d 178 (Tex. Crim.App.1985). We view the evidence in the light most favorable to the verdict in order to decide whether any rational fact finder could have found, beyond a reasonable doubt, that appellant did not reasonably believe that the use of handcuffs and a foot shackle was necessary on October 10, 1985, to safeguard and promote her incompetent son's welfare. That is the only issue before us. We are not allowed by law to decide whether appellant should have been her son's guardian, whether she did or can provide him a suitable home, or whether she has or may abuse him at any other time or in any other way. These issues are within the exclusive jurisdiction of the probate court, which has the sole power to appoint and remove guardians. Tex.Prob.Code Ann. sec. 5(c) (Vernon Supp. 1987).
The record reveals that appellant took "reasonable measures to terminate the confinement" as soon as she knew that she safely could. Appellant testified, without impeachment or contradiction, that her son was not placed in his room for the night of October 10, 1985, with handcuffs and foot shackles on; that he did not sleep that night so restrained; and that after he returned to his room for the night, she gave him the key to remove the restraints. Appellant thus met the requirement of Penal Code sec. 9.03 that justified confinement be terminated as soon as safely possible.
We must now decide whether a rational fact finder could have found, beyond a reasonable doubt, that appellant did not reasonably believe that the hand and foot restraints were necessary to her son's welfare.
Appellant's son, Daniel, was 25 years old on October 10, 1985. The undisputed psychiatric diagnoses in the record reflect that he suffered from paranoid schizophrenia or schizophrenia, chronic undifferentiated type. He was adjudicated incompetent on January 19, 1982. Daniel was committed several times to the Austin State Hospital, once for a year. Dr. Boulos of the Austin State Hospital testified that Daniel can be dangerous; that he had once tried to choke another patient; and that Daniel was on homicide precaution, escape precaution, and suicide precaution at various times. Dr. Boulos testified that he was frightened of Daniel and that Daniel once tried to hit him, necessitating the assistance of two orderlies to restrain Daniel. Al Baker, a social worker at the Harris County Psychiatric Hospital, testified that Daniel often demonstrated violent behavior. Bruce Sante, an orderly at the Harris County Psychiatric Hospital, testified that he broke his hand attempting to restrain Daniel, despite the assistance of three other men. Dr. Abdula testified that she was attacked by Daniel and ordered him restrained and secluded. Appellant testified that Daniel tore up the walls of his room on 15 to 20 occasions; that he broke his toilet so that it was incapable of being flushed; and that he threw a brick through a window and threw his shackles at appellant.
Appellant was specifically charged with illegally restraining Daniel by "force, intimidation or deception by using handcuffs and foot shackle" on October 10, 1985. On that day, State's witness Roger Berlin met appellant at the Lipstick Lounge, where she worked as a topless dancer. Berlin testified that he was an "undegreed psychologist" or "consumer psychologist," and was in Houston to organize a motivational seminar. Berlin informed appellant that he was a "consumer psychologist," and appellant told Berlin that her son was schizophrenic and she kept him "in a cage." Berlin *146 asked to see her son, but appellant refused. Berlin left the bar and waited in his car, intending to follow appellant to her home. However, appellant was unable to start her car and accepted Berlin's offer of a ride home.
When they arrived, Berlin was introduced to Daniel and was allowed to enter Daniel's room. The room resembled a jail cell; the door was constructed of heavy iron bars, and the window had bars covered with a metal grating. Berlin initially spent less than 15 seconds in the room. Berlin invited Daniel out of his room. Daniel entered the kitchen, poured a glass of orange juice, and sat smoking a cigarette. Appellant was angered by Daniel leaving his room, and she and Jack Kenna, Daniel's babysitter, repeatedly demanded that Daniel return to his room. Daniel became upset and ran into appellant's bedroom.
Berlin persuaded appellant to let him talk with Daniel alone. Appellant agreed, although she stood behind the door listening to their conversation. Berlin talked to Daniel for 15 minutes. During the conversation, Daniel told him that, as a child, he had been tied to a bed, whipped and raped by a woman who looked like appellant, and that he believed that woman may have been appellant. When Berlin began to question Daniel further about this, appellant interrupted and ordered him to leave. At this point, Berlin testified, bedlam broke out. Berlin testified that Daniel "was terrified, he was trembling, almost out of control." Appellant asked Berlin to leave. Daniel followed Berlin and appellant to the kitchen. Berlin testified that
The mother and Jack wanted me to leave, and Daniel would not leave the kitchen. I think there was a fear that if I opened the door that he would bolt out. That's speculative, because they didn't want to open the door as long as we were all yelling at each other in the room.
Daniel next ran from the kitchen into appellant's bedroom and made brief telephone calls to two hospitals. After appellant got the phone away from him, Daniel said:
I want to leave now, I want to go back to the hospital. They can make me better just let me goI don't want to be here anymore. I don't want to live with you anymore. I want to go back to the hospital.
Berlin testified that appellant then told Daniel that, "if you want to be raped, that's fine, I'll call them right now."
Daniel became hysterical, and then became completely docile. Appellant testified that she was afraid that Daniel would cause harm to himself or others, or destroy the room. She took out the hand and leg cuffs that she kept in her home for Daniel. Berlin testified that appellant attached the handcuffs to Daniel's wrist, then she attached the leg shackle to his leg. Appellant then attached the leg shackle to the handcuffs, "which left him on his back with his right leg curled up toward his head, and his hands and legs shackled together." After the cuffs were placed on Daniel, Berlin left and went to a local television station to report what he had seen.
The undisputed evidence proved that appellant restrained Daniel, a dangerous, chronic schizophrenic, for a period of minutes while he was extremely agitated following his encounter with Berlin. But for appellant's acts, Daniel could have fled into the night alone, or in the company of Berlin, a near total stranger. Appellant testified that she feared that Daniel would flee or become violent unless restrained.
The reasonableness of Daniel's restraint must be seen in light of a violent, lengthy, well-documented history of severe mental illness. The events of October 10, 1985, were no more than the snapshot of a moment, measured against a lifetime of similar government-ordered, medically sanctioned restraints imposed in society's continuing but futile attempts to control Daniel Adelman's behavior.
By enacting Penal Code secs. 9.63, 9.02, 9.03, and 2.03, our legislature granted considerable leeway to a guardian willing to pick up the burden of caring for an incompetent. Texas courts have followed a lenient standard toward guardians for more than a hundred years. Stanfield v. State, 43 Tex. 167 (1875).
*147 We hold that the State failed to prove, beyond a reasonable doubt, that appellant used force beyond what she reasonably believed was necessary to safeguard and promote the welfare of her incompetent son. The first point of error is sustained.[1]
The judgment is reformed to reflect an acquittal. Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Ed. 2d 15 (1978).
NOTES
[1] We have considered the remaining points of error and found them without merit for reasons argued in the State's appellate brief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576221/ | 612 F. Supp. 495 (1985)
PRITCHARD SERVICES GROUP OF AMERICA, INC. and Nation-Wide Building Services, Ltd., Plaintiffs,
v.
INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION and ITT Canada Limited, Defendants.
No. 79 Civ. 3951 (JMC).
United States District Court, S.D. New York.
March 29, 1985.
*496 *497 Donovan, Leisure, Newton & Irvine, New York City (Kenneth E. Newman, Richard W. Mark, John D. Worland, Jr., New York City, of counsel), for plaintiffs.
Cahill Gordon & Reindel, New York City (Thomas F. Curnin, Thorn Rosenthal, New York City, of counsel), for defendants.
OPINION
CANNELLA, District Judge:
After a nonjury trial on the merits, the Court finds for defendants.
BACKGROUND
Plaintiffs instituted this action charging defendants with violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5, 17 C.F.R. § 240.10b-5, promulgated thereunder by the Securities and Exchange Commission.[1] Plaintiffs also allege defendants' violation of Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), New York's anti-fraud statute, N.Y.Gen.Bus. Law § 352-c, and common law fraud. Because the language of the state statute and the common law prohibitions against fraud are substantially similar to the scope of Rule 10b-5, plaintiffs main thrust throughout the trial was directed at the violation of federal laws.
This action arises out of defendants' sale of the entire stock of ITT Service Industries *498 Corporation ["ITTSI"] and Allied Building Services of Ontario, Limited ["ABSO"] to plaintiffs on November 1, 1978. On that date, plaintiffs paid a total price of $8,000,000, representing net tangible assets plus $500,000. Pursuant to the Purchase Agreement ["Agreement"], the value of the net tangible assets was ultimately to be decided after the closing by the parties' accountants. They reached agreement on a figure of $7,678,678 a final purchase price of $8,178,678.
Plaintiffs claim a fraud based upon misleading representations and omissions by defendants that induced their purchase of ITTSI stock. Plaintiffs seek damages in the sum of $2,875,000, which allegedly represents the difference between the price paid plus transaction-related costs and the fair market value of ITTSI stock on November 1, 1978. Defendants seek judgment of $178,678 plus interest from August 2, 1979 on their counterclaim for the balance of the purchase price.
After a thirteen-day trial on issues of liability and damages, and the numerous documents, briefs and arguments ably and cogently submitted by counsel, the Court makes the following findings of fact and conclusions of law:
The Parties
Plaintiff Pritchard Services Group of America ["PSGA"], a Nevada corporation and plaintiff Nation-Wide Building Services, Ltd., a wholly-owned subsidiary of Pritchard Services Group of Canada, Ltd., a Canadian corporation, are both controlled by a publicly-held Great Britain corporation, Pritchard Services Group, PLC ["PSG"]. PSG's principal business is building maintenance. Plaintiffs are referred to collectively as "Pritchard".
Defendant International Telephone and Telegraph Corporation ["ITT"], a Delaware corporation with its principal place of business in New York and defendant ITT Canada Limited ["ITT Canada"], a Canadian corporation wholly-owned indirectly by ITT, are referred to collectively as "ITT". ITTSI and ABSO [collectively "ITTSI"] were wholly-owned subsidiaries of ITT and ITT Canada before their sale to Pritchard. ITTSI's name was changed to Pritchard Services, Inc.
Principal Actors
Peter Pritchard is chairman of the board of PSG and PSGA. He was Pritchard's chief negotiator in the acquisition of ITTSI. Curtis Roberts is an executive at PSG and has been responsible for operating PSG companies in foreign countries.
Stanley Luke, the principal negotiator for ITT, was an ITT executive vice-president and headed its acquisition and divestitute program. David Davidson was ITTSI's president at the time of its sale. James Kelley, a certified public accountant with ITT, was responsible for providing financial information about ITTSI to Pritchard. Walter Domeracki was manager of financial controls of ITT's building services division and was responsible for the accounting systems and controls utilized by ITTSI. Gabor Mezei was the comptroller for ITTSI's Building Services Division. William Bramwell was an ITT staff attorney who handled legal aspects of the ITTSI transaction.
The Transaction
In 1976, PSG instructed Roberts to investigate building service companies in North America for potential acquisition. PSG wanted to build a cleaning services business by purchasing several companies in various geographical areas. Roberts and Peter Pritchard were sophisticated in the operation and acquisition of building services businesses. They had reviewed the financial records of hundreds of potential targets, had operated subsidiaries around the world, and had recently purchased businesses in Australia and the Far East. In November 1977, PSG acquired a building maintenance company in Puerto Rico.
Roberts initially contacted ITT in April 1978 about the possible purchase of ITTSI. Pritchard and ITT conducted several negotiations during the summer of 1978. The principal meetings were in London, England on July 17, 1978 and in New York City on August 29, 1978. The parties also conducted *499 negotiations by mail, telex and telephone. Pritchard made extensive investigations into ITTSI and received detailed financial and other information from ITT.
ITTSI, comprised of approximately thirteen separate companies acquired by ITT, was primarily involved in the building services business. Its other unrelated operations were transferred to ITT before the sale to Pritchard. The Agreement for the ITTSI stock became effective on November 1, 1978. ITT's representations and warranties in the Agreement concerning financial statements, PX 9, ¶ B.6;[2] the absence of any adverse change in the condition of ITTSI's business, PX 9, ¶ B.16; and the accuracy and completeness of all representations, warranties and information provided by ITT, PX 9, ¶ B.17, explicitly did not survive the closing. PX 9, ¶ J.1.
The Parameters of the Lawsuit
Plaintiffs assert that they were wrongfully induced to purchase ITTSI because they were defrauded by defendants' false and misleading representations and omissions of material fact. These allegations can be categorized generally under one main claim concerning the break-even operating rate and three tangential claims regarding financial information, goodwill, and internal accounting and assessments. The Court will analyze separately the factual basis of the allegations in each category with regard to whether the misrepresentations and omissions were material, plaintiffs detrimentally relied on material (dis)information, and if necessary, the proof of scienter.
The Court notes that the issues of reliance and materiality are intertwined for each separate allegation, see Herzfeld v. Laventhol, Krekstein, Horwath & Horwath, 540 F.2d 27, 33-35 (2d Cir.1976) and also recognizes that its conclusions of law on materiality are properly decided after compiling all the evidence to determine whether a reasonable investor would view the omissions/misstatements "as having significantly altered the `total mix' of information made available." TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S. Ct. 2126, 2132, 48 L. Ed. 2d 757 (1976). The Court finds, however, that plaintiffs have failed to prove a violation of securities laws under the separate categories or in the case as a whole.
"Although a judicial review of alleged material misstatements or omissions should not become an exercise in `nitpicking'," Pantry Pride v. Rooney, 598 F. Supp. 891, 901 (S.D.N.Y.1984) (quoting Kennecott Copper Corp. v. Curtiss-Wright Corp., 584 F.2d 1195, 1200 (2d Cir.1978)), the Court will examine in some detail plaintiffs' relevant specific allegations. The Court's findings of fact and conclusions of law track those proposed by defendants for the simple reason that the Court found their witnesses credible. Plaintiffs' principal witnesses, Roberts and Pritchard, were not straightforward on several occasions.[3] The *500 Court specifically noted at trial that Pritchard had "a pathological block to answer[ing]" [Tr. 620] certain questions and that at various times he "sound[ed] to me like Alice in Wonderland." [Tr. 1170]. The Court finds both Roberts and Pritchard to be incredible on many issues, and, like a bad egg in an omelet, it spoils their entire testimony, even when taken with a grain of salt.
BREAK-EVEN OPERATING RATE
Misrepresentations/Omissions
ITT represented to Pritchard on several occasions prior to the closing, orally and in writing, that ITTSI was operating at or near a break-even rate and that it was in the process of "turning around" from its financial difficulties of previous years. These representations were made at the initial meeting in April 1978, [Kelley] Tr. at 412-13, PX 1, 9; the June 27, 1978 meeting between Pritchard's agent, A. Theodore Barron and ITT, [Kelley] Tr. at 436-37, [Luke] Tr. at 1197-98, JX 3 (Luke Deposition at 115); the July 17, 1978 meeting in London, [Roberts] Tr. at 40, [Pritchard] Tr. at 536-37, 572; the meetings in New York during the first week of August 1978, [Davidson] Tr. at 1687-88; the August 29, 1978 meeting in New York, [Davidson] Tr. at 1689-90, [Luke] Tr. at 1216-18; and PSG's press release to its shareholders and others on November 1, 1978, the language of which was approved by ITT and states in relevant part that "management information made available to [PSG] shows that ITTSI is currently near to a break-even operating rate." PX 11.
The crucial document affecting the break-even operating rate Pritchard's principal allegation of fraud is ITT's set of pro forma financial statements, dated August 31, 1978, which show an eight-month loss for ITTSI of $318,000. PX 8. Plaintiffs assert that the break-even representations, supported in large measure by the minimal $318,000 loss [$39,750/month], were false because of hidden losses. They point to four factors supporting their contentions. Initially, ITT filed losses for ITTSI as of October 31, 1978 in the amount of $1,302,372 on its 1978 federal income tax return. PX 36; [Domeracki] Tr. at 685-86; [Mezei] Tr. at 1660-61. Second, ITTSI's certified audit report confirms a pre-tax loss of $1,822,366 for 1978, including the $1,302,372 loss for the first ten months. DX CD. Third, Pritchard maintains that $884,000 of the $1,302,372 loss for the first ten months is directly attributable to losses from ITTSI's continuing operations.[4] Finally, Pritchard calculates that ITTSI would have lost $160,000 in November and December 1978 had it continued to operate in the same manner as the preceding ten months.[5]
Reduced to simple terms, Pritchard maintains that ITTSI lost $884,000 on a continuing basis for the first ten months of 1978 [$88,400 monthly loss],[6] which is allegedly a misrepresentation from the August pro formas showing a $318,000 loss for the *501 first eight months, or a ten-month loss projection of $397,500. The Court notes that measuring from the first closing of ITTSI's books in mid-November 1978, when Pritchard was in actual control of the company, the loss for the first ten months was recorded as $378,000. DX CY, [Andrew J. Capelli] Tr. at 1732-33; [Domeracki] Tr. at 1325. This loss averages to $37,800 an improvement of the $39,750 monthly loss projected by the August pro formas. The Court finds that these initial figures, consistent with ITT's breakeven representations, are accurate and reflect the actual financial condition of ITTSI. Pritchard's attempt to stretch the $378,000 figure to $884,000 grows almost entirely out of year-end accounting procedures, which are disproportionately bloated by Pritchard's extraordinary closing procedures.
The Court initially notes that $208,000 of internal ITT charges, recognized by plaintiffs as falling outside the ambit of the $884,000 continuing loss figure, PX 48, may have been restated inadvertently in its $607,000 figure representing ITTSI's initial loss from continuing operations before adjustments. DX CY, col. 2. The $607,000 figure forms the base figure from which plaintiffs adjust upwards to $884,000. PX 48.
The August pro formas, covered by the accuracy and no adverse change clauses of the Agreement, are also affected by two disclaimers. The first disclaimer is that the "interim pro-forma financial statements were prepared from the books of account and records of ITTSI, its Subsidiaries and ABSO, but have not been subjected to the same review and analysis afforded the year-end financial statements." PX 9, ¶ B.6(b). Thus, plaintiffs are on notice that this information was taken from ITTSI's books without further analysis or adjustment procedures. [Roberts] Tr. at 662-63, 1302-10; [Capelli] Tr. at 1724-25. The second disclaimer is that the pro formas "may require modification to comply more accurately with the closing methods employed in the preparation of the annual statements. [ITT] does not believe that such modification, if any, of the interim statements would have a material effect on the financial condition ... of ITTSI ... for the interim period." PX 9, ¶ B.6(b).
ITTSI's practice was to keep its books open for approximately one month at a year-end closing. [Domeracki] Tr. at 1337. Pritchard, however, kept ITTSI's books open until approximately February 10, 1979, more than three times the usual length (102 days). This allowed Pritchard to record certain adjustments that would not have been picked up if the books were closed normally for review on November 1, 1978. Moreover, the purpose of the November 1, 1978 closing and subsequent negotiation of adjustments was to calculate net tangible assets in order to fix a purchase price, but was not meant to be used for determination of ITTSI's profits or losses for the first ten months. [Lang] Tr. at 873-74, 998. As a result of the $695,000/$506,000 of adjustments booked retroactively by Pritchard for November 1, 1978, in excess of those initially established on November 15, 1978,[7] Pritchard was able to reduce the purchase price by $570,000. DX AM, CZ. The Court will address briefly the list of adjustments.
The initial adjustments for estimated accruals of vacation pay, payroll, state and local taxes, federal and state unemployment taxes, travel and entertainment, and health and welfare benefits resulted in a positive adjustment of $46,000 in ITT's favor, thereby resulting in an overstatement of losses on the August pro formas. As defendants correctly observe, this adjustment reflects a controlled and conservative accounting approach because ITTSI actually overaccrued for these adjustments.
*502 Pritchard adjusted the books to reflect a $45,000 entry for sick and severance pay. Forty-three thousand dollars of this figure is directly attributable to the TWA terminal contract, which according to generally accepted accounting principles is not booked until the time it is actually paid out. [Lang] Tr. at 908-10, [Domeracki] Tr. at 1345-49, [Mezei] Tr. at 1629-32, [Capelli] Tr. at 1742. The Court finds that because the termination of the TWA contract was not known until December 1978, $43,000 is properly reduced from Pritchard's adjustments. Additionally, because the entire amounts of the Diversified claim ($18,000), the Columbus lease repairs ($10,000) and the reserve for the Department of Labor in Corpus Christi ($28,000) were not known until December 1978 or January 1979, a total of $99,000 is reduced from Pritchard's adjustments. [James W. Needham] Tr. at 1923-25. The Court notes that Pritchard received a $92,000 reduction of the purchase price in respect to these adjustments ($45,000, $18,000, $10,000 and $15,000 [proportionately]). DX CZ.
Pritchard made a $206,000 adjustment for physical inventory of supplies and small tools. Approximately $113,231.33[8] of this adjustment is directly attributable to Pritchard's new closing procedure and valuation methods, which do not reflect expenses or losses incurred in 1978. DX DB; [Capelli] Tr. 1751-60. The Court finds that at least $47,768.67 of the remaining adjustment figure is attributable to the adoption of new procedures and methods of valuation used by Pritchard, and accordingly, only $45,000 can be attributed to unrecorded shrinkage in 1978. [Needham] Tr. at 1927-29. Pritchard received a $206,000 reduction of the purchase price with respect to the inventory adjustment for supplies and small tools. DX CZ.
Pritchard made a $38,000 adjustment for physical inventory of fixed assets for which it received a $38,000 purchase price reduction. DX CZ. For purposes of the breakeven operating rate, the Court finds that this deterioration should be spread over a five-year period with a resulting $6,333 loss adjustment for the first ten months of 1978. [Needham] Tr. at 1929-30. The Court notes that Pritchard was informed before the sale of the fact that ITTSI had never inventoried its fixed assets. [Domeracki] Tr. at 1343.
Pritchard made an $88,000 adjustment for accounts payable for which it received an $88,000 purchase price reduction. DX CZ. The Court finds that $54,000 of this figure resulted from Pritchard keeping the books open for over 100 days and that only $34,000 should be properly adjusted on a basis comparable to that used in previous years by ITTSI. [Capelli] Tr. at 1763-66; [Mezei] Tr. at 1629.
The $15,000 adjustment for the New York City Port Authority contract for which Pritchard received a $15,000 reduction in purchase price, DX CZ, is reduced because the contract was not terminated until March 1979 and did not affect ITTSI's operating rate. [Capelli] Tr. at 1737. The Court will allow a $10,000 adjustment to reflect a ten-month loss of the fifteen months' losses reflected by the contract. [Mezei] Tr. at 1636-37.
The $6,000 accrued bonus adjustment used by Pritchard is a proper adjustment. [Needham] Tr. at 1933.
The $98,000 New York City Credit Reversal claim is disregarded because it is an extraordinary item not subject to any closing or net tangible asset negotiation and because it was disclosed by Domeracki to Roberts and thence to Pritchard. PX 6, item 1.
The final tally shows a positive adjustment of $46,000 and negative adjustments of $2,000; $45,000; $6,333; $34,000; $10,000; and $6,000 for a total amount of $57,333 that arguably should have been reflected on the pro formas. The actual allegation of misrepresentation is that this new figure showing a $435,333 [$43,533/month] ten-month loss for ITTSI is a misrepresentation *503 of a breakeven operating rate based on the August pro formas showing a $39,750 monthly loss. The Court finds, however, that the increase of monthly losses of $3,783 for 1978 was not a misrepresentation or omission.
The Court finds that ITTSI's losses of $33,783 per month in September and October 1978 are consistent with the breakeven representation of $39,750 (or $43,533) monthly losses reflected on the August pro formas. ITTSI was nearing a break-even operating rate on November 1, 1978, a finding supported by ITTSI's approximate $7,000-$10,000 profit results for November and December 1978. [Capelli] Tr. at 1786, 1878-79, [Needham] Tr. at 1917, [Roberts] Tr. at 2051-61; DX CB, CC, CD, DJ, DK; JX 318-23, 457-73 (Deposition of Kuthethur Rajogopal Rao).[9] Accordingly, the Court finds that the break-even operating rate representations and the documents provided by ITT accurately reflected ITTSI's financial condition and that the undisclosed adjustments were not "omissions" actionable under the securities laws.
Materiality/Reliance/Scienter
Assuming arguendo that the $5,733 monthly increase in loss reflects a misrepresentation/omission of the breakeven operating rate, there would be no materiality. Pritchard conceded at trial that a $25,000 adjustment would not be material. [Pritchard] Tr. at 1146-53. Moreover, at his deposition, Pritchard evaluated a projected $105,000 annualized profit projection reflected in the Barron report. Although the parties agreed before the closing that the Barron report was not credible, Pritchard maintained that "to be pedantic, making $105,000, if you are talking about a few nickels or dimes, then it is near to or break even." [Pritchard] Tr. at 1146.
Pritchard knew that ITTSI had lost $1.3 million in 1976 and $3.2 million in 1977. Its principal concern was to gain a foothold in the building maintenance business in North America. The evidence adduced at trial establishes that it was essentially immaterial to Pritchard whether ITTSI's losses on the interim financial statements were understated by significant amounts because Pritchard was relying upon its own expertise to swing ITTSI into profitability, a task at which it succeeded. Having successfully turned around other overseas loss situations in acquired companies, Pritchard trumpeted the benefits of the ITTSI purchase to its shareholders, directors, financiers and to the public on the basis of its ability to reverse ITTSI's then current loss position. PX 2, 11; DX A, AC, BQ; [Roberts] Tr. at 132-34, 218, 227-28, 257; [Pritchard] Tr. at 1140-41; [Needham] Tr. at 1908-11, 1918-19, 1984-85. Accordingly, for the foregoing reasons, the Court finds that Pritchard did not rely upon any representations or omissions made by ITT with respect to ITTSI's profits and losses as the basis for purchasing ITTSI. See Titan Group, Inc. v. Faggen, 513 F.2d 234, 236-39 (2d Cir.), cert. denied, 423 U.S. 840, 96 S. Ct. 70, 46 L. Ed. 2d 59 (1975); REA Express, Inc. v. Interway Corp., 410 F. Supp. 192, 197-201 (S.D.N.Y.), rev'd on other grounds, 538 F.2d 953 (2d Cir.1976).
FINANCIAL INFORMATION
Plaintiffs assert that representations relating to financial information about ITTSI, which were provided to Pritchard, were fraudulent. ITT represented that its interim balance sheet of July 1975, PX 5, ITTSI's income statements for 1973, 1974, 1975, 1976, and 1977, PX 9, ¶ B.6(a), the August 1978 pro formas, PX 9, ¶ B.6(b), the Agreement, PX 9, ¶ B.6(b), and other financial information provided to Pritchard, [Roberts] Tr. at 51, were "prepared in accordance with generally accepted accounting principles ["GAAP"] consistently applied and present fairly the financial position of ITTSI and its subsidiaries." Id. The GAAP representation was coupled with the no material misrepresentation/omission *504 clause and the no adverse change clause. PX 9, ¶ B.17.
Plaintiffs' main objection is that the financial information provided to them did not comply with GAAP or opinion 28 of the Accounting Principles Board ["APB-28"]. PX 47-1. APB-28 applies to interim financial reporting and requires that interim statements "be viewed primarily as an integral part of an annual period." PX 47-1, ¶ 9. With respect to anticipated year-end adjustments, APB-28, PX 47-1, ¶ 17 provides:
The amounts of certain costs and expenses are frequently subjected to year-end adjustments even though they can be reasonably approximated at interim dates. To the extent possible such adjustments should be estimated and the estimated costs and expenses assigned to interim periods so that the interim periods bear a reasonable portion of the anticipated annual amount. Examples of such items include inventory shrinkage, allowance for uncollectible accounts, allowance for quantity discounts, and discretionary year-end bonuses.
The Court notes that no reference is made to APB-28 in any of the financial documents. Moreover, the Agreement provides that "interim pro-forma financial statements have been prepared using the same GAAP as those employed in the preparation of the annual financial statements [but that] [t]hese interim pro-forma financial statements have not been subjected to the same review and analysis afforded the year-end financial statements." PX 9, ¶ B.6(b). The Agreement also represents that the financial statements present fairly the operations of ITTSI, a requirement not found in APB-28. [Lang] Tr. at 951.
Plaintiffs' accounting expert conceded that APB-28 contemplates the use of estimates and acknowledges that there will also be year-end adjustments for companies. [Lang] Tr. at 948-49. The Court notes that four members of the accounting principles board dissented from the APB-28's principle that adjustments should be estimated and prorated during interim periods because they believe financial statements for any period should reflect only the events occurring during the reported period and should not be adjusted to predict expected results. PX 47-1 at 535. Additionally, there is a question whether APB-28 even applies to internal financial statements of nonpublic subsidiaries of public companies. [Capelli] Tr. at 1728, 1846-51.
After reviewing APB-28 and the other GAAP allegations, the Court finds that defendants' financial records accurately reflect ITTSI's finances and conform with accounting principles. This determination is supported by the Court's finding that the pro formas did not contain misrepresentations or omissions. There is no evidence that defendants' accounting procedures fell outside the ambit of GAAP, and more importantly, in view of the disclaimer and other relevant communications, plaintiffs can not establish any detrimental reliance. Accordingly, for the foregoing reasons, the Court finds that there was no fraud involved in the passing of financial information from ITT to Pritchard.
GOODWILL
Plaintiffs maintain that ITT defrauded them through misrepresentations and omissions on the issue of goodwill. This areas was the most troubling to the Court during trial and a chronology of negotiating events is set forth: In the April 1978 meeting, Roberts was told that ITTSI had net tangible assets of approximately 7 million dollars not including 3 million dollars of goodwill. PX 1, ¶ 6. The ITTSI balance sheet given to Pritchard in May 1978 shows a $3,173,000 goodwill entry. PX 3. Similarly, the ITTSI balance sheet attached to the July 1978 letter of intent also shows the same entry for goodwill. PX 5. During the July 1978 meetings, Pritchard's negotiators were told that the goodwill represented the book figures for ITTSI. [Roberts] Tr. at 43; DX BR. Finally, the $3,173,000 goodwill figure was also entered on ITTSI's balance sheet given to Pritchard *505 at the August 29, 1978 meeting. PX 22; [Needham] Tr. at 2017-18.
Goodwill had been written off ITTSI's books in 1977 based on a deferred recommendation of its accountants, PX 39; DX DG; [Kelley] Tr. at 454-57, and was not carried on the books during 1978. At first blush, this clear misrepresentation would appear to be a crucial factor in the case. That Pritchard was made aware prior to the closing that goodwill had actually been written off is evidenced by the following: (1) an October 11, 1978 letter from ITT to Pritchard's counsel enclosing the accountant's statement that "All goodwill ... was charged to 1977 operations due to a diminution in value," DX BV; (2) an October 13, 1978 letter from Pritchard's counsel to Pritchard's accountants, forwarding the October 11 statement, DX BW; (3) Pritchard's November 1, 1978 letter to its shareholders wherein a charge of $3,193,000 against ITTSI's 1977 results is described as "goodwill amortisation and write-off", PX 11; (4) Pritchard's testimony that he was aware that goodwill had been written off prior to the closing, [Pritchard] Tr. at 1160-63; (5) William M. Bramwell's testimony that he informed plaintiff's counsel about the write-off in September 1978, DX BS, [Bramwell] Tr. at 1267-68; (6) Kelley's testimony that he also informed plaintiffs' counsel about the write-off in September 1978, [Kelley] Tr. at 456; (7) the revised August 31 pro formas, which deletd goodwill from ITTSI's balance sheet, PX 10; (8) the August 1978 balance sheet furnished to Pritchard, which did not include any entry for goodwill, DX BX; [Domeracki] Tr. at 1292-93.
During the negotiations for ITTSI, the purchase price was reduced by a $2,700,000 figure that ostensibly represented a reduced goodwill figure. This reduction was made in negotiations during the August 29, 1978 meeting and is reflected in the Agreement's final purchasse price of net tangible assets plus a $500,000 [goodwill] premium. The Court was troubled by these events because Pritchard did not know before the August 29, 1978 meeting that goodwill was off the books.
The principal negotiators for the parties, however, did not find that there were any problems. Luke maintained that the goodwill represented a premium, which although not on ITTSI's books, was includable in the company's net worth for sales purposes. [Luke] Tr. at 1190. In responding to the Court's inquiries, Luke testified that the $3,193,000 goodwill figure was a negotiating device. [Luke] Tr. at 1191. The quid pro quo for discounting $2,693,000 from the $11,000,000 London negotiated price was:
[T]he net result was that I said to Mr. Pritchard, "If in fact I go along with your proposal of no more than $8 million, and I give you this [goodwill] discount of $2.7 million, I want you to know that I don't want to hear any more about forecasts, or earnings, or any other financials. And I am giving you this discount in order to take care of all those things." And we agreed, and I said to him, "I am only going to give you three representations which will survive the closing. One is that we own the company. Another, that I will guarantee the receivables." The receivables by themselves on that balance sheet was worth $7 million. "I will guarantee the taxes and I will guarantee any insurance claims. But so far as we are concerned, Mr. Pritchard, this is the end. I am giving you these things to take care of the problems that you have raised here." and Mr. Pritchard understood it and he said, "That's fine."
[Luke] Tr. at 1192-93.
Pritchard testified that at the time of the closing he knew the goodwill had been written off. [Pritchard] Tr. at 1162. He also testified that the goodwill "was not an issue" [Pritchard] Tr. at 1163, that the $500,000 goodwill premium resulted from "long and arduous" negotiations with Luke, [Pritchard] Tr. at 1163-64, and was "part and parcel of the [$8,000,000] negotiated figure." [Pritchard] Tr. at 1165. The Court finds that the $500,000 goodwill premium actually represented the $50,000,000 of contracts on ITTSI's books, in addition *506 to the $7,500,000 net tangible assets, later determined to be $7,678,678.
Accordingly, for the foregoing reasons, the Court finds that any misrepresentations or omissions on the goodwill figures were not material and did not induce plaintiff to rely on them for purposes of the acquisition of ITTSI.
INTERNAL ACCOUNTING/ASSESSMENTS
Plaintiffs allege that they were defrauded by a number of omissions regarding ITTSI's internal accounting practices and personnel assessments. Pritchard argues that evidence of ITTSI's weak internal accounting and control systems were withheld by ITT. Specifically, plaintiffs allege that (1) ITT failed to disclose that ITTSI's accounting system did not produce reliable information; (2) ITT failed to disclose that ITTSI had suffered a string of negative year-end adjustments ("Disastrous Decembers"); and (3) ITT failed to disclose that it had been unsuccessful in trying to restructure ITTSI's financial recordings.
Plaintiffs' allegations concerning the personnel assessments center on (1) ITT's failure to disclose a July 28, 1978 "personal and confidential" letter from Davidson to Luke wherein, inter alia, Davidson noted that ITTSI's "customer base is very fragile and existing relationships cannot be disturbed without serious risk of losing the accounts," PX 15, ¶ (a), and (2) ITT's failure to disclose the potential loss of ITTSI managers, PX 15, ¶ (c) ("we are not dealing with a stable, loyal, confident organization") (emphasis in original).
Pritchard's arguments on the accounting control systems, as defendants correctly observe, are irrelevant in light of the Court's finding that ITTSI was operating near a break-even rate as represented. The issue of accounting controls would only bear on scienter if the interim pro formas were materially misleading. In any event, although the yearend adjustments in previous years were not insignificant, they were not material facts affecting Pritchard's decision to acquire ITTSI.
The 1976 year-end adjustments of $844,000 involved a net of only $77,000 relevant to Pritchard.[10] Although the relevant 1977 adjustments, after excluding workmen's compensation and Parr Meadows adjustments amounts to $248,000,[11] DX AN; [Domeracki] Tr. at 742, the Court notes that the evidence adduced showed that ITTSI had tried to take a relatively conservative approach to the write-off of questionable assets. [Domeracki] Tr. at 736-37, [Mezei] Tr. at 1595-98; DX AO.
The Court is also satisfied that ITTSI made concerted efforts to clean up its financial recordkeeping through the hiring of new financial people, the implementation of new accounting policies and inventory procedures, monthly operations reviews and by an attempt to integrate the recommendations proposed by ITTSI's outside accounts.
Pritchard's allegations about the personnel assessments is meritless. The Davidson letter is a confidential memorandum concerning the necessity of maintaining effective operations during the divestiture discussions. Davidson intended to limit the circulation to Luke, L. Hamilton and J. Lester. JX 1 at 252-55. Pritchard, however, was aware of the fragile loyalty of ITTSI managers and the low employee morale. PX 6, DX BN, BO, BP; [Roberts] Tr. at 304-05.
Miscellaneous Misrepresentations/Omissions
The Court has reviewed other issues in this case that are only partially subsumed *507 within the previous four categories. These issues include, inter alia, the Barron Report, [Kelley] Tr. at 433, [Luke] Tr. at 1197; field inventory, [Roberts] Tr. at 100-04; the accountants' compromise on various adjustments relating to ITTSI's continuing operations, DX BX; the effect of ITT's 1978 tax returns, PX 36, [Capelli] Tr. at 1726-27; the October 1978 western region audit report, DX CX; and ITTSI's budget projections, PX 11, DX AU, AV, AW, AX, AY, DT, DU, DV, DW, DX, DY, DZ, EA, ED.
Using the test set forth in TSC Indus., Inc. v. Northway Inc., supra, 426 U.S. at 449, 96 S.Ct. at 2132, the Court finds that these additional allegations, combined with those discussed in the four main categories, do not result in a significant alteration of the "total mix" of (dis)information presented to Pritchard. Additionally, the Court does not find that the elements of detrimental reliance or scienter have been proved.
Other Issues
In light of the Court's findings of fact and conclusions of law, the Court does not address the issues surrounding damages or defendants' additional defenses to liability theories. The Court also does not make any finding with respect to defendants' assertions (1) about the relevance of the nonsurvival of representations/omissions concerning the financial statements and condition of ITTSI; (2) that the $2.7 million dollar reduction of the purchase price foreclosed this lawsuit; or (3) that the postclosing reduction of $570,000 in the net tangible assets, and therefore the purchase price, was Pritchard's exclusive remedy with respect to the allegations raised in its complaint.
Counterclaim
The Court awards ITT judgment on its counterclaim for the unpaid balance of the purchase price $178,678.00 plus interest from August 2, 1979, thirty days after the final determination of net tangible assets. DX X; PX 9, ¶ A.5(b)(i).
Costs and Attorneys' Fees
ITT's motion for costs and attorneys' fees is denied. The Court notes the increasing and reflexive frequency with which Rule 11 motions are being filed in this District. Plaintiffs' claim had merit on its face and was not brought for malicious purposes. Although the original impetus behind the lawsuit appears to have arisen because ITTSI did not turn around as quickly as projected, plaintiffs' counsel carefully compiled its case and skillfully presented its version of the facts and law without any evidence of harassment or bad faith.
CONCLUSION
Accordingly, for the foregoing reasons after a nonjury trial on the merits, the Court finds for defendants.
The foregoing constitute the Court's findings of fact and conclusions of law. Fed.R.Civ.P. 52(a).
Defendants are given Judgment on their counterclaim of $178,678 with interest from August 2, 1979.
The Clerk of the Court is directed to prepare and enter Judgment dismissing the complaint.
SO ORDERED.
NOTES
[1] 17 C.F.R. § 240.10b-5 provides:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(a) To employ any device, scheme, or artifice to defraud.
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
[2] The following abbreviations are used: Plaintiff's Exhibit ["PX"]; Defendants' Exhibit ["DX"]' Joint Exhibits ["JX"]; and citations to the trial transcript are in the form "[witness name] Tr. at page."
[3] Pritchard's trial testimony on whether Luke represented that ITTSI was operating at a break-even rate at the August 29, 1978 meeting conflicts with Luke's testimony and Pritchard's pretrial deposition. Compare [Pritchard] Tr. at 541-50, 631-32, 1173-76 with [Luke] Tr. at 1212-13 and [Pritchard] Tr. at 652, 1175-79 (Pritchard deposition). Pritchard's testimony that he would not have gone through with the deal if ITTSI was not operating at a break-even rate, see [Pritchard] Tr. at id., is belied by a written contemporaneous report made by Pritchard's Chief Financial Officer after discussions with Pritchard on August 31, 1978:
Following [Pritchard's] visit to the States on Monday 28th August verbal agreement has now been made with Luke of I.T.T. re acquisition of I.T.T.S.I. as follows:
....
Profits/Losses
Luke said that the present President Davidson had said that the company would break through to break even in August and that he felt there would be a small profit [for] September/December although it is our opinion that there will be a loss for that period.
DX BM (emphasis added).
Roberts' testimony on the significance of the goodwill write-off, [Roberts] Tr. at 99, is contradicted by overwhelming evidence that Pritchard was aware of this disclosure prior to closing. See DX BV, BX, BW; [Bramwell] Tr. at 1267-68; [Kelley] Tr. at 456; [Pritchard] Tr. at 1160-63. Roberts also gave conflicting testimony and reports concerning the attempt to retain Richard Starke at PSI. Compare [Roberts] Tr. at 87-88 (wanted Starke to stay on) with DX Q at 48 (Roberts Deposition) (no attempt to retain Starke) and DX R at 3 (Roberts 1979 report) (attempted to retain Starke) and [Davidson] Tr. at 1692-93 (Roberts did not want to retain Starke). Additionally, Roberts partially disavowed the accuracy of documents reflecting the two-month operation of ITTSI for November and December 1978 even though they were prepared for Pritchard, and one document was based in part on discussions with Roberts in Dallas. [Roberts] Tr. at 2051-66; DX DJ, DK.
[4] The Court finds that an $888,000 loss for continuing operations is the result when using Pritchard's calculations. The $414,000 discrepancy reflects ITT internal charges of: $105,000 for contract service charges; $103,000 for imputed interest; $21,000 for the exclusion of ABSO profit; and $185,000 for the Bulkley building leasehold improvements.
[5] Pritchard calculates that of the $519,994 loss recorded for November and December 1978 in the certified audit report, only $360,000 reflected costs and savings occurring solely because of the sale, thereby leaving a projected $160,000 loss.
[6] The Court adheres to a $88,800 projected monthly loss, see note 4 supra, which is more favorable to plaintiffs.
[7] Pritchard discovered $695,000 in adjustments, largely through unorthodox methods of valuation, which pumped the $607,000 ten-month loss figure for ITTSI based on the $378,000 booking of November 15, 1978 to the final $1,302,372 figure claimed by Pritchard. DX CY. The Court is concerned with the $506,000 list of adjustments that increased the $378,000 booking to $884,000, the crucial continuing loss figure.
[8] This figure represents the proportionate elimination from the $206,000 adjustment when compared to the $123,672 elimination from the $225,000 overall adjustment.
[9] The Court notes that this profit figure of a minimum of $3,500 a month should be reduced by $3,783 to show a maximum average $283 monthly loss, certainly a break-even operating rate for a business with revenues approximating 50 million dollars.
[10] The Court finds that $676,000 attributable to workmen's compensation was necessary to reconcile ITTSI's accruals with its insurance carrier's liability estimates. [Domeracki] Tr. at 738-41. The $39,000 adjustment for pensions and the $52,000 adjustment for general liability insurance both related to internal ITT requirements.
[11] Workmen's compensation is excluded for the same reasons as the 1976 adjustment. Parr Meadows is a non-building services operation of ITTSI sold back to ITT before the Pritchard acquisition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576228/ | 743 N.W.2d 305 (2007)
William J. HEMPEL, et al., Appellants,
v.
CREEK HOUSE TRUST, et al., Respondents,
Judith Anna Ingemann f/k/a Judith Anna Seymour, Respondent, and
all other persons unknown claiming any right, title, estate, interest, or lien in the real property described in the complaint here, Defendants.
No. A06-2473.
Court of Appeals of Minnesota.
December 31, 2007.
*307 Roger J. Magnuson, David Y. Trevor, Dorsey & Whitney LLP, Minneapolis, MN, for appellants.
Lisa M. Agrimonti, Jesse R. Orman, Margaret Savage, Briggs and Morgan, Minneapolis, MN, for respondents Creek House Trust, et al.
Glenn A. Bergman, Jared M. Goerlitz, Peterson Fram & Bergman, P.A., St. Paul, MN, for respondent Judith Anna Ingemann.
Considered and decided by RANDALL, Presiding Judge; KALITOWSKI, Judge; and HUDSON, Judge.
OPINION
KALITOWSKI, Judge.
Appellants William J. and Kay L. Hempel challenge the district court's grant of summary judgment to respondents Creek House Trust and Judith Anna Ingemann on appellants' claim for "specific performance/breach *308 of contract/damages" and their request for a declaratory judgment, arguing that (1) the district court incorrectly determined that their claim of breach of a right-of-first-refusal agreement was barred by the six-year limitations period in Minn.Stat. § 541.05, subd. 1 (1992); and (2) they were entitled to a declaratory judgment clarifying the current status of the agreement. Appellants also argue that the district court erred in denying their motion to amend their complaint to add an additional defendant.
FACTS
This case involves two adjacent parcels of land: (1) the parcel owned by appellants, the Hempel property; and (2) the parcel owned by respondents, the Creek House property, or subject property. Prior to 1981 both properties were owned by respondent Judith Anna Ingemann (f/k/a Judith Anna Seymour). On February 3, 1981, Ingemann sold the Hempel property to William and Nancy Harris. As part of the sale, Ingemann gave the Harrises a right of first refusal on the subject property:
If [Ingemann] receives a bona fide written offer for the purchase of the Subject property or any portion thereof, [Ingemann] shall not accept such offer without first offering to sell the same to Harris on the same terms and conditions set forth in said offer less any real estate broker's commission which [Ingemann] would be obligated to pay if [Ingemann] accepted said offer. Written notice of said offer shall be given by [Ingemann] to Harris and Harris shall have 2 weeks thereafter to exercise the said right of first refusal by giving written notice thereof to [Ingemann]. If Harris does not so exercise said right of first refusal, [Ingemann] shall be free to accept said offer. If [Ingemann] does not accept said offer, Harris shall again have the same right of first refusal with respect to any subsequent offer for the purchase of the Subject Property or any portion thereof.
The parties further agreed that "[t]he right of first refusal hereby granted to Harris shall be binding upon [Ingemann] and [Ingemann's] heirs and assigns and shall inure to the benefit of Harris and Harris' heirs and assigns." The right-of-first-refusal agreement was recorded in Chisago County February 6, 1981.
The Hempel property was conveyed from the Harrises to James and Mary Lande in 1982 and the Harrises specifically assigned their right of first refusal to the Landes. In 1985 the Landes conveyed the Hempel property to appellants with a specific assignment of the right of first refusal. All conveyances of the Hempel property were recorded in Chisago County.
On July 17, 1992, respondent Ingemann conveyed the subject property to William and Jean West by a warranty deed that did not mention the right of first refusal. There is a factual dispute as to whether the Wests knew of the right-of-first-refusal agreement at the time of the conveyance. On the same date, Ingemann executed a document that stated: "Right of First Refusal has lapsed. Said William R. Harris is now deceased and said Nancy R. Harris no longer resides at neighboring property and to the best of my ability can not [sic] locate her." Ingemann admits that notice was not furnished to Nancy R. Harris or appellants. The warranty deed conveying the subject property to the Wests and the "lapse statement" were recorded in Chisago County on July 22, 1992. Jean West conveyed the subject property to the Creek House Trust October 20, 2004. The Creek House trustees claim that they made no offer to purchase the subject *309 property and that their mother, Jean West, conveyed it to them as a gift.
Appellants discovered in January 2004 that Ingemann had transferred the subject property. On October 31, 2005, appellants filed a complaint against Ingemann, the Creek House Trust, and any unknown persons claiming a right to the subject property. Appellants included a request for a declaratory judgment under Minn.Stat. § 555.01 (2004), and a claim for "specific performance/breach of contract/damages."
Respondent Creek House Trust moved for summary judgment. The trust argued that appellants' claim for specific performance/breach of contract/damages was barred by the six-year statute of limitations for contract claims because appellants were "seeking damages and specific performance based on a contract that was breached, if at all, more than 13 years ago." Respondent trust further argued that the request for a declaratory judgment should not be granted because appellants did not meet the statutory prerequisites for relief under Minn.Stat. § 555.01.
The district court granted the trust's motion on May 12, 2006, holding that there were no genuine issues as to any material facts and that the claim for specific performance/breach of contract/damages failed as a matter of law as time-barred because "in July of 1992 the [appellants] could have initiated a breach of contract action against Ingemann and that action would have survived a motion to dismiss." The court also denied the request for a declaratory judgment stating that "this claim cannot stand on its own."
More than five months after respondents filed the summary judgment motion, and only three days before it was granted, appellants filed a motion to amend their complaint to add Jean West as a defendant. Appellants alleged that West's 2004 transfer of the subject property to the Creek House Trust was an additional breach of the obligations contained in the right of first refusal. Respondent trust argued that the motion should be denied as it lacked merit, was untimely, and would cause it prejudice.
The district court denied appellants' motion to amend on June 6, 2006, stating that "[a]lthough the Court finds there would be little prejudice to [respondents] . . . because there was undue delay by [appellants] and because it would be futile . . ., it is appropriate to deny [appellants'] motion."
On July 24, 2006, Ingemann, the only remaining defendant, moved to dismiss appellants' claims against her with prejudice. The district court incorporated its summary judgment findings and granted her motion on September 26, 2006. This appeal follows from that judgment.
ISSUES
1. When does the statute of limitations for a claimed breach of a right-of-first-refusal agreement begin to run?
2. Should Minnesota adopt the "discovery rule" to toll the running of the statute of limitations for a claimed breach of a right-of-first-refusal agreement until the right-holder has notice of the breach?
3. Should the statute of limitations have been tolled as a result of respondents' alleged fraudulent concealment?
4. Is appellants' claim timely because the appropriate statute of limitations for a right-of-first-refusal claim is 40 years as provided in the Marketable Title Act?
5. Did the district court abuse its discretion by denying appellants' motion to amend their complaint?
6. Did the district court err in refusing to hear appellants' request for a declaratory *310 judgment regarding the current status of their right of first refusal?
ANALYSIS
The standard of review applicable to a grant of summary judgment is whether there are any genuine issues of material fact and whether the district court erred in its application of the law. Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn. 1995). If no material facts are at issue on appeal, the reviewing court need only determine "whether the district court erred in applying the law to determine the accrual of the cause of action and the running of the statute of limitations." Peterson v. Johnson, 720 N.W.2d 833, 837 (Minn.App. 2006) (quotation omitted). A challenge to the district court's application of a statute of limitations is a question of law to be reviewed de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).
I.
Appellants contend that the district court erred in finding that their claims based on the 1992 conveyance were barred by the six-year statute of limitations period of Minn.Stat. § 541.05, subd. 1 (1992). Appellants argue that their claim for breach of a right of first refusal did not accrue until they received notice that the right was activated by a third party's bona fide written offer to purchase the subject property. We disagree.
Appellants maintain that the right of first refusal is dormant until notice of an offer to purchase is given. Thus, on the facts here, they claim they had no basis to bring a lawsuit because the statute never started to run absent their notice of the 1992 sale. Appellants are correct that the right of first refusal is activated when the right-holder receives notice of an offer to purchase the subject property. See, e.g., Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 784 (Minn.2004) (holding that a right of first refusal "ripens into an option when the owner receives a bona fide third party offer and notifies the holder of the right"); Park-Lake Car Wash, Inc. v. Springer, 352 N.W.2d 409, 411 (Minn.1984) (distinguishing a right-first-refusal agreement from an option contract because the former requires a condition precedent: "the owner must have received a bona fide offer from a third party which he or she is willing to accept"). But the right of first refusal is breached when the required notice is not given because that is when appellants' claim would survive a motion to dismiss.[1]
In support of their argument that their claim did not accrue, appellants rely on an Indiana case that states that holders of a right of first refusal are "not entitle[d] . . . to take any action until they receive[] notice of the offer." McGehee v. Elliott, 849 N.E.2d 1180, 1189 (Ind.Ct.App.2006). But the McGehee court did not hold that plaintiffs are precluded from bringing a claim until they have notice. Rather, the court held that right-holders are precluded from exercising their right until they have notice because, until they have notice of the proposed sale, they do not yet have the option to purchase the subject property. When notice is given to its holder, the right of first refusal is "transmuted into an option," but the lack of notice completes the breach of the right-of-first-refusal agreement and creates a cause of action. Id. at 1188-89 (quotation and citation omitted). The McGehee court stated, "the only *311 time limitation at that point [is] the statute of limitations on a breach of contract action," rejecting the argument that a claim for a breach of a right-of-first-refusal agreement must be brought within the time limitations the agreement provided for exercising the option to purchase. Id. at 1189 (citation omitted).
Appellants cite other cases from foreign jurisdictions, but those focus on the triggering and exercising of a right of first refusal and do not discuss whether the limitations period only begins to run after notice is given. See Pincus v. Pabst Brewing Co., 893 F.2d 1544, 1550-53 (7th Cir. 1990) (determining what constitutes proper notice); John D. Stump & Assoc., Inc. v. Cunningham Mem. Park, Inc., 187 W.Va. 438, 419 S.E.2d 699, 704-06 (1992) (determining what constitutes proper notice); New Haven Trap Rock Co. v. Tata, 149 Conn. 181, 177 A.2d 798, 800 (1962) (holding notice triggers the option); Webb v. Reames, 326 S.C. 444, 485 S.E.2d 384, 385-86 (Ct.App.1997) (declaring a perpetual right of first refusal with a fixed purchase price was void for violating the rule against perpetuities). None of the cases cited by appellant held that the running of the statutory period was tolled until notice was given.
Statutes of limitations serve dual purposes: "the repose of the defendant and the fair and effective administration of justice." Dalton v. Dow Chemical Co., 280 Minn. 147, 153 n. 2, 158 N.W.2d 580, 584 n. 2 (1968). Minnesota courts interpreting Minn.Stat. § 541.05 have held that the statute begins to run when the cause of action accrues, meaning when a plaintiff's claim would survive a defendant's motion to dismiss for failure to state a claim upon which relief can be granted (the "damage" rule). See Antone v. Mirviss, 720 N.W.2d 331, 335 (Minn.2006) (applying the rule to a claim for legal malpractice); Juster Steel v. Carlson Cos., 366 N.W.2d 616, 618 (Minn.App.1985) (holding that a breach of contract claim must be brought within six years of the action causing the breach).
We reject appellant's argument that the damage rule is inappropriate for a claim alleging a breach of a right-of-first-refusal agreement. A right-of-first-refusal agreement is a contract and the party with the right is damaged when it is breached. Here the district court correctly granted respondent's motion for summary judgment because "in July of 1992 the [appellants] could have initiated a breach of contract action against Ingemann and that action would have survived a motion to dismiss." Thus the six-year limitations period applicable to contract actions expired in July of 1998 and appellants' subsequent attempt to bring forth a claim was time-barred. Minn.Stat. § 541.05, subd. 1.
II.
Appellants also contend that the district court erred in concluding that their claims based on the 1992 conveyance were barred by the six-year statute of limitations, arguing that this court should apply the "discovery rule," recognized in other jurisdictions, to toll the limitations period until the right-holder knew or reasonably should have known the subject property had been sold. We disagree. Minnesota courts "have declined to adopt the discovery rule" even when confronted with arguments that it would be unfair because the injured party did not have any knowledge of the relevant facts until after their claim was time-barred. Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn.1999) (determining that the statutory period began to run when plaintiff's claim would have survived a 12(b)(6) motion); see also Antone, 720 N.W.2d at 335-36 (holding that a claimant was barred by a statute of limitations from seeking damages *312 for legal malpractice where the attorney negligently prepared an antenuptial agreement although this negligence was not discovered until the marriage was dissolved 12 years after the agreement's creation); Molloy v. Meier, 679 N.W.2d 711, 722 (Minn.2004) (reaffirming the "long-standing principle" that the statute of limitations for medical malpractice claims based on failures to diagnose begins to run at the time of the misdiagnosis). Rather, as explained above, Minnesota has applied the damage rule to the running of a statutory limitations period. Dalton, 280 Minn. at 153, 158 N.W.2d at 584.
Ignorance of the damage does not toll the limitations period unless the action involves continuing negligence, trespass, or fraud by the defendant. Id. at 153, 158 N.W.2d at 584. "This is upon the theory that ignorance is the result of want of diligence, and the party cannot take advantage of his own fault." Schmucking v. Mayo, 183 Minn. 37, 39, 235 N.W. 633, 633 (1931). In addition, Minnesota courts have declined to read a discovery requirement into a statutory limitations period because "where the legislature intends the limitation period to be contingent upon the knowledge of the aggrieved party, it has so provided." Juster Steel, 366 N.W.2d at 618 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 348, 240 N.W.2d 507, 510 (1976)). Accordingly, we decline appellants' invitation to adopt the discovery rule here.
III.
Appellants argue that under the doctrine of fraudulent concealment, the limitations period here did not run while facts related to the claim were concealed from the right-holder. This issue was not presented to the district court. Generally, this court will not consider matters not argued and considered in the court below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). And Minnesota courts have declined to address a fraud claim not presented to the district court. See, e.g., Ketterer v. ISD No. 1, 248 Minn. 212, 215, 79 N.W.2d 428, 432 (1956). We conclude that given the fact-intensive nature of a fraud claim, we will not address appellants' fraudulent concealment claim for the first time on appeal.
IV.
Appellants argue in the alternative that the Marketable Title Act (MTA) provides the appropriate statute of limitations and that claims brought within 40 years are timely under the MTA. Minn.Stat. § 541.023 (1992). We disagree.
The MTA applies "against a claim of title based upon a source of title. . . ." Minn.Stat. § 541.023, subd. 1. "[T]he words `source of title' . . . shall mean any deed, judgment, decree, sheriff's certificate, or other instrument which transfers or confirms, or purports to transfer or confirm a fee simple title to real estate. . . ." Id., subd. 7 (emphasis added). The MTA does not operate offensively to provide foundation for new title, but defensively to protect preexisting claims of title. Padrnos v. City of Nisswa, 409 N.W.2d 36, 38 (Minn.App.1987), review denied (Minn. Sept. 23, 1987).
A "right of first refusal" is defined as a "potential buyer's contractual right to meet the terms of a third party's higher offer." Black's Law Dictionary (8th ed.2004) (emphasis added). And even when the right ripens into an option to purchase the subject property it remains "only a right in personam to buy at his election." Shaughnessy v. Eidsmo, 222 Minn. 141, 145, 23 N.W.2d 362, 365 (Minn.1946).
Appellants do not and cannot allege that the right-of-first-refusal agreement *313 granted them a fee simple interest in the subject property. Rather, appellants stated in their complaint that they "have a valid and enforceable right of first refusal on the subject property." But this right only grants the holder the option of purchasing the property if the owner of the subject property receives an offer from a third-party purchaser. M.L. Gordon Sash & Door Co. v. Mormann, 271 N.W.2d 436, 439-41 (1978). And even when a right of first refusal ripens into an option, this does not convey title. See id. at 439 ("An option to purchase land does not before acceptance vest in the holder of the option an interest in the land."). We conclude that appellant's claim is not governed by the MTA because it is not based on a "source of title" and the statute is not to be invoked offensively.
V.
Appellants argue that the district court abused its discretion in denying their motion to amend their complaint "to add Jean V. West as a defendant and . . . to clarify that the declaratory relief sought by Plaintiffs will include an allegation that the 2004 transfer from Jean V. West to the Creek House Trust was in breach of the right of first refusal." We disagree.
Amendments should be freely granted except when they would result in prejudice to the other party. Minn. R. Civ. P. 15.01. But when the amendment, if adopted, would modify the district court's scheduling order, "a showing of good cause" is required. Minn. R. Civ. P. 16.02. And a party must act with due diligence in attempting to amend its complaint. Meyer v. Best W. Seville Plaza Hotel, 562 N.W.2d 690, 694 (Minn.App.1997), review denied (Minn. June 26, 1997). The district court has broad discretion to grant or deny leave to amend a complaint, and its ruling will not be reversed absent a clear abuse of discretion. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).
Appellants did not show good cause for their delay. The district court stated "it is unclear . . . why [appellants] did not include proposed Defendant Jean West in their original Complaint." Appellants knew when they filed their complaint that Ingemann had conveyed the subject property to the Wests and that the Creek House Trust was the current record owner. But appellants named only Ingemann and the Creek House Trust as defendants. Appellants did not file their motion requesting Jean West be joined as a defendant until five months after respondent trust had moved for summary judgment and nearly two months after the scheduling order's deadline to join additional parties had passed. And appellants failed to show good cause for modifying the scheduling order. On this record we conclude that the district court acted within its discretion in denying appellants' motion to amend their complaint.
VI.
Appellants argue that the district court erred in declining to clarify the current validity of the right-of-first-refusal agreement under the Uniform Declaratory Judgments Act (UDJA). Minn.Stat. § 555.01 (2004). We agree.
"Any person interested under a . . . written contract . . . may have determined any question of construction or validity arising under the . . . contract . . . and obtain a declaration of rights, status, or other legal relations thereunder." Minn. Stat. § 555.02 (2004). "A contract may be construed either before or after there has been a breach thereof." Minn.Stat. § 555.03 (2004). The UDJA's purpose "is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; *314 and is to be liberally construed and administered." Minn.Stat. § 555.12 (2004).
"The main characteristic of the declaratory judgment which distinguishes it from other judgments is that, by the act authorizing it, courts are empowered to adjudicate upon disputed legal rights whether or not further relief is or could be claimed." Ketterer, 248 Minn. at 226, 79 N.W.2d at 439.
A justiciable controversy exists [in a declaratory judgment action] if the claim: (1) involves definite and concrete assertions of right that emanate from a legal source, (2) involves a genuine conflict in tangible interests between parties with adverse interests, and (3) is capable of specific resolution by judgment rather than presenting hypothetical facts that would form an advisory opinion.
Onvoy, Inc. v. ALLETE, Inc., 736 N.W.2d 611, 617-18 (Minn.2007). Here a declaratory judgment was appropriate because the claim of right is based in contract. In addition, the claim involves a genuine conflict between adverse parties, as indicated by the assignment to appellants and filing of the right of first refusal when appellants purchased their property, and the filing of the "lapse" document by respondent Ingemann. Finally, a declaratory judgment would resolve the dispute because the parties would know if a right of first refusal continues to encumber the subject property.
The district court granted respondent's motion for summary judgment "as a matter of law" on appellant's claim seeking declaratory judgment because "[p]ursuant to Minnesota caselaw, this claim cannot stand on its own." The district court cited Alliance Stability v. Metro. Council and Vrieze v. New Century Homes, Inc. for the proposition that a declaratory judgment is precluded unless the request is coupled with a valid additional cause of action. 671 N.W.2d 905, 916 (Minn.App.2003); 542 N.W.2d 62, 67 (Minn.App.1996). But in Alliance Stability the court determined that a declaratory judgment was inappropriate because a private right of action did not exist under the statute the claimants argued was violated. 671 N.W.2d at 915 n. 8. And in Vrieze, claimants were not entitled to a declaratory judgment because their underlying claims were barred because of the discretionary immunity doctrine. 542 N.W.2d at 67.
We conclude that although the UDJA "cannot create a cause of action that does not otherwise exist," the cases cited by the district court are not controlling because here, the district court was not required to "create" a cause of action. See Alliance Stability, 671 N.W.2d at 916 (discussing the UDJA). The fact that appellant's claimed breach based on the 1992 conveyance is time-barred by a statute of limitations does not determine whether appellants still have a right of first refusal.
A district court, in an exercise of its discretion, "may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding." Minn.Stat. § 555.06 (2004). But here, two inconsistent documents were before the district court: the right-of-first-refusal agreement and the lapse statement. Because a declaratory judgment clarifying the right-of-first-refusal agreement's status would eliminate uncertainty, we conclude that the district court's refusal to enter a declaratory judgment constituted an abuse of its discretion. We therefore reverse the district court and remand for further proceedings clarifying the parties' current rights and obligations under the right-of-first-refusal agreement.
*315 DECISION
We affirm the district court's determination that appellants' claims were barred by the applicable statute of limitations and its denial of appellants' motion to amend their complaint. We reverse and remand the district court's refusal to hear appellants' request for a declaratory judgment.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] We note that although it is undisputed that all documents relevant to the breach of the right-of-first-refusal agreement were properly filed, the issue of whether this constituted constructive notice for appellants was neither presented to nor addressed by the district court and we do not address it here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576227/ | 612 F. Supp. 1400 (1985)
Carl C. ICAHN, Plaintiff,
v.
Roy BLUNT, Secretary of State of the State of Missouri, the State of Missouri, and Trans World Airlines, Inc., Defendants.
No. 85-4279-CV-C-9.
United States District Court, W.D. Missouri, Central Division.
June 24, 1985.
*1401 *1402 Harvey M. Tettlebaum, Duane Benton, Jefferson City, Mo., Andrew Rothschild, Barry A. Short, Lewis & Rice, St. Louis, Mo., Weil, Gotshal & Manges, Irwin Warren, Dennis J. Block, Stephen Radin, New York City, Frederick H. Riesmeyer, II, James C. Wirken, Kansas City, Mo., for plaintiff.
Phillip K. Gebhardt, Mo. Atty. Gen., Jefferson City, Mo., for Blunt and State of Mo.
John C. Noonan, Stinson, Mag & Fizzell, Kansas City, Mo., Skadden, Arps, Slate, Meagher & Flom, New York City, Thomas J. Guilfoil, Jim J. Shoemake, J. Richard McEarchern, St. Louis, Mo., for Trans World Airlines, Inc.
ORDER GRANTING DECLARATORY AND INJUNCTIVE RELIEF
BARTLETT, District Judge.
On May 30, 1985, shortly after the Governor of Missouri signed into law Senate Committee Substitute for House Bill No. 117 (H.B. No. 117), plaintiff, Carl C. Icahn filed this action seeking to enjoin the defendants Trans World Airlines, Inc. (TWA), Roy Blunt, the Missouri Secretary of State, and the State of Missouri from attempting to invoke or enforce H.B. No. 117, the Missouri Control Share Acquisition Statute, Mo.Rev.Stat. § 351.407, and the Missouri Takeover Bid Disclosure Act, Mo.Rev.Stat. Chapter 409, with respect to the purchase by plaintiff of shares of common stock of TWA.
On June 3, 1985, Icahn filed his amended complaint reasserting his request for injunctive relief and seeking a declaratory judgment that H.B. No. 117, the Missouri Control Share Acquisition Statute, and the Missouri Takeover Bid Disclosure Act are invalid because they violate the following provisions of the United States Constitution and the Missouri Constitution:
1) the Commerce Clause, U.S. Const., art. I, § 8, cl. 3 (Count I);
2) the Supremacy Clause, U.S. Const., art. VI, cl. 2 (Count II);
*1403 3) the right to freedom of contract guaranteed by the Fourteenth Amendment to the United States Constitution (Count III);
4) the right of alienation of property guaranteed by the Fourteenth Amendment to the United States Constitution (Count IV);
5) the Contract Clause, U.S. Const., art. I, § 10, cl. 1 (Count V);
6) the Full Faith and Credit Clause, U.S. Const., art. IV, § 1 (Count V);
7) Mo. Const., art. III, § 21, prohibiting the amending of a bill in its passage through either house so as to change its original purpose (Count VII);
8) Mo. Const., art. III, § 23, requiring that a legislative bill contain only one subject which is clearly expressed in its title (Count VIII); and
9) Mo. Const., art. III, § 40(28); Mo. Const., art. XI, § 2; and Mo. Const., art. I, § 13 prohibiting a grant of exclusive and special rights to a corporation (Count IX).
Also, plaintiff asserts a claim under 42 U.S.C. § 1983 for deprivation of rights, privileges, and immunities guaranteed by the Commerce Clause, the Supremacy Clause, the Contract Clause, the Fourteenth Amendment to the United States Constitution and by the Williams Act amendments to the Securities Exchange Act of 1934, 15 U.S.C. § 78m(d)-(e); 78n(d)-(f) (Count VI).
Besides disputing each of the constitutional challenges raised by Icahn, defendants argue that:
1) the claims asserted by Icahn are moot;
2) this Court is without jurisdiction because there is no case or controversy as required by Article III of the United States Constitution;
3) this Court is precluded from granting Icahn's requests for injunctive relief by the Anti-Injunction Act, 28 U.S.C. § 2283;
4) this Court should defer to pending state court proceedings under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 [27 L. Ed. 2d 669] (1971); and
5) this Court should abstain from deciding Icahn's motion for injunctive relief under Railroad Comm'n. of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643 [61 S. Ct. 643, 85 L. Ed. 971] (1941).
After a hearing on June 3, 1985, an Order was issued temporarily restraining the enforcement of H.B. No. 117. On June 12, 1985, the parties presented evidence on plaintiff's request for a preliminary injunction. At the conclusion of the evidentiary presentation, the parties announced that no further evidence would be presented on plaintiff's request for permanent relief. Therefore, it was agreed by all parties that the oral argument scheduled for June 18, 1985, would conclude the presentation of this case.
The Parties
Plaintiff Carl C. Icahn (Icahn) is a resident of the State of New York. On June 12, 1985, Icahn and entities controlled by Icahn owned 32.779% of the total outstanding shares of common stock of TWA. Icahn and his group stated in Amendment No. 3 to their Schedule 13D filed with the Securities and Exchange Commission on May 23, 1985, that they "have determined to seek control of the Issuer so as to protect their substantial equity interest." Plaintiff also disclosed in Amendment No. 3 that he had proposed a cash merger between TWA and a corporation to be formed by plaintiff "pursuant to which all holders of Shares (other than the Registrants and their affiliates) would receive $18 a Share in cash in exchange for their Shares."
If the Registrants' cash merger proposal is not accepted by the Issuer's Board of Directors, the Registrants intend to continue to explore strategies for seeking control. In this context, the Registrants intend to pursue the stockholder consent procedure referred to above and the Registrants (or any one of them) intend to acquire additional Shares (subject to availability of Shares at prices deemed favorable) from time to time in the open market, through a tender offer, in privately negotiated transactions or otherwise.
*1404 On June 17, 1985, Icahn filed with the Securities and Exchange Commission Amendment 8 to his Schedule 13D in which he commented as follows on his intentions in light of the announced merger agreement between Texas Air and TWA:
[O]n June 13, 1985, Carl C. Icahn issued a press release in which he stated, among other things, that he is not presently taking a position on the offer and does not presently intend to make a counter-bid or to purchase additional Shares, although Mr. Icahn reserved the right to do so. Mr. Icahn intends to continue to explore each of these possibilities including, specifically, the purchase of additional Shares in open market or privately negotiated transactions.
Defendant Roy Blunt is the Secretary of State of the State of Missouri and the public official expressly authorized by H.B. No. 117 to seek injunctive relief to secure compliance by certain foreign corporations with Missouri's Control Share Acquisition Statute.
TWA is a Delaware corporation with its headquarters in New York City. TWA is a common carrier engaged primarily in transporting people and cargo by air. As of March 1, 1985, there were 32,853,932 shares of common stock outstanding.
Lambert-St. Louis International Airport (Lambert Airport) in St. Louis, Missouri, is a major hub for TWA's domestic flight operations. TWA currently uses 30 of its 62 gates. TWA has 189 domestic departures daily from Lambert Airport and plans to increase the number of departures in the near future. TWA also provides non-stop international service from St. Louis to London, Paris and Frankfurt. TWA landings represent 45% of all landings at Lambert Airport. TWA generates 57.7% of all landing fees at Lambert Airport amounting to $6,619,000 annually. TWA has 4,232 employees in the St. Louis area. TWA utilizes and pays for 59% of the total terminal and concourse space which generates $4,537,830 in revenue for Lambert Airport. According to the undisputed affidavit of the Assistant Director for Business and Finance of Lambert Airport, if TWA should cease to operate at Lambert Airport, St. Louis' ability to develop and maintain the physical plant necessary for convenient, safe, efficient and economical air travel would be jeopardized. Specifically, the maintenance and extension of the airfield and periodic maintenance on the entire complex would be threatened.
While expanding service out of St. Louis, TWA has reduced its number of departures from Kansas City. However, TWA's Kansas City Administrative Center processes a substantial part of the system-wide payroll, purchasing and disbursements. TWA's principal technical base for overhauling and servicing aircraft is located in Kansas City. Also, TWA's pilots, flight crews and cabin attendants are trained at the Kansas City Flight Training Center. TWA has 6,597 employees in the Kansas City area. TWA estimates that its purchases of materials, supplies, fuel, food and beverages from vendors in the Kansas City, Missouri, area during 1985 will amount to approximately $280,000,000. TWA's total contribution to the economy of the Kansas City area is more than $518,000,000 yearly.
Revenue bonds issued by Kansas City and St. Louis totalling in excess of $313,000,000 have financed capital improvements at Lambert Airport and at Kansas City International Airport. In St. Louis, the City of St. Louis and TWA are parties to a long-term lease which St. Louis relied upon in extending the east concourse for TWA at a cost of $17,848,000 and a new cargo building at the cost of $5,607,000. The debt incurred for these capital improvements was financed through revenue bonds, which, if the anticipated revenue from TWA's operations was not to be realized, would have to be supported from other airport revenues. According to the affidavit of the Assistant Director of Lambert Airport, the future marketability of airport revenue bonds could be adversely affected if TWA were to leave Lambert Airport. Also, further development of Lambert Airport would be hindered if TWA terminated its St. Louis operations.
*1405 The New York Action
On May 15, 1985, TWA commenced an action in the United States District Court for the Southern District of New York alleging that Icahn failed to make the disclosures required by § 13(d) of the Williams Act. After an evidentiary hearing, Judge Cannella ruled on May 28, 1985, that there was no substantial violation of § 13(d) ongoing at that time. Judge Cannella refused to enjoin Icahn from purchasing further TWA shares, voting his stock, soliciting proxies or consents, or making a tender offer.
The St. Louis County Case
On May 16, 1985, TWA filed a petition in St. Louis County Circuit Court against Icahn and affiliated companies asserting claims for violations of the fraud provisions of the Missouri securities laws, breach of contract, fraud, breach of fiduciary duty, prima facie tort and conspiracy. On May 20, 1985, TWA amended its petition to add claims for negligence and reckless endangerment. Again, on May 31, 1985, TWA amended its complaint adding Count VIII seeking to enforce Missouri's Control Share Acquisition Statute as made applicable to foreign corporations by H.B. No. 117.
On May 31, 1985, Roy Blunt, Missouri Secretary of State, sought leave to intervene to secure Icahn's compliance with Missouri's Control Share Acquisition Statute. Later that day Judge Drumm granted the Secretary of State leave to intervene.
On June 3, 1985, Judge Drumm restrained Icahn from purchasing further TWA shares on grounds unrelated to the claims based on H.B. No. 117. On June 7, 1985, Judge Drumm entered an order which stated in part:
As the Court has previously advised the parties, proceedings on Count VIII pertaining to certain alleged violations of §§ 351.447, 351.575.1 and 2 and 351.407, RSMo. (1985) and the constitutionality of House Bill 117 are currently being deferred due to the cause which is pending before the Honorable D. Brook Bartlett in the United States District Court for the Western District of Missouri.
On June 12, 1985, Judge Drumm dissolved the temporary restraining order. On June 13, 1985, Icahn and TWA agreed "to adjourn indefinitely" the proceedings including all discovery and the preliminary injunction hearing scheduled for June 17, 1985. The State of Missouri was not a party to this agreement. Neither TWA nor the State of Missouri has dismissed its claim seeking to enforce H.B. No. 117 in the St. Louis County case.
Legislative Background of Senate Committee Substitute for H.B. No. 117
House Bill No. 117 (original H.B. No. 117) was prefiled on December 3, 1984. Original H.B. No. 117 was passed by the Missouri House on April 25, 1985. On May 6, 1985, original H.B. No. 117 was referred to the Senate Commerce Committee.
Beginning on May 29, 1985, legislative action on original H.B. No. 117 accelerated. On that day, original H.B. No. 117 emerged from the Senate Commerce Committee as Senate Committee Substitute for House Bill No. 117 (H.B. No. 117). The bill had gone from 35 words in the original H.B. No. 117 to over 1,600 words in H.B. No. 117.[1] Later that day, the rules were suspended and H.B. No. 117 was read for the third time and passed by the Senate.
The next day, May 30, 1985, the Senate and House appointed a conference committee. After the conference committee reported later that day, the House and the Senate passed H.B. No. 117. Still later *1406 that day the President Pro Tem of the Senate, the Speaker of the House and the Governor signed H.B. No. 117 and it became effective immediately.
Provisions of Mo.Rev.Stat. § 351.575 (H.B. No. 117)
Section 351.575.2 (H.B. No. 117) provides that the provisions of Missouri's Control Share Acquisition Statute (Mo.Rev.Stat. § 351.407) are applicable to those foreign corporations that are common carriers that have benefitted from physical facilities financed by Missouri political subdivisions and that have over 7,500 employees in Missouri.[2]
Section 351.575.3 (H.B. No. 117) authorizes the Missouri Secretary of State and the issuing corporation or its shareholders to seek injunctive relief to secure compliance with the provisions of H.B. No. 117 and the Control Share Acquisition Statute. In addition, § 351.575.4 (H.B. No. 117) authorizes the Missouri Secretary of State and the issuing corporation or its shareholders to seek injunctive relief with respect to any violation of the Missouri Takeover Bid Disclosure Act, Mo.Rev.Stat., Chapter 409.[3]
Section 351.575.5 (H.B. No. 117) provides that the Control Share Acquisition Statute is not applicable to a foreign corporation (even though it meets the criteria in § 351.575.2) if a majority of the directors in office before the control share acquisition was proposed approves the control share acquisition. Mo.Rev.Stat. § 351.575.5 (H.B. No. 117).[4]
H.B. No. 117 became law immediately upon signing by the Governor of Missouri. The emergency clause stated that immediate action was necessary "to protect jobs, public investments and certain property."[5]
Missouri's Control Share Acquisition Statute (§ 351.407)
Unless the articles of incorporation of an issuing corporation provide that § 351.407 does not apply to a control share acquisition, no control share acquisition shall be made without the prior authorization of the shareholders. Mo.Rev.Stat. § 351.407.1. Any person who proposes to make a control share acquisition must deliver to the corporation an "acquiring person statement" which discloses the information required by the statute. Mo.Rev.Stat. § 351.407.2. A "control share acquisition" means the acquisition of a share or shares that would give the purchaser for the first time one of the designated levels of voting power. Mo.Rev.Stat. § 351.015(6).[6]
*1407 Within ten days after receipt of the acquiring person statement, the board of directors shall call a special meeting of the shareholders. The special meeting shall be held no sooner than thirty days and no later than fifty days after the statement is received. Mo.Rev.Stat. § 351.407.3.[7]
Before a purchaser can make a control share acquisition, two-thirds of all outstanding shares and two-thirds of all outstanding shares, excluding interested shares, must be voted in favor of the proposed control share acquisition. Mo.Rev. Stat. § 351.407.5.[8]
MOOTNESS
Defendants argue that this case is moot because plaintiff has stated in Amendment 8 to his Schedule 13D that he does "not presently intend to purchase additional shares" and because plaintiff has agreed with TWA to "adjourn indefinitely" the preliminary injunction hearing in the St. Louis County case. As a result, defendants contend that there is no longer a justiciable case or controversy.
This Court's jurisdiction extends only to actual cases or controversies. U.S. Const., art. III, § 2. This Court has no jurisdiction to decide moot cases. DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S. Ct. 1704, 1705, 40 L. Ed. 2d 164 (1974). "Plaintiffs must demonstrate a `personal stake in the outcome' in order to `assure that concrete adverseness which sharpens the presentation of issues' necessary for the proper resolution of constitutional questions." City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 1665, 75 L. Ed. 2d 675 (1983) (quoting from Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962)). Abstract injury is not enough. The plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the challenged official conduct. The injury or threat of injury must be real and immediate, not conjectural or hypothetical. Lyons, 103 S.Ct. at 1665.
In Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S. Ct. 1694, 40 L. Ed. 2d 1 (1974), certain employers sought injunctive and declaratory relief against New Jersey state officials administering a state program providing welfare benefits to striking workers. The employers alleged that the interpretative regulations according benefits to the striking workers were void because they conflicted with federal labor policy and with the Social Security Act of 1935. At the hearing before the district court on a motion for a preliminary *1408 injunction, the union intervened and contended that the case was moot because the strike was over. Nevertheless, the district court decided the case. The Supreme Court granted certiorari to consider the mootness issue, i.e., whether a case or controversy still existed within the meaning of Art. III, § 2 and the Declaratory Judgment Act.
Although agreeing that the request for injunctive relief against the state officials during the pendency of the strike had been mooted, the Supreme Court concluded that the employers and the state officials still retained sufficient interests and injury to justify the award of declaratory relief. Id., 416 U.S. at 122, 94 S.Ct. at 1698.
Unlike the situations that prevailed in Oil Workers Unions v. Missouri, 361 U.S. 363, 80 S. Ct. 391, 4 L. Ed. 2d 373 (1960), on which the Court of Appeals' majority chiefly relied, and in Harris v. Battle, 348 U.S. 803, 75 S. Ct. 34, 99 L Ed. 634 (1954), the challenged governmental activity in the present case is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.
Id.
As in Harris and Oil Workers, the strike here was settled before the litigation reached this Court. But, unlike those cases, the challenged governmental action has not ceased. The New Jersey governmental action does not rest on the distant contingencies of another strike and the discretionary act of an official. Rather, New Jersey has declared positively that able-bodied striking workers who are engaged, individually and collectively, in an economic dispute with their employer are eligible for economic benefits. This policy is fixed and definite. It is not contingent upon executive discretion. Employees know that if they go out on strike, public funds are available.
Id. at 123, 94 S.Ct. at 1699 [footnotes omitted].
It was the remoteness of the threat of state action that convinced the court in Oil Workers to hold that case moot. In the case now before us, the state action is not at all contingent. Under the petitioners' view of the case, it is immediately and directly injurious to the corporate petitioners' economic positions. Where such state action or its imminence adversely affects the status of private parties, the courts should be available to render appropriate relief and judgments affecting the parties' rights and interests.
Id. at 125, 94 S.Ct. at 1699.
Similarly in this case, Missouri's policy as expressed in H.B. No. 117 is not contingent, and it has not evaporated or disappeared. Missouri still intends to make its Control Share Acquisition Statute applicable to foreign corporations meeting the criteria set forth in H.B. No. 117. TWA has agreed with Icahn to adjourn proceedings in the state case; TWA has not agreed unequivocally to cease attempting to enforce H.B. No. 117. TWA's request to enforce H.B. No. 117 still pends in the St. Louis County case. Furthermore, Missouri and its Secretary of State are not parties to the TWA-Icahn agreement "to adjourn indefinitely" the St. Louis County case. All that is needed to give this dispute the urgency it had from its inception is for plaintiff to decide to buy more TWA shares. In Amendment No. 8 Icahn states that he is considering several courses of action, including purchasing additional TWA shares on the open market or making a counter bid. Because plaintiff's present ownership (32.779%) is so close to the 33 1/3 % threshold that triggers application of the Missouri Control Share Acquisition Statute, any decision by plaintiff to buy more shares would subject him immediately to the provisions of the Missouri statute. Under plaintiff's view of this case, the "continuing and brooding presence" of H.B. No. 117 has a substantial effect on plaintiff's weighing of available options. House Bill No. 117 stands as an impediment to plaintiff deciding to continue his effort to gain control of *1409 TWA by purchasing additional shares or by making a tender offer.[9]
Also, as in Super Tire, even if the existence of a case or controversy is dependent on the existence of a present intention by plaintiff to buy more TWA shares whether by open market purchase or tender offer, this case presents an issue that is likely to be repeated under circumstances that make judicial resolution difficult. Cases that are "capable of repetition, yet evading review" are a recognized exception to the mootness rule. Super Tire, 416 U.S. at 122, 94 S.Ct. at 1698.
Frequently time is of the essence in efforts to obtain control of a company by open market purchases or by a tender offer. From beginning to end the time span of a control of share acquisition is often only weeks or at most a few months. See National City Lines, Inc. v. LLC Corp., 687 F.2d 1122 (8th Cir.1982) and Empire, Inc. v. Ashcroft, 524 F. Supp. 898 (W.D.Mo. 1981). An investor who proposes to make a control share acquisition needs to know whether to comply with the Control Share Acquisition Statute. Before the courts could furnish a definitive answer the investment opportunity could well have vanished.
The Supreme Court in Super Tire, stated that it has had no difficulty in rejecting mootness claims when governmental action continues to affect directly the behavior of citizens.
A strike that lasts six weeks, as this one did, may seem long, but its termination, like pregnancy at nine months and elections spaced at year-long or biennial intervals, should not preclude challenge to state policies that have had their impact and that continue in force, unabated and unreviewed. The judiciary must not close the door to the resolution of the important questions these concrete disputes present.
Super Tire, 416 U.S. at 126-127, 94 S.Ct. at 1700.
Similarly here, the door should not be closed to the resolution of the important questions presented by the dispute between these parties. House Bill No. 117 directly affects the behavior of the parties to this case and will continue to affect the behavior of citizens. Therefore, defendants' motion to dismiss this case for mootness is denied.
THE FEDERAL ANTI-INJUNCTION ACT
TWA and the State of Missouri argue that the Federal Anti-Injunction Act, 28 U.S.C. § 2283, bars this Court from enjoining TWA and the State of Missouri from enforcing the provisions of H.B. No. 117 against Icahn because the same issues are pending in state court.
The Anti-Injunction Act, 28 U.S.C. § 2283, provides that "a court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."
In National City Lines, Inc. v. LLC Corp., 687 F.2d 1122 (8th Cir.1982), the appellants argued that the relief sought by National was barred by the Anti-Injunction Act. The Court rejected this argument because there was no pending state court action when National petitioned the federal court for injunctive relief.
*1410 The Anti-Injunction Act is inapplicable when a federal court has first obtained jurisdiction of a matter in controversy by the institution of suit. Notwithstanding the confines of the Anti-Injunction Act, the federal court may in these circumstances restrain subsequently filed state court proceedings involving the same subject matter. The prohibition of the Act is only against interference in a "pending" state proceeding. Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S. Ct. 1116, 1119 n. 2, 14 L. Ed. 2d 22 (1965); Barancik v. Investors Funding Corp., 489 F.2d 933, 936 and n. 8 (7th Cir.1973); see also J. Moore, 1A Moore's Federal Practice, ¶ 0.208c at 2353 (1982).
For reasons set forth by then Circuit Judge, now Justice Stevens, the question whether state actions are "pending" is appropriately answered by reference to the date on which injunctive relief is sought in federal court, not the date on which injunctive relief is granted. Barancik v. Investors Funding Corp., 489 F.2d at 936-37 (parties seeking to litigate an issue in state court may not obtain the benefit of the Anti-Injunction Act by commencing state proceedings while a motion to enjoin such action is pending in the federal court; if the Act were applied in these circumstances, the would-be state court litigation would have an absolute right to defeat a well-founded motion by taking the very act the federal court was being urged to enjoin); cf. Roth v. Bank of the Commonwealth, 583 F.2d 527 (6th Cir.1978), cert. denied, 442 U.S. 925, 99 S. Ct. 2852, 61 L. Ed. 2d 292 (1979).
Id. at 1127 [footnote omitted].
The complaint seeking injunctive relief against the enforcement of H.B. No. 117 was filed in this Court on May 30, 1985. Even though the case in the St. Louis County Circuit Court had been pending since May 16, 1985, it was not until May 31, 1985, the day after the instant case was filed, that TWA amended its petition seeking to enforce H.B. No. 117. The same day the Secretary of State was permitted to intervene to secure compliance by Icahn with H.B. No. 117.
Although defendants concede that the instant case was filed before they sought to enforce H.B. No. 117 in state court, TWA argues that the filing of its amended petition in the St. Louis County case relates back to the filing of the original petition on May 16, 1985. Whether the May 31, 1985, amendment seeking to enforce H.B. No. 117 relates back should be determined by applying Missouri law. Rule 55.33(c), Missouri Rules of Civil Procedure, provides that "whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading."
On May 30, 1985, when H.B. No. 117 became law, the claims TWA was asserting against Icahn and others in state court were based on allegedly wrongful acts in the purchase of TWA shares. House Bill No. 117 does not require that a wrongful act occur before a control share acquisition is subject to regulation. Therefore, the claim for enforcement of H.B. No. 117 added on May 31, 1985, did not arise out of the allegedly wrongful acts alleged in TWA's First Amended Petition in state court.
Even if one assumes that the similar conduct, transactions or occurrences requirement of Rule 55.33(c) were met, the relation back doctrine does not apply. Rule 55.33 was intended to afford relief from the mechanical application of the statute of limitations where a party has notice of the subsequently asserted claims because they arise out of conduct already before the Court. Hawkins v. Hawkins, 533 S.W.2d 634, 638 (Mo.App.1976).
Here, no statute of limitations defense is or can be asserted against TWA's effort to enforce H.B. No. 117. Therefore, TWA is not seeking to use the relation back doctrine for the purpose intended by Rule 55.33(c). Its inapplicability in this situation is demonstrated by the ludicrous result of applying relation back to the facts of this case. If the relation back doctrine were *1411 applied, TWA's claim under H.B. No. 117 would be deemed to have arisen on May 16, 1985, when the original H.B. No. 117 was a simple bill pertaining to the award of contracts to out-of-state contractors. No claim being asserted by TWA in state court as of May 16, 1985, could possibly have given notice to plaintiff of a potential claim under H.B. No. 117 when the Senate Committee Substitute was not even introduced until May 29, 1985.
Therefore, the relation back doctrine in Rule 55.33 is not available to alter the chronological facts the instant case seeking injunctive relief against enforcement of H.B. No. 117 was filed before TWA made any claim to enforce H.B. No. 117 in the St. Louis County case. At the time injunctive relief was requested in this court, there was no "pending" state proceeding involving H.B. No. 117.
Even if the enforceability of H.B. No. 117 had been asserted in state court before it was here, plaintiff has alleged a claim under 42 U.S.C. § 1983.
The continued existence and enforcement of, and any action taken by the defendants under, the Takeover Act or the Control Share Acquisition Statute will deprive plaintiff of the rights, privileges and immunities secured to him by the Commerce Clause and Supremacy Clause, the Contract Clause and the Fourteenth Amendment in the United States Constitution, and by the federal laws set forth in the Exchange Act. Such rights, privileges and immunities are being deprived by defendants under color of state law.
Plaintiff's First Amended Complaint (Count VI).
Section 1983 is an "expressly authorized" statutory exception to the Anti-Injunction Act's absolute prohibition against enjoining pending state court proceedings. Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972).
Even though TWA correctly argues that plaintiff does not have an implied cause of action under the Williams Act, (Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S. Ct. 926, 51 L. Ed. 2d 124 (1977)), plaintiff alleges that H.B. No. 117 violates the Supremacy and Commerce Clauses. Certainly Missouri and its Secretary of State are acting under color of state law in seeking to enforce the provisions of H.B. No. 117. Furthermore, TWA was also acting under color of state law in attempting to enforce H.B. No.117 because TWA is specifically authorized by the act to do so.
Private individual conduct may constitute action under color of state statute where the power possessed by an individual or entity is possessed only because the individual or entity is clothed with the authority of state law. See Northrip v. Federal National Mortgage Ass'n, 527 F.2d 23, 33 (6th Cir.1975) (federal); Barrera v. Security Building & Investment Corp., 519 F.2d 1166, 1170 (5th Cir.1975) (federal). In addition, where a private individual or entity jointly engages with state officials in a challenged action, as Bendix is doing in fact, the private individual or entity is acting under the color of a state statute for purposes of section 1983. Dennis v. Sparks, 449 U.S. 24, 27-28 [101 S. Ct. 183, 186, 66 L. Ed. 2d 185] (1980); Lugar v. Edmondson Oil Co., 457 U.S. 922, 943, 102 S. Ct. 2744, 2757, 73 L. Ed. 2d 482 (1982).
Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 562-63 (6th Cir.1982).
Therefore, plaintiff has stated a claim for relief under § 1983 against all defendants.
YOUNGER ABSTENTION
Defendants argue that this Court should abstain under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), because state court proceedings involving vital state interests were pending when this Court entered its temporary restraining order.
Under Younger a federal court should not enjoin a state proceeding commenced after the filing of a federal case but prior to proceedings of substance on the merits in the federal suit. Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45 *1412 L.Ed.2d 223 (1975). The Younger doctrine "is not jurisdictional in nature, but is an equitable doctrine based upon comity." Hunt v. Roth, 648 F.2d 1148, 1154 (8th Cir.1981), judgment vacated on other grounds, 455 U.S. 478, 102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982). Younger abstention involves deference by the federal court to the state court where overriding state policies are involved. The state and federal interests should be balanced. Younger v. Harris, 401 U.S. at 44, 91 S.Ct. at 750-51. Where the federal interests clearly outweigh the state interests, application of Younger abstention is inappropriate. Empire, Inc. v. Ashcroft, 524 F. Supp. 898, 901 (W.D.Mo.1981).
Here, the major issues involve the conflict between state law and the federal Constitution and federal securities laws. Whether H.B. No. 117 violates the Commerce Clause or whether under the Supremacy Clause H.B. No. 117 has been preempted by federal law are questions primarily of federal, not state, policy. The Supreme Court has recognized that "federal courts are particularly appropriate bodies for the application of pre-emption principles." Hagans v. Lavine, 415 U.S. 528, 550, 94 S. Ct. 1372, 1386, 39 L. Ed. 2d 577 (1974) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 729, 86 S. Ct. 1130, 1140, 16 L. Ed. 2d 218 (1966)). Although Missouri asserts that important economic interests are protected by H.B. No. 117, those interests do not override the strong federal policies expressed in the Commerce and Supremacy Clauses.
Furthermore, Younger abstention is not appropriate unless plaintiff would be afforded an opportunity to present his federal claims in state court. In National City Lines, the state and federal courts had issued conflicting temporary restraining orders with regard to Missouri's Insurance Act. Thereafter, the state court expressly abstained from considering National's constitutional challenges to the Insurance Act. "Therefore, National had no opportunity in the state court proceedings to raise its constitutional challenges and, under such circumstances, abstention is inappropriate. See Gibson v. Berryhill, 411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973)." National City Lines, 687 F.2d at 1127.
Here, the judge in the state case stated in his June 7, 1985, Order that he was deferring consideration of H.B. No. 117 because the instant case was pending. As in National City Lines, abstention is inappropriate under these circumstances.
PULLMAN ABSTENTION
Defendants argue that under the doctrine of Railroad Comm'n. of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941), this Court should abstain from deciding Icahn's motion for injunctive relief.
In Martin-Marietta, 690 F.2d at 563, the Court described Pullman abstention as follows:
Under the Pullman doctrine, where a state law is being challenged in federal court as contrary to the federal Constitution and there are questions of state law which may be dispositive of the case, a federal court should abstain from deciding the case and allow the state courts to decide the state issues. Pullman abstention is appropriate in a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching the federal constitutional question. Babbitt v. United Farm Workers, 442 U.S. 289, 306, 99 S. Ct. 2301, 2312, 60 L. Ed. 2d 895 (1979), citing Kusper v. Pontikes, 414 U.S. 51, 54, 94 S. Ct. 303, 306, 38 L. Ed. 2d 260 (1973). Pullman abstention is not appropriate, however, where it is clear that the statute is unconstitutional no matter how it may be construed by the state courts. See Kusper, supra; Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971).
In National City Lines, the Court rejected appellant's argument that the district *1413 court should have abstained from deciding National's motion for injunctive relief.
Pullman abstention presupposes two conditions: (1) there must be an unsettled issue of state law, and (2) there must be a possibility that the state law determination will moot the federal constitutional question raised. See Kennecott Corp. v. Smith, 637 F.2d 181, 184 (3d Cir.1980); Coley v. Clinton, 635 F.2d 1364, 1373 (8th Cir.1980). Neither condition exists here. The challenged provisions of the state acts are clear on their face and not susceptible of being construed in a way that would render it unnecesary to examine their impact on the purposes of the Williams Act.... Therefore, the present case does not involve an ambiguous or unsettled question of law, and for that reason Pullman does not apply to this case. See Kennecott Corp. v. Smith, 637 F.2d 181.
National City Lines, 687 F.2d at 1126.
Similarly in the instant case, H.B. No. 117 is clear and unambiguous; it is not susceptible to a construction that renders it unnecessary to examine its impact on interstate commerce and on the regulatory scheme embodied in the Williams Act. Therefore, abstention is not appropriate.
PENDANT JURISDICTION
Plaintiff alleges that this Court has jurisdiction to determine the validity of H.B. No. 117 under the Missouri Constitution pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1343 (jurisdiction over civil rights claims). Neither statute authorizes this Court to exercise jurisdiction over state claims. Therefore, this Court has jurisdiction to entertain Icahn's claims that H.B. No. 117 is invalid under the Missouri Constitution only if the exercise of pendant jurisdiction is appropriate under the circumstances of this case.
Pendant jurisdiction should be exercised only when a) the Court has the "power" to hear the claim and b) it is appropriate, under the circumstances of the case, for the Court to exercise its discretion to consider the pendant claims.
Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim "arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *," U.S. Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional "case." The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S. Ct. 549, 77 L. Ed. 2d 1062 [(1933)]. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.
United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966) [emphasis in original], [footnote omitted].
Here, it could be argued persuasively that the state and federal challenges to the validity of H.B. No. 117 derive from a common nucleus of operative fact, i.e., the validity of H.B. No. 117. On the other hand, the state law challenges to the constitutionality of H.B. No. 117 are based on asserted violations of the legislative process established by the Missouri Constitution. The federal law challenges to H.B. No. 117 are based on the asserted conflict between substantive provisions of the statute and of the United States Constitution. Therefore, the legislative process is not challenged on federal constitutional grounds. Under this analysis, all claims may relate to the validity of H.B. No. 117 but the operative facts are quite different.
Without deciding whether this Court has the power to entertain Icahn's state constitutional claims, but assuming that it does, *1414 the exercise of pendant jurisdiction under the circumstances of this case is not appropriate.
It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims.... Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties by procuring for them a sure-footed reading of applicable law....
Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139 [emphasis added] [footnotes omitted].
Here, a decision on plaintiff's state constitutional claims is needless. The relief requested by plaintiff is granted under federal constitutional challenges to H.B. No. 117. Furthermore, the need to decide this case promptly militates against deciding the state law issues.
COMMERCE CLAUSE
The Commerce Clause of the United States Constitution, art. I, § 8, cl. 3, provides that "Congress shall have Power ... [t]o regulate Commerce ... among the several States." The Commerce Clause is a limitation on the power of the states. Great Atlantic & Pacific Tea Co., Inc. v. Cottrell, 424 U.S. 366, 370-71, 96 S. Ct. 923, 927, 47 L. Ed. 2d 55 (1976).
Section 351.575 (H.B. No. 117) Violates the Commerce Clause Because It Directly Burdens Interstate Commerce
Not every exercise of state power with some impact on interstate commerce is invalid. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 847, 25 L. Ed. 2d 174 (1970). Although the Commerce Clause permits incidental regulation of interstate commerce by states, direct regulation of interstate commerce is prohibited. Edgar v. MITE Corp., 457 U.S. 624, 640-43, 102 S. Ct. 2629, 2639-41, 73 L. Ed. 2d 269 (1982) (plurality opinion); Southern Pacific Co. v. State of Arizona, 325 U.S. 761, 775, 65 S. Ct. 1515, 1523, 89 L. Ed. 1915 (1945); Shafer v. Farmers' Grain Co. of Embden, 268 U.S. 189, 199, 45 S. Ct. 481, 485, 69 L. Ed. 909 (1925) "[A] state statute which by its necessary operation directly interferes with or burdens [interstate] commerce is a prohibited regulation and invalid, regardless of the purpose with which it was enacted." Shafer, 268 U.S. at 199, 45 S.Ct. at 485.
In MITE, 457 U.S. at 642-43, 102 S.Ct. at 2641, four justices agreed that:
The Commerce Clause also precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State. In Southern Pacific Co. v. Arizona, 325 U.S. 761, 775, 65 S. Ct. 1515, 1523, 89 L. Ed. 1915 (1945), the Court struck down on Commerce Clause grounds a state law where the "practical effect of such regulation is to control [conduct] beyond the boundaries of the state...." The limits on a State's power to enact substantive legislation are similar to the limits on the jurisdiction of state courts. In either case, "any attempt `directly' to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State's power." Shaffer v. Heitner, 433 U.S. 186, 197, 97 S. Ct. 2569, 2576, 53 L. Ed. 2d 683 (1977).
Applying these principles to the Illinois Business Take-Over Act, a plurality of the Supreme Court concluded that the act was an unconstitutional attempt to regulate interstate commerce directly.
Indeed, the Illinois law on its face would apply even if not a single one of Chicago Rivet's shareholders were a resident of Illinois, since the Act applies to every tender offer for a corporation meeting two of the following conditions: the corporation has its principal executive office in Illinois, is organized under Illinois laws, or has at least 10% of its stated capital and paid-in surplus represented in Illinois. Ill.Rev.Stat., ch. 121½, ¶ 137.52-10(2) *1415 (1979). Thus the Act could be applied to regulate a tender offer which would not affect a single Illinois shareholder.
It is therefore apparent that the Illinois statute is a direct restraint on interstate commerce and that it has a sweeping extraterritorial effect. Furthermore, if Illinois may impose such regulations, so may other States; and interstate commerce in securities transactions generated by tender offers would be thoroughly stifled....
Because the Illinois Act purports to regulate directly and to interdict interstate commerce, including commerce wholly outside the State, it must be held invalid as were the laws at issue in Shaffer [sic] v. Farmers Grain Co. and Southern Pacific.
Id. at 642-43, 102 S.Ct. at 2640-41 (plurality opinion).
The regulatory scheme in Missouri's Control Share Acquisition Statute made applicable to foreign corporations by H.B. No. 117 directly burdens interstate commerce and attempts to control conduct beyond the borders of Missouri. Transactions between a non-Missouri purchaser and a non-Missouri seller of the shares of a non-Missouri corporation are directly regulated. As applied to foreign corporations, Missouri's Control Share Acquisition Statute would apply to every control share acquisition whether by open market purchase or tender offer. All purchases by a person proposing to make a control share acquisition would be halted until a super-majority of the shareholders approved Similarly, all shareholders would be prevented from selling their shares to the person proposing to make a control share acquisition until the super-majority approved (if it ever did).
Missouri's attempt to assert extraterritorial jurisdiction over nonresident persons and property is well illustrated by the facts of this case. Icahn, a resident of New York, seeks to gain control of TWA, which is incorporated in Delaware, by means of purchasing the common stock of TWA on the New York Stock Exchange. Under the provisions of H.B. No. 117, Icahn would be prohibited from purchasing shares from non-Missouri sellers until a super-majority of all shareholders approve. Similarly, all TWA shareholders regardless of where they live would be prevented from selling their shares to Icahn. If Missouri can so directly affect securities trading between non-residents on national exchanges, so too may other states. The interstate sale of securities on national and regional securities exchanges would be at the mercy of any state's parochial interests. Therefore, regardless of the local purposes prompting its enactment § 351.575 (H.B. No. 117) is an unconstitutional attempt to assert directly extraterritorial jurisdiction over persons and property.
TWA argues that § 28(a) of the Securities Exchange Act, 15 U.S.C. § 78bb(a), specifically authorizes state regulations similar to H.B. No. 117. Section 28(a) was designed to save state blue-sky laws from preemption. Leroy v. Great Western United Corp., 443 U.S. 173, 182 n. 13, 99 S. Ct. 2710, 61 L. Ed. 2d 464 (1979). States have traditionally regulated intrastate securities transactions. Blue-sky laws have withstood Commerce Clause challenges because they regulate only those transactions occurring within a state.
The provisions of the law ... apply to dispositions of securities within the state and while information of those issued in other states and foreign countries is required to be filed ..., they are only affected by the requirement of a license of one who deals with them within the State.... Such regulations affect interstate commerce in [securities] only incidentally.
Hall v. Geiger-Jones Co., 242 U.S. 539, 557-58, 37 S. Ct. 217, 223, 61 L. Ed. 480 (1917).
Missouri's control share acquisition procedures differ substantially from state blue-sky laws in that they directly burden transactions taking place wholly outside the State of Missouri. See MITE, 457 U.S. at 641, 102 S.Ct. at 2640 (plurality opinion).
*1416 Defendants argue that Cardiff Acquisitions, Inc. v. Hatch, 751 F.2d 906 (8th Cir.1984) supports their contention that H.B. No. 117 does not violate the Commerce Clause. In Cardiff, the Court concluded that the Minnesota Take-Over Act burdened interstate commerce only indirectly. The Minnesota Act was a disclosure statute designed to protect Minnesota shareholders. The act was triggered only when the target company had a substantial number of Minnesota shareholders. Most importantly, any suspension in a take-over bid applied only to Minnesota shareholders. Therefore, the burden on interstate commerce was tailored narrowly to protect Minnesota investors. The Minnesota Act imposed none of the direct burdens on interstate transactions between non-residents that are inherent in the Missouri regulatory scheme.
Mo.Rev.Stat. § 351.575 H.B. No. 117 Violates the Commerce Clause Because It Burdens Interstate Commerce and the Burden On Interstate Commerce Outweighs the Local Interests It Serves
Even if the Bruce Church balancing test is applied, § 351.575 (H.B. No. 117) is unconstitutional because the burden imposed on interstate commerce is excessive in relation to the local interests served by the statute. Pike v. Bruce Church, Inc., 397 U.S. at 142, 90 S.Ct. at 847.[10]
1. Burden imposed on interstate commerce.
The most obvious burden § 351.575 (H.B. No. 117) imposes on interstate commerce arises from the regulatory scheme's nationwide reach in delaying and maybe prohibiting purchases of the stock of a foreign corporation. The effects of allowing Missouri to halt purchases and sales by nonresidents of Missouri of a foreign corporation's stock on a national securities exchange are substantial.
Shareholders are deprived of the opportunity to sell their shares at a premium. The reallocation of economic resources to their highest valued use, a process which can improve efficiency and competition, is hindered. The incentive the tender offer mechanism provides incumbent management to perform well so that stock prices remain high is reduced. See Easterbrook & Fischel, The Proper Role of a Target's Management in Responding to a Tender Offer, 94 Harv.L.Rev. 1161, 1173-74 (1981); Fischel, Efficient Capital Market Theory, the Market for Corporate Control, and the Regulation of Cash Tender Offers, 57 Tex. L. Rev. 1, 5, 27-28, 45 (1978); H.R.Rep. No. 94-1373, p. 12 (1976).
MITE, 457 U.S. at 644, 102 S.Ct. at 2641.
Although these comments were made with reference to a tender offer, the benefits to the economy, the target corporation and its shareholders from an acquisition are substantial whether by tender offer or open market purchase.
The available evidence however, is that mergers and acquisitions increase national wealth. They improve efficiency, transfer scarce resources to higher valued uses, and stimulate effective corporate management. They also help recapitalize firms so that their financial structures are more in line with prevailing market conditions. In addition, there is no evidence that mergers and acquisitions have, on any systematic basis, caused anticompetitive price increases.
. . . . .
To the extent that government regulations impose costs on bidders, or reduce a bidder's chances for success, fewer takeover attempts will be made. This tends to insulate corporate managements from the competitive pressures of the external market for corporate control. Stockholders, as a group, will also suffer as a result of excessive regulation because it *1417 reduces the chance to earn takeover premiums.
"The Market for Corporate Control," February, 1985, Economic Report of the President together with the annual report of the Council of Economic Advisers, at 196 and 191.
2. The asserted state interests.
The state interests that the defendants suggest H.B. No. 117 was intended to further are 1) the economic well-being of the State of Missouri; 2) air transportation for Missourians; and 3) the solvency of Missouri political subdivisions. Additionally, the state argues that H.B. No. 117 is intended to protect Missouri shareholders.
Protecting Missouri shareholders certainly is a legitimate state objective. However, H.B. No. 117 does not limit its impact to Missouri shareholders. There is no requirement in H.B. No. 117 that the issuing corporation have a single shareholder who is a Missouri resident. Missouri has no legitimate interest in protecting nonresident shareholders. MITE, 457 U.S. at 644, 102 S.Ct. at 2641. Therefore, "there is nothing to be weighed in the balance to sustain the law." Id.
If protection of Missouri economic interests had been the legislative purpose, the legislative scheme should protect those interests. On its face, H.B. No. 117 does nothing to protect the economic interests asserted by defendants. There is no mechanism in H.B. No. 117 to assure that a foreign corporation such as TWA will continue to maintain any level of Missouri employment or for that matter any presence in Missouri. Furthermore, management approved control share acquisitions are exempted from regulation without regard to the effect that the acquisiton would have on Missouri's economic interests.
Defendants argue that Missouri sought to protect its economic interests by favoring incumbent management. According to defendants, the legislature assumed that current management was committed to Missouri. Therefore, the general assembly sought to protect this assumed "symbiotic" relationship by imposing hurdles in the path of a non-management approved purchaser.
It is difficult to discern the rational basis for concluding that incumbent management will protect the economic interests of Missouri if there is a conflict with management's interests,[11] or with the economic interests of the corporation. TWA concedes that management can change its plans about the level of commitment to Missouri as the result of a change in its assessment of the economics of the air transportation business. In fact, TWA already has demonstrated that it will abandon Missouri if believed advisable because it moved its headquarters from Kansas City to New York. Furthermore, TWA recently has reduced the number of departures from Kansas City at the same time it was increasing departures from St. Louis. In the future, Missouri might not be the beneficiary of TWA's decisions. On the other hand, TWA witnesses testified that they are cognizant of an obligation to the State of Missouri and particularly to the political subdivisions that have helped finance airport and other facilities for TWA's use.
Furthermore, in weighing the state's interest against the burden on interstate commerce, the weight accorded the state's interest must be reduced because the Missouri legislature attempted to protect its economic interest by favoring incumbent management. Seeking to further economic interests in that way conflicts with the Williams Act's policy of neutrality between offerors and management. MITE, 457 U.S. at 633, 102 S.Ct. at 2636. Therefore, Missouri's attempt to regulate control share acquisitions of foreign corporations is invalid under the Commerce Clause because it furthers the purpose of protecting Missouri's *1418 economic interests so marginally and interferes so substantially with interstate commerce.
SUPREMACY CLAUSE
Article VI, cl. 2, of the United States Constitution provides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land ..., any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
The Supremacy Clause invalidates state laws that "interfere with, or are contrary to" federal law. Gibbons v. Ogden, 9 Wheat. 1, 211, 6 L. Ed. 23 (1824). Federal law may supersede state law in several ways: (1) when Congress constitutionally can and does do so in express terms; (2) when Congress' intent to preempt state law may be inferred from a comprehensive scheme of federal regulation; and (3) when state law conflicts with federal law.
Such a conflict arises when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 [83 S. Ct. 1210, 1217, 10 L. Ed. 2d 248] (1963), or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, supra [312 U.S. 52], at 67 [61 S. Ct. 399, 404, 85 L. Ed. 581]. See generally Capital Cities Cable, Inc. v. Crisp, 467 U.S. [___, ___, 104 S. Ct. 2694, 2700, 81 L. Ed. 2d 580] (1984).
Hillsborough County v. Automated Medical Laboratories, Inc., ___ U.S. ___, ___, 105 S. Ct. 2371, 2375, 85 L. Ed. 2d 714 (1985).
1. Federal Statutory Scheme
In 1968 Congress passed the Williams Act which amended the Securities Exchange Act of 1934. Section 13 of the Securities Exchange Act of 1934, as amended by the Williams Act, requires that certain disclosures be made by a purchaser of more than five percent of a security registered under § 13 of the Securities Exchange Act. 15 U.S.C. § 78m(d)(1). The purchaser must disclose:
1) information about the purchaser;
2) the sources and amounts of the consideration used in the purchases;
3) if the purpose is to acquire control, the purchaser must disclose information about plans to liquidate, sell assets, merge, or make other changes in the corporate structure;
4) the number of shares that the purchaser beneficially owns and has a right to acquire; and
5) the existence of any contracts relating to securities of the target corporation.
The Williams Act provides no further regulation of open market purchases.
In the Williams Act amendments to § 14 pertaining to tender offers, Congress required additional disclosures to the Securities Exchange Commission, the target company and its shareholders, established a timetable for the tender offer and provided mandatory terms for the tender offer, e.g., all shares tendered must be purchased for the same price.
2. Federal Policy
The Williams Act "was the congressional response to the increased use of cash tender offers in corporate acquisitions, a device that had `removed a substantial number of corporate control contests from the reach of existing disclosure requirements of the federal securities laws.' Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 22 [97 S. Ct. 926, 939, 51 L. Ed. 2d 124 (1977)." Mite, 457 U.S. at 632, 102 S.Ct. at 2635. Congress intended to protect shareholders by requiring the disclosure of pertinent information when persons attempted to obtain control of a corporation by cash tender offer or by open market purchases of securities. Piper, 430 U.S. at 26-35, 97 S.Ct. at 941-46. "The function of federal regulation is to get information to the investor by allowing both the offeror and the incumbent managers of a target company to present fully their arguments and then *1419 to let the investor decide for himself." Great Western United Corp. v. Kidwell, 577 F.2d 1256, 1276 (5th Cir.1978), rev'd on venue grounds sub nom. Leroy v. Great Western United Corp., 443 U.S. 173, 99 S. Ct. 2710, 61 L. Ed. 2d 464 (1979).
Neutrality in contests for control was an important characteristic of the legislative approach adopted in the Williams Act. Congress intended to withhold from management or the purchaser any undue advantage that could frustrate the investor's exercise of an informed choice.
But it is also crystal clear that a major aspect of the effort to protect the investor was to avoid favoring either management or the takeover bidder. As we noted in Piper, the disclosure provisions originally embodied in S. 2731 "were avowedly pro-management in the target company's efforts to defeat takeover bids." 430 U.S., at 30, 97 S.Ct., at 943. But Congress became convinced "that takeover bids should not be discouraged because they serve a useful purpose in providing a check on entrenched but inefficient management." Senate Report, at 3. It also became apparent that entrenched management was often successful in defeating takeover attempts. As the legislation evolved, therefore, Congress disclaimed any "intention to provide a weapon for management to discourage takeover bids," Rondeau v. Mosinee Paper Corp., supra, 422 U.S. [49] at 58, 95 S.Ct. [2069] at 2075 [45 L. Ed. 2d 12 (1975) ], and expressly embraced a policy of neutrality. As Senator Williams explained: "We have taken extreme care to avoid tipping the scales either in favor of management or in favor of the person making the takeover bids." 113 Cong. Rec. 24664 (1967). This policy of "evenhandedness," Piper v. Chris-Craft Industries, Inc., supra, 430 U.S., at 31, 97 S.Ct., at 944, represented a conviction that neither side in the contest should be extended additional advantages vis-a-vis the investor, who if furnished with adequate information would be in a position to make his own informed choice.
MITE, 456 U.S. at 633, 102 S.Ct. at 2636 [footnote omitted]; see also Piper, 430 U.S. at 29-30, 97 S.Ct. at 943-44.
Nothing in the Williams Act expressly or impliedly bars States from regulating tender offers or open market stock transactions. National City Lines, 687 F.2d at 1129. Furthermore, Missouri's regulation of control share acquisitions does not directly conflict with the disclosure provisions of § 13 relating to open market transactions. However, Missouri's control share acquisition regulations do conflict directly with the disclosure and timetable requirements for a tender offer in § 14 of the Williams Act. A person seeking a control share acquisition by means of a tender offer must first announce his offer and submit it to the target company. Mo.Rev. Stat. § 351.407.2. The offeror can commence an offer directly to the shareholders only after receiving the approval of a super-majority of the shareholders. Mo.Rev. Stat. § 351.407.3. It is unlikely that such a vote could be completed within the five days allowed by the Williams Act to commence a tender offer after it has been announced. 17 C.F.R. § 240.14d-2. Furthermore, the tender offeror would be prevented from commencing to purchase shares on either the sixteenth or twenty-first business day after the commencement of the offer because the shareholder vote required by the Missouri law would not have taken place. 17 C.F.R. §§ 240.14d-7, 240.14d-8, 240.14e-1(a). Finally, the tender offeror would be prohibited from purchasing shares within the deadlines set by the Williams Act if he could not obtain shareholder approval. State timetables for and obstacles to tender offers that conflict with the Williams Act have been declared invalid. National City Lines, 687 F.2d 1122; Empire, Inc., 524 F. Supp. 898.
In its attempted regulation of control share acquisition by means of open market purchases, the Missouri regulatory scheme stands as an obstacle to the accomplishment of Congress' objectives in adopting the Williams Act. Under § 13 of the Williams Act, as implemented by Securities *1420 Exchange Commission regulation (17 C.F.R. § 240), a person who has purchased five percent of a registered security, must file a Schedule 13D making the required disclosures. However, the purchaser may continue to purchase shares on the open market both before and after filing the Schedule 13D. Section 13 of the Williams Act and the implementing regulations do not limit the number of shares that can be acquired by means of open market purchases or establish any timetable for acquiring shares. Furthermore, a shareholder in the target company was to be left free to make an informed choice whether to sell and obtain the benefit, if any, of the demand for the shares created by the purchaser.
Missouri's control share acquisition procedures interfere directly with the § 13 approach by preventing a person seeking a control share acquisition from buying shares on the open market until shareholder approval has been obtained. Also, whether a shareholder would ever be able to sell into a market influenced by the presence of the purchaser would not depend on the investor's informed decision, but on the decision of a super-majority of all shareholders of the target company. Thus, deciding whether to buy or to sell would be taken out of the hands of the shareholder and the purchaser and placed in the hands of management and other shareholders.
In addition, the Missouri regulatory scheme upsets Congress' efforts to protect the investor without favoring either the purchaser or incumbent management. Missouri's legislative approach is to favor incumbent management. For instance, (1) Missouri's Control Share Acquisition Statute does not apply to a qualifying foreign corporation if the control share acquisition is approved by a majority (not a super-majority) of the directors (not the shareholders) of the corporation in office before the first control share acquisition is made (apparently thereby excluding from the vote any directors whose election might be the result of the purchaser's votes) (Mo.Rev. Stat. § 351.575.5 (H.B. No. 117)); (2) incumbent management sets the date for the shareholder vote within a statutorily established range up to fifty days after the purchaser requests the vote (Mo.Rev.Stat. § 351.407.3); (3) notice to shareholders of the meeting to vote on the proposed purchase shall be accompanied by a statement by management (Mo.Rev.Stat. § 351.407.5); and (4) the proposed control share acquisition cannot be made unless it is approved by two-thirds of the outstanding shares AND two-thirds of the outstanding shares interested shares. (Mo.Rev.Stat. § 351.407.5.) By requiring two-thirds approval of all outstanding shares, all votes not cast operate as votes against the purchaser. Id.
For the reasons stated above, Missouri's attempt to make its control share acquisition regulations applicable to foreign corporations is invalid under the Supremacy Clause because it stands as an obstacle to the accomplishment of the full purposes of Congress in adopting the Williams Act.[12]
RELIEF
Plaintiff has requested both injunctive and declaratory relief against Missouri's control share acquisition procedures. Relying on plaintiff's Amendment No. 8 to his Schedule 13D, defendants argue that no injunctive relief should be granted because plaintiff is no longer seeking to acquire more TWA shares. Furthermore, defendants assert that any declaratory relief should not reach any effect the Missouri procedures might have on tender offers because plaintiff has never made a tender offer to TWA's shareholders.
As was stated in the discussion about mootness, Missouri's attempt to regulate control share acquisitions of qualifying foreign *1421 corporations is a continuing and brooding presence casting its shadow over plaintiff. On May 23, 1985, plaintiff told the Securities Exchange Commission that he intended to acquire additional TWA shares in the open market or through a tender offer. On June 17, 1985, plaintiff again stated that he intended to explore making further open market purchases or making a counter-bid to the Texas Air proposal. Plaintiff should not have to weigh the threat presented by Missouri's control share acquisition procedure in deciding what action is necessary to protect the value of his substantial investment in TWA.
For the reasons stated above, it is hereby ORDERED that pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201 (1984):
1) the challenges to Senate Committee Substitute for H.B. No. 117 based on violations of the Missouri Constitution are dismissed without prejudice because the Court declines to exercise pendant jurisdiction over them;
2) Sections 351.575.1 through 351.575.5 of Senate Committee Substitute for H.B. No. 117 violate the Supremacy Clause of the United States Constitution, article VI, clause 2, because they stand as an obstacle to the accomplishment of the full purposes of Congress in adopting the Williams Act;
3) Sections 351.575.1 through 351.575.5 of Senate Committee Substitute for H.B. No. 117 violate the Commerce Clause of the United States Constitution, article I, section 8, clause 3, because they directly burden interstate commerce and because the burden on interstate commerce outweighs the state regulatory concern;
4) defendants Roy Blunt, the Missouri Secretary of State, The State of Missouri, and Trans World Airlines, Inc., their officers, agents, servants, successors in office, employees, directors, attorneys, and all persons in active concert or participation with any defendant, who receive actual notice of this Order by personal service or otherwise are permanently restrained, prohibited and enjoined from enforcing or attempting to enforce Mo.Rev.Stat. § 351.575.1 through 351.575.5 (Senate Committee Substitute for H.B. No. 117), Mo.Rev.Stat. § 351.407 or Mo.Rev.Stat., Chapter 409, against any person proposing to make a control share acquisition, as that term is defined in Mo.Rev. Stat. § 351.015(6), in a corporation not incorporated under the laws of Missouri.
5) if plaintiff desires to pursue his request for an award of attorney's fees under 42 U.S.C. § 1988, he shall file an appropriate motion within ten days from the date of this Order; and
6) the costs of this action are assessed against defendants.
NOTES
[1] Original H.B. No. 117 was titled "An act Relating to the eligibility of certain contractors to bid on certain contracts" and provided in its entirety: "Section 1. No contractor domiciled outside the state of Missouri may submit a bid on any state contract or project until he has complied with all requirements of sections 351.570 to 351.650, RSMo, applicable to foreign corporations."
House Bill No. 117 had a new title: "An Act to repeal section 351.575, RSMo 1978, and Section 351.447, RSMo Supp. 1984, relating to certain corporations, and to enact in lieu thereof four new sections relating to the same subject, with an emergency clause for a certain section." The language of original H.B. No. 117 appears at the end of H.B. No. 117 in Section 2.
[2] Counsel for defendants conceded at oral argument that TWA is the only corporation known to meet the requirements of § 351.575.2 (H.B. No. 117).
[3] In National City Lines v. LLC Corp., 687 F.2d 1122 (8th Cir.1982), and in Empire, Inc. v. Ashcroft, 524 F. Supp. 898, 906 (W.D.Mo.1981), Missouri Takeover Bid Disclosure Act, contained in Mo.Rev.Stat. ch. 409, was declared invalid under the Supremacy Clause of the United States Constitution, art. VI, cl. 2 and the Commerce Clause of the United States Constitution, art. I, § 8, cl. 3.
[4] Mo.Rev.Stat. § 351.575.5 (H.B. No. 117) provides in its entirety:
Notwithstanding any other provision of this section, section 351.407 shall not apply to any foreign corporation if the control share acquisition has been approved, at a duly convened meeting by a majority of the directors of the issuing public corporation in office immediately prior to the first control share acquisition made or proposed to be made by the person engaging in such control share acquisition.
[5] The emergency clause reads:
Because immediate action is necessary to protect jobs, public investments and certain property, section 351.575 of this act is deemed necessary for the immediate preservation of the public health, welfare, peace and safety and section 351.575 of this act is hereby declared to be an emergency act within the meaning of the constitution and section 351.575 of this act shall be in full force and effect upon its passage and approval.
[6] Mo.Rev.Stat. § 351.015(6) provides in part:
"Control share acquisition" means the acquisition, directly or indirectly, by any person of a share or shares of an issuing public corporation that, when added to all other shares of the issuing public corporation in respect of which such person may exercise or direct the exercise of voting power, would entitle such person, immediately after such acquisition, directly or indirectly, alone or with others, to, for the first time, exercise or direct the exercise of the voting power of the issuing public corporation in the election of directors within any of the following ranges of such voting power: one-fifth or more but less than onethird of such voting power, one-third or more but less than a majority of such voting power, or a majority or more of such voting power....
[7] Mo.Rev.Stat. § 351.407.3 provides:
Within ten days after receipt of an acquiring person statement that complies with subsection 2 of this section, the board of directors of the issuing public corporation shall call a special meeting of shareholders of the issuing public corporation for the purpose of voting on the proposed control share acquisition. Unless the acquiring person agrees in writing to another date, such special meeting of shareholders shall be held within fifty days after receipt by the issuing public corporation of the acquiring person statement. If the acquiring person so requests in writing at the time of delivery of the acquiring person statement, such special meeting shall be held not sooner than thirty days after receipt by the issuing public corporation of the acquiring person statement. No proxies as respects the special meeting may be solicited by any person prior to thirty days before the date of the special meeting without the written agreement to the contrary of both the acquiring person and issuing public corporation. Such special meeting of shareholders shall not be held later than any other special meeting of shareholders that is called, after receipt by the issuing public corporation of the acquiring person statement, in compliance with this chapter.
[8] Mo.Rev.Stat. § 351.407.5 provides in part:
The acquiring person may make the proposed control share acquisition only if all of the following occur:
(1) The proposed control share acquisition is approved, at the special shareholders meeting held for that purpose, by the affirmative vote of at least two-thirds of the outstanding shares entitled to vote at such meeting under the provisions of the articles of incorporation of the issuing public corporation and also by the affirmative vote of at least two-thirds of all outstanding shares entitled to vote at such meeting after excluding interested shares....
[9] The instant case is clearly dissimilar from City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) and O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974) which are relied on by TWA. Here, one does not have to make multiple levels of speculation to conclude that a real and immediate threat to plaintiff exists from a fixed and definite state policy.
Also, Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 104 S. Ct. 373, 78 L. Ed. 2d 58 (1983) presents a vastly different situation. In Iron Arrow, the Court found that the university's unequivocal decision to ban Iron Arrow from the campus was the reason Iron Arrow was excluded, not the challenged action of the Secretary of Health and Human Services. Therefore, the dispute about the Secretary's regulations was moot. No such unequivocal intervening has occurred here.
[10] In applying the Bruce Church test, this Court should consider "the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce." Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 441, 98 S. Ct. 787, 794, 54 L. Ed. 2d 664 (1978).
[11] The Vice-President of Scheduling and Pricing for TWA testified that there was a substantial severance plan for upper level management which would become effective when 1) a certain percentage of TWA shares was acquired; and 2) the Board of Directors determined that an unfriendly acquisition of TWA was imminent. The first requirement had been satisfied.
[12] Because of the expedited processing of this case (approximately three weeks elapsed from the filing of plaintiff's complaint to the issuance of this Order), the parties have concentrated their efforts on the jurisdiction, abstention, Commerce Clause and Supremacy Clause issues. Because of the need for a prompt ruling on the merits and because of the decision reached, the Court will not delay issuance of this Order to rule the remaining federal issues. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454978/ | 480 S.W.2d 781 (1972)
COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, Appellant,
v.
Vassie B. LANE, Appellee.
No. 17823.
Court of Civil Appeals of Texas, Dallas.
April 27, 1972.
Rehearing Denied May 25, 1972.
*782 David R. Noteware, M. Lawrence Hicks, Jr., Thompson, Knight, Simmons & Bullion, Dallas, for appellant.
Thomas A. Blakeley, Jr., Grady, Johnson, Smith & Blakeley, Dallas, for appellee.
BATEMAN, Justice.
The jury in this workmen's compensation case found appellee was partially disabled for two years.
By its first two points of error appellant challenges the correctness of the judgment in the absence of any proof or jury finding of the applicable wage rate. Appellee had pled her pre-injury wage rate and appellant filed only a general denial. The amendment of Section (n) of Rule 93, Vernon's Texas Rules of Civil Procedure, adding subsection (8) to provide that wage rate, if pleaded, shall be presumed to be true as pleaded unless denied by verified pleadings became effective January 1, 1971, after all pleadings of both parties had been on file several months but more than four months before the trial began. The trial court, applying the new rule, found the wage rate as alleged without requiring proof thereof.
Appellant argues that this was wrong because it denies a compensation insurance carrier equal protection and due process under the law by compelling it to deny under oath a fact of which it could have no first-hand knowledge and thus imposes upon it an insurmountable burden in violation of Article 1, Sections 3 and 19 of the Texas Constitution, Vernon's Ann.St.
We overrule this contention. In our opinion the rule is not unconstitutional on its face and would be unconstitutional only to the extent that its application in a particular case would deny due process to an insurance company by requiring it to file a sworn denial of facts it could know only from hearsay.
Appellant is in no position here to attack the validity of the rule on this ground because *783 it has not shown that it must rely upon hearsay to make such a verified denial. We do not accept appellant's statement that the rule compels it to deny under oath a fact of which it could not have first-hand or personal knowledge. We must assume that appellant had the same access to the employer's wage records as the insured employer. Insofar as information was available from the employer's records, it is our holding that a representative of appellant company would have or could easily acquire sufficient personal knowledge to make an affidavit in unequivocal terms. Thus, if such records should disclose either that appellee worked for at least 210 days[*] during the preceding year and that her average weekly wage was as alleged, or that another employee of the same class worked at least 210 days at the average weekly wage alleged, then appellant would be bound to accept the allegation as correct. On the other hand, if appellant determined from such records that appellee or another employee of the same class worked for at least 210 days at a lower rate than alleged by appellee, then appellant would be in a position to file an unequivocal denial. If such record should show that neither appellee nor any employee of the same class worked as much as 210 days for the same employer at the wage rate alleged, then appellant would have to make some other investigation. If as a result of such investigation it could verify a denial of wage rate on information and belief only, and filed a verified denial in that form, then we would have the question as to whether appellant was denied its rights under the Constitution by a holding that such verification was insufficient. However, in this case appellant filed no verified denial at all, nor did it make any showing that it could not determine the truth of the allegations of wage rate from records or other reliable information available to it. Consequently, appellant is in no position to assert that its constitutional rights have been denied.
Appellant complains, under its second point, of the retroactive application of a law designed to function prospectively, in violation of Article 1, Section 16, of the Texas Constitution. We see no merit in this argument. Rule 814, T.R.C.P., provides inter alia that the rules of civil procedure shall govern all further proceedings in actions pending on the effective date of the rules, except to the extent that in the opinion of the court such application "would not be feasible or would work injustice." This places the matter in the sound discretion of the court, and in the absence of an abuse of that discretion its application of the rule will not be disturbed. The trial court specifically found in the judgment that "application of said rule is feasible and just in this case." We see no abuse of discretion here. Heid Bros., Inc. v. Smiley, 166 S.W.2d 181 (Tex.Civ.App., Texarkana 1942, writ ref'd w. o. m.); Jaques v. Simms, 171 S.W.2d 924 (Tex.Civ.App., Austin 1943, writ dism'd); Arana v. Gallegos, 279 S.W.2d 491 (Tex.Civ.App., San Antonio 1955, no writ).
Moreover, the constitutional inhibition against the making of retroactive laws is not ordinarily extended to a procedural or remedial statute or rule unless it destroys or impairs vested rights, or takes away a litigant's remedy or right of action, or of defense, or so unreasonably incumbers or limits it as to render its useless or impracticable. 53 Tex.Jur.2d, Statutes, § 29, p. 54 et seq.; Bristow v. Nesbitt, 280 S.W.2d 957, 959 (Tex.Civ.App., Eastland 1955, no writ); Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905, 907 (1924).
We overrule Points of Error Nos. 1 and 2.
By its third point of error appellant complains of an order in limine forbidding it to introduce evidence that appellee was receiving $254 per month as welfare aid *784 for her nine dependent children. The order sustaining the motion instructed appellant not to introduce evidence or make mention of receipt by appellee of Aid for Dependent Children "in the presence and hearing of the jury without first approaching the bench outside the hearing of the jury and obtaining permission of the Court." The record fails to show that such permission was requested. Therefore, the alleged error was not preserved for review and no reversible error is shown. City of Corpus Christi v. Nemec, 404 S.W.2d 834, 836 (Tex.Civ.App., Corpus Christi 1966, no writ). We do not reach the question of admissibility of such evidence. Point of Error No. 3 is overruled.
By its fourth and fifth points of error appellant says (4) there was no competent evidence to support the jury finding that $45 per week was appellee's wage earning capacity during her period of partial incapacity, and (5) that such finding was against the great weight and preponderance of the evidence.
Appellee, 27 years old, was employed by Texas Instruments, Inc. as a trainee in assembling mechanical parts so small the work was done under a microscope. She worked in a sitting position. She testified that she was injured when it became necessary for her to bend down and look in the back of the machine she was working with, resulting in what felt like a "crick" in her neck. Although this caused pain, by taking several "pain pills" she was able to continue working for the remainder of the shift and also worked the full shift next day. She testified that the pain in her neck, right arm and hand and numbness in the arm and hand have continued unabated except for the temporary relief she received from the "pain pills"; that she has tried to work but cannot because of the pain in her neck; that she cannot do housework such as mopping, sweeping, moving furniture, washing "and things like that," but can dust the furniture; that her condition is not improving but is "staying the same," making it impossible for her to wash cars, or be a waitress, or go back to working with a microscope at Texas Instruments.
Her sister testified that appellee "dusts and combs the kids' hair, and making up the bed. Most of the things she doesn't do, mop and sweep and cook."
She was examined and treated by a Dr. Berry at Parkland Hospital and also by a Dr. Biltz, of Corsicana, where she resided. She said, "I think he give me x-rays," but she did not go back. She also consulted a Dr. Thompson who used a machine on her neck and gave her medicine for pain. She did not call any of those doctors as witnesses.
Dr. Marvin P. Knight examined her on April 1, 1970 at appellant's request and testified that he took x-ray pictures of her neck but could find no evidence of injury to the cervical spine; that he found her range of motion normal. He found no muscle spasm, no swelling, and no reflex changes; she had full range of motion; he could not find any basis from the clinical examination for her complaints; he found no need for physical therapy, diathermy, traction, or any other treatment. He made approximately the same examination of her again on February 3, 1971 and still could not find any abnormality or evidence of injury.
Appellee claimed an injury that totally and permanently incapacitated her, and all of her evidence was to that effect. Appellant has persistently contended that she suffered no incapacitating injury at all, and all of its evidence is to that effect. The jury rejected her claim of total, permanent, but found partial, temporary incapacity.
In passing upon Point of Error No. 4, which is a "no evidence" point, we may consider only the evidence, if any, which, viewed in its most favorable light, supports the verdict, disregarding all evidence which would lead to a contrary result. Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 363 (1957). While the *785 evidence is far from strong, under these rules we cannot say there is no evidence to support the finding in question.
There was evidence that she suffered reduction in earning capacity and the failure of the jury to find from a preponderance of the evidence that her injury produced total incapacity establishes that she has had some wage-earning capacity after the injury. Insurance Company of North America v. Brown, 394 S.W.2d 787, 789 (Tex.Sup.1965). Appellee was not required to adduce positive and affirmative evidence of her future ability to earn wages in a specific amount. As said in Fidelity & Casualty Co. of New York v. Read, 433 S.W.2d 797, 798 (Tex.Civ.App., Waco 1968, writ ref'd n. r. e.):
"The very nature of the inquiry makes it obvious it is not susceptible of exactitude. At best the uncertain answer must be the result of deduction from circumstances leading to a reasonable estimate."
The courts have made similar holdings in innumerable common-law damage suits; e. g., McElroy v. Luster, 254 S.W.2d 893, 898 (Tex.Civ.App., Fort Worth 1953, writ ref'd); International & G. N. R. Co. v. Cruseturner, 44 Tex. Civ. App. 181, 98 S.W. 423, 425 (Austin 1906, writ ref'd); Texarkana & Ft. S. Ry. Co. v. Toliver, 37 Tex. Civ.App. 437, 84 S.W. 375, 377 (Galveston 1904, writ ref'd); and in Traders & Gen. Ins. Co. v. Snow, 114 S.W.2d 682, 689 (Tex.Civ.App., El Paso 1938, writ dism'd), a workmen's compensation case, it was said:
"In arriving at the compensation to be awarded great latitude is allowed. Lumbermen's Reciprocal Ass'n v. Warner, Tex.Com.App., 245 S.W. 664."
There was no direct evidence of a wage earning capacity of $45 per week, but the jury had the testimony of Dr. Knight indicating no incapacity, and the testimony of appellee and her sister indicating total incapacity. The jury had the right to believe all, or part, or none of this testimony. There was also the testimony of appellee that her last employment prior to going to work for Texas Instruments, Inc. was as a cook, from which she made about $40 or $45 per week. Appraising all of this evidence in the light of the appearance and behavior of the witnesses while testifying, as well as the common knowledge, experience and sense of justice with which jurors may be credited, the jury made findings as to appellee's incapacity which we hold are supported by competent evidence and are not against the weight and preponderance of the evidence. We therefore overrule Points of Error Nos. 4 and 5.
By its sixth point of error appellant complains of the overruling of its motion for mistrial based upon appellee's testimony in response to a question as to why, after going to Parkland Hospital for the first two or three months after her injury, she stopped going there. The court warned her not to testify to what someone else told her, and she then said:
"I was advised that the doctor wouldn't see me any more, * * *."
We overrule this point of error for two reasons: (1) appellee had already testified to the same effect without objection in the course of her cross-examination by appellant's counsel; and (2) the matter was not of such importance as to warrant the granting of a mistrial. The error was harmless. Superior Insurance Co. v. Sanchez, 428 S.W.2d 718 (Tex.Civ.App., Waco 1968, writ ref'd n. r. e.); Rule 434, T.R.C. P.
Affirmed.
NOTES
[*] See Vernon's Tex.Rev.Civ.Stat.Ann. Art. 8309, § 1 (1967). | 01-03-2023 | 10-30-2013 |
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