url stringlengths 55 59 | text stringlengths 0 818k | downloaded_timestamp stringclasses 1 value | created_timestamp stringlengths 10 10 |
|---|---|---|---|
https://www.courtlistener.com/api/rest/v3/opinions/4515704/ | Filed 3/12/20
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076494
Petitioner,
v. (Super. Ct. No. MH109364)
THE SUPERIOR COURT OF SAN DIEGO
COUNTY, ORDER MODIFYING OPINION
AND DENYING REHEARING
Respondent;
NO CHANGE IN THE JUDGMENT
ALVIN QUARLES,
Real Party in Interest.
THE COURT:
The petition for rehearing is denied. However, in light of some of the issues raised
in the petition, we shall modify the subject opinion. It is ordered that the opinion filed on
February 24, 2020, be modified as follows:
1. On page 3, second paragraph, last sentence, the words "to life" are omitted.
It should read as follows:
"The court sentenced him to prison for 50 years."
2. On page 19, at the end of the first sentence, add the following footnote,
which will require renumbering of all subsequent footnotes:
In Collins, supra, 110 Cal. App. 4th 340, we summarized the SVPA
as it existed at that time. The quoted language was from section 6608,
subdivision (d). After subsequent amendments to the SVPA, the quoted
language currently can be found in subdivision (g) of section 6608. The
change in the labeling of the subdivision does not impact our analysis here.
3. On page 26, a new paragraph is added before Part II of the opinion and
footnote 8 is moved to the end of the new paragraph. It should read as follows:
In response to the original opinion we issued, Quarles filed a petition
for rehearing. In it, he argued, among other things, that we are creating a
new, unconstitutional standard by which an SVP must prove he is "no
danger" to the public if released. Further, Quarles claims that we
inappropriately rely on Karsai, supra, 213 Cal. App. 4th 774 to create this
standard. Not so. We are not creating a new standard of proof for SVP's.
Rather, our approach here is much more modest. We simply conclude that
the superior court applied the incorrect standard to Quarles's petition for
conditional release by focusing too much on the least restrictive setting in
which to place Quarles. We are concerned that the superior court, in taking
that approach, did not appropriately focus on: (1) Quarles's diagnosed
mental disorder, (2) whether he was likely to reoffend, and (3) if the public
would be adequately protected upon Quarles's conditional release. Our
analysis and conclusion here does not modify whatsoever the criteria to be
reviewed under the SVPA.
HUFFMAN, Acting P. J.
Copies to: All parties
2
Filed 2/24/20
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076494
Petitioner,
v. (Super. Ct. No. MH109364)
THE SUPERIOR COURT OF SAN DIEGO
COUNTY,
Respondent;
ALVIN QUARLES,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate challenging an order of the Superior
Court of San Diego County, David M. Gill, Judge. Relief granted in part.
Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, and Samantha
Begovich, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part II.
Angela Bartosik, Chief Deputy Primary Public Defender, Euketa Oliver, Deputy
Public Defender, for Real Party in Interest.
The Sexually Violent Predator Act (SVPA; Welf. & Inst. Code, § 6600 et seq.)1
provides that, under certain circumstances, a person who has been civilly committed as a
sexually violent predator (SVP) can be conditionally released into the community under a
program of outpatient supervision and treatment. (See §§ 6608–6609.3.) In June 2018,
the superior court determined that Alvin Quarles, who had been committed as an SVP
since 2014, should be conditionally released. The People unsuccessfully brought a
motion for reconsideration of that order.
In this mandamus proceeding, the People seek a writ of mandate to prohibit
Quarles's conditional release. To this end, they contend: (1) the superior court
misinterpreted the law and thus erred in ordering Quarles's conditional release;
(2) substantial evidence supports Quarles's continued confinement because he remains
dangerous and is likely to reoffend; (3) exclusion of certain polygraph evidence was
error; and (4) all proceedings relating to Quarles's petition to be conditionally released
should have been open to the public.
On the record before us, we are concerned whether the superior court applied the
correct legal standard in granting Quarles's petition to be conditionally released. Because
of the significance of conditionally releasing an SVP back into the community (especially
1 Statutory references are to the Welfare and Institutions Code unless otherwise
specified.
2
one with a criminal history like Quarles's), we grant some of the requested relief and
order the superior court to hold a new trial to determine whether Quarles should be
conditionally released under the correct legal standard. We determine the other issues the
People raise in their petition are without merit and deny the requested relief as to those
issues accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
The media dubbed Quarles the "Bolder than Most" rapist based on his string of
violent rapes during the 1980's. Quarles was arrested and taken into custody on February
22, 1988. Pursuant to a plea agreement entered on February 6, 1989, Quarles ultimately
pled guilty to four counts of rape while armed with a knife, six counts of residential
burglary, and two counts of robbery. The court sentenced him to prison for 50 years to
life.
Quarles's crimes were odious and shocking. Below is a summary of some his
offenses.
June 9, 1985, and April 25, 1986: On June 9, 1985, the victim, Diane, awoke to
find Quarles standing in her bedroom holding a knife. He told her to be quiet and
undress. He digitally penetrated her vagina, orally copulated her, and forced her to
orally copulate him twice. Apparently unsatisfied, he told her, "This isn't gonna work. I
want to fuck you." After suggesting they engage in anal sex, she told him she had herpes
and showed him a yeast medication, after which he left. For this crime, he was convicted
of burglary as part of his plea agreement.
3
On April 25, 1986, Quarles returned to Diane's residence, where she awoke to find
him in her bedroom holding a knife. He told her he returned because he was angry that
she called the police after the previous assault. He ordered her outside and instructed her
to climb a fence into an alley, which she was unable to do even with his help. He then
led her back into her house and stole $180 from her wallet. As part of his plea
agreement, Quarles was convicted of burglary for these actions.
June 3, 1986: Quarles approached Michelle, who was a stranger sitting in a truck
outside a bar. Quarles held a sledgehammer near her face. He asked her for her money
and then offered to pay her for sex. She declined. After pulling her out of the truck and
threatening to kill her, he entered the truck and ordered her to drive to a remote area.
Once there, he ordered Michelle to remove her clothes, began masturbating, and ordered
her to masturbate as well. After orally copulating her, he vaginally raped Michelle. He
then attempted to apologize, gave her $80 and crystal methamphetamine, and asked if he
could call her. Quarles was charged with kidnapping, rape by force, oral copulation, and
assault. He pled guilty to battery and was sentenced to two years' probation and 58 days
in jail.
December 5, 1986: Jean awoke to find Quarles standing over her, putting a knife
against her chest. He covered her face and said, "I can't meet people or communicate
very easily. This is the only way I can get sex. This is the first time I've done this. Just
be nice and I won't hurt you." When Jean attempted to prevent Quarles from tying a
pillowcase around her head, she was cut by Quarles's knife. The cut required 15 stitches.
Quarles told her he had been "watching [her] for a long time." He ordered her to take her
4
clothes off, and upon realizing she was bleeding profusely, attempted to wash her off and
bandage her wound. They then sat on the bed and talked. She claimed to have recently
had surgery such that a rape could paralyze her. Quarles responded, "If I can't have sex
with you, why don't you wiggle my dick on you, and then you can suck me." Jean said
no. He then asked, "Do you think you could really make love to me and enjoy it?" She
responded in the negative to which Quarles replied, "I can't get out of this with nothing,
so can I have your knives?" He left the residence with her knives and a door alarm.
Upon leaving , he warned Jean, "Better watch yourself." For these actions, Quarles pled
guilty to burglary under his plea agreement.
February 23, 1987: Sandra and Danny were a couple, who were spending the
night in a motel. They had begun to have sex when Quarles emerged from within their
motel room holding a large knife. He ordered Danny into the bathroom and instructed
him to lock the door, stating, "I just want to fuck her." Danny complied. Quarles ordered
Sandra to get down "on all fours" with her buttocks facing him. In response to her
pleading, he allowed her to "sit on the edge of the bed and suck it." After forcing her to
orally copulate him, he pushed her face down on the bed and ran the knife down the side
of her leg. He again made her get on her hands and knees and vaginally raped her. After,
he forced her to get on top of him and engage in vaginal sex on the bed. He suddenly
became nervous and fled. Danny later told authorities that Quarles attempted to "get a hit
man after us." Pursuant to his plea agreement, Quarles was convicted of burglary for
these acts.
5
March 18, 1987: Kathleen and her husband were staying at the same motel as
Quarles's prior victims, Sandra and Danny. Quarles entered the room while they slept,
lifted the covers on the bed, and stared at Kathleen's body while indicating with a knife
that she should be quiet. He asked for money, but she had none. He then fondled
Kathleen's breasts, stomach, leg, and vagina. When Kathleen's husband awoke, Quarles
instructed him to cover his face with a pillow and go into the bathroom. He then stole
$350 from the husband's wallet and covered Kathleen's face with her sweatshirt. Quarles
pushed his penis into her mouth and forced her to orally copulate him for about five
minutes. He then vaginally raped her for five minutes. After, Quarles instructed
Kathleen's husband to come out of the bathroom and have sex with Kathleen. After
watching television for a while, Quarles told Kathleen to orally copulate her husband,
which she did. He then ordered the couple to "make love" but the husband could not get
aroused. Quarles commanded the husband to return to the bathroom and forced Kathleen
to orally copulate him. He subsequently vaginally raped her at knifepoint before
masturbating and leaving. For these actions, Quarles pled guilty to forcible rape with a
knife as part of his plea agreement. This was his first SVP qualifying offense.
September 12, 1987: Cynthia and Kevin awoke in their bed to find Quarles
standing in their bedroom yielding a large knife. After informing them he was a
"lunatic," he instructed Cynthia to make Kevin hard. After Quarles threatened to cut
Kevin, Cynthia complied and orally copulated Kevin for 45 minutes to an hour. As
Kevin was too afraid to get an erection, Quarles ordered the couple to "make out" for 15
minutes, and then Kevin orally copulated Cynthia while Quarles digitally penetrated her
6
vagina. Quarles then vaginally raped Cynthia twice. At some point during the ordeal,
Quarles threw a $100 bill on the bed and told them, "This is for the show." Cynthia
threw the money back at him, to which he replied, "I'm not afraid to hurt you. I'm
mentally ill. I've done this before." The incident ended when Quarles threatened the
victims with a two-inch revolver ("Don't yell or move and remember this") and left. It
was noted that he wore gloves during the incident and was concerned about fingerprints
and physical evidence. As part of his plea deal, Quarles was convicted of forcible rape
with a knife for these actions. This was his second SVP qualifying offense.
October 11, 1987: Laurie returned to her home to find Quarles standing in her
living room holding a large knife. She approached him, grabbed the knife and said,
"What the hell are you doing in my house?" He broke free and fled out the front door.
For this event, he was convicted of burglary as part his plea agreement.
November 21, 1987: As Ericka and Robert were having sex in their motel room,
they looked up and saw Quarles in their room staring at them. Holding a large knife in
his hand, Quarles instructed them to "Keep on fucking because I want to [masturbate and]
watch." He commented that if they had been reading the newspapers they should have
heard about him, and he would not hesitate to kill them. Quarles informed them that if
Robert did not have sex with Ericka then he would do it. Robert told Quarles that he
would kill Quarles if Quarles touched Ericka. After taking their money and wiping
doorknobs clean, Quarles left. As part of his plea bargain, Quarles was convicted of
robbery for this offense.
7
December 13, 1987: Quarles entered Christina's motel room under the guise that
he was a motel employee and needed to fix clogged pipes. He later approached
Christina, who was sitting in bed, with a knife and began to remove her clothes. He then
forced her to orally copulate him. He then orally copulated her and asked her if she liked
it before he vaginally raped her. He requested she make noises, which she did, and he
ejaculated. Before leaving, he ascertained that she did not have "nothin' of value" and
wiped down areas in the room that he had touched. This offense was also adjudicated
with the plea bargain, and Quarles was convicted of the SVP qualifying offense of armed
forcible rape.
January 4, 1988: Michelle, who was taking a shower, was surprised by a knife
yielding Quarles standing outside the shower. He threatened, "Don't scream or I'll kill
you." He asked for money. She offered him a bracelet to which he replied, "I don't want
that. You know what I want." He forced her to remove her towel and sit on her bed.
When her roommate Mary returned, he requested her money, which she gave him. He
told Mary to undress, sit next to Michelle, and asked if they were lesbians. They
informed him, "We're Catholics," and pointed out "all the crosses around here." When
Michelle resisted his attempts to force her legs apart he threatened, "Do as I say or I'll kill
you." Upon Michelle's further resistance, he moved onto Mary and fondled her vagina
and rubbed his penis on her legs. All the while Mary, later joined by Michelle, repeated
prayers out loud over and over. He suddenly told Michelle that "You should be more like
[Mary]. She saved you," and left. As part of his plea deal, Quarles was convicted of
burglary for these offenses perpetrated against Michelle and Mary.
8
January 23, 1988: Anna and her husband, D., had been sleeping in their motel
room. Anna awoke to find Quarles lying on the floor near their bed. She woke up D.,
who yelled at Quarles to leave. Quarles brandished a knife and threatened to kill him if
he moved. After demanding and taking their money, Quarles instructed the couple to
"make love" and threatened that if the husband could not do it, he would. He also
ordered them to engage in a specific sex act but they were too afraid. Quarles then made
D. watch as he vaginally raped Anna while holding a knife to her throat. As part of his
plea deal, Quarles was convicted of forcible armed rape for these actions. This was his
fourth SVP qualifying offense.
February 8, 1988: Janice and John were engaged in sexual activity in their motel
room when they realized Quarles was kneeling over them with a large knife. Quarles
instructed them to keep quiet and continue performing. As the sun began to shine into
the room, Quarles told Janice to shut the window or close the drapes. When she got up to
do so, she escaped from the room and, while naked, flagged down a motorist who drove
her to the California Highway Patrol station. Pursuant to his plea agreement, Quarles was
convicted of burglary for these actions.
Before Quarles was to be released from prison, in 2014, the People filed a petition
to have him civilly committed as an SVP within the meaning of the SVPA. In response
to the People's petition, Quarles stipulated that he was an SVP. The superior court
ultimately committed Quarles to the California Department of State Hospitals to undergo
sex offender treatment for an indeterminate term of commitment. He then was sent to
Coalinga State Hospital (CSH).
9
In September 2016, under section 6608, Quarles petitioned the superior court for
his release through the Conditional Release Program (CONREP) for sex offenders, which
is administered by Liberty Healthcare Corporation (Liberty).2 The People opposed his
release. The matter proceeded to trial in June 2018.
At trial, Quarles argued that he should be conditionally released because of his
improvement while in prison and subsequently at CSH. Specifically, Quarles became a
devout Muslim, focused on overcoming his substance abuse problems, participated in
hours of voluntary programs, and obtained certificates in a variety of different areas so he
would have a means to earn a living once he was released from prison. While at CSH,
Quarles was a "model patient" who did not miss any treatment.
In support of his petition, Quarles testified on his behalf and took responsibility for
his actions and stated that he would not sexually assault anyone if conditionally released.
He also testified that he understood why he committed his crimes as a young man in his
20's.
Dr. Frederick Winsmann, a clinical and forensic psychologist licensed in
Massachusetts and New York, testified on behalf of Quarles. Winsmann opined that, if
conditionally released, Quarles was not likely to reoffend.
2 Throughout the record, the parties and the court referred to the possibility of
Quarles being conditionally released to CONREP or Liberty CONREP. At times, the
parties and the court used the terms CONREP and Liberty CONREP interchangeably.
From the context of the discussions in the record, it appears they were referring to
CONREP as administered by Liberty.
10
Quarles also called as witnesses several individuals who treated him at CSH. For
example, Miguel Arellano, a behavior specialist at CSH, testified that Quarles's approach
to treatment was "rare" because "he takes on treatment." Clinical social worker Giovanna
Buitrago discussed the many classes that Quarles completed.3 Buitrago explained that
Quarles has good insight into his offending behavior.
Other witnesses testified favorably on Quarles's behalf. Behavioral specialist
Eliseo Garcia described Quarles as having a positive attitude and wanting to learn.
Charlotte Harder, a senior psychiatric technician, described Quarles as a model patient
who does not exhibit any behavior issues. Sergio Segasta, Quarles's substance abuse
counselor, testified about the commitment Quarles has made and the group work he has
participated in to show he is committed to remaining sober. Behavioral specialist
Lorraine Halonski testified regarding Quarles's commitment to treatment and completing
his work. Quarles had voluntarily participated in random drug tests, all of which were
negative.
Also supporting Quarles's argument that he should be conditionally released was a
written report by Dr. Carolyn Murphy, a psychologist. After reviewing documents
regarding Quarles's underlying offenses as well as his current treatment records,
interviewing Quarles, and considering two recent polygraph examinations of Quarles,
3 These classes included exploring self-esteem, breaking barriers, DBT skills,
interpersonal skills, building a better life, self-discovery, leading to empathy, values and
actions, self-regulation problem solving, and positive decision-making.
11
Murphy indicated that she supported Quarles's petition for conditional release under
CONREP.
In opposing Quarles's petition, the People relied on the opinion of Dr. Jeffrey
Davis. Davis is a consulting psychologist at CSH. He wrote that Quarles meets the
definition of an SVP. Specifically, Davis stated that Quarles suffers from a mental
disorder and "will engage in sexually violent criminal behavior that makes him [a] danger
to the health and safety of others such that further confinement in a secure forensic
mental hospital is required." Davis also noted that Quarles had enrolled but had not
completed the Department of State Hospitals Sex Offender Treatment Program.
In addition to relying on a written declaration by Davis, the People called
Dr. Garrett Essres as a witness. Essres is a forensic psychologist who contracts with the
Department of State Hospitals to provide annual evaluations. Essres testified that
Quarles had been found to have a section 6600 qualifying sexual offense, has a mental
disorder that predisposes him to commit criminal sexual acts, and is likely to pose a
substantial danger as well as a well-founded risk of committing a future sex offense.
Essres did not believe that Quarles could be adequately treated outside the confines of
CSH. He believed a conditional release of Quarles would not provide the public with
adequate protection from Quarles.
The People also called Dr. Cecilia Groman as a witness. Groman is the clinical
director of Liberty and oversees CONREP. She opined that Quarles was not suitable for
a conditional release. In support of her opinion, Groman noted, among other things, that
Quarles had not completed his treatment at CSH.
12
After the close of evidence and listening to closing arguments, the court stated that
Quarles had carried his burden and, thus, granted Quarles's petition for a conditional
release. The court explained:
"We are in murky waters here when we are trying to predict future
behavior, and I do agree probably the best indicator we have is the
past, but again, that may be damning faint praise, wish we had better
predictors, but the present state of the profession is I think that we
don't, though I do think the [petitioner carried] his burden of proof
by the preponderance of the evidence that there is no doubt of the
predicate offenses, there is no doubt in my mind that he suffers—
currently suffers from one or more of the diagnosed mental disorders
that the testimony has related to, and I think there is substantial well-
founded risk of reoffending, but I think that risk can be adequately
addressed in the CONREP program and honor basic core value of
protecting public safety while giving him an opportunity, I think."
The court then ordered Liberty "to initiate the efforts to find a suitable placement"
for Quarles, during which time Quarles would remain at CSH.
At a subsequent hearing, on October 12, 2018, the court considered public
comment on the conditional release and placement of Quarles. The court ordered Quarles
released to Liberty with a placement in a residence in Jacumba Hot Springs, California,
on or about November 30, 2018. However, a few days after the October 12, 2018
hearing, a representative from Liberty informed counsel that placement was no longer
available at the Jacumba Hot Springs residence. A new status conference was set for
October 26, 2018.
Before the status conference, the People filed a motion to reconsider Quarles's
conditional release and placement. At the October 26 status conference, off the record,
the People informed the court that Quarles had failed two sexual history polygraph
13
examinations.4 The People stated that they learned this information from talking with
Dr. Tricia Busby, chief of forensics at CSH. The court then ordered an updated
evaluation of Quarles, which was to be filed under seal.
An updated evaluation was provided by O'Sullivan in December 2018. O'Sullivan
conducted an extensive review of Quarles's records and an in-person interview of
Quarles. She concluded that Quarles could not be "safely released on a conditional basis
at this time." In support of her conclusion, O'Sullivan explained: (1) Quarles possesses
"a well above average risk of sexual recidivism"; (2) Quarles needs additional treatment
at CSH, including completing module III; (3) the failed polygraph examinations indicate
that Quarles had not been completely honest during his treatment and, as such, he did not
receive adequate treatment to address his issues; (4) Quarles "has yet to fully understand
and accept the extent and etiology of his sexual deviancy"; and (5) Quarles lacks
sufficient insight into his mental disorders.
Although the record before us leaves much to be desired, it seems that the court
held multiple evidentiary hearings regarding the People's motion for reconsideration.5
For example, there is a transcript for a hearing on July 25, 2019, in which the court heard
4 After the court granted Quarles's petition to be conditionally released, Quarles
returned to CSH to await placement. At that time, he took two polygraph examinations
and was found to have been " 'Not Truthful' " in responding to certain questions.
5 The People have not cited to their motion to reconsider in the record. We were not
able to locate the motion during our independent review of the record. However, we
noted that Quarles's opposition to the motion to reconsider does appear to be in the
record. Based on the opposition, the court held a hearing on the People's motion on
March 8, 2019. However, there is no transcript of that hearing in the record.
14
testimony of two witnesses relating to Quarles's treatment at CSH. The People, however,
do not explain the significance of these witnesses, if any, or otherwise explain why they
included this transcript in the record but omitted transcripts of other hearing dates (the
July 25 transcript clearly indicates that a witness testified on a previous date or time and
additional testimony will be heard the following day).
On July 29, 2019, the court denied the People's motion to reconsider.
On September 18, 2019, the People filed a writ of mandate, asking this court to
stay the superior court's order to release Quarles and issue orders to (1) keep Quarles in
CSH; (2) release subpoenaed records related to Quarles's polygraph examinations; and
(3) direct the superior court to keep all hearings in this matter open to the public. We
requested an informal response to the petition from Quarles and stayed the superior
court's order granting Quarles a conditional release.
On September 30, 2019, Quarles filed an informal response, urging this court to
deny the People's petition. We subsequently issued an order to show cause and
maintained the stay on the superior court's order. On November 1, 2019, Quarles filed a
return, and on December 9, 2019, the People filed a reply.
15
DISCUSSION
I
THE SUPERIOR COURT'S GRANTING OF QUARLES'S PETITION FOR
CONDITIONAL RELEASE
A. The People's Contentions
The People contend the superior court applied the wrong standard in granting
Quarles's petition to be conditionally released under section 6608 of the SVPA.
Specifically, they emphasize the court's multiple references to finding the "least
restrictive setting" for Quarles and argue that the "least restrictive setting" should not
have been part of the court's analysis below.
B. SVPA Proceedings for Conditional Release
We previously summarized proceedings for conditional release under section 6608
of the SVPA in People v. Collins (2003) 110 Cal. App. 4th 340 (Collins).
"Because the SVPA is designed to ensure a committed person does not remain
confined any longer than he or she qualifies as a sexually violent predator, it provides
means for that individual to obtain review of his or her mental condition to determine if
civil confinement is still necessary. [Citation.] One of two ways such review may be had
is by petition for conditional release before expiration of the committed person's two-year
term of commitment under section 6608. [Citations.]" (Collins, supra, 110 Cal.App.4th
at p. 346, fn. omitted.)
"Conditional release proceedings can be initiated by the DMH [California
Department of Mental Health] if it 'determines that the person's diagnosed mental
16
disorder has so changed that the person is not likely to commit acts of predatory sexual
violence while under supervision and treatment in the community.' (§ 6607, subd. (a).)
But absent the DMH's recommendation, the committed person can petition the court for
conditional release any time after one year of commitment. (§ 6608, subd. (c).) Section
6608 subdivision (a) provides: 'Nothing in this article shall prohibit the person who has
been committed as a sexually violent predator from petitioning the court for conditional
release and subsequent unconditional discharge without the recommendation or
concurrence of the Director of Mental Health. If a person has previously filed a petition
for conditional release without the concurrence of the director and the court determined,
either upon review of the petition or following a hearing, that the petition was frivolous
or that the committed person's condition had not so changed that he or she would not be a
danger to others in that it is not likely that he or she will engage in sexually violent
criminal behavior if placed under supervision and treatment in the community, then the
court shall deny the subsequent petition unless it contains facts upon which a court could
find that the condition of the committed person had so changed that a hearing was
warranted. Upon receipt of a first or subsequent petition from a committed person
without the concurrence of the director, the court shall endeavor whenever possible to
review the petition and determine if it is based upon frivolous grounds and, if so, shall
deny the petition without a hearing. The person petitioning for conditional release and
unconditional discharge under this subdivision shall be entitled to assistance of counsel.' "
(Collins, supra, 110 Cal.App.4th at pp. 346-347.)
17
"Before acting on a petition for conditional release under section 6608,
subdivision (a), the superior court must first obtain the written recommendation of the
director of the treatment facility to which the person is committed. (Id., subd. (j).) The
court reviews the petition in order to 'determine if it is based upon frivolous grounds,' and
if it so finds, it 'shall deny the petition without a hearing.' (Id., subd. (a).) Section 6608,
subdivision (b) provides: 'The court shall give notice of the hearing date to the attorney
designated in subdivision (i) of Section 6601, the retained or appointed attorney for the
committed person, and the Director of Mental Health at least 15 court days before the
hearing date.' " (Collins, supra, 110 Cal.App.4th at p. 347.)
"Section 6608, subdivision (d) provides in part: 'The court shall hold a hearing to
determine whether the person committed would be a danger to the health and safety of
others in that it is likely that he or she will engage in sexually violent criminal behavior
due to his or her diagnosed mental disorder if under supervision and treatment in the
community. If the court . . . determines that the committed person would not be a danger
to others due to his or her diagnosed mental disorder while under supervision and
treatment in the community, the court shall order the committed person placed with an
appropriate forensic conditional release program operated by the state for one year.'
(Italics added.) 'At the end of one year, the court shall hold a hearing to determine if the
person should be unconditionally released from commitment on the basis that, by reason
of a diagnosed mental disorder, he or she is not a danger to the health and safety of others
in that it is not likely that he or she will engage in sexually violent criminal behavior.
The court shall not make this determination until the person has completed at least one
18
year in the state-operated forensic conditional release program.' (Ibid.)" (Collins, supra,
110 Cal.App.4th at p. 347.)
C. Analysis
Here, the Director of State Hospitals did not recommend that Quarles be
conditionally released. Thus, Quarles had the burden of proof to show that he would not
be a danger to others due to his diagnosed mental disorder while under supervision and
treatment in the community. (See § 6608, subds. (a), (g).) During the trial on Quarles's
petition, a dispute arose regarding the type of finding required before Quarles could be
conditionally released. Quarles's attorney argued, "[T]he thing is . . . that the law says
that somebody should be released when there is a least restrictive alternative available,
not when somebody completes a program in its entirety." The court appeared to agree,
noting, "I think the key line is least restrictive."
Later during the hearing, Quarles's attorney reiterated the importance of the court
finding the least restrictive setting: "And so if there is a leas[t] restrictive alternative, the
Court has to place him there if they believe by a preponderance of the evidence that he
has proven his suitability."
The court subsequently asked the People to address the least restrictive language:
"What do you make of counsel's language, she quoted that the Court has to decide
whether the hospital is the least restrictive setting in which to . . . . Aren't I bound to
decide what's the least restrictive confinement or setting to guarantee the protection or
provide some acceptable measure of protection of the public?" The People responded
that "the hospital is the least restrictive way to keep the community safe." The People
19
further explained the danger of conditionally releasing Quarles before he was able to
complete module three of his treatment at CSH: "Well, once he gets out into the
community, we are going to see how he does, but until we give him module three, which
gives him the type of practical applications of applying the type of thing that he learned
in module two, we are not putting him in the best position."
The court responded to the People's statement, emphasizing the importance of
finding the least restrictive setting for Quarles. The court stated:
"CONREP can't provide that [module three training]? I mean, they'd
rather not, I do understand, but that's not the design of CONREP and
they—rather they very strongly prefer that he finish phase three, but
I'm not sure that under the law, again, the notion of least restrictive
setting, I'm not sure that—how I should take that into account. I
mean, I understand it's not ideal, but CONREP constantly deals with
situations that are not ideal, I think, and they are prepared to do so, I
think, particularly in this case.
"I mean, he knows he is going into not a welcoming certainly out in
the community, probably assuming he did at the hands with his
fellow inmates in prison, so he's not—going into a very
unwelcoming atmosphere in the community at large, but also
CONREP understands that he didn't complete what they wish he had
completed, and so it's going to fall on them to hopefully be able to
provide the same safeguards that—complete in phase two, and I
think—I mean, at the very least, if he doesn't complete two, then if
that's called to the Court's attention, I certainly would take that into
account.
"But if he gets into at least kind of phase three, CONREP I think
knows that he hasn't gone as far as they would like him to have
gone, and they are going to accept the responsibility of making sure
whether he does basically complete the equivalent of phase three."
The People then reminded the court that a representative of Liberty testified that
CONREP's purpose is not to provide recovering SVP's with module three training, and
20
the court agreed: "I understand that. Like I said, this is not ideal, this is not the design of
CONREP." However, the court indicated that "the real crux here is whether the hospital
is the least restrictive—preponderance of the evidence shows that the hospital is the least
restrictive setting to provide the required public safety . . . . [¶] . . . I think the burden
is—the question is, is the hospital the least restrictive setting?"
The People later questioned the court's focus on finding the least restrictive
setting, observing the "language" "least restrictive placement doesn't appear in the
statute." After a recess, the court explained that the least restrictive setting language was
neither in the statute nor case law, but was implied in the statute and supported by case
law (although not expressly stated).6 The court therefore found that Quarles should be
conditionally released although it concluded he suffered from at least one diagnosed
mental disorder and he had a "substantial well-founded risk of reoffending."
We agree with the superior court that the instant matter was a "close call," and we
acknowledge that the court worked diligently to consider the evidence and render its
conclusion.7 We, however, are concerned that the court applied the incorrect legal
standard by looking for the least restrictive setting in which to place Quarles without due
consideration for public safety. Such a standard essentially adopted Quarles's argument
6 In contending the court must find the least restrictive placement for Quarles,
Quarles's attorney relied on People v. LeBlanc (2015) 238 Cal. App. 4th 1059. The court
noted that LeBlanc was not "binding precedent" because that case involved whether the
trial court abused its discretion in finding a petition for unconditional release was
frivolous. (See id. at p. 1062.) Nevertheless, the superior court here found the case
"include[d] some instructive language, I think."
7 The superior court took 50 pages of notes during the trial on this matter.
21
below wherein his attorney asserted Quarles should be released where there is "a least
restrictive alternative available." Here, Quarles has not provided any case law in which a
court held that it must find the least restrictive setting in which to release an SVP.
Instead, Quarles now argues the phrase "least restrictive setting" is unimportant and "a
conditional release is just" the least restrictive setting. However, such an argument is
belied by Quarles's attorney's emphasis that the court must find the least restrictive setting
below. It begs the question that if the "least restrictive setting" was merely an alternative
way to state "conditionally release" why the parties and the court engaged in substantive
discussion of the subject phrase and how it factored into the conditional release
proceeding. And, again, this argument appeared to be adopted by the superior court as it
referenced "least restrictive setting" repeatedly.
The parties have not cited to any case that requires a superior court to specifically
determine the least restrictive setting in which to place an SVP. Instead, section 6608,
subdivision (g) sets forth the appropriate considerations for the superior court: "The
court shall hold a hearing to determine whether the person committed would be a danger
to the health and safety of others in that it is likely that he or she will engage in sexually
violent criminal behavior due to his or her diagnosed mental disorder if under supervision
and treatment in the community. . . . If the court . . . determines that the committed
person would not be a danger to others due to his or her diagnosed mental disorder while
under supervision and treatment in the community, the court shall order the committed
person placed with an appropriate forensic conditional release program operated by the
state for one year. . . ." (§ 6608, subd. (g).) As another appellate court summarized:
22
"Under the provisions of the SVPA, a person committed as an SVP
can be conditionally released only upon a determination by a court of
law that the person will pose no danger to others if under outpatient
supervision and treatment in the community. That means that in
every case in which conditional release is permitted, it has been
determined that the person released into the community will not be
an SVP when provided with proper supervision and treatment."
(People v. Superior Court (Karsai) (2013) 213 Cal. App. 4th 774, 779
(Karsai).)
In the instant matter, the superior court found that Quarles suffers from one or
more diagnosed mental disorders and there exists a "substantial well-founded risk of
reoffending," but opted to conditionally release him into CONREP because the risk of
reoffense "can be adequately addressed in the CONREP program." The court also stated
that the conditional release would give Quarles an "opportunity." We note that the court
reached this opinion over the strenuous opposition of the People as well as evidence that
the director of Liberty and the consulting psychologist of CSH opined that Quarles
should not be conditionally released. In addition, there was considerable discussion at
trial that Quarles had not yet completed module three of his training at CSH and would
have to do so once released into CONREP. Although it is the purview of the superior
court to assess the evidence before it, make credibility findings, and draw appropriate
inferences from the evidence presented, we are concerned that the court evaluated the
evidence through an improper lens- one that mandated that the court find the least
restrictive setting in which Quarles could receive treatment without sufficient
consideration of public safety. Such a consideration is especially important considering
Quarles's violent past.
23
Further, the court admitted this case was a "close call." It also acknowledged "this
was a difficult decision. . . . I think [I] would not have been abusing my discretion if I
had not granted [Quarles's] conditional release." Considering the heinous and vicious
nature of Quarles's past crimes, we believe it prudent to ensure that the superior court
applied the correct standard in analyzing Quarles's petition for conditional release.
Additionally, we are disquieted by some of the court's explanation in support of its
findings, indicating that the superior court may have had doubts as well. For example,
almost immediately after stating that Quarles should be conditionally released, the court
lamented:
"I hope we are not setting him up for failure, but I guess under the
law if he satisfies the basic requirements, he has a right to set
himself up for failure, if that's the ultimate conclusion, I don't
believe he is setting himself up for failure. I don't know how
optimistic I am in that regard, but I think he has earned the right to
take the next step, and I'll say in my old experience, I am impressed
with the diligent professional manner in which CONREP will
manage him in the community, and I have no doubt that if they think
he is not honestly truly engaging and/or has directly violated any of
the conditions of his release, which are very restrictive, very
difficult, they will immediately notify the hospital, they will notify
the sheriff and notify the court."
These comments give us pause. The superior court expressed concern that
conditionally releasing Quarles might be setting him up for failure. Failure, after being
conditionally released, would be devastating not only for Quarles but, more importantly,
for the public. Quarles is a serial rapist whose crimes were shockingly brutal and
destructive. If he fails after he is conditionally released, considering his past, we shudder
to contemplate the consequences of such a failure. This is not a risk the superior court
24
should place on the public. (See Karsai, supra, 213 Cal.App.4th at p. 779 ["a person
committed as an SVP can be conditionally released only upon a determination by a court
of law that the person will pose no danger to others if under outpatient supervision and
treatment in the community"].) And although the court later indicated that it did not
believe Quarles was setting himself up for failure, the court's follow up comments make
it clear it is CONREP in which the court has placed its faith, not Quarles ("I am
impressed with the diligent professional manner in which CONREP will manage him in
the community"). However, we note that the director of Liberty told the court that she
does not believe Quarles should be conditionally released. Moreover, there is evidence in
the record that Liberty typically does not provide individuals with the type of module
three training Quarles still requires.
We appreciate the difficult task that the superior court faced in this matter. We do
not doubt the court's diligence or desire to reach the correct and fair result. However,
based on the record before us, we simply have too many concerns that the superior court
applied the incorrect legal standard. As such, the sensible course here is to grant the
requested relief, remand this matter back to the superior court with instructions to vacate
25
its order granting Quarles's petition for conditional release, and allow Quarles to file a
new petition under section 6608 if he chooses to do so.8
II
THE PEOPLE'S OTHER CONTENTIONS
The People raise three other issues in their petition and request separate relief as to
each issue. As we explain below, we determine none of these remaining issues has merit
and thus deny relief as to each of them.
A. Substantial Evidence
In their petition, the People make a substantial evidence challenge to the superior
court's order granting Quarles's conditional release. As such, they contend: "A review of
the evidence presented to the trial court shows that substantial evidence supports
continued confinement and not the trial court's release order." This is not a substantial
evidence challenge. Instead, the People simply argue that the evidence weighs more
8 In his return, Quarles argues that because the People did not assert that his petition
for conditional release was frivolous, they "in essence conceded that his treatment was
sufficient for consideration of a conditional release and that his petition for conditional
release was meritorious." However, Quarles cites no authority to support his position.
When a petitioner files a petition for conditional release without the concurrence of the
Director of State Hospitals, the court must first determine if the petition is frivolous. If
the court finds it frivolous then it shall deny the petition without a hearing. (§ 6608,
subd. (a).) Here, before the trial, the People pointed out that the court had to make a
determination whether Quarles's petition for conditional release was frivolous. The court
engaged in such analysis and found that the petition was not frivolous. The court's
finding did not prohibit the People from challenging Quarles's petition.
26
heavily in favor of their desired outcome. In other words, they ask this court to reweigh
the evidence and come to a different conclusion than the trial court. This we cannot do.
A substantial evidence standard of review does not involve an appellate court
reweighing evidence or substituting its judgment for that of the trial court. (See People v.
Clark (2000) 82 Cal. App. 4th 1072, 1082-1083.) Under the substantial evidence standard
of review, "the court 'must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the
substantial evidence test is on the whole record of evidence presented to the trier of fact,
rather than on ' "isolated bits of evidence." ' " (People v. Cuevas (1995) 12 Cal. 4th 252,
260-261, italics omitted.)
We "must presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal. 3d 294,
314.) "We must therefore view the evidence in the light most favorable to the prevailing
party, giving it the benefit of every reasonable inference and resolving all conflicts in its
favor . . . ." (Jessup Farms v. Baldwin (1983) 33 Cal. 3d 639, 660.) Further, "[a]lthough
we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is
the exclusive province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts on which that determination depends. [Citation.]
Thus, if the verdict is supported by substantial evidence, we must accord due deference to
the trier of fact and not substitute our evaluation of a witness's credibility for that of the
27
fact finder." (Jones, at p. 314.) This is true even in the context of expert witness
testimony. "The credibility of the experts and their conclusions [are] matters [to be]
resolved . . . by the jury," and "[w]e are not free to reweigh or reinterpret [that] evidence."
(People v. Mercer (1999) 70 Cal. App. 4th 463, 466-467.)
Here, the People do not lay out the evidence in a light most favorable to the
judgment and then explain why the superior court's conclusions are not supported by the
evidence. Instead, they slant the evidence to support their position. They omit portions
of the record that would be necessary to conduct a substantial evidence review. This is
improper. An appellant must provide a record that allows for meaningful review of the
challenged order. (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564 (Denham).) If
the record does not include all of the evidence and materials the trial court relied on in
making its determination, we will not find error. (Haywood v. Superior Court (2000)
77 Cal. App. 4th 949, 955.) Rather, we will infer substantial evidence supports all of the
court's findings. (Ibid.) As such, on the record before us, we must reject the People's
substantial evidence challenge.
B. Polygraph Evidence
1. Background
After the court ruled that Quarles was to be conditionally released, Quarles
returned to CSH to await Liberty finding him an appropriate placement in the
community. While awaiting his conditional release, Quarles participated in two sexual
history disclosure polygraph examinations. Before the first examination, he prepared a
sexual offender disclosure questionnaire. In that questionnaire, he indicated that he had
28
raped a total of seven female victims under threat of knife. He stated he was arrested for
and charged with three offenses; thus, his questionnaire response indicated four
previously undisclosed crimes.
During the first polygraph examination, he was asked the following questions:
(1) Since turning 18, have you had sexual contact with anyone you did not disclose; and
(2) Have you forced or threatened anyone else to have sex with you that you did not
disclose. Quarles responded " 'No' " to both questions; however, the results of the
polygraph indicated that he was " 'Not Truthful.' "
Before his second sexual history polygraph examination, Quarles revised his sex
offender disclosure questionnaire to include a total of 14 rape or attempted rape victims.
He also indicated that he " 'peeped on so many women that [he could not] give an honest
number because peeping was a common practice [he] did for many years.' " He then
participated in the second sexual history polygraph and responded " 'No' " to the
following two questions: (1) Other than what you have told me, have you used any other
weapons on someone for sexual contact; and (2) Have you forced or threatened anyone
else to have sex with you that you did not disclose. Results from the second polygraph
indicated that Quarles was " 'Not Truthful.' "
These two sexual history polygraph examinations were discussed in great detail in
an SVP progress report dated December 18, 2018, prepared by O'Sullivan on behalf of
the California Department of State Hospitals.
After the People discovered that Quarles had taken these two polygraph
examinations, they served CSH with a subpoena duces tecum "to essentially get any
29
documents that Dr. O'Sullivan had relied upon for the supplemental evaluation."9 The
People represented that they wanted the polygraph examinations as well as any notes
memorializing what Quarles had told the individual administering the polygraph
examinations.
Apparently, responsive documents were sent to the court so it could review the
requested documents in camera. The court explained during a February 14, 2019 status
conference:
"All right. We continued the matter to this date and time so the
court could review en camera certain records that were forwarded to
the court from the Coalinga State Hospital legal records unit
pursuant to a subpoena duces tecum issued by the Office of the
District Attorney, and I have done so.
"I noted with interest as you may have also noted if you had access
to that document, I'm not sure whether you did or not, but the
affidavit from the correctional case records supervisor at the
Department of State Hospitals Coalinga affirms that she is the
custodian of the records, which are the subject of the subpoena duces
tecum, but in particular, I noticed item 3—first of all, she identifies
herself as the custodian and that the copies transmitted are true and
correct copies of all the original records.
"But of most significance, I think, is item 3 of the records described
and she is referring to the description in the subpoena duces tecum.
"Of the records described, this agency does not have the following
records: sex offender disclosure questionnaire completed by Alvin
Quarles prior to the 30 July 2018 polygraph; second item sexual
offender disclosure questionnaire completed by Alvin Quarles dated
3 August 2018 for a polygraph on or about that date; and lastly, any
notes made by Dr. C. O'Sullivan in preparation of a sexually violent
predator progress report dated 18 December 2018.
9 The People have not cited to the subject subpoena duces tecum in the record.
During our review of the record, we did not find the subpoena.
30
"And it seems reasonable to imagine that those may have been the
primary items of interest that prompted the subpoena duces tecum.
"So with that preamble, I have reviewed the records, not in great
detail, but the vast majority of the records are on state hospital
department forms that have the heading—let me get it here so I
correctly state it—nursing notes, and their daily, weekly reports of
the fairly routine matters in connection with his presence there at the
hospital."
Despite the court's description of the documents as routine and not particularly
probing of the issues before it, the court did indicate that there was a report about at least
one of the polygraph examinations. The court explained that the report stated the
examiner believed Quarles was not being truthful in responding to two questions and set
forth the specific questions on the record.
Quarles's attorney argued that the polygraph results should not be released to the
People because they were privileged under the psychotherapist patient privilege (Evid.
Code, §§ 1010, 1011, 1013) and Welfare and Institutions Code section 5328. Counsel
also represented to the court that Quarles agreed to take the two polygraph examinations
when requested by Liberty only after his counsel was assured that the results of the
examination would not "be used against him in any way."
In response, the People argued that documents related to the polygraph
examinations would be important to show a changed circumstance that should persuade
the court Quarles should not be conditionally released. However, the court asked the
People to focus on the issue of whether the documents should be produced, not how they
would be used in trial. Yet, the court indicated that, to the extent O'Sullivan relied on the
31
polygraph examinations to prepare her report, the parties would be allowed to discuss
those examinations in questioning her if she testified.
The People then reiterated that they believed they had a right to the documents
relating to the two polygraph examinations:
"Well, I think that both parties should have access to these records
because the aim of the SDT was to get after what Dr. O'Sullivan had
reviewed in preparation for her evaluation, and so both sides should
have access to that information in order to conduct a full hearing
about what Dr. O'Sullivan's opinion is."
Ultimately, the court released the documents to Quarles's attorney "for her further
review" to allow her to "indicate whether she thinks the prosecution ought to have them
or not." The People do not point to anywhere in the record showing what was eventually
produced to them or whether Quarles's attorney prevented certain documents from being
produced. They do, however, represent that "the trial court denied the People access to
those subpoenaed records, thus preventing the People from admitting those subpoenaed
polygraph test results into evidence for the trial court's consideration while it determined
Quarles'[s] risk of sexually reoffending while in the community."
The People do not point to any order in the record stating that the People could not
discuss the polygraph examinations while examining any witness during the evidentiary
hearing. Quarles does not quibble with the People regarding this claim. But during the
cross-examination of Dr. Carolyn Murphy at an evidentiary hearing on July 25, 2019, the
court allowed the People to question her about a failed polygraph examination over the
objection of Quarles's counsel. When Quarles's counsel again complained that the court
32
had ruled that evidence of the polygraph examinations was to be excluded, the court and
Quarles's counsel engaged in the following exchange:
"THE COURT: Probing the basis for her opinions, and that is
proper here. Let's move on, Counsel. I never said, oh, you can't
mention polygraph at all, remove it from the courtroom. I never
made that ruling. That's one of the reasons we're out of the presence
of the public I think is because this is privileged, confidential
information.
"[QUARLES'S COUNSEL]: I maybe misunderstood, but I thought
the Court's ruling was that there was going to be no information
given and considered in relation to the results of the polygraph.
"THE COURT: No, you misunderstood then. All right. Let's move
on."
The parties then indicated their confusion regarding what could be mentioned
about the polygraph examinations during the evidentiary hearing. In response, the court
explained:
"The polygraph is not the cornerstone of my decision here. I'm
going to state on the record when I announce my decision I don't
care about the polygraph. That's not the basis for my decision. It's a
piece of the evidence here, but that's not the cornerstone or the
lynchpin of my decision."
The court later appeared to express its exasperation regarding the parties' focus on
the polygraph examinations:
"Beating this to death here. Tail wagging the dog here. I think a fair
understanding of some of the testimony in the reports is that they
would have the same opinion with or without that polygraph.
"Obviously it hasn't changed the opinion of those people who still
think he's not—that CONREP is not the least restrictive appropriate
commitment at this point. It hasn't changed their opinion. Not too
surprisingly, I suppose. It's not a plus for him, but that's not going to
be the basis of my decision. I can assure you that."
33
2. Analysis
Here, the People raise two issues regarding the polygraph evidence. First, they
argue the court erred in denying them access to the subject documents. Generally, the
standard of review for discovery orders is abuse of discretion. (People v. ConAgra
Grocery Products Co. (2017) 17 Cal.App.5th 51, 156.) However, it is unclear from the
record what they specifically subpoenaed and what was produced. It appears the People
were most interested in O'Sullivan's notes regarding what Quarles told her about the
polygraph examinations. Yet, the court indicated that there were no such documents
produced to the court for its in camera review. If these are the records that the People
were seeking, but there were no responsive documents to produce to them, there could be
no abuse of discretion because the people cannot show they were prejudiced by the
court's alleged order. (See City of Los Angeles v. Superior Court of Los Angeles County
(1961) 196 Cal. App. 2d 743, 748 [" 'Abuse of discretion' in allowing or denying discovery
is synonymous with 'resulting prejudice.' If there is no proof of resulting prejudice, abuse
of discretion is not shown."].)
Moreover, without an additional description regarding what the People
subpoenaed from CSH, what CSH produced, and what the court order produced, if
anything, we cannot evaluate whether the court abused its discretion regarding this
discovery issue. "[A]n 'order of a lower court is presumed to be correct on appeal, and all
intendments and presumptions are indulged in favor of its correctness.' [Citation.]"
(Schnabel v. Superior Court (1993) 5 Cal. 4th 704, 718, quoting In re Marriage of
Arceneaux (1990) 51 Cal. 3d 1130, 1133.) Accordingly, "[i]t is well settled . . . that a
34
party challenging a judgment has the burden of showing reversible error by an adequate
record." (Ballard v. Uribe (1986) 41 Cal. 3d 564, 574.) "Failure to provide an adequate
record on an issue requires that the issue be resolved against [the appellant]. [Citation.]"
(Hernandez v. California Hospital Medical Center (2000) 78 Cal. App. 4th 498, 502.)
Without a more complete record, we cannot possibly determine whether the superior
court abused its discretion in allegedly denying the production of documents to the
People.
The People's second contention regarding the polygraph evidence is that the court
abused its discretion in excluding that evidence during the evidentiary hearing. (See
People v. Griffin (2004) 33 Cal. 4th 536, 587 ["a trial court's ruling on the admissibility of
evidence generally is reviewed for abuse of discretion."].) Again, we are somewhat at a
loss to understand the scope of the challenged ruling. Here, the parties seem to agree that
the court made a ruling prohibiting reference to the polygraph examinations to some
extent during the evidentiary hearing concerning the People's motion for reconsideration.
Nevertheless, the parties have not cited to the specific order or the transcript of the
hearing at which the ruling was made. Nor do we have the complete transcript of the
evidentiary hearing. And, during the cross-examination of one witness, the People were
allowed to broach the topic of at least one of the polygraph examinations. Further,
O'Sullivan's report, which is in the record, discussed extensively the two subject
polygraph examinations. Also, the polygraph examinations were considered in the
Department of State Hospitals-Coalinga Annual Evaluation of Quarles dated May 17,
2019. Despite the lack of clarity in the petition on this issue as well as the somewhat
35
muddled state of the record, it is clear the court was aware of the two sexual history
polygraph examinations and the opinion that Quarles had been found not truthful in both
of them. As such, the People have utterly failed to frame, with appropriate citations to
the record, the precise order or ruling they claim the court abused its discretion in
making. Put differently, we cannot ascertain, on the record before us, the extent to which
the parties could reference the polygraph examinations during the evidentiary hearing.
Moreover, even if we were to assume the court abused its discretion in excluding
the polygraph evidence, the People's challenge would nonetheless fail. The erroneous
exclusion of evidence is reviewed for prejudice under the standard described in People v.
Watson (1956) 46 Cal. 2d 818, 836. If error is shown, the petitioner must further
demonstrate a reasonable probability that he or she would have obtained a more favorable
outcome had the error not occurred. (Ibid.; People v. Earp (1999) 20 Cal. 4th 826, 880.)
On the record before us, the People cannot satisfy this burden. The superior court, which
was the trier of fact, made abundantly clear, on the record, that the polygraph
examinations were not major factors in its final decision. Indeed, the court stated the
polygraphs would not be "the cornerstone" of its decision; it did not care about the
polygraphs; the polygraph examinations would not be "the basis for [the court's]
decision"; and the polygraphs were not the "the lynchpin of [its] decision." Against this
backdrop, the People simply cannot show any prejudice from the exclusion of the
polygraph evidence.
36
C. Whether The SVP Proceedings Should Have Been Open to the Public
The People represent in their petition that "some of Quarles'[s] victims wanted to
be present during all the proceedings to hear the evidence." (Italics added.) The People
further contend that the "trial court's sealing and closure order prevented the victims [sic]
right to access the proceedings without a rational basis and with a result violative of the
victims' rights." In support of their position, the People refer in general to exhibit M filed
in support of their petition.
Ironically, exhibit M is a reporter's transcript of an October 12, 2018 hearing,
which was open to the public. At that hearing, among other things, the court heard
members of the public comment on the proposed conditional release of Quarles. The
court also read into the record certain letters it had received from concerned members of
the public regarding Quarles's proposed conditional release. Thus, exhibit M, does
nothing to advance or support the People's position.
If the People had merely misidentified the actual exhibit or exhibits that set forth
the court's ruling excluding the public from all proceedings involving Quarles's petition
to be conditionally released, we would overlook that mistake and reach the merits. But
our review of the record does not support such an approach.
In their petition, the People refer to SVPA proceedings in general and argue that
the public should have been entitled to attend all proceedings. They do not differentiate
between the various proceedings below, which included a trial, evidentiary hearings,
motion hearings, and status conferences. They do not explain what occurred at any of the
proceedings. They do not cite to any order prohibiting the public from attending any
37
specific hearing. They do not cite to any motion or opposition filed by the parties in the
superior court regarding the closing of any hearing to the public. The People fail to
indicate whether any proceeding below was open to the public. Instead, they leave it to
this court to comb through the record to ascertain what occurred and whether there was
error. This is not our role. (See Dills v. Redwoods Associates, Ltd. (1994) 28
Cal. App. 4th 888, 890, fn. 1.)
Based upon our review of the record, it appears there were several proceedings in
the superior court relating to Quarles's petition for conditional release. Some were open
to the public; others were not. For example, the trial on Quarles's petition occurred in
May and June 2018. There is no order in the record excluding the public from the trial.
To the contrary, in a filing with the superior court, the People represent that "[t]he entire
trial . . . was open to the public." Therefore, it appears the court did not prohibit the
public from attending the trial on Quarles's petition for conditional release.
Although not cited by the People, Quarles moved to close a March 8, 2019 hearing
to the public and the media and filed another motion to exclude media television
coverage of the same hearing. The People opposed those motions. There does not
appear to be any order in the record granting Quarles's motions as to a March 8, 2019
hearing. Also, there does not appear to be a transcript of a March 8, 2019 hearing in the
record.
Yet, it seems from an order dated August 1, 2019, the court determined that
several proceedings would be closed to the public. In the August 1 order, the court
allowed the parties to have access to certain sealed transcripts for purposes of "seeking
38
review in a higher court." In that order, the court stated it "previously made findings that
the proceedings conducted on February 14, 2019, March 8, 2019, March 20, 2019, May
10, 2019, May 31, 2019, June 21, 2019, and July 23-29, 2019 be closed to the public."
Thus, it appears the superior court ruled that the public could not attend several
proceedings relating to Quarles's petition for conditional release.
The record also contains a transcript of a hearing that occurred on May 31, 2019.
Although there was some confusion among the parties and the court regarding what
issues were to be decided then, ultimately the court addressed whether the public would
be excluded from an evidentiary hearing involving the People's motion for
reconsideration. In addressing that issue, the court stated that it would not make any
"blanket exclusion" of the public, but remained concerned that "the evidentiary hearing
[was] for the most part going to deal with evidence that I don't think the public has the
right to. It violates [Quarles's] privacy interests and to some extent it may involve
information that is within . . . [section] 5328, which is pretty broad."
After entertaining argument from the parties, the court reiterated that the public
would not necessarily be excluded from all hearings going forward:
"It's only if we are going to be discussing what I think is privileged
information. They are welcome to be here when I announce—that I
have reconsidered it, we have had extensive hearings, and here is the
result and my reconsideration. I'm not going to exclude them from
that. All we are doing today is continuing—making my evidentiary
ruling and then setting the case for future hearing. I just don't think
the public's right to be here is severely damaged by not having them
here at the moment."
39
In summary, it appears the court allowed the public to attend the trial on Quarles's
petition for conditional release. Further, the public was permitted to address the court
regarding the court's original decision to conditionally release Quarles. However, the
court found that the public should not attend hearings that occurred on February 14, 2019,
March 8, 2019, March 20, 2019, May 10, 2019, May 31, 2019, June 21, 2019, and July
23-29, 2019. We know from our independent review of the record that on May 31, 2019,
the court and the parties addressed evidentiary issues as well as whether the public would
be excluded from future hearings. That said, the People have not explained what
occurred at any of the other closed hearings and why as to those specific hearing dates the
public should have been permitted to attend.
As best we can glean from their arguments in the petition here coupled with their
limited citation to the record in support of their position, the People contend that once an
individual seeks a conditional release under section 6608, he or she loses any privacy
rights regarding his or her medical records. Alternatively stated, the public has an
absolute right to attend all proceedings brought under section 6608. However, the People
do not cite any authority to support their desired rule.
As noted by the People, the only California case that addressed public access to an
SVPA hearing is People v. Dixon (2007) 148 Cal. App. 4th 414 (Dixon). In that case, the
court observed there was no statute addressing public access to proceedings under the
SVPA. (Dixon, at p. 427.) And, although the court reasoned that the Legislature was
"better equipped" to "formulate a rule concerning public access in SVPA proceedings,"
(id. at p. 430), it noted "a compelling basis for arguing that involuntary civil commitment
40
proceedings under the SVPA are not ordinary civil proceedings that must be open to the
public[]" (id. at p. 429). Thus, absent a statute by the Legislature specifically addressing
whether the public has the right to attend all SVPA proceedings, the court in Dixon
implies it would be within a court's discretion to exclude the public from certain SVPA
proceedings. The People offer no contrary legal authority, and for the reasons discussed
in Dixon, we agree that a case-by-case approach is best at this time. (See Dixon, at
pp. 424-430.)
Moreover, we do not believe this is the optimum case to address this novel issue.
We presume that a judgment or order of the trial court is correct. (Denham, supra, 2
Cal.3d at p. 564; In re Marriage of Falcone & Fyke (2008) 164 Cal. App. 4th 814, 822.)
Demonstration of error alone, however, is insufficient to warrant reversal. An appellant
must also demonstrate prejudice, in the form of a miscarriage of justice, based on an
examination of the entire record. (In re Marriage of Falcone & Fyke, at pp. 822-823.)
"A necessary corollary to this rule would seem to be that a record is inadequate, and
appellant defaults, if the appellant predicates error only on the part of the record he
provides the trial court, but ignores or does not present to the appellate court portions of
the proceedings below which may provide grounds upon which the decision of the trial
court could be affirmed." (Uniroyal Chemical Co. v. American Vanguard Corp. (1988)
203 Cal. App. 3d 285, 302.)
A party appealing an adverse judgment has the burden of providing an adequate
record in order to show error and prejudice. (Foust v. San Jose Construction Co., Inc.
(2011) 198 Cal. App. 4th 181, 186-187; Hernandez v. California Hospital Medical Center,
41
supra, 78 Cal.App.4th at p. 502.) "We cannot presume error from an incomplete record."
(Christie v. Kimball (2012) 202 Cal. App. 4th 1407, 1412.) If the plaintiff fails to provide
an adequate record to support a claim, the issue must be resolved in the respondent's
favor. (See Maria P. v. Riles (1987) 43 Cal. 3d 1281, 1295-1296.)
In the instant matter, the superior court did not prohibit the public from attending
all proceedings below. Instead, it kept some proceedings open to the public and closed
others. The People do not adequately explain what occurred at the proceedings that were
closed to the public. Further, there are no citations to the record referring us to what
occurred at the closed hearings. Simply put, the People's arguments and the record
before us are inadequate to allow us to reach the merits of this issue. (See Maria P. v.
Riles, supra, 43 Cal.3d at pp. 1295-1296; In re Marriage of Falcone & Fyke, supra, 164
Cal.App.4th at pp. 822-823; Uniroyal Chemical Co. v. American Vanguard Corp., supra,
203 Cal.App.3d at p. 302.) We therefore deny the petition as to the People's claim that
the court erred in excluding the public from certain proceedings under the SVPA.
DISPOSITION
We grant some of the requested relief. The superior court is to vacate its order
granting Quarles a conditional release under section 6608 without prejudice to Quarles
filing a new petition. We deny the People's requested relief regarding: (1) their
substantial evidence challenge; (2) their claim the court erred in excluding the polygraph
evidence; and (3) their claim the court improperly prohibited the public from some of the
42
SVPA proceedings. We offer no opinion as to whether Quarles should be conditionally
released should he choose to file a new petition under section 6608.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
43 | 01-03-2023 | 03-12-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1007204/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4491
FREDRICKA STANLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-99-6)
Submitted: April 13, 2001
Decided: April 11, 2002
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Henry Morris Anderson, Jr., ANDERSON LAW FIRM, P.A., Flor-
ence, South Carolina, for Appellant. Alfred William Walker Bethea,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. STANLEY
OPINION
PER CURIAM:
Fredricka Stanley pled guilty to using and carrying a firearm in a
crime of violence, and aiding and abetting, 18 U.S.C.A. § 924(c)
(West 2000), 18 U.S.C. § 2 (1994), and was sentenced to a term of
ten years imprisonment. Stanley’s attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), raising as a potentially
meritorious issue whether the district court complied with the provi-
sions of Rule 11 of the Federal Rules of Criminal Procedure. Stanley
has filed a pro se supplemental brief asserting that her guilty plea was
not voluntary. We affirm.
We find, first, that the district court complied with the requirements
of Rule 11 except that the court incorrectly informed Stanley that she
could not receive more than a ten-year term of imprisonment. After
Stanley was sentenced, we held that the statutory maximum term for
a violation of § 924(c) is life imprisonment. United States v. Harri-
son, 272 F.3d 220, 225-26 (4th Cir. 2001).
Under Rule 11(c)(1), before accepting a guilty plea, the district
court must inform the defendant of "the maximum possible penalty
provided by law." The district court did not inform Stanley that the
statutory maximum penalty was life imprisonment, and instead
informed her that she would receive no more than ten years. There-
fore, the district court failed to comply with this requirement. Because
Stanley did not move to withdraw her guilty plea in the district court,
we employ the plain error standard of review. United States v. Marti-
nez, 277 F.3d 517, 527 (4th Cir. 2002) (holding that forfeited error in
guilty plea hearing is reviewed for plain error); see also United States
v. Olano, 507 U.S. 725, 731-32 (1993) (unpreserved error will be
noticed only if defendant shows that (1) error occurred, (2) that was
plain, (3) that affected defendant’s substantial rights, and (4) error
seriously affects fairness, integrity, or public reputation of judicial
proceedings). In this case, an error occurred, and the error is plain.
Martinez, 277 F.3d at 532 (error is plain under Olano if settled law
of Supreme Court or this circuit establishes at time of appeal that
error occurred). However, the error did not affect Stanley’s substan-
UNITED STATES v. STANLEY 3
tial rights because Stanley in fact received a sentence of ten years.*
An error that does not affect the outcome of the district court proceed-
ings does not affect the defendant’s substantial rights. Olano, 507
U.S. at 734. One of the firearms used in the robbery was a semiauto-
matic assault weapon and the district court properly imposed a ten-
year sentence under § 924(c)(1)(B)(i). Harrison, 272 F.3d at 226.
Therefore, we need not decide whether to exercise our discretion to
notice the error.
In her pro se supplemental brief, Stanley states that she did not
know a bank robbery was taking place until it was over, and that she
was "railroaded" into entering a guilty plea. Our review of the record
discloses that Stanley told the district court at the Rule 11 hearing that
she did not know on the day of the robbery that her co-defendants
were about to rob a bank. However, Stanley then admitted that she
knew a robbery had been planned, and that she took part in it know-
ingly. On this record, Stanley has not shown that her plea was invol-
untary.
Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm the conviction and
sentence. This court requires that counsel inform his client, in writing,
of her right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
*Moreover, Stanley’s plea agreement did not set out a maximum pen-
alty for her offense and did not contain any stipulations concerning the
sentence. | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918398/ | 101 B.R. 1007 (1989)
In re FOX HILL OFFICE INVESTORS, LIMITED, Debtor.
FOX HILL OFFICE INVESTORS, LIMITED, Plaintiff,
v.
MERCANTILE BANK, N.A., Defendant and Third-party Plaintiff,
v.
KROH BROTHERS DEVELOPMENT CO., Third-party Defendant.
Bankruptcy No. 87-01651-1-11, Adv. No. 87-0396-1-11.
United States Bankruptcy Court, W.D. Missouri.
June 28, 1989.
*1008 *1009 Timothy Sear and Thomas Franklin, Kansas City, Mo., for plaintiff and third-party defendant.
David Wells and Linda Carroll Goyda, St. Louis, Mo., for defendant.
MEMORANDUM OPINION, AMENDED FINDINGS OF FACT
CONCLUSIONS OF LAW, AND JUDGMENT
INTRODUCTION
KAREN M. SEE, Bankruptcy Judge.
Plaintiff Fox Hill Office Investors (FHOI), debtor in the main proceeding, filed this adversary to invalidate a note and mortgage executed by its general partner Kroh Brothers Equity Company (KBEC) in favor of defendant Mercantile Bank, N.A. (Mercantile). The mortgage created a lien on the Fox Hill Office Building owned by FHOI. The First Amended Complaint is in three counts: Count I asks the Court to adjudicate the validity, priority and extent of Mercantile's lien on the Fox Hill Office Building; Count II asks the Court to adjudicate the validity and extent of the note; and Count III seeks to avoid the recording of the mortgage. Counts I and II are premised on KBEC's lack of authority to execute the note and mortgage. Count III is brought pursuant to 11 U.S.C. § 548.
Mercantile filed a third-party complaint against Kroh Brothers Development Company *1010 (KBDC)[1] asserting theories of recovery based on subrogation, subordination by agreement, and equitable subordination.
This Court entered its original Findings of Fact, Conclusions of Law and Judgment on July 29, 1988 after trial on the merits. The Court ruled in favor of FHOI on all counts of its complaint and in favor of KBDC on all counts of Mercantile's third-party complaint. The Court's opinion adopted, verbatim, the proposed findings and conclusions submitted by FHOI and KBDC. Mercantile appealed the decision.
On December 30, 1988 the district court remanded the decision to this Court. The district court's Order indicated that adoption of proposed findings and conclusions is not reversible error, per se, but would be if the trial court's reasoning is scarcely discernible or if it is impossible to tell that the trial court reviewed the record and the issues itself. The district court noted without explanation that the Court's oral statements made at the close of the evidence seem to contradict some written findings. Because the district court felt it was not clear that this Court had made its own careful consideration of the record, the case was remanded.
Upon additional and thorough review of the entire record, including its oral findings at trial, the Court now makes the following Amended Findings of Fact and Amended Conclusions of Law. To the extent that these Amended Findings and Conclusions contradict any oral comments or findings made on the record, these Amended Findings and Conclusions supersede those comments and findings.
AMENDED FINDINGS OF FACT
FHOI is a limited partnership created under a limited partnership agreement dated December 1, 1982 (Partnership Agreement), and the laws of the State of Kansas. Plaintiff's Exhibit 1, Partnership Agreement. Mercantile Trust Company, N.A. (Mercantile), defendant and third-party plaintiff herein, is a national banking corporation headquartered in St. Louis, Missouri. KBDC, third-party defendant, was a Missouri corporation with its principal place of business located in Kansas City, Missouri. KBEC was the general partner of FHOI. Partnership Agreement at p. 1. KBEC is a wholly owned subsidiary of KBDC. KBEC was created by KBDC to serve as the general partner of certain limited partnerships.
At all times relevant to this lawsuit, FHOI owned an office building in Overland Park, Kansas, known as the Fox Hill Office Building. The only purpose of the partnership was to "engage in the business of acquiring, developing, owning, renting, maintaining and/or holding" a group of office buildings including the Fox Hill Office Building. Partnership Agreement § 3.01.
Kroh Brothers Realty Company (KBRC), not a party to this action, was a Missouri Corporation and a wholly owned subsidiary of KBDC. KBRC controlled the property management operations and commercial leasing aspects of KBDC. KBRC made tenant leasing and finish expenditures on behalf of the Kroh-related entities.
On the same date the partnership was formed KBDC and FHOI entered into a Partnership Supervisory Agreement, a Wraparound Promissory Note (Wrap Note) and a Wraparound Mortgage (Wrap Mortgage). The Partnership Supervisory Agreement provided that KBDC would assist and supervise KBEC in all aspects of the day-to-day operations of FHOI, including establishing FHOI's books and supervision of any manager selected by FHOI. Defendant's Exhibit L. Under the Partnership Supervisory Agreement, if KBEC failed to perform any of its duties as general partner of FHOI the limited partners could make demand, on written notice, that KBDC perform the obligations. The Wraparound Note, in the amount of $5,000,000, represented FHOI's cost of purchasing the office buildings. The underlying notes were made by KBDC to two other lenders in the aggregate amount of $3,200,000. *1011 Also on that date FHOI entered into a Management Agreement with Kroh Brothers Management Company, also a Kroh-related entity.
In December, 1985, Jack Kroh was the Executive Vice President of KBEC. On November 5, 1985, Kroh requested from Mercantile "junior financing on Fox Hill Medical Building and Fox Hill Office Building" in the amount of $300,000. The cover letter for the loan request was written on KBDC letterhead and stated the purpose of the loan was to "recover some of the remodel and tenant finish funds that we have put into the properties to keep them high quality products." Mercantile understood that the purpose of the loan was to reimburse KBDC or KBEC for past advances on behalf of FHOI for building improvements, tenant improvements and other leasing expenses. The loan request also showed the past advances dated back to 1981, prior to the formation of the partnership.
The first page of the attached loan request lists the borrower as FHOI and KBDC as general partner. It also states that "[d]ue to the nature of the second mortgage loan . . . we would prefer that this loan be unrecorded." Plaintiff's Exhibit 6. Mercantile knew that prior mortgage of Mutual Benefit Life Insurance Company (Mutual Benefit) required the consent of the mortgagee before any other financing could be placed on the property. The amount of the loan was to be $300,000, amortized over three years.
The loan request showed income of the Fox Hill Office Building at 95% occupancy was $698,444, less expenses of $239,274 leaving a net operating income of $450,170. The loan request showed debt service to the first mortgagee, Aetna, of $165,600, and to the second mortgagee, Mutual Benefit, of $238,000. This left a net cash flow of $46,475. Attached to the loan request was a schedule purporting to show expenditures for "building improvements, tenant improvements and other leasing expenses" since 1981 totalling $506,501.52. Also attached were "1985 Five-Year Projections" showing available cash flow in an amount less than the amount necessary to service even the principal payments on the note for the years 1986 and 1987.
Mercantile's internal documents showed that the loan was to be repaid from "management fees earned and cash flow." Plaintiff's Exhibit 13. Jacqueline Rocchio, an assistant vice president of Mercantile in charge of the Kroh Brothers-related loans, testified that she knew the management fees referred to would not be earned by FHOI but by a Kroh-related entity. The Mercantile loan approval form showed quarterly principal payments of $25,000. Plaintiff's Exhibit 15. The note showed monthly interest payments at an annual rate of 12%. Plaintiff's Exhibit 2. According to the testimony of witnesses called by Mercantile, KBDC was obligated to fund any cash flow shortfalls of FHOI. See also Plaintiff's Exhibit 20. Based on these facts, the Court finds that Mercantile knew FHOI could not, from its own resources, repay the loan and that Mercantile knew the loan could make FHOI insolvent.
Jacob Mondschein, former controller of KBDC and Vice President of KBEC, executed the note and mortgage to Mercantile on behalf of FHOI on December 31, 1985. Plaintiff's Exhibits 2 and 3. Mercantile also obtained a Certificate of General Partner and Resolutions of the Board of Directors of KBEC, Defendant's Exhibits QQQ and PPP, in support of FHOI's authority to procure the loan. In addition to the mortgage, the loan was secured by an unsecured guarantee from KBDC. Plaintiff's Exhibit 21.
FHOI did not have its own bank account. Instead, it used the bank account of KBRC, the Kroh-related entity that made tenant finish expenditures for the Kroh partnerships, at Commerce Bank. Jacob Mondschein testified that payments made on behalf of FHOI were generally made out of a KBRC account at Commerce Bank. Money received by FHOI was placed into this account. Thus, it was most likely that any funds expended on tenant finish and improvements in the past for FHOI came from this account. Additionally, the Mercantile loan was kept on the books of *1012 KBDC as an obligation of KBDC, not of FHOI (Defendant's Exhibit JJJ) and payments to Mercantile under the loan were charged against KBDC, not FHOI.
Rocchio, the Mercantile bank officer in charge of Kroh-related entities' loans, deposited the loan proceeds into a KBDC bank account at Mercantile on December 31, 1985 at the direction of Jena Garretson. Plaintiff's Exhibit 18. Garretson had been employed by the Kroh-related entities since 1974. In December 1985 her primary responsibilities included processing and closing of loans, including the Mercantile loan. She was directly supervised by John Kroh. For these reasons, the Court finds that FHOI did not receive the loan proceeds.
The evidence was abundant and conflicting concerning to which Kroh entities and in what amounts FHOI owed money. For example, the loan request states that $506,501.52 was spent on building improvements, tenant finishes and other leasing expenses from 1981 to the time of the request in 1985. It does not state which Kroh entity provided the funds for these improvements or which Kroh entity the loan proceeds would repay. Mondschein testified that he directed the compilation of these amounts for the loan request but did not know the source of the funds for these expenditures.
Additionally, the 1984, 1985 and 1986 tax returns for FHOI, Defendant's Exhibits WW, AAAA, and SSSS, show that improvements were made to the Fox Hill Office Building during those years. Line 16 of the tax returns show "other current liabilities" of $601,960 at the end of 1984, $1,028,597 at the end of 1985, and $1,167,810 at the end of 1986. A handwritten notation on the 1984 and 1985 tax returns indicates that the line 16 items in those years were designated as liabilities to the general partner, KBEC. Galvin testified that he had never seen any records to indicate that KBEC made any advances to FHOI. Thus, he did not believe KBEC would have loaned the partnership in excess of $1,000,000 by the end of 1985. Rather, the figure was probably obtained by combining and netting out all of the advances of the various Kroh entities, then reflecting them as one advance from the general partner.
Further, Defendant's Exhibit YY, p. 12, shows that FHOI owed KBRC $1,465,289.72, yet KBDC filed a proof of claim against FHOI that includes a similar amount, $1,490,000, for advances to the partnership. Galvin could not explain what transactions occurred to produce the debt to KBRC. He did, however, testify that KBRC would not have advanced funds to FHOI for tenant finishes or building improvements. According to Galvin, KBRC managed the residential marketing, property management and commercial leasing functions arm of the Kroh entities. Any funds advanced to FHOI by KBRC would most likely be to cover management fees and some of the operating expenses of the property such as electricity, repairs and maintenance.
Thus, although there was evidence that money had been spent on building improvements and tenant finishes for the Fox Hill Office Building, there were no records that any Kroh-related entity, including KBDC or KBEC, was owed any money by FHOI for building improvements, tenant improvements or other leasing expenses having to do with the Fox Hill Office Building. However, the books and records of FHOI showed that, to the extent available, charges for building improvements, tenant finish and other leasing expenses were charged against the account of FHOI and not against KBDC or KBEC.
Mercantile repeatedly urges the Court to find that regardless of who the loan proceeds were paid to, the evidence shows that FHOI received the benefit of the proceeds. However, there is no record of the loan proceeds being used for any expenditure made on behalf of FHOI. There was no evidence that any of FHOI's debts to any Kroh-related entity were reduced following the transfer of the loan proceeds from Mercantile to KBDC. Further, the evidence was not sufficient to indicate that FHOI owed KBDC anything in December, 1985. The evidence shows, instead, that KBDC *1013 owed FHOI $561,683.77. Defendant's Exhibit JJJ, p. 171-72.
Moreover, the loan proceeds were not placed in an FHOI account or the KBRC account that FHOI used to collect money and pay bills. The most credible evidence concerning the probable use of the loan proceeds came from the testimony of Jacob Mondschein, former controller of KBDC and Vice President of KBEC. He testified that at the relevant points in time it would have been common for John Kroh to borrow money in the name of Kroh-related limited partnerships for the cash flow needs of KBDC and all other Kroh-related entities. He also testified that it would not have been unusual for the purpose of the Mercantile loan to have been to provide cash flow for KBDC. Therefore, regardless of Mercantile's contentions and regardless of which Kroh-related entities FHOI was indebted to, there is simply no evidence to support a finding that FHOI ever received the loan proceeds or that the loan proceeds were ever used to benefit the partnership or reduce a partnership debt to another Kroh-related entity. There is at least a preponderance of the evidence that the loan proceeds were used to meet the cash flow needs of KBDC. Accordingly, the Court is compelled to find that the loan proceeds were used to meet the cash flow needs of KBDC and that FHOI did not receive the benefit of the loan proceeds.
Mercantile also contends that the Partnership Agreement expressly authorized KBEC to execute the note and mortgage and bind FHOI. The Partnership Agreement contains provisions prohibiting the following actions and transactions. First, FHOI could not finance or refinance the Fox Hill Office Building if the financing or refinancing made the limited partners personally liable. Partnership Agreement at §§ 3.02(b) and 7.08. Thus, the Partnership Agreement prohibited recourse notes. Mercantile does not dispute, and the Court finds, that the note is a recourse note because it failed to limit liability on the note solely to the Fox Hill Office Building. Second, although the Partnership Agreement allowed KBEC to "make or cause to be made temporary loans" to FHOI and to "repay such loans at any time," it prohibited repayment of such loans unless the limited partners' adjusted capital contribution, defined in § 1.16 of the Agreement, was reduced to zero. Partnership Agreement at § 5.05. There was no evidence that the limited partners' capital contributions had been completely repaid. Finally, the Partnership Agreement prohibits the commingling of partnership monies with those of any other entity. Partnership Agreement at § 10.05. At the time the loan was made, Mercantile had in its possession a copy of the Partnership Agreement and therefore had notice of these provisions.
In addition to notice of the contents of the Partnership Agreement, Mercantile also had a title insurance commitment relating to the Fox Hill Office Building. The title insurance commitment would have made Mercantile aware of the Wrap Note and Wrap Mortgage, but it also had copies of those documents. Rocchio, Mercantile's officer in charge of Kroh-related entities' loans, testified that at the time Mercantile made the loan she thought that Mercantile "could" have had a third mortgage on the property had they recorded at the time of the transaction.[2] However, Rocchio also admitted that a recording at the time of the loan would not have made Mercantile prior to KBDC absent further action on the part of Mercantile. Rocchio relied on Mercantile's attorney to determine the necessity of such further action. Mercantile would have made sure that the Wrap Note and Mortgage were subordinate to Mercantile's note and mortgage had it been advised to do so by its attorney.
A significant piece of evidence is Rocchio's testimony that at the time the loan was approved Mercantile was aware that FHOI did not have sufficient cash flow to repay the loan. Instead, Mercantile was looking to KBDC for repayment of the loan and took an unsecured guaranty from KBDC as security for the loan.
*1014 Finally, Rocchio testified she was aware that the Mutual Benefit mortgage prohibited FHOI from executing another mortgage on the Fox Hill Office Building without Mutual Benefit's consent and that Mercantile considers it a serious breach of a loan agreement when a borrower violates the terms of a promissory note and mortgage by executing a subsequent mortgage without the approval of Mercantile. She understood that the execution of unrecorded mortgages prevented other creditors from determining the true financial condition of the debtor.
Concerning the limited partner's knowledge of the transaction, there was no evidence that the limited partners ever consented, in writing or otherwise, to the Mercantile note and mortgage. There was not even evidence of the identity of the limited partners at any time after December 31, 1985. Additionally, Mercantile had no contact with any of the limited partners prior to entering into the loan. Although Mercantile contends that the limited partners should have known about the note and mortgage, there was insufficient evidence to support a finding for the following reasons.
First, the general ledger of FHOI for the months of January, February, and March of 1986, Defendant's Exhibit CCCC, does not show any payment by FHOI on the note. Any references to an account with Mercantile were explained by Galvin as intercompany "memo posts" designed, in this instance, to give the partnership the credit for any interest payments that would have been made. The innocuous references to the Mercantile account in Exhibit CCCC are not sufficient to put the limited partners on notice of the note and mortgage even if they or their representative had access to them.
Second, although the title insurance policy, Defendant's Exhibit RRRR, names Mercantile as mortgagee, it fails to show that any limited partner or other party related to FHOI was responsible for naming Mercantile as a mortgagee or was a loss payee under the policy. Garretson, the Kroh employee responsible for closing the loan, testified that to her knowledge Cohen & Company, the named loss payee, was not a limited partner. Additionally, the testimony of defendant's witness Bob Shapiro indicated that the named insured under the policy, Equity Analysts, was not involved with or related to FHOI. Shapiro is a general partner in Realty Consultants, the entity that assisted in the syndication of FHOI. Although he is also a general partner in Equity Analysts, Shapiro testified that Realty Consultants, not Equity Analysts, represented the limited partners of FHOI at least at the time the partnership was formed. Thus, the title insurance policy is not proof that the FHOI limited partners were aware of the note and mortgage.
Finally, the Court finds that Mercantile returned the Wrap Note and Wrap Mortgage to KBDC on June 9, 1986. Mercantile recorded its mortgage on December 8, 1986. At the time Mercantile recorded its mortgage, it was aware of KBDC's severe financial problems but had no knowledge regarding the financial condition of FHOI. Upon recordation, Mercantile transferred no property or consideration to FHOI or any other Kroh-related entity. FHOI filed bankruptcy on April 15, 1987.
AMENDED CONCLUSIONS OF LAW
This Court has jurisdiction of the parties and the subject matter of this adversary proceeding under 28 U.S.C. §§ 157 and 1334 and 11 U.S.C. §§ 105, 544 and 548. Venue is proper pursuant to 28 U.S.C. § 1409.
I. Actual Authority
Mercantile contends that KBEC had actual authority to execute the note and mortgage because both were for a proper partnership purpose and because the transaction was expressly authorized by the Partnership Agreement. The Partnership Agreement, by its terms, is to be construed according to Kansas law.
The burden of proof is on the party claiming the agency relationship. In re Branding Iron Motel, Inc. (Branding Iron Motel v. Sandlian Equity, Inc.), 798 F.2d 396, 401[8] (10th Cir.1986). The agency *1015 relationship must be established by clear and satisfactory evidence. Id. Under Kansas law, an agent's actual authority may be either express or implied. Theis v. DuPont, Glore Forgan, Inc., 212 Kan. 301, 510 P.2d 1212[8] (1973). An express agency exists "if the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act." Mohr v. State Bank of Stanley, 241 Kan. 42, 734 P.2d 1071, 1075[3] (Kan. 1987), quoting Shawnee State Bank v. North Olathe Industrial Park, Inc., 228 Kan. 231, 613 P.2d 1342 (1980). Therefore, in determining the existence of actual authority only the authority delegated by FHOI to KBEC and the actual use of the loan proceeds is relevant. Representations made by KBEC or KBDC to Mercantile regarding the purpose of the loan are not relevant in determining KBEC's actual authority. Instead, the inquiry must focus on whether FHOI expressly authorized KBEC's actions when KBEC mortgaged the Fox Hill Office Building as security for a recourse note, commingled the proceeds with funds of other entities, and allowed the loan proceeds to be used to meet the cash flow needs of KBDC.
Mercantile is correct in its assertion that the Partnership Agreement permitted borrowing to finance current tenant finish and improvement projects. However, the loan proceeds were not used for this purpose. Mercantile is also correct in pointing out that § 5.05 of the Partnership Agreement permitted repayment of temporary loans made or caused to be made by KBEC on behalf of FHOI. However, the loan proceeds were not used for this purpose and the circumstances necessary for repayment had not occurred. What Mercantile's arguments fail to recognize is that the loan proceeds were actually used to meet KBDC's cash flow needs.[3] Mercantile does not contend, and there is no indication in the Partnership Agreement, that FHOI was formed so its assets could be used to obtain cash flow for the parent corporation of its general partner. Further, FHOI did not receive the loan proceeds or the benefit of the loan proceeds.
Based on these findings and conclusions, the Court must conclude that the note was not made for a partnership purpose.[4] Because FHOI did not receive the loan proceeds or the benefit of the loan proceeds, the Court further concludes that FHOI gave no consideration for the note and therefore no consideration for the mortgage. Accordingly, the Court concludes that the mortgage was not made for a partnership purpose. The conclusions that neither the note nor the mortgage were made for a partnership purpose, standing alone, preclude any conclusion that KBEC had actual authority to make the note and mortgage the Fox Hill Office Building.
However, in addition to the fact that the note and mortgage were not made for a partnership purpose, the transaction was in further contravention of the Partnership Agreement in the following respects. The note was a recourse note, thereby making the limited partners personally liable, in contravention of §§ 3.02(b) and 7.08 of the Partnership Agreement. The loan proceeds were commingled with funds of another *1016 entity in contravention of § 10.05 of the Partnership Agreement. Finally, even if the loan could be characterized as the repayment of a temporary loan pursuant to § 5.05, as explained earlier, such repayment was not authorized at the time the note and mortgage were executed. Based on these conclusions, the Court further concludes that KBEC did not have express actual authority to make the loan and mortgage the Fox Hill Office Building.
Mercantile contends that certain provisions of the Partnership Agrement gave KBEC express actual authority to make the note and mortgage the Fox Hill Office Building. First, Mercantile contends that § 7.08 of the Partnership Agreement provided KBEC with express actual authority because it allowed KBEC to "modify, recast, alter and refinance any indebtedness affecting [the Fox Hill Office Building], and to encumber [the Fox Hill Office Building] with any other indebtedness . . . superior or inferior to such existing financing." However, Mercantile's contention disregards the portion of that section stating that "[n]otwithstanding anything herein to the contrary, any such modification, financing or refinancing of indebtedness affecting [the Fox Hill Office Building] shall not cause the Limited Partner to become personally liable thereon. . . ." The Court previously found that the note was a recourse note and therefore made the limited partners personally liable and previously concluded that, as such, the note was in contravention of the Partnership Agreement. Accordingly, the Court further concludes that § 7.08 did not expressly authorize KBEC to make the recourse note to Mercantile.
Second, Mercantile relies on § 7.02 of the Partnership Agreement. That section gave KBEC power to take all action necessary for the maintenance or operation of the Fox Hill Office Building, assure that the Fox Hill Office Building was properly maintained, execute refinancing documents, and to do any other acts necessary to the partnership's business. However, the loan proceeds were not used to maintain or operate the Fox Hill Office Building but were used to provide cash flow to KBDC. Further, that section is expressly made subject to the provisions of Article VII of the Partnership Agreement. The Court concluded above that the note was in contravention of § 7.08. Finally, the Court has previously concluded that the note and mortgage were not for a partnership purpose. Therefore, KBEC's execution of the note and mortgage was not in furtherance of the partnership's business. For these reasons, the Court concludes that § 7.02 did not authorize KBEC to make the note and mortgage.
Third, Mercantile relies on §§ 3.01 and 3.02 of the Partnership Agreement because those sections expressly provide that tenant finish and improvement expenses for the Fox Hill Office Building are purposes consistent with the terms of the Partnership Agreement. First, these sections apply only to expenses for current tenant finishes and improvements. They are not relevant to KBEC's authority to repay expenditures for past tenant finishes and improvements. Second, even if these sections were relevant, the Court's inquiry in determining express actual authority is confined to consideration of the authority conferred on KBEC and whether KBEC's actions were within the bounds of that authority. Representations to Mercantile concerning the use of the loan proceeds are irrelevant. Here, the loan proceeds were not used for either current tenant finish and improvement expenses or to repay such past expenses. The loan proceeds were used to provide cash flow to KBDC. Accordingly, the Court further concludes that neither § 3.01 nor § 3.02 provide authority for KBEC's transaction with Mercantile.
Finally, Mercantile relies on § 7.09 of the Partnership Agreement. That section gave KBEC a power of attorney coupled with an interest to execute on behalf of the limited partners any documents necessary to refinancing or any "other transaction." However, Mercantile again disregards the fact that the power of attorney was given to assist in refinancing pursuant to § 7.08 or "any other act by the General Partner which is taken in accordance with" *1017 the provisions of the Partnership Agreement. The Court has previously concluded that the provisions of § 7.08 were not complied with and that the transaction was not otherwise "in accordance with" the Partnership Agreement. Accordingly, the Court further concludes that § 7.09 did not authorize KBEC to make the note or mortgage.
Even if KBEC's actions were authorized by the Partnership Agreement, KBEC's actions violated K.S.A. § 56-130. That section provides:
A general partner shall have all the rights and powers and be subject to all the restrictions and liabilities of a partner in a partnership without limited partners, except that without the written consent or ratification of the specific act by all the limited partners, a general partner or all of the general partners have no authority to
(a) Do any act in contravention of the certificate,
* * * * * *
(d) Possess partnership property, or assign their rights in specific partnership property, for other than a partnership purpose[.]
K.S.A. § 56-130 (repealed 1983) (emphasis added). These provisions are unambiguous and absolute and the acts proscribed may not be changed by agreement of the partners. Compare K.S.A. § 56-130(f) and (g) with K.S.A. § 56-130(a), (b), (c), (d) and (e). Rather, specific written consent or ratification by the limited partners of the act proscribed in K.S.A. § 56-130(a) and (d) must be obtained.
A certificate of limited partnership must state the character of the partnership's business. K.S.A. § 56-123 (repealed 1983). According to the Partnership Agreement, the business of FHOI would not have been for its assets to serve as security for a corporate entity related to its general partner. Thus, the note and mortgage were in contravention of K.S.A. § 56-130(a). Additionally, the mortgage was not given for a partnership purpose and therefore was in contravention of K.S.A. § 56-130(d). Because the transaction was in violation of the statute, KBEC could not have had express actual authority to make the note and mortgage.
Accordingly, based on all of the above conclusions, the Court holds that KBEC had no express actual authority to make the note and mortgage the Fox Hill Office Building.
Kansas law also looks to whether there is actual authority under an implied agency. An implied agency "is based on an implied intention to create an agency. It arises upon facts for which the principal is responsible." State Bank of Stanley, 734 P.2d at 1076[8] (emphasis added), quoting 2A C.J.S. Agency § 52, p. 626. "[I]t is the manifestation of the alleged principal and agent as between themselves that is decisive, and not the appearance to a third party or what a third party should have know." Id. Here, there was no evidence that FHOI at any time prior to the execution of the note and mortgage impliedly intended for KBEC to do acts in violation of the Partnership Agreement. Accordingly, the Court further concludes and holds that KBEC had no implied actual authority to make the loan and mortgage the Fox Hill Office Building.
II. Apparent Authority
Mercantile next contends that KBEC had apparent authority to make the note and mortgage the Fox Hill Office Building. In support of its contention, Mercantile relies on the broad grant of apparent authority to KBEC found in the Partnership Agreement:
The General Partner shall have exclusive authority to manage the operations and affairs of the Partnership and to make all decisions regarding the business of the Partnership. Persons dealing with the Partnership are entitled to rely conclusively on the power and authority of the General Partner as set forth in this Agreement. In no event shall any person dealing with the General Partner or the General Partner's representative with respect to any business or property of the Partnership be obligated to *1018 ascertain that the terms of this Agreement have been complied with, or be obligated to inquire into the necessity or expedience of any act or action of the General Partner or the General Partner's representative; and every contract, agreement, deed, mortgage, security agreement, promissory note or other instrument or document executed by the General Partner or the General Partner's representative with respect to any business or property of the Partnership shall be conclusive evidence in favor of any and every person relying thereon or claiming thereunder that (i) at the time of the execution and/or delivery thereof, this Agreement was in full force and effect, (ii) such instrument or document was duly executed in accordance with the terms and provisions of this Agreement and is binding upon the Partnership, and (iii) the General Partner or the General Partner's representative was duly authorized and empowered to execute and deliver any and every such instrument or document for and on behalf of the Partnership.
Partnership Agreement at § 7.01. Mercantile contends that that provision gave KBEC an unlimited reservoir of apparent authority and excused Mercantile from ascertaining the extent of KBEC's authority. Mercantile relies on the decision in Mist Properties, Inc. v. Fitzsimmons Realty Co., Inc., 228 N.Y.S.2d 406 (N.Y.Sup. Ct.1962).[5] This Court disagrees with Mercantile's contention.
It is true that apparent agency is based on "intentional actions or words of the principal toward third parties which reasonably induce or permit third parties to believe that an agency relationship exists." State Bank of Stanley, 734 P.2d at 1076[6]. However, when a third party
knows, or has good reason for believing that the acts exceed the agent's powers, or if such reasonable inquiry as he is under the duty to make, would result in a discovery of the true state of the powers, and he fails to fulfill that duty, he cannot assert an apparent authority effective against the principal.
Anheuser-Busch v. Grovier-Starr Produce Co., 128 F.2d 146, 153[11] (10th Cir. 1942). See also In re West Tech, Ltd. (West Tech, Ltd. v. Boatmen's First National Bank of Kansas City, N.A.), Adv. No. 87-0365-1-11, Slip Op. at p. 9, (Bankr.W.D.Mo. June 3, 1988) (under analogous facts bank was required to show that circumstances were not such as to put them on inquiry that the agent has or might be breaching its duties to its principal), aff'd No. 88-0593-CV-W-3, (W.D.Mo. Nov. 23, 1988) (pending on appeal to the Eighth Circuit Court of Appeals).
Here, the loan request was made on KBDC letterhead and stated that the borrowers were to be KBDC, not the general partner KBEC, and FHOI. The Partnership Agreement gave Mercantile the knowledge that partnership loans could not make the limited partners personally liable and therefore had to be non-recourse. It also put Mercantile on notice that partnership funds could not be commingled with funds of other entities and expressly stated that certain preconditions had to be met before any "temporary loans" could be repaid.
Although Mercantile has repeatedly argued throughout its briefs and in its proposed Findings and Conclusions that the purpose of the loan was to finance tenant improvements, the loan request indicates that the loan proceeds were to repay a previous loan from KBDC for tenant improvements dating back to 1981. Mercantile understood that the loan was to reimburse a Kroh-related entity for prior expenditures on Fox Hill Office Building tenant finishes and improvements. See "Proposed Findings of Fact and Conclusions of Law Mercantile Bank National Association," Doc. No. 68, p. 8-9. Under the Partnership *1019 Agreement the nature of such a transaction is completely different from a transaction involving the financing of current improvements. Mercantile had knowledge that the two types of transactions were treated differently in the Partnership Agreement.
Further, in Anchor Centre Partners, Ltd. v. Mercantile Bank, N.A., No. WD 40696, slip op. at 25, 1989 WL 58725 at 28 (Mo.App.W.D. June 6, 1989), a suit involving this defendant and a partnership provision identical to § 7.01, the court held that "Mercantile [was] precluded from relying on the doctrine of apparent authority" because it had received partnership documents describing the terms and conditions for partnership loans. The court based its decision on the authority that "[o]ne who deals with an agent knowing that he is clothed with a circumscribed authority and that the agent's act transcends his powers cannot hold the principal liable for the act." Id. The Anchor Centre decision is directly on point insofar as it held that Mercantile cannot rely on § 7.01 for KBEC's authority when it had in its possession documents indicating that the transaction was outside the scope of KBEC's apparent authority.
Mercantile also argues that mere technical violations of the Partnership Agreement should not be sufficient to give it notice that KBEC lacked authority in view of the broad grant of authority in § 7.01. It contends that it should not be responsible for policing the Partnership Agreement. The Court, however, concludes that Mercantile was aware of facts involving more than technical violations of the Partnership Agreement sufficient to put it on inquiry notice.
First, Mercantile also knew that FHOI did not have sufficient cash flow to repay the loan and therefore that the loan could make FHOI insolvent. This would make it impossible to carry on the business of the partnership in contravention of K.S.A. § 56-130(b).[6] Second, one of the borrowers and general partner was originally stated as KBDC. However, before the loan closed, Mercantile knew that the general partner was KBEC, that the loan proceeds were meant to reimburse KBDC or another Kroh entity and that the loan proceeds were not to be placed in an FHOI account. Third, Mercantile knew that it was taking an unrecorded mortgage and that a prior mortgagee did not allow subsequent mortgages without the prior mortgagee's consent.
These facts, alone, should have led Mercantile to inquire whether KBEC had authority to make the note and mortgage or was breaching its duties to FHOI by entering into the loan and mortgaging the Fox Hill Office Building. In re West Tech, Ltd. (West Tech, Ltd. v. Boatmen's First National Bank of Kansas City, N.A.), Slip Op. at p. 9-10. For these reasons, the Court concludes that Mercantile had sufficient knowledge of the irregularity of this transaction to be put on notice that it should inquire further concerning the authority of KBEC to make the note and mortgage the Fox Hill Office Building. Mercantile did not do so. Accordingly, Mercantile did not act in good faith and cannot justifiably rely on § 7.01 of the Partnership Agreement as the basis for KBEC's authority.
Additionally, KBEC's actions violated K.S.A. § 56-130(a) and (d). Absent the required consent or ratification "there can be no such thing as apparent authority to act in contravention of the statute." 59A Am. Jur., Partnership § 1331 (1987).
Based on the above, the Court concludes and holds that KBEC had no apparent authority to make the note and mortgage the Fox Hill Office Building.
III. Ratification
Mercantile contends that the limited partners of FHOI were negligent because *1020 they did not review partnership books and records, gave KBEC a broad grant of authority, and failed to police KBEC's actions. Mercantile further contends that the broad grant of authority to KBEC in § 7.01 of the Partnership Agreement and the fact that the general partner is given sole control of the business should be construed as an abdication by the limited partners of their actual authority. This abdication, in turn, should be construed as FHOI's acknowledgment and ratification of the note and mortgage. Mercantile cites no authority in support of these contentions and the Court's research has not revealed any decisions in which contributory negligence has been held per se to support a finding of ratification. Accordingly, the Court concludes that any alleged negligence on the part of the limited partners in investing in FHOI or in overseeing their investment is irrelevant to an inquiry whether the limited partners ratified the transaction.
Mercantile also contends that the limited partners knew or should have known of the transaction and their failure to repudiate the transaction indicates their ratification of the note and mortgage. "Ratification is the adoption or confirmation by a principal of an act performed on his behalf by an agent which act was performed without authority." Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66, 75[7] (1975) portion cited reaffirmed and other portions vacated 219 Kan. 2, 547 P.2d 1015 (1976). "Knowledge of the unauthorized act is essential for the principal to ratify the act, and must be shown or facts proved that its existence is a necessary inference therefrom." 540 P.2d at 75[9].
There is no direct evidence that the limited partners knew of the transaction. The only evidence from which the limited partners' knowledge of the transaction might be inferred do not support a "necessary inference" that they knew of the transaction. The Court previously concluded that the title insurance policy is not proof that the FHOI limited partners were aware of the note and mortgage because FHOI was not related to any entity named on the policy so as to impute any of that knowledge to the limited partners of FHOI. The Court also found that the limited partners are not charged with notice of the books and records of KBDC and that Defendant's Exhibit CCC does not contain sufficient information to put the limited partners on notice of the note and mortgage. Finally, there was no indication in any of the FHOI general ledgers admitted into evidence that payments on the Mercantile note were charged against FHOI.
For these reasons, the Court concludes that the limited partners of FHOI did not have sufficient, if any, knowledge of the unauthorized transaction so as to hold they ratified the transaction. Accordingly, the Court concludes the limited partners of FHOI did not ratify the note and mortgage.
The limited partners' lack of knowledge also precludes a finding that they ratified the transaction because they failed to repudiate it. "Upon acquiring knowledge of his agent's unauthorized act, the principal should promptly repudiate the act, otherwise it will be presumed he has ratified and affirmed the act." Brown v. Wichita State University, 540 P.2d at 75[8]. The principal's knowledge of the transaction is a prerequisite to ratification of a transaction by the principal's failure to repudiate. There is no evidence that the limited partners had knowledge of the transaction. Accordingly, the Court concludes and holds that the limited partners of FHOI did not have sufficient knowledge of the transaction to require ratification or ratification in the absence of repudiation.
Because KBEC did not have actual or apparent authority to execute the note and mortgage and because the limited partners did not ratify the transaction, the Court holds that FHOI is not bound by the Mercantile promissory note and mortgage.
IV. Fraudulent Conveyance
KBDC seeks the avoidance of the recording of the mortgage pursuant to 11 U.S.C. § 548. That section provides:
(a) The trustee may avoid any transfer of an interest of the debtor in property, *1021 or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily
* * * * * *
(2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation[.]
* * * * * *
(c) Except to the extent that a transfer or obligation voidable under this section is voidable under section 544, 545, or 547 of this title, a transferee or obligee of such a transfer or obligation that takes for value and in good faith has a lien on or may retain any interest transferred or may enforce an obligation incurred, as the case may be, to the extent that such transferee or obligee gave value to the debtor in exchange for such transfer or obligation.
11 U.S.C. § 548(a), (c). Mercantile recorded the mortgage on December 8, 1986, within one year of FHOI's bankruptcy filing on April 15, 1987. Accordingly, the Court concludes that a transfer of property in which FHOI had an interest occurred within one year of the filing of FHOI's petition in bankruptcy. FHOI received no consideration for the note and therefore no consideration for the mortgage. Thus, FHOI did not receive "reasonably equivalent value" for the recordation of the mortgage. Mercantile has not disputed that FHOI was insolvent on the date it recorded the mortgage. For these reasons, the Court concludes that the elements of § 548(a)(2) have been met. Accordingly, the Court holds that the recordation of the mortgage is avoided pursuant to 11 U.S.C. § 548.
Because the mortgage, after avoidance pursuant to § 548, was unrecorded on the date FHOI filed for bankruptcy, the Court further concludes that the mortgage was unperfected on that date as to FHOI, and holds that the mortgage should be avoided pursuant to 11 U.S.C. § 544. Based on these conclusions and holdings, the Court further holds that the Mercantile mortgage should not be enforceable against FHOI.
V. Contractual Subordination
In its third-party complaint against KBDC, Mercantile seeks subordination by agreement of KBDC's claim under the Wrap Note and Wrap Mortgage to Mercantile's claims under its note and mortgage. Contractual subordination under the Bankruptcy Code is governed by § 510(a), which provides:
(a) A subordination agreement is enforceable in a case under this title to the same extent that such agreement is enforceable under applicable nonbankruptcy law.
11 U.S.C. § 510(a).
Mercantile contends that KBDC agreed to subordinate the Wrap Note and Wrap Mortgage to subsequent mortgages or security agreements executed by KBDC. Mercantile further contends it relied on this provision in extending the loan and taking the mortgage and can enforce the provision as a third-party beneficiary of the agreement. In support of these contentions, Mercantile relies on the following provision of the Wrap Note:
(1) The notes associated with the following Mortgages are hereinafter collectively referred to as the "Prior Mortgage Notes":
* * * * * *
(c) Such Mortgage or other security instrument as may hereafter be placed of record by the holder of this Note, as security for indebtedness incurred by the holder of this Note[.]
Plaintiff's Exhibit 4 at p. 2. Mercantile interprets this provision as subordinating KBDC's rights against FHOI under the Wrap Note and Wrap Mortgage to Mercantile's rights under the mortgage and note.
This Court disagrees with Mercantile's interpretation of the above provision for the following reasons. First, the provision does not apply to both the notes and the mortgages enumerated, as argued by Mercantile. *1022 The section clearly provides that the notes secured by the mortgages, not the mortgages, themselves, are affected by the provision.
Second, subsection (c) of the provision refers to notes associated with mortgages placed of record by the holder of the Wrap Note to secure an indebtedness of the holder of the Note. There was no evidence to indicate that any entity other than KBDC was the holder of the Wrap Note after June 9, 1986. KBDC did not record the mortgage on the Fox Hill Office Building; Mercantile did. There is no evidence nor does Mercantile outwardly contend that the indebtedness on the Mercantile note was KBDC's.
Third, there is no evidence that Mercantile negotiated subordination of the Wrap Note and Wrap Mortgage in extending the loan. Rather, the evidence is to the contrary. Rocchio's testimony shows that she knew even if Mercantile had recorded its mortgage at the time of the loan it would not necessarily have been prior to the Wrap Note and Mortgage. Rocchio also indicated that had Mercantile's attorney told Mercantile that it was not prior, Mercantile would have taken steps to ensure subordination of the Wrap Note and Wrap Mortgage to Mercantile's note and mortgage. Accordingly, the Court concludes that there was no subordination agreement between KBDC and Mercantile and therefore subordination pursuant to § 510(a) is inappropriate.
VI. Equitable Subordination
Mercantile also seeks to subordinate KBDC's claims under the Wrap Note and Wrap Mortgage to Mercantile's claims under its note and mortgage on equitable grounds. A creditor's claim may be subordinated to the claims of debtor's other creditors under the equitable powers of the bankruptcy court as set forth in 11 U.S.C. § 510(c)(1). Bergquist v. Anderson-Greenwood Aviation Corp. (In re Bellanca Aircraft), 850 F.2d 1275, 1281-82 (8th Cir.1988). Section 510(c)(1) provides that the court may, after notice and a hearing "under principles of equitable subordination, subordinate for purposes of distribution all or part of any allowed claim to all or part of another allowed claim. . . ." 11 U.S.C. § 510(c)(1).
Section 510(c)(1) does not permit subordination absent an allowed claim. Therefore, by definition, Mercantile's claim for equitable subordination must fail. This Court has determined that Mercantile's note and mortgage are not binding on FHOI. See Amended Conclusions of Law 36 and 43. Accordingly, the Court further concludes that Mercantile has no "allowed claim" in FHOI's bankruptcy proceeding within the meaning of § 510(c)(1) to which the claim of KBDC may be subordinated.
Even assuming that Mercantile had a claim for the purposes of § 510(c)(1), it has not shown facts warranting subordination. The Eighth Circuit recently set forth the three-part test for determining whether equitable subordination is appropriate:
(i) The claimant must have engaged in some type of inequitable conduct.
(ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant.
(iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy [Code].
Bellanca Aircraft, 850 F.2d at 1282. Additionally, this Court must also be guided by the rule that any attempt to adjust equities between a junior and senior creditor, such as KBDC and Mercantile, must be "scrupulously measured and fitted to the actual injury that has been done or the unjust enrichment that is involved." In re Kansas City Journal-Post Co., 144 F.2d 791, 801[7] (8th Cir.1944). The bankruptcy court
must have a sound regard for the distribution results that will be produced to the creditor whose claim is being subordinated, as well as to the other creditors. It should not operate to take away anything punitively to which one creditor is justly entitled . . . and bestow it upon others, who . . . have no fair right to it.
144 F.2d at 800-01[6].
Regardless of whether the first and third elements are met, the second element has *1023 not been met. The Court previously found that Mercantile was not looking to FHOI for repayment but instead was looking to the unsecured credit of KBDC. As this Court has concluded, Mercantile must now look only to the unsecured credit of KBDC for repayment. As plaintiff points out, Mercantile has not been injured but, in fact, is getting exactly what it bargained for. Thus, Mercantile has "no fair right" to a position prior to KBDC.
Additionally, a party such as Mercantile must have "clean hands" to seek relief from a court of equity:
The clean hands doctrine is based upon the maxim of equity that he who comes into equity must come with clean hands. It provides in substance that no person can obtain affirmative relief in equity with respect to a transaction in which he has, himself, been guilty of inequitable conduct. (citation omitted).
Fuqua v. Hanson, 222 Kan. 653, 567 P.2d 862, 866[6] (1977). Subordination cases have held that inequitable conduct includes the intentional nondisclosure of indebtedness and delay on the part of a lender in perfecting a security interest. In re Beverages International, Ltd., 50 B.R. 273, 282 (Bankr.Mass.1985). In this case, Mercantile withheld its mortgage from recordation knowing that Mutual Benefit's prior mortgage did not allow subsequent mortgages absent the prior mortgagee's consent. Mercantile considers it a serious breach of a loan agreement when a borrower violates the terms of a promissory note and mortgage by executing a subsequent mortgage without its approval. Such action to conceal Mercantile's mortgage from a prior mortgagee, which action Mercantile condemns when it holds a senior mortgage, constitutes "inequitable conduct" on Mercantile's part which, standing alone, precludes equitable relief.
Finally, § 510(c)(1) prohibits this Court from advancing any interest of Mercantile, whether by subrogation or subordination. Section 551 preserves the avoided transfer or lien of Mercantile to the estate. That section also operates to prevent any purported creditor, such as Mercantile, from improving its position at the expense of the estate. A decision by this Court to allow Mercantile to improve its position would be inequitable to unsecured creditors of FHOI because it would allow Mercantile to share in an estate which it did not intend to bind. For these reasons, the Court concludes and holds Mercantile's claim under the note and mortgage should not be equitably subordinated to KBDC's claim under the Wrap Note and Wrap Mortgage.
VII. Subrogation
Finally, Mercantile contends that it should be subrogated to the lien of KBDC under the Wrap Mortgage. Under Kansas law the theory of subrogation "is inapplicable until and unless defendants have paid a debt for which another is primarily responsible and such payment must generally be in full discharge of that party's obligation. Mere liability to pay is not ordinarily enough for one to be substituted to the rights of the creditor." Federal Savings & Loan Insurance Corporation v. Huff, 237 Kan. 873, 704 P.2d 372, 380[17] (1985). In its Amended Findings of Fact, the Court found that there was no evidence of a debt between KBDC and FHOI in December, 1985. The Court also found that no debt from FHOI to any Kroh-related entity was reduced as a result of the transfer of the loan proceeds to KBDC. These findings preclude a conclusion that Mercantile paid a debt for which FHOI was responsible.
Alternatively, even if FHOI owed a Kroh-related entity money on the date of the loan for tenant finishes and improvements, the evidence shows that the debt would have been for more than $300,000 and therefore no payment in full occurred. Accordingly, the Court concludes that even if a debt did exist between KBDC or any other Kroh-related entity and FHOI for tenant finishes and improvements, the loan proceeds did not fully discharge that debt. For these reasons, the Court concludes and holds that Mercantile should not be subrogated to the lien of KBDC under the Wrap Mortgage.
*1024 ORDER
For the reasons set forth above, it is hereby ORDERED, ADJUDGED and DECREED:
1. That Fox Hill Office Investors, Ltd. has no obligation to Mercantile Trust Company, N.A. under the subject note and mortgage.
2. That the recording of the mortgage given Mercantile is avoided as a fraudulent transfer pursuant to 11 U.S.C. § 548.
3. That the unrecorded mortgage given Mercantile is avoided pursuant to 11 U.S.C. § 544 and the lien is preserved for the benefit of the estate under 11 U.S.C. § 551.
4. That judgment be entered in favor of third-party defendant Kroh Brothers Development Company and against Mercantile Trust Company, N.A., on all counts of the third-party complaint against Kroh Brothers Development Company.
5. That costs be awarded to FHOI and KBDC and against Mercantile.
NOTES
[1] KBEC was a wholly owned subsidiary of KBDC. It and other entities related to KBDC are herein referred to as "Kroh related entities."
[2] This was a correction of her January 22, 1987, memo in which she state that Mercantile "would" have had a third mortgage had they recorded at the time of the transaction.
[3] Viewing the evidence in the light most favorable to Mercantile, even if the loan was for past tenant finish, the purpose to reimburse KBDC for past tenant finish, dating back to 1981, is simply another way of saying the purpose of the loan was to help KBDC's cash flow, and therefore it was not for any partnership purpose of FHOI.
[4] Mercantile has asserted that this Court specifically found in its oral findings that if the loan proceeds were for tenant finishes they were for a proper partnership purpose. In reviewing the transcript, what the Court said was:
[T]here's no question that to do tenant finish would benefit the partnership. But it's as to whether the loan to pay for past tenant finishes benefitted the partnership. It's not a question as to whether tenant finish benefitted the partnership because the loan wasn't for tenant finish.
Transcript Vol. II at p. 254. Actually, this section is not part of the Court's oral findings. However, in its oral findings the Court specifically stated that one of the questions in the case was whether it would be a partnership purpose to pay money to KBDC to reimburse a partnership obligation. Transcript Vol. II at p. 266. These Amended Conclusions of Law should serve to clarify any inconsistency perceived by Mercantile.
[5] The Court notes that Mercantile cited § 7.01 and the Mist Properties decision in conjunction with its argument that KBEC had actual authority to make the mortgage and note. In this Court's opinion, § 7.01 is more appropriately considered in conjunction with an inquiry into KBEC's apparent authority because that section encompasses manifestations from the principal to third persons, not to its agent, KBEC.
[6] In conjunction with this conclusion, the Court notes that the actual state of FHOI's financial affairs is irrelevant in determining Mercantile's knowledge of those affairs at the time of the loan because Mercantile never investigated FHOI's finances when it made the loan. Therefore, in making its determination of KBEC's apparent authority, the Court gives no weight to the evidence adduced by Mercantile that FHOI was insolvent prior to the loan. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919944/ | 91 B.R. 302 (1988)
In the Matter of James TAYLOR, Debtor.
No. 88-03507.
United States Bankruptcy Court, D. New Jersey.
September 14, 1988.
*303 Okin, Cohen & Hollander by Paul S. Hollander, Fort Lee, N.J., for debtor.
Stark and Stark by Richard N. Shaine, Princeton, N.J., for PolyGram Records, Inc. and PolyGram Songs, Inc.
Weltman & Moskowitz by Richard E. Weltman, New York City, for Delightful Music Ltd.
OPINION
WILLIAM F. TUOHEY, Bankruptcy Judge.
This matter comes before the Court based upon four motions. The initial motion *304 was filed by the debtor and seeks to reject certain executory contracts and agreements between the debtor and PolyGram Records, Inc. and other entertainment-related corporations. In addition, the debtor has moved to reject an executory contract and management agreement between the debtor and World-Wide Entertainment Complex, Inc. For their part PolyGram Records, Inc. and PolyGram Songs, Inc. have cross-moved seeking to dismiss the debtor's Chapter 11 petition or, in the alternative, to have this Court abstain from hearing motions for the rejection of executory contracts. Delightful Music Ltd., one of the contracting parties whose agreement the debtor seeks to reject, cross-moves along with PolyGram for a dismissal of the Chapter 11 petition, or in the alternative, abstention.
The parties have submitted over 154 exhibits comprising several thousand pages. In addition, the Court has listened to extensive oral argument of counsel over a two-day period.
FINDINGS OF FACT
Based upon the record submitted by the parties, the Court makes the following findings of fact.
1. On May 24, 1988, James Taylor filed a voluntary Chapter 11 bankruptcy petition before this Court.
2. The debtor is a well-known recording artist who is a professional singer, composer and entertainer. From 1979 through February, 1988, Mr. Taylor had been engaged as the lead singer and a principal member of the rock music group professionally known as "Kool And The Gang."
3. In his bankruptcy petition Mr. Taylor asserts debts totalling $4,518,701.50 and assets scheduled at $734,215.00.
4. The parties are all in agreement that Mr. Taylor joined the Kool And The Gang singing group in 1979. It is further undisputed that at that time the singing group was contractually obligated to furnish its recording services to De-Lite Recorded Sound Corp. ("De-Lite"). The individual singers in the group had formed a corporation that was known as Quintet Associates, Inc. ("Quintet"). It was the Quintet corporation that entered into a record contract with De-Lite. De-Lite was and is an independent manufacturer and distributor of phonograph records.
5. Kool And The Gang operated through what were called "furnishing companies." These corporations were the actual contracting entities for the services of the artistic performers. "Kool And The Gang" was a name only; all contracts and legal relationships were arranged through one of the three basic furnishing companies. Quintet referred to above was the vehicle primarily used for Kool And The Gang's recorded performances.
6. A second furnishing company known as Fresh Start Music, Inc. ("Fresh Start") was a corporation formed by the group as the vehicle through which song publishing was conducted. Another corporation variously called Road Gang Enterprises, Inc. and/or Road Gang Associates Ltd. ("Road Gang") was formed to furnish the group's services in connection with concerts and tours.
7. During the years when Mr. Taylor was a member of the group the business and financial affairs of Quintet, Fresh Start and Road Gang, as well as the individual business affairs of Mr. Taylor and other members of the singing group, were managed by T.W.M. Management Services Ltd. ("TWM"). TWM was responsible for receiving all of the income of the Kool And The Gang entities and managing and controlling the disbursement of said funds. TWM paid the business as well as the personal living expenses of the individual members of the singing group. It was the responsibility of TWM to maintain all of the books and other business records that pertain to the financial affairs of Kool And The Gang and the various entities described above.
8. In January, 1984, the individual members of the group entered into a management agreement with World-Wide Entertainment Complex, Inc. ("World-Wide"). This corporation was an affiliate of TWM and pursuant to the January, 1984 agreement, *305 World-Wide was engaged to manage the careers of the individual members of the group as professional entertainers. Thus, for the past four years all of the business and personal management of Kool And The Gang entities, as well as those of the debtor, were under the joint control of TWM and World-Wide.
9. The performing talent in the Kool And The Gang group met with management periodically to review the group's finances. Group members borrowed from the various corporations owned by the group for their living expenses. In the period July 1, 1983 to July 31, 1985, excluding salaries, the members of the singing group had internal loans of $2,138,947.00 which they owed back to the business entities. (Exhibit # 5).[1] The only member of the group as of July 18, 1986 not indebted to the group for these internal advances was the debtor herein, James Taylor.
10. In November of 1985, De-Lite assigned its rights under the Quintet recording agreement to PolyGram Records, Inc. ("PolyGram"). The De-Lite contract was thereupon terminated and a new agreement for the exclusive recording services of Kool was executed between PolyGram and Quintet.
11. At the time of the new PolyGram recording contract Quintet executed a music-publishing agreement with De-Lite's affiliate, Delightful Music Ltd.
12. In the management report for October 22, 1986, the members of the Kool And The Gang group were advised that the fixed costs of the group were up to $339,000.00 per month. The group on said date was advised by its manager: "Because of our increased fixed expenses we need to net from all income approximately $4,000,000 per year." (Exhibit # 5).
13. In the management meeting held on December 3, 1987, the group was told their recent road trip was not successful. "Album sales hurt us, we have serious problems. Must cut all expenses. This has been stated many times. . . ." (Exhibit # 5).
14. The cash flow problems of the Kool And The Gang group had started in 1986. In October, 1986, the Kool And The Gang entities had accumulated debts in excess of $1,719,000, exclusive of any borrowings from PolyGram. (October 22, 1986 Management Report, Exhibit # 5).
15. During the course of 1986, the Kool And The Gang subsidiary Quintet borrowed a total of $665,000 from PolyGram. (Exhibit # 80).
16. With their financial problems continuing into 1987, the musical group entered into a loan and security agreement with PolyGram by which, pursuant to a check dated March 3, 1987, PolyGram advanced an additional $500,000 to Quintet. (Exhibit # 148).
17. It is interesting to note that after receipt of the March, 1987, $500,000 check, the group's financial condition was still in such desperate straits that on April 20, 1987, Gerald Delet, manager of the group wrote to PolyGram:
At the present time there are some serious financial and emotional problems. . . . On the financial side, we desperately need some assistance.
. . . . .
We have just started our tour, and by around the middle of May we should be self-sufficient until the tour ends, which will be at the end of this year. To go on tour we had to write a lot of post-dated checks for the pre-tour costs plus our fixed overhead which we cannot cover at this time. . . . We also have not paid certain pretour costs which are due right now and just as an example, the lighting people and the sound people could very easily have pulled their equipment off the tour.
We need approximately $500,000. . . .
(Exhibit # 146).
18. When Delet's letter of April 20, 1987 pressing for an additional $500,000 advance did not achieve results, a second, April 29, 1987, letter was hand delivered by *306 Delet to PolyGram Records. Said letter contains the following language:
I, and Kool and the Gang, are under extreme pressure. . . .
In asking for the half million dollars as per my letter to Dick, and saying that we would not come back to you for the remainder of the year, which I have never said to anybody before, is extremely important and factual. . . . Once the tour is in full swing, we will be able to meet our monthly bills, but until that point I really have checks that will be returned and open bills that must be paid or there will be suits against us. I really understand your position but without sounding dramatic, this is probably the most important advance for us.
(Exhibit # 147).
19. At the management meeting held on December 3, 1987, the group was presented with a list of its outstanding bills as of November 30, 1987. This list reflects outstanding loans and accounts payable owed by the group of $3,352,109. The report is careful to note that said sum does not include PolyGram advances which at that time were approximately $950,000. The PolyGram advances were to be repaid from royalties which included artistic royalties, publishing royalties and BMI royalties involved with the radio and television playing of the group's music. (Exhibit # 5).
20. Because the management group was not able to pay the personal living expenses of the group members, Mr. Delet, in a letter of January 15, 1988 to PolyGram (exhibit # 128), notes that the group had an immediate cash requirement and need of $121,407.00. This sum included $26,690.06 necessary to stop a mortgage foreclosure about to be filed against a group member's residence, and in addition to make mortgage arrears payments on the personal homes of other group members.
21. Of said debts owed by the various Kool And The Gang entities, certain debts had been personally guaranteed by Mr. Taylor, the debtor herein. Particularly, a loan from First Intercounty Bank (now under the jurisdiction of the FDIC) in the amount of $515,000; a second bank loan from First City National Bank in the amount of $265,000 and an advance from Norby Walters in the sum of $514,000. It is asserted by PolyGram that the debtor due to modifications in the aforesaid original loan agreements was not liable for any of these personal obligations at the time the Chapter 11 petition was filed.
22. The debtor last performed as an artist with Kool And The Gang on tour in Africa in February of 1988. On February 16, 1988, the debtor wrote to Mr. Delet, his manager, and revoked a general power of attorney held by the manager. (Exhibit # 74).
23. The debtor opened discussions with PolyGram on his future as a solo performer in early February of 1988. (Exhibit # 102). On February 8, 1988, PolyGram wrote to Quintet and advised Quintet that PolyGram was exercising its rights to continue as the recording company for Mr. Taylor pursuant to the "leaving member" provision of the Quintet recording contract. (Exhibit # 104).
CONCLUSIONS OF LAW
The main thrust of the argument advanced by PolyGram and Delightful is that the Court should dismiss the debtor's Chapter 11 petition based upon the fact that the petition was filed in bad faith because Mr. Taylor did not have substantial debts at the time of the filing of the petition. PolyGram concedes that the First Intercounty Bank of New York obligation was a loan for which the debtor was originally personally liable as a co-signer and as guarantor. The bank had loaned money to the Kool And The Gang group and had requested that the individual members co-sign the bank note. PolyGram asserts, however, that an agreement was executed in April of 1988 (Exhibit # 71) which provided for repayment of the First Intercounty Bank debt by the Kool And The Gang group in part with advances from PolyGram. The April, 1988 agreement with First Intercounty Bank (now under the jurisdiction of the FDIC) was not signed by the debtor, James Taylor.
*307 The second obligation attacked by PolyGram arises out of a $250,000 promissory note in connection with a loan undertaken by the Kool And The Gang group from First City National Bank & Trust Co. When said loan was in default a stipulation of settlement with First National City Bank was entered into by the debtor's former manager. (Exhibit # 73). PolyGram asserts that the First City National Bank stipulation of settlement entered into in March of 1988 extended the time for payment of said bank's obligation, and thus relieved the debtor, James Taylor, from any obligations on the original note endorsement.
The third debt under attack is a Norby Walters debt.[2] PolyGram in its brief concedes that the Norby Walters debt involved numerous notes on which the individual group members were personally liable. However, PolyGram asserts, the open balance due was combined into a new note executed February 15, 1988, in the sum of $425,000. (Exhibit # 54). It is asserted by the record company that inasmuch as said promissory note is not signed by the debtor herein that debtor's liability under the previous notes has been terminated.
Turning to the First Intercounty Bank debt, it is conceded that the total amount of said debt owed by the various Kool And The Gang entities totalled $515,000. (Exhibit # 72). PolyGram has placed in evidence the deposition testimony of Gerald Delet, business manager for the group. Mr. Delet has testified at his deposition (July 26, 1988, page 334, commencing line 23 and continuing) that the group's business dealings with First Intercounty involved several notes and loan guarantees. There was a Road Gang Associates note in the sum of $320,000. (Exhibit # 158). Said note was personally signed by the debtor, Mr. Taylor. In addition, the individual group members entered into a personal guarantee of the Road Gang note. (Exhibit # 158). Mr. Delet further testified that there was a separate loan to Quintet Associates with the First Intercounty Bank. He further testified that there was a separate loan guarantee with respect to the Quintet note. The Quintet note has not been placed in evidence before the Court; however, an unlimited loan guarantee of the Quintet obligation signed by the debtor has been placed before the Court as Exhibit "B" attached to the Taylor brief filed with the Court August 12, 1988.
Both the Road Gang and Quintet personal guarantees signed by the debtor in favor of the First Intercounty Bank contain the following language:
The Bank may at any time and from time to time (whether or not after revocation or termination of this guaranty) without the consent of, or notice to, the undersigned, without incurring responsibility to the undersigned, without impairing or releasing the obligations of the undersigned hereunder, upon or without any terms or conditions and in whole or in part:
(1) change the manner, place or terms of payment and/or change or extend the time of payment. . . .
. . . . .
As to each of the undersigned, this guaranty shall continue until written notice of revocation signed by such undersigned, or until written notice of the death of such undersigned shall in each case have been actually received by the Bank. . . . Written notice as above provided shall be the only means of revocation or termination of this guaranty notwithstanding the fact that for periods of time there may be no outstanding liabilities of the Borrower. No revocation or termination hereof shall effect in any manner the effectiveness and applicability of this guaranty or any rights of the Bank or the obligations of the undersigned hereunder, with respect to (a) liabilities of the Borrower which shall have been created, contracted, assumed or incurred prior to receipt by the bank of written notice of such revocation or termination, (b) all *308 extensions, renewals or modifications of any of the liabilities referred to in (a) above made after receipt by the Bank of such written notice. . . .
Therefore, under the terms of the First Intercounty Bank guarantees, the bank is expressly given the right to modify, renew or alter in any way the terms of the underlying indebtedness. The parties have agreed in their documentation that the relationship between Mr. Taylor and the First Intercounty Bank will be governed by the laws of the State of New York. Under New York law provisions such as are contained in the guarantees of the Quintet and Road Gang obligations owing to First Intercounty Bank are enforceable. National Bank of North America vs. Sobel, 31 A.D. 2d 750, 297 N.Y.S.2d 476, 478 (1969).
The Restatement of Security, § 129(1) (1941), states in subsection (b):
Time of Consent by Surety. The surety's consent to an extension of time of payment may be either before or after the extension is made. The surety is bound by his consent, whether it becomes part of his contract or amounts to a waiver of a defense.
The Court finds that often guarantees to financial institutions contain language similar to that before this Court which provides that the guarantor has given prior consent to modifications in the underlying agreement. The following cases have upheld said waiver of future modifications of the underlying agreement and have held the surety still to be liable on the primary debt: Woods-Tucker Leasing Corp. of Georgia vs. Kellum, 641 F.2d 210, 217 (5th Cir.1979); Black vs. O'Haver, 567 F.2d 361, 369 (10th Cir.1977), cert. den. 435 U.S. 969, 98 S.Ct. 1609, 56 L.Ed.2d 61 (1978); Nikimiha Securities Ltd. vs. Trend Group Ltd., 646 F.Supp. 1211, 1218 (E.D.Pa.1986).
This Court thus finds for the purposes of deciding the issue as to whether this bankruptcy petition was filed in bad faith that the First Intercounty (FDIC) obligation of $515,000 was a contingent liability of such magnitude such as to justify the filing of the within Chapter 11 petition and qualifies as a legitimate debt owing by the debtor herein.
It is undisputed that the notes in evidence before the Court reflect that the debtor, James Taylor, signed a series of promissory notes promising to personally repay Norby Walters for advances made to the Kool And The Gang group. The Norby Walters agreement of June 18, 1987 (Exhibit # 52) makes reference to outstanding promissory notes amounting to $300,000 plus an additional advance tendered on that date of $400,000, for a total indebtedness of $700,000. (The promissory notes signed by Mr. Taylor to Norby Walters are reflected as Exhibits # 53, # 60, # 61, # 62, # 63, # 64.)
Mr. Delet, the manager of the group, testified that on February 15, 1988, the members of the group, excluding Mr. Taylor, executed a new promissory note to Norby Walters in the sum of $425,000. (Exhibit # 54). The record is not clear as to whether Norby Walters has waived any of his rights on the aforesaid promissory notes executed by debtor, James Taylor, and whether by accepting the promissory note of February 15, 1988, in the sum of $425,000 as a matter of law Norby has, in fact, waived his rights against Taylor. However, the continuous existence of the promissory notes signed by Taylor which are before the Court certainly are sufficient to get by the motion of PolyGram and Delightful to dismiss the within proceeding as a bad faith filing.
Generally the mere execution of a renewal note does not discharge the original obligation. In re Cooley, 624 F.2d 55, 57 (6th Cir.1980); In re Thayer, 38 B.R. 412, 419 (Bankr.D.Vt.1984); In re Tabers, 28 B.R. 679, 684 (Bankr.W.D.Ky.1983); In re Hopper, 17 B.R. 292, 294-95 (Bankr.W.D.Ky. 1982); In re Harris, 17 B.R. 210, 211 (Bankr.W.D.Ky.1982); In re Gibson, 16 B.R. 257, 262-64 (Bankr.D.Kan.1981); In re Holland, 16 B.R. 83, 87-88 (Bankr.N.D. Ohio 1981); United Counties Trust Co. v. Podvey, 160 N.J.Super. 244, 253, 389 A.2d 515 (Law Div.1979). Whether a renewal note extinguishes the obligation under the prior note is determined by an examination *309 of the intent of the parties a question of fact. See generally, Annotation, Renewal Note Signed By One Comaker As Discharge of Nonsigning Comakers, 43 A.L.R.3d 246 (1972 and Supp.1987); see also, Mount Holly State Bank v. Mount Holly Washington Hotel, 220 N.J.Super 506, 510-11, 532 A.2d 1125 (App.Div.1987).
The debtor's tangled web of finances as reflected by the First Intercounty notes of $515,000.00, the First City National Bank note of $250,000.00 and the series of Norby Walter notes of $500,000.00, all of which promissory notes and guarantees signed by the debtor total $1,065,000.00, excluding the Polygram debt, qualify Mr. Taylor as a debtor seeking relief under the Code.
THE NATURE OF THE POLYGRAM RECORDING CONTRACT AND ITS IMPACT UPON THE DEBTOR
On November 13, 1985, PolyGram Records, Inc. entered into a recording contract with Quintet. (Exhibit # 85). By the terms of this contract PolyGram agreed to record and Quintet agreed to perform artistic services in connection with the creation of certain sound recordings. Under the various options contained in the contract Quintet had committed to produce eight albums for PolyGram.
Under paragraph 6 of said recording contract PolyGram agreed to pay certain advances to Quintet. (Exhibit # 85). However, said advances were recoupable from royalties accruing to Quintet's account.[3] Paragraph 15 of the recording contract commencing on page 39 deals with an artist who leaves the singing group. Under said clause PolyGram has the right to require the leaving artist to perform a minimum of four albums as a solo artist for PolyGram. While the debtor herein did not sign the prime recording contract, said agreement having been signed by Quintet Associates, the debtor nonetheless on November 13, 1985, the same date on which the recording contract was signed, did execute what is referred to in the parlance of the record industry as an "inducement letter." Said inducement letter is contained as part of Exhibit # 85. By the terms of the inducement letter, Mr. Taylor, individually and personally, adopted the language of the leaving member clause contained in the primary recording contract between Quintet and PolyGram and thus obligated himself as a solo performer to record for PolyGram upon leaving the Kool And The Gang group.
By letter dated February 18, 1988, PolyGram records wrote to Quintet Associates and advised Quintet that PolyGram was pursuing its rights under the leaving member clause of the recording contract to continue the services of James Taylor as a recording artist for the PolyGram label. (Exhibit # 104).
It is undisputed that prior to the filing of the within Chapter 11 petition, there were negotiations between Mr. Taylor and PolyGram concerning his future artistic performances. A PolyGram confidential memo placed before the Court by PolyGram as Exhibit # 105 in its appendix reflects that two courses of action were being discussed in March of 1988. Under one course of action PolyGram would receive a lump-sum buy-out of approximately $5,000,000 from Mr. Taylor to be released from his contract. The second alternative would be to negotiate a new recording contract between Mr. Taylor and PolyGram.
Under paragraph 15.04 of the PolyGram/Quintet recording contract, leaving members are penalized in that PolyGram shall be entitled to combine such leaving member's personal recording account as a solo performer with the royalty account created by the Kool And The Gang group through Quintet under the prime recording contract. What this means to Mr. Taylor is that the advances made to Kool And The Gang through Quintet, which as of November 30, 1987 amounted to $950,000, can be recouped by PolyGram by offsetting any unreimbursed Kool And The Gang advances *310 against James Taylor royalties generated as a solo performer.
DEBTOR HAS THE RIGHT TO FILE A CHAPTER 7 BANKRUPTCY PETITION, AND PURSUANT TO SAID CHAPTER 7 PETITION VOID ALL FUTURE OBLIGATIONS UNDER HIS RECORDING CONTRACTS
The case of Matter of Noonan, 17 B.R. 793 (Bankr.S.D.N.Y.1982) involved a dispute between a recording artist and Arista Records which is remarkably parallel in some respects to the case before this Court. While the debtor in Noonan had performed as a solo performer, he was contracted to Arista on a multi-album arrangement. Bankruptcy Judge Roy Babitt noted that prior to bankruptcy the albums recorded by the debtor Noonan, while having received critical acclaim, had generated modest income. This meant the royalties due to Noonan fell far below the amounts which had been advanced by the record company and from which the record company was entitled to recoup its out-of-pocket outlay.
The Court in Noonan, supra, went on to note that Arista wished to hold Noonan to his future recording contract so that it could recoup its past losses from his future recordings.
Noonan, however, sees things otherwise for he now finds himself in a position where the sales for a third album would have to exceed one million units to reach the $500,000 recoupment Arista would be entitled to after advancing production costs for this new album.
Noonan, supra, at 795.
The debtor herein finds himself in a similar dilemma to that facing Mr. Noonan. The ability of Kool And The Gang to succeed in the future and to generate sufficient future income to repay PolyGram for the advances approaching $1,000,000 which are owed to the record company is somewhat speculative and in doubt.
In Noonan, supra, the debtor had initially filed a Chapter 11 petition and had petitioned the Court to reject the Arista recording contract. Thus, said case would have been four square with the matter before this Court. However, Arista vehemently opposed Noonan's motion to reject the executory record contract. The opinion notes that Noonan exercised his absolute right to convert his Chapter 11 case to a Chapter 7 case. Pursuant to Chapter 7 of the Bankruptcy Code there is an automatic rejection of executory contracts pursuant to 11 U.S.C. Section 365(d)(1). The issue before Judge Babitt in Noonan was whether Arista as the record company could reconvert the case to a Chapter 11 proceeding and force an assumption of the recording contract as part of a Chapter 11 plan put forth by the record company. Judge Babitt refused to reconvert the case to Chapter 11. Thus, the debtor remained in Chapter 7 and the Arista contract was rejected.
THE RECORD CONTRACT IS EXECUTORY
The term "executory contract" is not defined by the Bankruptcy Code. The Sixth Circuit has noted, "Executory contracts involve obligations which continue into the future . . . generally, they are agreements which include an obligation for the debtor to do something in the future." Sloan vs. Hicks, 761 F.2d 319, 322 (6th Cir.1984), cert. den., 474 U.S. 1006, 106 S.Ct. 528, 88 L.Ed.2d 460 (1985).
The legislative history of the 1978 Code contains this observation about executory contracts, "There is no precise definition of what contracts are executory, it generally includes contracts on which performance remains due to some extent on both sides." H.R.Rep. No. 595, 95th Congress, 1st Sess. 347 (1977); reprinted in 1978 U.S. Code Cong. & Admin. News 5787, 6303; see also, N.L.R.B. vs. Bildisco, 465 U.S. 513, 522, 104 S.Ct. 1188, 1194, 79 L.Ed.2d 482 (1984).
Thus, the Court finds that the November 13, 1985, recording contract between PolyGram and Quintet, which is personally and directly enforceable against the debtor herein pursuant to the inducement letter signed by the debtor also on November 13, 1985, is an executory contract in that it provides and obligates the debtor herein to perform recording services for PolyGram into the future and obligates PolyGram to *311 make certain cash advances in connection with the production of said records and to further market said records.
The Court notes the case of In re Monument Record Corp., 61 B.R. 866 (Bankr.M. D.Tenn.1986), involved the recording contract of a performer known as Roy Orbison. Mr. Orbison was not in bankruptcy, but his former recording company, Monument Records, was the debtor. Mr. Orbison petitioned the bankruptcy court for an order declaring that a 1976 record contract was an executory contract and Mr. Orbison sought to have the bankruptcy court compel Monument to assume or reject said contract. In analyzing the factual pattern, the bankruptcy court had occasion to note that in 1978 Mr. Orbison and his record contracting company had entered into a separate document entitled "Mutual Release for Termination of Recording Agreement."
The bankruptcy court in Monument, supra, went on to conclude that as a result of the mutual release and agreement of 1978 all future rights of the parties had terminated and that, therefore, the agreement was non-executory. In the course of reaching this conclusion Bankruptcy Judge Lundin, in the Monument Record case had occasion to note at page 868:
The Sixth Circuit arrived at its definition of executory contract through analysis of the purposes of rejection. [Citation omitted]. It determined that a contract is not executory if the objectives of rejection "have already been accomplished, or if they can't be accomplished through rejection." Id. Those purposes include: (1) taking advantage of contracts which will benefit the estate; (2) relieving the estate of burdensome contracts; (3) promoting the debtor's fresh start; (4) permitting the allowance and determination of claims; and (5) preventing parties from remaining "in doubt concerning their status vis-a-vis the estate." See Jolly v. Still, 574 F.2d [349] at 351; In re Norquist, 43 B.R. 224, 225, 11 COLLIER BANKR. CAS. 2d (MB) 1146 (Bankr.E.D. Wash.1984); H.R.REP. 585, 95th Cong., 1st Sess. 348 (1977) reprinted in 1978 U.S. CODE CONG. & AD. NEWS at 6304. [Footnotes omitted.]
Id., at 868.
The contract before this Court is clearly executory, and pursuant to Bankruptcy Code Section 365 it would clearly be rejectable by the debtor. The debtor's ostensible purpose in rejecting the PolyGram contract is that he may enter into a new recording contract with a subsequent corporation and thus proceed with his life and obtain what the debtor asserts to be his constitutional right for a fresh start. If the above five-point test outlined by the Sixth Circuit in the Jolly case is analyzed, clearly the debtor seeks to relieve the estate of a burdensome contract; the debtor is seeking a fresh start, and, pursuant to the rejection of the contract, debtor will be able to determine the amount of his remaining obligations to PolyGram and will be able to determine how the PolyGram claim will be treated in a Chapter 11 plan.
THE FACT THAT BANKRUPTCY CODE SECTION 541 STATES THAT PROPERTY OF THE ESTATE DOES NOT INCLUDE PERSONAL SERVICE CONTRACTS DOES NOT REMOVE THE POLYGRAM CONTRACT FROM THIS COURT'S JURISDICTION
Bankruptcy Code Section 541 defines property of the bankrupt estate. Subsection (a)(6) excludes from the estate earnings from services performed by an individual debtor after the commencement of the case. The Congressional history of Section 541, particularly Senate Report No. 95-989 at the time the initial bill was passed in November of 1978, reflects that the commencement of a bankruptcy case creates a specific estate. S.Rep. No. 989, 95th Cong. 2nd Sess. 5-6, reprinted in U.S.Code Cong. & Admin.News 5791-92. Said estate is comprised of all legal and equitable interests of the debtor in property wherever located as of the commencement of the bankruptcy proceeding. Id.
The bankruptcy estate now includes as property of the estate all property of the debtor, even that needed for a fresh start. After the property comes into the estate, the debtor may exempt it under those exemptions *312 allowed pursuant to the provisions of the Bankruptcy Code. The Bankruptcy Court has the jurisdiction to determine what property may be exempted and what property remains as property of the estate. It is with this general historical perspective in mind that the Code provision of Section 541(a)(6) must be read. Said provision reads as follows:
(a) Such estate is comprised of all of the following property, wherever located and by whomever held: . . . (6) proceeds, product, offspring, rents or profits of or from property of the estate, except such as are earnings from services performed by an individual debtor after the commencement of the case.
11 U.S.C. § 541(a)(6).
The fact that Bankruptcy Code Section 541(a)(6) was placed in the Bankruptcy Code as a protection for debtors is very adequately set forth by Judge Babitt in Matter of Noonan, 17 B.R. 793 (Bankr.S.D. N.Y.1982). It is a long standing rule that courts of equity will not order specific performance of personal service contracts. 5A Corbin on Contracts, § 1203 (1964 ed.); Restatement (Second) of Contracts, § 367 (1981).
The Court in ABC vs. Wolff, 52 N.Y.2d 394, 438 N.Y.S.2d 482, 420 N.E.2d 363 (1981) noted that the underpinning of the rule forbidding specific enforcement of personal service contracts is the Thirteenth Amendment's prohibition of involuntary servitude. It has been strongly suggested that judicial compulsion of services would violate the express command of that amendment. See, Stevens, Involuntary Servitude By Injunction, 6 Cornell Law Review, 235 (1921).
Thus, Code Section 541(a)(6) is a fundamental protection built into the Bankruptcy Code for the benefit of debtors. Said protection prohibits creditors from forcing a debtor into future servitude for the payment of debts. Having said that, can said Section 541(a)(6) be justified as a reason for depriving a debtor who meets the other standards of the Code from obtaining the benefits of a Chapter 11 reorganization? This Court finds it cannot.[4] As noted above and conceded in Noonan, supra, there is nothing to prevent the debtor herein from filing a Chapter 7 liquidation which would automatically sever the personal service contract before the Court. To recognize said point is to realize that it would be a distortion of the fresh start concept which underpins the entire Bankruptcy Code to deny this debtor an opportunity to reorganize in an orderly fashion.
PolyGram argues strenuously that the future benefits that will arise to the general creditor body should this Court allow a rejection of the PolyGram contract are de minimus. PolyGram argues that once relieved of the burden of the current recording contract debtor will enter into a new recording contract and will concentrate all of his efforts toward his future earnings leaving the bankruptcy case to die a slow death. Said argument fails to recognize that pursuant to 11 U.S.C. § 1112, conversion or dismissal of the pending Chapter 11 is under the continuing jurisdiction of this Court. Having sought the protection of this Court pursuant to Chapter 11, it will be the obligation of the debtor to move forward with an equitable plan confirmed in conformance with the Code, or in the alternative to convert this case to a Chapter 7 proceeding. Should the debtor neglect for whatever reason to pursue said course, said options will remain open to the Court as provided under the Bankruptcy Code. Thus, in the future, should this case ultimately be converted to a Chapter 7, the creditor body will find itself in no worse position then it would be in today had the *313 debtor opted to file a Chapter 7 petition initially.[5] As noted above, said Chapter 7 filing would have voided the PolyGram contract automatically.
ABSTENTION IS INAPPROPRIATE
PolyGram and Delightful jointly move to have this Court abstain pursuant to 28 U.S.C. § 1334 from determining the matter before it. Said movants press that the within matter is a noncore proceeding. Inasmuch as this Court has found that it has jurisdiction to allow the debtor to assume or reject the personal service recording and publishing contracts before the Court, this Court, pursuant to 28 U.S.C. § 157(b)(2) finds that the within matter is a core proceeding. The within matter certainly deals with the administration of the estate and is essential to the debtor's ability to move forward with a Chapter 11 plan of reorganization. PolyGram and Delightful would once again use Bankruptcy Section 541(a)(6) as a sword against the debtor to remove this Court's authority to grant the debtor a fresh start pursuant to the provisions of the Bankruptcy Code. This Court finds that it was not the intent of Congress in passing the Bankruptcy Code to carve out one group of individuals, namely those who found themselves bound by personal service contracts chiefly in the show business industry, from the protections of the Bankruptcy Code. Clearly debtor had the right to file a Chapter 7 proceeding, liquidate his assets and automatically reject the contracts before the Court. The objecting creditors would use Section 541(a)(6) to remove from the debtor his other option of filing in lieu of a Chapter 7 liquidation a Chapter 11 reorganization. Insofar as the rejection of the personal service contracts before the Court go to the gravamen and root of this case, this Court has full jurisdiction over this matter and does not abstain.
For the aforesaid reasons, the motions of PolyGram and Delightful to dismiss the pending bankruptcy proceeding or in the alternative to have this Court abstain are denied; the cross-motions of the debtor to reject the executory contracts before the Court involving Delightful and PolyGram are granted.
NOTES
[1] References are to appendix exhibits. Numbers 1 through 109 are in the Polygram appendix; numbers 111 through 162 are in debtor's appendix.
[2] Norby Walters was the group's booking agent. The Kool And The Gang management periodically borrowed sums from Norby Walters. As of April 15, 1987, Norby Walters was owed the sum of $500,000 by the group. Said obligation was personally guaranteed by the debtor.
[3] Exhibit # 80 reflects all advances to Quintet (Kool) by PolyGram from November 13, 1985 to November 5, 1987. Said advances total $3,038,171.66. During this period one album was released for PolyGram, and at the time of the hearings, a second album involving the group's past "greatest hits" was in preparation.
[4] The Court distinguishes In re Carrere, 64 B.R. 156 (Bankr.C.D.Calif.1986). In Carrere, the admitted primary motivation for filing Chapter 11 was to free the debtor from one acting contract so she could enter into a new one. The Court noted at page 160, "It would be inequitable to allow a greedy debtor to seek the equitable protection of this Court when her major motivation is to cut off the equitable remedies of her employer."
The matter sub judice involves a debtor immersed in substantial debt. This was not a sham filing. Having established that he qualifies as a debtor, Mr. Taylor is entitled to the benefits of Chapter 11.
[5] Debtor's principal equity asset is his residence. Such property continues under the jurisdiction of this Court and will be available to creditors should the Chapter 11 fail and the case be converted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2695260/ | [Cite as Wade v. Ohio Dept. of Transp., 2011-Ohio-4150.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
JUSTIN WADE
Plaintiff
v.
DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2011-01348-AD
Deputy Clerk Daniel R. Borchert
MEMORANDUM DECISION
FINDINGS OF FACT
{¶1} Plaintiff, Justin Wade, filed this action against defendant, Department of
Transportation (ODOT), alleging the tire on his vehicle was damaged as a proximate
result of negligence on the part of ODOT in maintaining a hazardous condition on South
Front Street across the overpass of I-70. Plaintiff related he hit pieces of concrete
curbing that crumbled and fell onto the roadway. Plaintiff recalled the described
incident occurred on August 9, 2010, at approximately 8:45 a.m. In his complaint,
plaintiff requested damages in the amount of $269.00, the total cost of a replacement
tire. The $25.00 filing fee was paid.
{¶2} Defendant filed an investigation report requesting plaintiff’s claim be
dismissed due to the fact the City of Columbus and not ODOT bears the maintenance
responsibility for the roadway and sidewalks off of the bridge where plaintiff’s incident
occurred. Consequently, defendant contended the City of Columbus is the proper party
defendant to plaintiff’s action.
{¶3} Plaintiff did not file a response.
CONCLUSIONS OF LAW
{¶4} R.C. 2743.01(A) provides:
{¶5} “(A) ‘State’ means the state of Ohio, including, but not limited to, the
general assembly, the supreme court, the offices of all elected state officers, and all
departments, boards, offices, commissions, agencies, institutions, and other
instrumentalities of the state. ‘State’ does not include political subdivisions.”
{¶6} R.C. 2743.02(A)(1) states in pertinent part:
{¶7} “(A)(1) The state hereby waives its immunity from liability, except as
provided for the office of the state fire marshal in division (G)(1) of section 9.60 and
division (B) of section 3737.221 of the Revised Code and subject to division (H) of this
section, and consents to be sued, and have its liability determined, in the court of claims
created in this chapter in accordance with the same rules of law applicable to suits
between private parties, except that the determination of liability is subject to the
limitations set forth in this chapter and, in the case of state universities or colleges, in
section 3345.40 of the Revised Code, and except as provided in division (A)(2) or (3) of
this section. To the extent that the state has previously consented to be sued, this
chapter has no applicability.”
{¶8} R.C. 5501.31 in pertinent part states:
{¶9} “Except in the case of maintaining, repairing, erecting traffic signs on, or
pavement marking of state highways within villages, which is mandatory as required by
section 5521.01 of the Revised Code, and except as provided in section 5501.49 of the
Revised Code, no duty of constructing, reconstructing, widening, resurfacing,
maintaining, or repairing state highways within municipal corporations, or the bridges
and culverts thereon, shall attach to or rest upon the director . . .”
{¶10} The site of the damage-causing incident was not the maintenance
jurisdiction of defendant. Consequently, plaintiff’s case is dismissed.
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
JUSTIN WADE
Plaintiff
v.
DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2011-01348-AD
Deputy Clerk Daniel R. Borchert
ENTRY OF ADMINISTRATIVE DETERMINATION
Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, plaintiff’s claim is DISMISSED.
Court costs are assessed against plaintiff.
________________________________
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Justin Wade Jerry Wray, Director
684 Mohawk Street Department of Transportation
Columbus, Ohio 43206 1980 West Broad Street
Columbus, Ohio 43223
SJM/laa
5/10
Filed 5/24/11
Sent to S.C. reporter 8/19/11 | 01-03-2023 | 08-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3067405/ | Order entered October 16, 2014
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00354-CR
RICKEY TRENT STANLEY, JR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 062945
ORDER
By order dated October 13, 2014, the Court reinstated this appeal and ordered appellant
to file his brief within fifteen days. On October 14, 2014, appellant tendered his brief and a third
motion for extension of time to file the brief. Because appellant’s brief is timely filed pursuant
to the Court’s October 13, 2014 order, we DEEM it timely filed on the date of this order. We
DENY AS MOOT appellant’s third motion for extension of time to file his brief.
/s/ LANA MYERS
JUSTICE | 01-03-2023 | 10-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1576550/ | 118 Mich. App. 567 (1982)
325 N.W.2d 793
CUSSANS
v.
HARRIS
Docket No. 55201.
Michigan Court of Appeals.
Decided August 23, 1982.
John A. Streby, for plaintiff.
*569 Law Offices of Seth H. Barsky, P.C. (by Edward B. Meth), for defendants.
Before: M F. CAVANAGH, P.J., and R.M. MAHER and K.B. GLASER,[*] JJ.
K.B. GLASER, J.
The trial court granted accelerated judgment, pursuant to GCR 1963, 116.1(5), in favor of defendants. Plaintiff appeals as of right.
This is a dramshop action arising out of an automobile accident which occurred on October 3, 1976. In his complaint, plaintiff alleged that defendant Roy B. Harris, doing business as The Shanty (hereinafter referred to as "defendant bar"), illegally furnished intoxicating liquor to defendant Mangett, the alleged intoxicated person (AIP), while the latter was visibly intoxicated, that as a proximate result of the illegal sale Mangett was involved in an automobile accident with plaintiff, and that plaintiff suffered serious injuries as a result of the accident. On June 9, 1978, plaintiff entered into a settlement agreement with defendant Mangett and executed a document entitled, "Release With Indemnifying Agreement". Shortly thereafter, plaintiff commenced this action in the trial court, naming only defendant bar and alleging a violation of the dramshop act. MCL 436.22; MSA 18.993. Defendant bar moved to dismiss the complaint based on plaintiff's failure to name and retain the AIP. Several times subsequently, the trial court ordered plaintiff to add the AIP as a party defendant. However, not until October 18, 1979, did plaintiff file an amended complaint which added Mangett as a party defendant. Thereafter, defendant Mangett moved for accelerated judgment claiming that plaintiff's action against him was barred by the statute of limitations and *570 the June 9, 1978, release. Likewise, defendant bar renewed its motion claiming that plaintiff's action against it was barred because he was unable to name and retain the AIP as required by the statute. The trial court granted defendants' motions. On appeal, plaintiff claims that, (1) the dramshop act does not require a plaintiff to name the AIP as a party defendant before effecting a settlement with him, (2) the applicable statute of limitations is three years, MCL 600.5805(8); MSA 27A.5805(8), and (3) the June 9, 1978, agreement between plaintiff and defendant Mangett should be interpreted as a covenant not to sue, rather than an outright release.
In pertinent part, the dramshop act reads as follows:
"(5) A wife, husband, child, parent, guardian, or other person injured in person, property, means of support, or otherwise, by a visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of intoxicating liquor to the person, if the sale is proven to be a proximate cause of the injury or death, shall have a right of action in his or her name against the person who by the selling, giving, or furnishing the liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the injury. * * * An action shall be instituted within 2 years after the injury or death * * *. An action against a retailer, wholesaler, or anyone covered by this act or a surety, shall not be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement. * * *" MCL 436.22(5); MSA 18.993(5).
The purpose of the latter sentence, added by amendment in 1972 and commonly known as the name and retain provision, has been stated by the Supreme Court as follows:
*571 "The provision will eliminate the common practice whereby the intoxicated person enters into a settlement with the injured plaintiff for a token sum, and thereafter energetically assists the plaintiff with the prosecution of a suit against the tavern owner. The provisions will also discourage possible collusion and perjury by those too weak to resist the obvious temptation inherent in the original dramshop act, which has now been recognized by the Legislature and corrected through this amendment."
Salas v Clements, 399 Mich. 103, 108-109; 247 NW2d 889 (1976), quoting Salas v Clements, 57 Mich. App. 367, 372; 226 NW2d 101 (1975). Also, Schutz v Murphy, 99 Mich. App. 386, 389; 297 NW2d 676 (1980). Regardless of how the June 9, 1978, agreement is characterized, it is clear that the name and retain provision must be complied with, i.e., the plaintiff must keep the AIP in the lawsuit, although it is not required that the latter remain as an active party or have a continuing monetary interest in the outcome. Putney v Gibson, 94 Mich. App. 466, 468-478; 289 NW2d 837 (1979), lv gtd 408 Mich. 897; 291 NW2d 358 (1980), Buxton v Alexander, 69 Mich. App. 507, 511; 245 NW2d 111 (1976), lv den 399 Mich. 827 (1977). However, in limited circumstances, compliance is excepted if the plaintiff cannot, after due diligence, identify, i.e., name, the AIP, Salas, supra, 106, 110, Putney, supra, 474-475, Woodbeck v Curley (After Remand), 107 Mich. App. 784, 786; 310 NW2d 242 (1981), or cannot retain the AIP as a party defendant because the plaintiff has no cause of action against him. Schutz, supra, Farmers Ins Group v Clear, 94 Mich. App. 655, 660; 290 NW2d 51 (1980). Plaintiff does not come under either exception. Rowan v Southland Corp, 90 Mich. App. 61, 69; 282 NW2d 243 (1979).
Moreover, since the accident occurred on October *572 3, 1976, and since plaintiff did not attempt to add Mangett as a party defendant until October 18, 1979, it is clear that plaintiff failed to comply with the two-year period of limitation contained in the dramshop act. The Supreme Court has specifically found that the general statute of limitations does not apply to dramshop actions. Holland v Eaton, 373 Mich. 34, 38-40; 127 NW2d 892 (1964), overruled on other grounds Lambert v Calhoun, 394 Mich. 179, 184; 229 NW2d 332 (1975). Also, Jones v Bourrie, 369 Mich. 473; 120 NW2d 236 (1963), Browder v International Fidelity Ins Co, 98 Mich. App. 358, 361; 296 NW2d 60 (1980), Nunnally v International Fidelity Ins Co, 94 Mich. App. 291, 294; 288 NW2d 356 (1979). Further, even if a common-law cause of action should survive against the AIP, Rowan, supra, 68-69, and the general three-year statute of limitations were applicable, MCL 600.5805(8); MSA 27A.5805(8), plaintiff did not attempt to add Mangett until more than three years after the date of the accident.
"We hasten to add that GCR 1963, 118.4 does not alter this result by allowing the plaintiff to add a party defendant by an amended complaint and relate the action back to the original date of injury. The general rule is that an amendment does not relate back to the original filing date for purposes of adding a new party defendant when the statute of limitations has expired as to that defendant." (Citations omitted.) Browder, supra, 361.
Consequently, since any action against Mangett was barred due to the running of the period of limitation, the trial court properly granted accelerated judgment in his favor. It necessarily follows then that, since plaintiff could not retain Mangett, the trial court also properly granted accelerated judgment in favor of defendant bar.
Affirmed. Defendants may tax costs.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577246/ | 151 S.W.3d 672 (2004)
Tracy HICKS, Appellant,
v.
The STATE of Texas, Appellee.
No. 10-03-00083-CR.
Court of Appeals of Texas, Waco.
October 27, 2004.
*673 Tracy Hicks, Iowa Park, pro se.
Dale S. Hanna, Johnson County Dist. Atty., David W. Vernon, Johnson County Asst. Dist. Atty., Cleburne, for appellee.
*674 Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
OPINION
FELIPE REYNA, Justice.
In 1993, Tracy Hicks pleaded guilty to three counts of sexual assault and true to an enhancement allegation paragraph. As a result, he was sentenced to forty years' incarceration. In 2001, Hicks filed a motion for post-conviction DNA testing. The trial court granted Hicks's motion and ordered the testing. After the testing was completed, the trial court found that the DNA results were unfavorable to Hicks. Hicks appeals from this ruling. We affirm.
ISSUES RELATING TO HICKS'S 1993 CONVICTION
Hicks's first and second issues and his fourth through seventh issues directly attack his 1993 conviction. At the time that Hicks filed his DNA motion, this Court's jurisdiction was confined to appeals of "findings" under articles 64.03 and 64.04 regarding post-conviction DNA hearings.[1]See Wolfe v. State, 120 S.W.3d 368, 372 (Tex.Crim.App.2003); Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2 § 2, 2001 TEX. GEN. LAWS 2, 4 (amended 2003) (current version at Tex.Code Crim. Proc. Ann. art. 64.05 (Vernon Supp.2004)). The jurisdiction granted under chapter 64 does not extend to collateral attacks on the judgment of conviction. Lopez v. State, 114 S.W.3d 711, 714-15 (Tex.App.-Corpus Christi 2003, no pet.). Hicks's issues relating to the 1993 conviction do not arise from a chapter 64 proceeding, and as a result, we do not have jurisdiction over them. Id. Therefore, we dismiss Hicks's first and second issues and his fourth through seventh issues for want of jurisdiction. See Gray v. State, 134 S.W.3d 471, 472 (Tex.App.-Waco 2004, no pet.).
FARETTA HEARING
Hicks argues in his eighth issue that the trial court erred in failing to hold a Faretta hearing before allowing him to represent himself.[2] Counsel was appointed to represent Hicks during the post-conviction DNA hearing. After the hearing, the court allowed counsel to withdraw and appointed new counsel for this appeal. Hicks became dissatisfied with his appellate counsel and filed a motion with this Court to proceed pro se and a motion with the trial court to allow his appellate counsel to withdraw. Hicks also sent letters to his appellate counsel asking him to withdraw. Without conducting a hearing, the trial court allowed counsel to withdraw, and Hicks was permitted to represent himself.
Hicks's motions and letters indicate that he understands the dangers and disadvantages of self-representation. A defendant's right to self-representation "cannot be manipulated in such a manner as to throw the trial process into disarray." Fulbright v. State, 41 S.W.3d 228, 235 *675 (Tex.App.-Fort Worth 2001, pet. ref'd) (citing Dunn v. State, 819 S.W.2d 510, 520 (Tex.Crim.App.1991)).
Hicks indicates in his motions that he intended to represent himself regardless of whether the trial court allowed his appellate counsel to withdraw. Hicks claimed that his appellate counsel would not present certain issues to this Court that Hicks felt was relevant to his conviction. Because of this Hicks felt that it would be in his best interest and in the best interest of the State that he represent himself. In addition, because of the conclusiveness of the DNA evidence and the restriction of this appeal to chapter 64, the outcome of this proceeding would be no different had Hicks chosen not to represent himself. Therefore, any error in the trial court's failure to hold a hearing is harmless. See Tex.R.App. P. 44.2; Fulbright, 41 S.W.3d at 235-36. Accordingly, we overrule Hicks's eighth issue.
POST-CONVICTION DNA REVIEW
Hicks argues in his third issue that a proper chain of custody was not established for the evidence tested and that the test results do not support the trial court's finding that the DNA results was unfavorable.
Chain of Custody
Hicks argues that the evidence of the DNA results should not have been admitted because a proper chain of custody was not established. In his motion to the trial court requesting DNA testing, Hicks asked the court to find that the DNA evidence had been properly collected and remained in proper custody. As a result, the trial court found there was a proper chain of custody and ordered the tests.
Because Hicks requested that the trial court find a proper chain of custody, and the court did so, he is estopped from complaining about it. The law of invited error estops an appellant from complaining of error that he induced. Jones v. State, 119 S.W.3d 766, 784 (Tex.Crim.App.2003) (citing Benson v. State, 496 S.W.2d 68, 70 (Tex.Crim.App.1973)). Hicks cannot now complain that the trial court granted his request.
Unfavorable DNA Evidence
Hicks argues that the test results do not support the trial court's finding under article 64.04 that the results were unfavorable. Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2 § 2, 2001 TEX. GEN. LAWS 4 (amended 2003) (current version at Tex.Code Crim. Proc. art. 64.04 (Vernon Supp.2004)). Because the language of article 64.03 is similar to that of article 64.04, appellate courts have applied the article 64.03 standard of review when analyzing article 64.04 appeals.[3]Fuentes v. State, 128 S.W.3d 786, 787 (Tex.App.-Amarillo 2004, pet. ref'd). Therefore, we review de novo the ultimate question of whether a reasonable probability exists that DNA results are favorable, i.e. if it is reasonably probable that, had the DNA results been available before or during trial, appellant would not have been prosecuted or convicted. Id. (citing Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002)).
Courts have found the requirement in article 64.03 that the appellant establish by a preponderance of the evidence that a "reasonable probability exists *676 that [he] would not have been prosecuted or convicted" to mean that an appellant must show a reasonable probability that exculpatory DNA tests would prove his innocence. Kutzner v. State, 75 S.W.3d 427, 438-39 (Tex.Crim.App.2002); see also Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2 § 2, 2001 TEX. GEN. LAWS 3 (amended 2003) (current version at Tex.Code Crim. Proc. art. 64.03 (Vernon Supp.2004)). This is accomplished by showing that there is a probability of innocence sufficient to undermine confidence in the outcome. Baggett v. State, 110 S.W.3d 704, 706 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (citing Kutzner, 75 S.W.3d at 438-39). Therefore, we must review de novo whether the DNA results create a probability of innocence sufficient to undermine our confidence in the outcome of Hicks's 1993 trial. Fuentes, 128 S.W.3d at 787; Baggett, 110 S.W.3d at 706.
The test results show that the DNA of Hicks was "consistent" with the DNA taken from the semen present on the vaginal swab of the victim. The probability that Hicks was not the source of the DNA was 1 in 37.04 quintillion for Caucasians, 1 in 12.8 quintillion for African Americans, and 1 in 11.2 quintillion for Hispanics. Because the odds that Hicks was not the contributor of the DNA exceeds the world's population, we find that these results do not create a probability of innocence sufficient to undermine our confidence in Hicks's conviction. Fuentes, 128 S.W.3d at 788. Accordingly, we overrule Hicks's third issue.
CONCLUSION
Having dismissed or overruled all of Hicks's issues, we affirm the judgment of the trial court.
NOTES
[1] In 2003, the Legislature changed the law to allow an appeal under chapter 64 in its entirety. Tex.Code Crim. Proc. art. 64.05 (Vernon Supp.2004). The current law applies to appellants who submit a motion for DNA testing on or after September 1, 2003. Hicks submitted his motion in 2001. Therefore, the former law applies to Hicks's case. See Wolfe v. State, 120 S.W.3d 368, 370-72 (Tex.Crim.App.2003).
[2] When a defendant wishes to represent himself, a Faretta hearing is required to advise him of the dangers and disadvantages of self-representation. See Faretta v. California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed. 2d 562 (1975); see also Tex.Code Crim. Proc. Ann. 1.051(g) (Vernon Supp.2004).
[3] We apply the standard of review as interpreted by the courts under former chapter 64, as explained above; yet, we note that the Legislature has changed the standard of review for appeals filed under articles 64.03 and 64.04. See Tex.Code Crim. Proc. arts. 64.03, 64.04 (Vernon Supp.2004). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918371/ | 101 B.R. 528 (1989)
In re SPORTPAGES CORPORATION, a Texas corporation, d/b/a Sportpages, Flair, Fabulous Finds and Final Edition, Debtor.
W.A. KRUEGER COMPANY, Respondent-Appellant,
v.
SPORTPAGES CORPORATION and its Unsecured Creditors Committee, Objectors-Appellees.
Nos. 86 B 9029, 89 C 1609.
United States District Court, N.D. Illinois, E.D.
June 14, 1989.
Daniel A. Zazove, Karen Walin, Towbin & Zazove, Ltd., Chicago, Ill., for Sportpages.
Larry M. Wolfson, Frances Gecker, Jenner & Block, Chicago, Ill., for W.A. Krueger Co.
MEMORANDUM OPINION
KOCORAS, District Judge:
This matter is before the court on appeal from the Bankruptcy Court's final order reducing Appellant W.A. Krueger Company's ("Krueger") claim. For the following reasons, the decision of Bankruptcy Judge Schwartz is affirmed.
*529 FACTS
Krueger is a Wisconsin corporation engaged in the printing business. Sportpages Corporation ("Sportpages" or "Debtor") was a mail order clothes merchandiser. On October 1, 1981, Krueger and Sportpages entered into a Commercial Product Agreement under which Krueger printed Sportpages' 1982 catalogues. Krueger fully performed and Sportpages failed to pay Krueger $594,416.14 due under the contract.
In February 1983, Sportpages filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Texas ("Sportpages I"). Debtor's plan of reorganization was confirmed on June 7, 1983. Under Sportpages I, trade debt, such as Krueger's claim, was discharged and satisfied by the debtor paying claims under one of three options. Krueger elected to receive cash in the amount equal to 40% of its allowed claim ($237,766.46), paid in three annual installments of $79,255.48. A promissory note was executed pursuant to the terms of the Sportpages I Plan. Sportpages paid Krueger only two of the three installments due under the promissory note.
On June 6, 1986, Sportpages filed a second voluntary Chapter 11 petition in the United States Bankruptcy Court for the Northern District of Illinois ("Sportpages II"). On September 29, 1986, Krueger filed a proof of claim in Sportpages II for $435,905.16, the original balance due under the Commercial Product Agreement less the two payments received under the Sportpages I Plan. Krueger's claim indicated that the basis for the claim was a material default of Sportpages of its commitment under the Sportpages I Plan. On November 6, 1987, Krueger voted in favor of the Sportpages II Plan. On November 20, 1987, the Sportpages II Plan was confirmed. The Plan provides that Class 5 general unsecured claims, such as that of Krueger, shall receive a pro rata share of the proceeds from the sale of the Debtor's assets after payment of secured, administrative and priority claims.
On May 11, 1988, the Committee of Unsecured Creditors ("Committee") filed an objection to Krueger's claim. The basis for the Committee's objection was that $356,649.68 of Krueger's claim was previously discharged by the Sportpages I Plan. The Bankruptcy Court held a hearing on the Committee's objection to Krueger's claim on December 13, 1988. Krueger argued that because the Sportpages II Plan impermissibly modified the Sportpages I Plan, Krueger is entitled to its original Sportpages I claim or to a priority claim for the balance due under the Sportpages I Plan. The Bankruptcy Court concluded that the Chicago plan of liquidation did not modify the Texas plan. On June 6, 1989, the bankruptcy court entered an order reducing Krueger's unsecured claim to $79,255. This appeal by Krueger followed.
DISCUSSION
The applicable standard of review in this case is whether the Bankruptcy Court's findings of fact are clearly erroneous and whether the Bankruptcy Court's conclusions of law are contrary to law. Bankr. Rule 8013; In re Longardner & Assoc., Inc., 855 F.2d 455, 459 (7th Cir.1988). This court must review the Bankruptcy Court's legal conclusions de novo. In re Martin, 698 F.2d 883, 885 (7th Cir.1983). The issue in this case is whether the bankruptcy court's ruling that Krueger's Sportpages II claim was discharged in large part by the Sportpages I proceeding was clearly erroneous. This court finds that such a ruling is not erroneous.
Section 1127(b) of the Bankruptcy Code provides that:
(t)he proponent of a plan or the reorganized debtor may modify such plan at any time after confirmation of such plan and before substantial consummation of such plan.
11 U.S.C. § 1127(b). The parties stipulated that the Sportpages I plan of reorganization was "substantially consummated" as defined in § 1101(2) of the Code prior to the filing of the Sportpages II liquidation plan. Payment to the Sportpages I creditors *530 had commenced, including two of three payments to Krueger.
Krueger cites authority for the proposition that 11 U.S.C. § 1127(b) prohibits a debtor from filing a new seriatum Chapter 11 petition that, in essence, would affect or modify the previous plan as confirmed. In re Northampton Corp., 39 B.R. 955 (Bkrtcy.E.D.Pa.1984); In re AT of Maine, Inc., 56 B.R. 55 (Bkrtcy.D.Me.1985). These courts found that the filing of a second petition was tantamount to modifying the previous plan and to hold otherwise would be to "allow (the) debtor to continuously circumvent the provisions of a confirmed plan by filing Chapter 11 petitions ad infinitum." In re Maine, 56 B.R. at 57 citing In re Northampton, 37 B.R. 110 at 112-13 (Bkrtcy.E.D.Pa.1984). The remedy discussed in all of the cases cited by Krueger is conversion to a Chapter 7 liquidation or dismissal of the second Chapter 11 petition pursuant to § 1112(b) of the Code.
However, rather than seeking to dismiss Sportpages II, Krueger remained a creditor and pursued the full amount of its Sportpages I claim. Krueger alleges that it believed the claim was valid and had no reason to seek dismissal of the Sportpages II plan. Krueger cites no authority for its position that a material default of payment to a creditor under a confirmed plan resurrects discharged claims under that plan. Rather, just cause existed to dismiss or convert Sportpages II but Krueger did not object and the Sportpages II liquidation plan proceeded to confirmation as a second Chapter 11 case. This court agrees that Krueger's attempt to revive its claim previously discharged by final order of court is nothing more than an impermissible collateral attack upon the order confirming the Sportpages I plan. Bankruptcy Judge Schwartz made a factual determination that the Sportpages II liquidation plan was separate from and did not materially alter the Sportpages I plan.
Krueger argues in the alternative that its claim should receive priority status ahead of other general unsecured creditors, since Sportpages II inequitably reduces its claim a second time. In support, Krueger argues that the Bankruptcy Court has long been empowered to look through form to substance and devise new remedies where those in law are inadequate. The Committee argues that the principle of equality of distribution overrides the equitable powers of the bankruptcy court. It is not this court's function on appeal, however, to balance bankruptcy policy. The bankruptcy court determined that pro rata distribution of liquidation proceeds among all general unsecured creditors, including creditors from Sportpages I, was the most equitable resolution in this case. This court will not second-guess this finding.
CONCLUSION
For the reasons stated, the decision of Bankruptcy Judge Schwartz to reduce Krueger's unsecured claim to $79,255 is affirmed.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2342199/ | 9 S.W.3d 925 (2000)
Joseph Charles MALLEY, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 09-99-114CR, 09-99-115CR.
Court of Appeals of Texas, Beaumont.
Submitted January 26, 2000.
Decided February 9, 2000.
*926 Thomas A. Martin, Houston, for appellant.
Thomas Maness, Crim. Dist. Atty., Rodney D. Conerly, Asst. Crim. Dist. Atty., Beaumont, for State.
Before WALKER, C.J., BURGESS and STOVER, JJ.
OPINION
RONALD L. WALKER, Chief Justice.
Joseph Charles Malley pleaded guilty to two separate indictments for aggravated sexual assault on a child. A plea bargain agreement with the State of Texas placed an upper limit of 25 years on the punishment range. The trial court assessed punishment at 15 years of incarceration in the Texas Department of Criminal Justice, Institutional Division, in each case, and ordered the sentences to be served concurrently. Malley subsequently filed a writ of habeas corpus and obtained an out-of-time appeal, Malley presents a single issue:
Whether the Appellant's plea of guilty in both cases was voluntary and with knowledge of the consequences of his two pleas when such pleas were based upon erroneous advice of trial counsel and when Appellant's subsequent conversations with his attorney led trial counsel to "question" Appellant's understanding of the import of the trial court's admonishments.
Since a plea bargain agreement is predicated upon a knowing and voluntary plea, the general notice of appeal filed by Malley in these appeals confers jurisdiction upon us to consider the issue he presents. See Flowers v. State, 935 S.W.2d 131, 134 (Tex.Crim.App.1996); Minix v. State, 990 S.W.2d 922, 923 (Tex.App.-Beaumont 1999, pet. ref'd). Malley argues he pleaded guilty without knowledge of the consequences of his pleas. This claim was presented *927 to the trial court in a motion for new trial hearing based upon a motion filed more than one year after sentencing but less than thirty days after the day the Court of Criminal Appeals issued its mandate on the writ of habeas corpus.
The State presents a "cross-point" in its brief to the Court, presumably under the provision of the Code of Criminal Procedure that permits the State to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the judgment. Tex.Code.Crim. Proc. Ann. art. 44.01(c) (Vernon Supp.2000). The State did not file a notice of appeal, as it must in order to perfect an appeal. Tex.R.App. P. 25.2(a).[1] One issue raised in the State's argument under its cross-point is directly related to whether we can consider the record created on motion for new trial in addressing Malley's point of error. Such an argument must, of course, be addressed whether or not the State perfected an appeal.
From what may be gleaned from the Court of Criminal Appeals's opinion, Malley's writ of habeas corpus complained counsel failed to take the steps necessary to perfect appeal, and did not mention the need to file a motion for new trial. After he obtained an out-of-time appeal through writ of habeas corpus, Malley filed a motion for new trial that alleged his pleas were involuntarily entered. In order to determine whether this motion was timely filed, we must consider the relief granted by the Court of Criminal Appeals: "For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the convictions had been entered on the day that the mandate of this Court issues." The opinion does not mention filing a motion for new trial, presumably because Malley did not raise the issue with the Court of Criminal Appeals, but the grant of relief was broad enough to encompass the filing of a motion for new trial because motions for new trial are filed pursuant to the Rules of Appellate Procedure.
An additional complication arises because within thirty days of sentencing Malley filed a motion for new trial that was overruled by operation of law. Since Malley had already filed a motion for new trial, the motion that raises voluntariness of the plea is an amended motion for new trial. Amended motions for new trial must be filed within 30 days of sentencing and before the court overrules any preceding motion for new trial. Tex.R.App. P. 21.4(b). Under circumstances where a new "sentencing" date is imposed through post-conviction extraordinary proceedings, the fact that a preceding motion for new trial had previously been overruled by operation of law should not preclude filing a new motion for new trial, provided such a motion is within the scope of the high court's mandate, notwithstanding Rule 21.4(b). We conclude the motion for new trial was timely filed.
"When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, `the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App.1999) (quoting Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim.App.1997)).
In considering the voluntariness of a guilty plea, we examine the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App.1998). Malley received and signed written admonishments on the range of punishment and the consequences *928 of his plea, creating a prima facie showing that the plea was voluntary. Id. The burden shifted to Malley to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm. Id.
At the first plea proceeding, the trial court informed Malley that if convicted, he faced confinement in prison for life, or any term of not more that 99 years or less than 5 years. The judge informed Malley that the State agreed his punishment would not exceed 20 years, and that his counsel would recommend deferred adjudication, but that the court was not bound by either the recommendation of the State or of the defendant. The judge told Malley he could withdraw his plea and have a jury trial if the Court decided 20 years was not sufficient and rejected the plea bargain. Then the Court told Malley that if the court assessed punishment at 20 years or less, Malley could not appeal without the trial court's permission. The trial court immediately repeated those same admonishments for the other indictment. At a subsequent hearing, the prosecutor complained that letters of support submitted for the pre-sentence report claimed the assaults had not occurred, and if Malley was going to deny the offense, he should have a trial because he didn't deserve a 20 year sentence. The trial court rejected the plea bargain.
A few months later, Malley again pleaded guilty, this time for a plea bargain with a 25 year upper limit on punishment. The trial court admonished Malley again, this time informing Malley that a 25 year prison sentence would be within the plea bargain agreement. The admonishments were repeated for the second offense. The State did not stand mute at the sentencing hearing, but argued that given Malley's tendency to blame the 12-year-old victim, probation was not the appropriate punishment for the offenses. The trial court assessed punishment at 15 years of imprisonment for the first offense, then conducted a separate sentencing on the other offense, without Malley ever voicing surprise or protest over the outcome.
During the motion for new trial hearing, Malley testified he pleaded guilty because he is guilty. According to Malley, he thought he would get probation because, "I had never been in any trouble before and had been told by many different persons that the first time offender would get probation." Malley claimed one of his two lawyers, Mr. Cribbs, "told me that I would get probation, that I should get probation," that the person preparing the pre-sentence investigation report told him "she couldn't guarantee [probation]" but they would say "you should get probation because most first time offenders would get it," and that the psychiatrist "also said that I probably would get probation." Malley admitted the trial judge told him he might get "jail time."
On cross-examination, Malley recalled he brought in a second lawyer because, "When we came up to the court and prosecutor had said he wanted to do the maximum time and all and then Judge Carver threw the whole thing out." Asked if the second lawyer, Mr. Bonham, told him he would get probation if he pleaded guilty, Malley admitted, "He didn't say I definitely would." Asked, "when did it occur to you that you weren't going to get probation?", Malley replied, "When the Judge said 15 years TDC."
C. Hayden Cribbs, the lawyer who supposedly raised Malley's expectation of community supervision, did not testify at the motion for new trial hearing. David Bonham did testify; according to Bonham, the original presentence investigation report concluded Malley would be a suitable candidate for probation, and Malley was aware of that report. Bonham testified that he went over with Malley what the outcome of the case could be and Malley understood the consequences of his plea at the time he made it. After sentencing, and before the first motion for new trial was to be heard, Malley talked to Bonham about conditions of probation, and Bonham *929 reminded Malley that he didn't get probation and in order to get probation the court would have to grant the motion for new trial. Malley acknowledged that he understood but then would bring up the subject of probation at their next office visit.
A plea is not involuntary simply because the sentence exceeded what the appellant expected, even if that expectation was raised by his attorney. West v. State, 702 S.W.2d 629, 633 (Tex.Crim.App. 1986). At the hearing on the motion for new trial, the trial judge sat as the trier of fact and his findings will not be disturbed unless abuse of discretion has been demonstrated. Reissig v. State, 929 S.W.2d 109, 113 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). Furthermore, the trial judge was not required to accept as true the testimony of the accused or any other witness simply because it was not contradicted. Id. We find that appellant failed to meet his burden to demonstrate that his plea was not knowing and voluntary due to erroneous advice of counsel. Malley was informed by both his attorney and the judge as to the possible range of punishment. The plea bargain agreement placed an upper limit of twenty-five years on punishment, providing for the possibility of community supervision but not requiring it. The trial court rejected a previous plea bargain with a twenty year upper limit on punishment. Although Malley had an expectation that he would receive community supervision, that expectation was not based upon any improper assurances of the court or the prosecutor, nor was it based upon a promise, guaranty, or false representation made by either of Malley's attorneys. Based upon the evidence presented, Malley failed to demonstrate that his pleas of guilty were unknowingly or involuntarily made. We overrule the issue and affirm the judgment.
AFFIRMED.
NOTES
[1] Neither the Code of Criminal Procedure nor the Rules of Appellate Procedure specially provide for the time in which a 44.01(c) notice of appeal must be filed. Cf Tex.R.App. P. 26.1(d); 26.2(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576403/ | 325 N.W.2d 258 (1982)
EARTH BUILDERS, INC., Plaintiff and Appellant,
v.
STATE of North Dakota, For and on Behalf of the STATE HIGHWAY DEPARTMENT, Defendant and Appellee.
Civ. No. 10226.
Supreme Court of North Dakota.
October 20, 1982.
Zuger & Bucklin, Bismarck, for plaintiff and appellant; argued by John A. Zuger, Sr., Bismarck.
*259 Robert E. Lane, Asst. Atty. Gen., State Highway Dept., Bismarck, for defendant and appellee.
PEDERSON, Justice.
This is an appeal by the plaintiff, Earth Builders, Inc., from a judgment of the district court of Burleigh County quieting the State's title to sand and gravel on land owned by Kermit Maloney. We reverse.
On March 31, 1976, Maloney executed and delivered to Earth Builders a four-year gravel, rock, sand, and clay lease, with a renewal clause, on land situated in McLean County, North Dakota. Earth Builders did not record the lease until February 20, 1981. Maloney, on May 1, 1980, executed and delivered a "material option" to the North Dakota State Highway Department for sand and gravel located on the same property in McLean County. The Highway Department recorded the lease on June 24, 1980.
The record discloses that two or three acres had been excavated, that the materials had been removed and the surface restored for agricultural uses. It is undisputed that this was evident to Highway Department representatives. Maloney testified that he told the Highway Department's representative, Harold Kottenbrock, that the property was already leased but the lease, he "thought," had expired. Kottenbrock testified that he "took his statement that he thought the lease had expired," and made no further inquiry. He specifically acknowledged that he did not ask to see a copy of the lease nor did he ask for identification of the party who had the prior lease. Kottenbrock denied offering to "check out" any conflicting claim on the property.
In its conclusions of law, the court found that the Highway Department acted in good faith without actual or constructive notice of Earth Builder's lease and that, consequently, the Highway Department acquired its interest free of Earth Builder's prior lease.
Earth Builders appeals from the judgment and urges this court to review the lower court's finding as a finding of fact rather than a conclusion of law which is fully reviewable. Rule 52(a), NDRCivP. We disagree with Earth Builder's characterization. As this court said in E.E.E., Inc. v. Hanson, 318 N.W.2d 101, 104 (N.D.1982), "[f]indings of fact are the realities as disclosed by the evidence as distinguished from their legal effect or consequences." When the ultimate conclusion "can be arrived at only by applying rules of law the result is a `conclusion of law.'" Id. See also Slope Cty., Etc. v. Consolidation Coal Co., 277 N.W.2d 124, 127 (N.D.1979). The determination that the Highway Department leased the sand and gravel rights in good faith without notice of a competing interest is a mixed question of fact and law, fully reviewable by this court without the strictures imposed by Rule 52(a), NDRCivP.
The Highway Department asserts that it acquired its interest in good faith and for valuable consideration and that its interest is, therefore, superior to that of Earth Builders. Section 47-19-41, NDCC, provides that every conveyance not recorded in accordance with the provisions of the recording act is void as against a subsequent purchaser in good faith and for valuable consideration whose conveyance is first recorded. There is no dispute that the Highway Department is a subsequent purchaser for valuable consideration. The controlling issue is whether or not it is a purchaser in good faith without notice of a prior interest. Good faith is defined as "an honest intention to abstain from taking any unconscientious advantage of another even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious." Section 1-01-21, NDCC.
One who has actual notice of circumstances sufficient to put a prudent person upon inquiry as to a particular fact, and who omits to make such an inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself and is not protected as a purchaser in good faith. Burlington Northern, Inc. v. Hall, 322 *260 N.W.2d 233, 242 (N.D.1982); City of Bismarck v. Casey, 77 N.D. 295, 43 N.W.2d 372 (1950); Agricultural Credit Corp. v. State, 74 N.D. 71, 20 N.W.2d 78, 81 (1945).
The trial court relied upon the following excerpt from 77 Am.Jur.2d Vendor and Purchaser § 647, as the authority for its judgment:
"[A] purchaser is not deemed to have notice of an outstanding equity although he was informed that it once existed, if at the same time he is told by the informant that the equity has been discharged." (Citing Rogers v. Wiley, 14 Ill. 65 (1852)).
We cannot adopt this view as the general rule. To do so would require this court to ignore an "array of circumstances that militate against the good faith" of the Highway Department. Pierce Township of Barnes County v. Ernie, 74 N.D. 16, 19 N.W.2d 755, 759 (1945).
The Highway Department had notice of facts which would provoke a prudent person to make further inquiry beyond checking for recorded documents. Maloney was not in possession of the land, yet no contact was made with the known tenant. Maloney displayed a poor memory, yet Kottenbrock readily relied on a statement relating to expiration of a lease. It was evident that materials had been removed by someone, and the fact that a considerable quantity remained does not indicate abandonment to a prudent person.
Based on all of these circumstances, the Highway Department had a duty to make more than a superficial inquiry as to the prior lease and was chargeable with the information that a diligent inquiry would have disclosed. Accordingly, we conclude that the Highway Department was not a good-faith purchaser without notice of the prior interest of Earth Builders in the sand and gravel rights.
The judgment is reversed and the case is remanded for entry of judgment in favor of Earth Builders.
ERICKSTAD, C.J., and VANDE WALLE and SAND, JJ., concur.
GARAAS, District Judge, sitting in place of PAULSON, J., disqualified.
JOHN O. GARAAS, District Judge, dissenting.
I would uphold the trial court decision. The majority opinion has recited only such facts as to support its ruling and has failed to recite the totality of facts which clearly support the trial court's ruling. When such additional facts are considered, the legal effect or consequence of applying such facts to the rule of law clearly establishes that the Highway Department was an innocent purchaser for value. Furthermore, I believe that the trial court's finding that "The defendant acted in good faith and without notice of any competing interest in the plaintiff ..." is a finding of fact and the appellate court cannot declare such fact clearly erroneous. This fact, as found by the trial judge, can be arrived at only from an examination of the evidence, which includes the inferences drawn therefrom. Numerous similar determinations were categorized as "findings of fact" in Slope County v. Consolidated Coal Company, 277 N.W.2d 124 (N.D.1979). The facts herein are not in dispute but permit the drawing of different inferences as to whether good faith existed or not. The drawing of one such permissible inference is a finding of fact for the trial court to determine. Findings of fact are subject to the "clearly erroneous" rule on review. The majority opinion does not declare such finding "clearly erroneous" but reverses the opinion of the trial judge on the theory that it is a mixed question of fact and law. Making such a determination allows the majority to make its own findings of fact merely by labeling such findings a mixture of both fact and law. The net result is to have a trial de novo in the Supreme Court. Whether the Defendant acted in "good faith" or not is a factual determination and not a conclusion of law and therefore is not subject to review. The determination of whether Defendant is an innocent purchaser for value is a question of law as defined in E.E.E., *261 Inc. v. Hanson, 318 N.W.2d 101 (N.D.1982) and thus, reviewable.
Defendant's agent did ask for a copy of the previous gravel lease prior to the time of taking the State's option and was told by the owner Maloney that he had none. Maloney did not know the name of the previous gravel lease owner. At that time, any further effort to ascertain the name of the previous lease owner from Maloney would have been futile. Maloney did not remember receiving any renewal notice from Earth Builders. Earth Builders testified that the renewal was sent by letter to Maloney by them on January 9, 1980. If the letter was not received by Maloney, the previous lease was, as far as Maloney was concerned, expired since the four year term was over. The Plaintiff had removed gravel from two or three acres in the fall of 1977. The mined area had been restored to its original state and farmed during 1979, 1980 and 1981. While Defendant was placed on notice that gravel had been removed, no prudent person could have determined how long ago the gravel had been mined, that is to say whether the mining was four years earlier or fifty years earlier. Maloney had been paid the total lease payment from Earth Movers on April 2, 1979, a period of about a year and a half after the mining had ceased.
The majority opinion is arbitrary in finding that the failure of Defendant to inquire of the farm tenant constitutes lack of good faith. The record is replete of any evidence that the farm tenant knew of the length of time of the lease or whether he knew that the previous lease had been renewed by the Plaintiff. Any such information known by the farm tenant would have had to come from Maloney and Maloney himself did not know. Possession by the farm tenant during the growing season provides the tenant with no greater knowledge of the existence and terms of such gravel lease than the owner Maloney. Maloney lived during the summer and growing season on land contiguous to the tract in question and lived in nearby Washburn during the winter. There were no suspicious circumstances which required further inquiry and, even if such inquiry had been made, it possibly would have led only to the name of the previous gravel lessor but not to information as to the expiration of the lease. There was no duty of further inquiry in that any further inquiry would be tantamount to telling Maloney that his statements were not true. The establishment of evidence as to Maloney's poor memory and of his poor record keeping was done at the time of trial. Defendant was never put on notice of these traits of Maloney at the time of securing Defendant's lease. Relying on Maloney's representations in no way constituted lack of good faith on the part of the Defendant.
The majority opinion actually legislates that no innocent purchaser exists on a mining lease unless the purchaser checks with the farm tenant, a practice entirely foreign to a comparable oil and gas mining lease. The majority opinion requires such inquiry even though the inquiry may result in only the name of the previous gravel lessee with no information as to whether the lease is still effective. The holding of the majority opinion creates absurd results in that any previous gravel lease must be explored, even if it expired fifty years ago. The majority opinion works an injustice to innocent purchasers for value by requiring them to defend their position against a previous lessee who refused to record its lease, as in this case, so as to secure a more favorable bid against competing bidders. Earth Builders should not be allowed to circumvent the intention of our recording statutes to its own benefit and place greater responsibilities against intending purchasers. An intending purchaser should not have to travel throughout the community and inquire of all the neighbors as to possible interests of third persons. The majority opinion will place such burden on all future purchasers in North Dakota.
I find that the trial court's opinion should be affirmed for the reasons that 1) the findings of fact are not clearly erroneous, but are well supported by the evidence and 2) the trial court applied the proper law to facts and for such reason are not reviewable *262 by this court. This court is an appellate court and must not become triers of facts by granting a trial de novo based on the unsupported position that the issues are of mixed questions of law and fact. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3337504/ | The defendant, age twenty-eight, who tried his own case, was found guilty of aggravated assault by a jury. On September 24, 1959, he was sentenced to the state prison for not less than two nor more than three years. The maximum sentence for the offense is a fine of $500 or imprisonment for three years or both. General Statutes § 53-16.
The defendant, while an inmate of the Connecticut state prison, got into an argument with another inmate. Shortly after this argument, as the other inmate was walking with other prisoners to a detail, the defendant walked behind him and stuck a knife into his body just below the right rib. The victim required hospitalization as a result of the stabbing. It appears that the defendant had taken the knife from the kitchen about a year before. Having been ground down, the knife had a sharp, pointed edge. The defendant has a long record, consisting of thirteen items commencing April 24, 1950. *Page 209
The defendant's chief complaint is the disciplinary measures which were taken in his case. He also complains of discrimination in that he was the only one tried, but others who had committed offenses were not tried. The matters complained of by the defendant are administrative in nature and are not such as are reviewable by this division.
Taking into consideration the crime itself, the circumstances surrounding the offense and the record of the defendant, it is found that the sentence was proper and should stand.
House, Devlin and Loiselle, Js., participated in this decision. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1576339/ | 35 So. 3d 18 (2008)
LINDBURGH JACKSON AND KATHY MATTHEWS
v.
ALABAMA POWER CO.
No. 2070413.
Court of Civil Appeals of Alabama.
October 10, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576342/ | 35 So. 3d 25 (2008)
JERRY HAMMOND
v.
CHARLES D. DECKER ET AL.
No. 2071207.
Court of Civil Appeals of Alabama.
November 6, 2008.
Decision of the Alabama Court of Civil Appeal Without Published Opinion Case reinstated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576336/ | 35 So. 3d 143 (2010)
Luke FISHER, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-6422.
District Court of Appeal of Florida, Second District.
May 21, 2010.
James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
CRENSHAW, Judge.
Luke Fisher appeals his judgments and sentences for trafficking in cocaine, possession of methamphetamine, possession of oxycodone, possession of MDMA, driving while license suspended, carrying a concealed firearm, and possession of drug paraphernalia. Fisher argues the trial court erred by imposing sentences that did not adhere to the terms of a deferred sentencing plea agreement. Yet we find Fisher *144 did not preserve this issue by filing a motion to withdraw plea, and thus his argument is beyond our scope of review for the purpose of this appeal. Accordingly, we affirm his judgments and sentences.
On November 4, 2008, Fisher entered into a written negotiated plea agreement wherein he agreed to plead no contest in exchange for a sentence of forty-eight months in prison with a minimum mandatory term of three years for the felony offenses and time served for the misdemeanor possession offense. Fisher understood that the trial court would defer sentencing and he would be allowed to remain at liberty until the sentencing hearing. The trial court informed Fisher that under the terms of the agreement, if he failed to appear at the sentencing hearing or if he "pick[ed] up any new charges" in the interim, the trial court would not honor the agreed-upon sentence.
Unfortunately for Fisher, at the sentencing hearing on December 5, 2008, the trial court was informed that he had been arrested as a result of his participation in two controlled drug buys that occurred on November 6 and November 21, 2008. The trial court proceeded to conduct an evidentiary hearing pursuant to Neeld v. State, 977 So. 2d 740, 745 (Fla. 2d DCA 2008), to determine if Fisher had violated the plea agreement by committing a new law violation. At the conclusion of the evidentiary hearing, the trial court found competent, substantial evidence that Fisher had violated the plea agreement and sentenced him to twenty years in prison for trafficking in cocaine and five years in prison for the other felonies.
A defendant who pleads guilty or nolo contendere "[has] a constitutional right to appeal, although the issues that they can raise on appeal are limited." Leonard v. State, 760 So. 2d 114, 116 (Fla. 2000). Under Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii), a defendant who enters a guilty or nolo contendere plea and who does not expressly reserve the right to appeal a prior dispositive ruling of the trial court is limited to raising issues that occurred contemporaneously with the plea, which concern: (1) the trial court's lack of subject matter jurisdiction; (2) a violation of the plea agreement, if preserved by a motion to withdraw the plea; (3) an involuntary plea, if preserved by a motion to withdraw the plea; and (4) a sentencing error, if preserved. See Fla. R.App. P. 9.140(b)(2)(A)(ii)(a)-(d); Biggs v. State, 24 So. 3d 797, 798 (Fla. 2d DCA 2010).
Fisher argues the trial court violated the terms of the plea agreement by relying on insufficient evidence to determine that he committed a new law violation and thereafter imposing a sentence greater than the sentence approved under the plea agreement. In support of his argument, Fisher relies on the evidentiary requirements set forth in Neeld. But in Neeld, this court, prior to addressing the merits of his appeal, noted Neeld had filed a motion to withdraw plea. 977 So.2d at 741. In contrast, for reasons that are unclear in our record on appeal, Fisher did not file a motion to withdraw his plea. Therefore, Fisher's contentions were not preserved under rule 9.140(b)(2)(A)(ii)(b), and we find his arguments concerning the sufficiency of the evidence relied upon by the trial court to be beyond our scope of appellate review. Accordingly, we affirm Fisher's judgments and sentences without prejudice to any right he may have to file a motion for postconviction relief.
WALLACE and KHOUZAM, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/729641/ | 99 F.3d 1361
78 A.F.T.R.2d (RIA) 96-7063, 96-2 USTC P 50,616
UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,v.Jerry B. KRAIG, Defendant-Appellant, Cross-Appellee.
Nos. 95-3734, 95-3771.
United States Court of Appeals,Sixth Circuit.
Argued June 3, 1996.Decided Nov. 8, 1996.
James R. Wooley, Asst. U.S. Attorney, Craig S. Morford (argued and briefed), Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee, Cross-Appellant.
H. Louis Sirkin (argued), Marc D. Mezibov, Laura A. Abrams (briefed), Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, for Defendant-Appellant, Cross-Appellee.
Before: MERRITT and COLE, Circuit Judges; ECHOLS, District Judge.*
MERRITT, Circuit Judge.
1
Defendant Jerry Kraig, a lawyer, was convicted by a jury of a single count of conspiracy in assisting to conceal assets of Reuben Sturman (not a defendant herein) from the Internal Revenue Service, thereby preventing the ascertainment, computation and collection of taxes in violation of 18 U.S.C. § 371. Defendant was sentenced to 30 months in prison. He appeals his conviction and sentence. The government cross-appeals the sentence. We affirm both the conviction and the sentence.
I.
2
In the years before the advent of the conspiracy at issue here, Reuben Sturman was a nationwide manufacturer, distributor and marketer of adult entertainment material throughout the United States. In 1985, Sturman was indicted on 16 counts of tax evasion and related offenses. Sturman was convicted of all charges in 1989 in one of the largest tax evasion cases in the history of the IRS and his conviction was affirmed by this Court. United States v. Sturman, 951 F.2d 1466 (6th Cir.1991), cert. denied, 504 U.S. 985, 112 S. Ct. 2964, 119 L. Ed. 2d 586 (1992).
3
The Defendant herein, Jerry Kraig, was Sturman's lawyer. Kraig was convicted of helping Sturman fraudulently conceal his assets, mainly real estate, through foreign "shell" corporations. Three other persons were also indicted with Kraig, as well as unnamed coconspirators. One of the coconspirators pled guilty and the other two went to trial separately from Kraig. This appeal concerns only Defendant Jerry Kraig.
4
Kraig was a lawyer with a small personal injury and criminal practice in Cleveland, Ohio. In 1982, Sturman hired Kraig to do First Amendment work for him relating to Sturman's business. As a result, Kraig moved part of his law offices into Sturman's headquarters in Cleveland.
5
In 1984, Kraig referred Sturman to Robert Garfield, another Cleveland lawyer and a close personal friend of Kraig's, to do tax and estate planning work for Sturman. Kraig testified that he believed Sturman wanted to establish a trust from various real estate holdings for the benefit of Sturman's children. Kraig served as Garfield's contact with the Sturman organization. Garfield Tr. at 88-89, Joint Appendix at 353-54.1
6
In 1986, Kraig, on behalf of Sturman, retained the services of a Panamanian law firm for the purpose of forming a corporation named Gemstone Realty Corporation. The lawyer whom he contacted was named Horatio Alfaro, one of the codefendants herein. During 1986, Kraig provided the necessary information to Alfaro to set up the corporation. Kraig instructed the Panamanian firm to send the Gemstone stock to a Swiss attorney to hold on behalf of Sturman. Offshore bank accounts, to which Sturman had access, were also opened in Gemstone's name. The coconspirators attempted to hide Sturman's ownership by making it appear as though Gemstone was owned by a foreign trust controlled by a Swiss citizen instead of by Sturman. Gov't Ex. 57, J.A. at 224. Kraig was the contact person between Sturman and the Panamanian law firm and Kraig received and reviewed the invoices sent by the Panamanian firm for the work it was doing relating to Gemstone. Ginsberg Tr. at 205, J.A at 403.
7
In advising Sturman about estate planning, Garfield initially suggested a domestic trust and not a foreign trust because a foreign entity could easily hide assets. In 1986, however, Sturman told Garfield to transfer properties to Gemstone. The transfers were to be made without disclosing Sturman's ownership of the properties. Garfield resigned in 1986 when he learned that the IRS had begun to investigate Sturman in 1985. He testified that he suspected that the project for which he had been hired might be a tax evasion plan. Garfield Tr. at 90-91, J.A. at 355-56. Garfield also testified that he advised Kraig to resign also so he would not get caught up in Sturman's "net."
8
Garfield testified that he doesn't remember if he ever talked to Kraig about the specifics of Sturman's relationship to Gemstone but states that he "probably" did. Garfield Tr. at 94-95, J.A. at 259-60. Garfield also testified that he did express his general concerns about Sturman to Kraig. Garfield Tr. at 94, 124, J.A. at 359, 371. Furthermore, Garfield sent memos to Kraig describing some of the problems relating to the Gemstone transfers. (Garfield Tr. at 96, J.A. at 361). Garfield testified that after he resigned, Kraig told him that the files on the asset transfer project were to be assigned to another Cleveland lawyer named Marvin Ginsberg, a codefendant in this case. Ginsberg later pled guilty to the conspiracy charge and testified against his codefendants.
9
Ginsberg testified that when he was arranging the property transfers, Kraig was the person to whom he turned when he needed information about Gemstone. Kraig went over all the transactions concerning Gemstone with Ginsberg. See, e.g., Ginsberg Tr. at 207, 217-18, 220-22, J.A. at 405, 415-16, 418-20. In 1988, Ginsberg began working directly with Horatio Alfaro, the Panamanian lawyer, to make the transfers and not always going through Kraig.
10
As to ownership of the trust, Ginsberg testified that at a March 1989 meeting he attended with Kraig, he learned that there was no trust and that Reuben Sturman was the beneficial owner of Gemstone. Ginsberg Tr. at 194-95, J.A. at 392-93. Kraig contends that he always believed there was a legitimate trust and that it was not beneficially owned by Sturman. Ginsberg testified to facts from which a jury could legitimately infer that Kraig must have known that there was no trust because Kraig also attended the same meeting where Ginsberg discovered there was no trust. Id.
11
In addition to hiding the assets from his real estate holdings through Gemstone, Sturman also sold his adult bookstores and attempted to hide the income from these sales. The evidence also supports the inference that Sturman sold the bookstores after his indictment so that, in the event he was convicted, the IRS would not discover and attach his property in order to pay the taxes owed.
12
The government showed that Kraig also took part in this portion of the conspiracy. For example, in 1988, Kraig prepared a contract indicating that one of Sturman's employees, John Bordone, was purchasing adult bookstores from Eduardo Stockali, one of the coconspirators in this action. In fact, Sturman, not Stockali, owned the stores. Bordone made installment payments on the stores he had purchased. Bordone testified that he sent the checks, which were made out to Stockali, to Kraig in Cleveland. Kraig forwarded the checks to Stockali for deposit in one of the Swiss offshore accounts set up on behalf of Sturman by the Panamanian law firm. Kraig accepted these payments from Bordone between 1988 and 1991. Bordone Tr. at 49-69, J.A. at 239-59.
13
In 1990, after Sturman was convicted, the IRS entered a large tax assessment against Sturman and proceeded to try to collect the amount through levies and liens on Sturman's properties, including Gemstone. Sturman, through the coconspirators in this case, including Kraig, hired two Cleveland lawyers, Frank DeSantis and Jim Scott, to file lawsuits against the United States to challenge the tax levies and for wrongful prosecution. The new lawyers said they would only take the case if it could be demonstrated that Sturman was not the beneficial owner of Gemstone. Ginsberg Tr. at 241-45, J.A. at 435-43. Kraig testified that he told the new lawyers that he thought the trust was owned by Sturman for the benefit of Sturman's children but "he wasn't sure." DeSantis Tr. 336, 366, J.A. at 267, 297. One of the lawyers testified at trial that Kraig "assured" him that Sturman was not the owner. DeSantis Tr. 336-43, 406-07, J.A. at 267-74, 302-03. In 1991, Kraig met with Ginsberg and Horatio Alfaro, the Panamanian lawyer and a coconspirator in this case, to decide what information about Gemstone to turn over to the newly-hired lawyers for purposes of the suit against the United States.
14
Kraig prepared a memorandum for Sturman advising him that to prevail in a wrongful levy action against the IRS, he would need to show that someone else owned Gemstone or to show that Gemstone is fully owned by an irrevocable trust. As mentioned above, Ginsberg testified that Kraig had known since at least a 1989 meeting that both Ginsberg and Kraig attended with Sturman that Gemstone was not owned by a trust. Ginsberg Tr. at 256-64, J.A. at 454-62. Ginsberg ultimately drafted a false affidavit stating that a Swiss citizen named Thomas Kummer was the owner of Gemstone and that Sturman had no ownership interest in Gemstone. Ginsberg Tr. at 253, J.A at 451; Gov't Ex. 64, J.A. at 234. This affidavit was presented to the IRS by the new lawyers as proof that Sturman did not own Gemstone. The new lawyers, however, went to Switzerland to meet with the alleged owner of the trust and discovered that Sturman was in fact the beneficial owner of Gemstone. The new lawyers resigned. Ginsberg Tr. 180, DeSantis Tr. at 361-62, J.A. at 328, 292-93.
15
Kraig was tried separately from his codefendants and was convicted by a jury in April 1995. He was sentenced after a hearing to 30 months in jail, three years supervisory release and a $10,000 fine.II.
A. The Conviction
1. Motion to Dismiss the Indictment
16
Kraig first contends that the indictment should have been dismissed. The indictment charged Kraig with conspiracy pursuant to 18 U.S.C. § 371, which states:
17
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined....
18
Section 371 prohibits two kinds of conspiracies: (1) conspiracies to commit a specific offense against the United States and (2) conspiracies to defraud the United States. In order to charge a violation under section 371, the government must show that the defendant conspired to commit one or more substantive offenses against the United States or that the defendant conspired to defraud the government in any manner for any purpose.
19
Kraig was charged under the defraud portion of the statute. The indictment under which Kraig was charged states that he
20
did unlawfully, knowingly and willfully conspire, combine, confederate and agree [with other named and unnamed defendants] to defraud the United States of America by hampering, hindering, impeding, impairing, obstructing and defeating the lawful functions of the [IRS] in the ascertainment, computation and collection of income taxes [in violation of 18 U.S.C. § 371].
21
Indictment at p 1, J.A. at 18-19. Relying on United States v. Minarik, 875 F.2d 1186 (6th Cir.1989), Kraig contends that at most he could be convicted under the "offense" clause of Section 371 because the evidence demonstrated only that he had conspired to commit a violation of 26 U.S.C. § 7206(4) by concealing assets upon which the IRS may impose a levy for taxes owed. That statute criminalizes the removal or concealment of any good, commodity or property upon which levy is authorized with intent to evade or defeat assessment or collection of any tax.
22
Minarik held that conspiracy to commit an offense against the United States and conspiracy to defraud the United States under section 371 are two separate crimes and the government must allege and prove violation of one clause or the other. Specifically, Minarik held that a defendant must be charged with a conspiracy to commit an offense against the government and not a conspiracy to defraud if there is a specific statute describing the conduct involved in the alleged conspiracy. 875 F.2d at 1193-94.
23
In Minarik, one of the defendants had been issued a tax assessment. The defendant responded that she did not owe the tax. The defendant then arranged to sell a house she owned and received the payment by seven installment checks of less than $5,000 each. When she tried to cash the checks, the bank contacted the IRS and she was arrested for violating the Bank Secrecy Act which requires the filing of a report with the IRS for any transaction over $10,000. The defendant was charged under section 371 for conspiring to defraud the government by concealing from the government the nature of and income from a business. The indictment did not make clear what function of the government the defendants were impeding.
24
The defendant in Minarik properly could have been charged under § 7206(4) of the Internal Revenue Code, which, as described above, makes it a felony to conceal any goods or commodities on which a tax or levy has been imposed. The Minarik Court, therefore, found that the facts proved a conspiracy under the "offense" clause of § 371 for violating § 7206(4) not the "defraud" clause as the indictment indicated and therefore dismissed the indictment. Minarik explained that the purpose of the "defraud" section of § 371 "was to reach conduct not covered elsewhere in the criminal code" and should not be used when a specific provision covers that conduct. 875 F.2d at 1194.
25
Minarik was concerned with whether the indictment adequately notified defendants of the charges against them, thereby prejudicing defendants ability to prepare for trial. The government changed its theory of the case throughout the proceeding. This Court found that the prosecution used the defraud clause in a way that caused "great confusion about the conduct claimed to be illegal." Id. at 1196. Minarik states that "prosecutors and courts are required to determine and acknowledge exactly what the alleged crime is. They may not allow the facts to define the crime through hindsight after the case is over." Id.
26
At least two later Sixth Circuit cases have distinguished Minarik: United States v. Sturman, 951 F.2d 1466 (6th Cir.1991), cert. denied, 504 U.S. 985, 112 S. Ct. 2964, 119 L. Ed. 2d 586 (1992) and United States v. Mohney, 949 F.2d 899 (6th Cir.1991), cert. denied, 504 U.S. 910, 112 S. Ct. 1940, 118 L. Ed. 2d 546 (1992). These cases discuss Minarik extensively and distinguish Minarik on its facts. See also United States v. Hurley, 957 F.2d 1, 3-4 (1st Cir.), cert. denied, 506 U.S. 817, 113 S. Ct. 60, 121 L. Ed. 2d 28 (1992); United States v. Notch, 939 F.2d 895, 900-01 (10th Cir.1991); United States v. Bilzerian, 926 F.2d 1285, 1302 (2d Cir.), cert. denied, 502 U.S. 813, 112 S. Ct. 63, 116 L. Ed. 2d 39 (1991) (indictment under defraud clause proper where conduct broader than specific statutory provision).
27
In both Sturman and Mohney, the Court found that the conduct at issue satisfied the defraud clause of section 371. The conspiracies in these two cases, unlike Minarik, violated numerous tax statutes--not just one. The indictment in this case is identical to the indictment in the Sturman case. The conduct alleged in the indictment, if proven, violates more than one specific statute. The broad nature of the conspiracy distinguishes this case from Minarik.
28
Kraig contends, as did the defendants in Minarik, that § 7206(2) and (4) of the Internal Revenue Code cover the conduct for which Kraig was indicted and that at most he should have been charged under the "offense" clause of section 371 and not the "defraud" clause. Kraig contends that the government's theory presented at trial related solely to Kraig's concealment of Sturman's assets in order to defeat the tax liability imposed in 1990 and the government did not attempt to prove that Kraig had impeded the "ascertainment or computation" of taxes prior to the time the levy was imposed against Sturman.
29
The facts presented in this case are more analogous to those in Sturman and Mohney than Minarik. First, unlike Minarik, an indictment under the "defraud" clause of section 371 is proper here because the conduct undertaken by Kraig is broader than that encompassed solely by section 7206. Charging a defendant under the "defraud" clause of section 371 is appropriate when the conspiracy alleges violation of more than one statute. In Minarik, the conspiracy had the narrow objective of concealment of assets upon which the IRS was empowered to levy and arose from a single event--the sale of a house. That conduct was explicitly proscribed by 28 U.S.C. § 7206(4). In contrast, the government in this case alleges that Kraig and his coconspirators participated in a long-standing and wide-ranging scheme to deceive the IRS regarding the amount and source of Sturman's assets, including allegations of improper conduct prior to the levy of the tax liability against Sturman. No provision of the tax code covers the totality and scope of the conspiracy. The government contends that the members of the Sturman conspiracy violated several tax statutes including 26 U.S.C. § 7201 (evasion of assessment and payment of taxes), 26 U.S.C. § 7204 (concealing assets subject to levy), 26 U.S.C. § 7206 (concealment of assets after levy of tax) and 18 U.S.C. § 1001 (providing false information to the IRS). The indictment charged that the conspirators here, including Kraig, used nominees, sham transactions and others means of obstruction to keep the IRS from "ascertaining, computing and collecting" Sturman's taxes. Only the defraud clause can adequately cover all the aspects of the conspiracy in this case.
30
Second, unlike the indictment in Minarik, the indictment here gave Kraig adequate notice of the conduct constituting the charges against him. In Minarik, the indictment did not make clear what function of the Treasury Department the defendants were impeding and the government changed its theory of the case throughout the indictment process and trial. We concluded that the defendants properly could have been charged under 28 U.S.C. § 7206(4) and therefore could not be charged under the defraud clause but convicted on evidence that supports the offense clause. When a statute closely describes the conduct that the defendant is accused of violating, we reasoned that requiring the indictment to charge the defendant with conspiracy to commit the specific crime reduces the uncertainty in the case.
31
Furthermore, unlike Minarik, the government did not shift its theory between the "offense" an "defraud" clauses of section 371. The government consistently has maintained that Kraig and the other coconspirators sought to deceive the IRS through an elaborate set up of offshore bank accounts and shell corporations.
32
Accordingly, because the conduct alleged in the indictment fits within the "defraud" section of section 371 and the indictment gave adequate notice of the charges against Kraig, the District Court did not err in denying the motion to dismiss the indictment.
2. Sufficiency of the Evidence
33
Kraig next asserts that the evidence is insufficient to support his jury conviction. The record, however, contains both direct evidence of Kraig's knowledge of the conspiracy and circumstantial evidence arising from Kraig's ongoing involvement in sham transactions over a number of years.
34
Evidence is sufficient to uphold a jury conviction if after viewing the evidence in the light most favorable to the government and drawing all inferences in the government's favor, a reasonable juror could find that each element of the offense has been established beyond a reasonable doubt. United States v. Taylor, 13 F.3d 986, 991 (6th Cir.1994).
35
When attempting to prove an individual's participation in a conspiracy, the government must first establish that a conspiracy existed. The essential elements of a conspiracy are: (1) the conspiracy described in the indictment was wilfully formed, and was existing at or about the time alleged; (2) that the accused willfully became a member of the conspiracy; (3) that one of the conspirators thereafter knowingly committed at least one overt act charged in the indictment at or about the time and place alleged; and (4) that such overt act was knowingly done in furtherance of some object or purpose of the conspiracy as charged. United States v. Sturman, 951 F.2d at 1474 (citations omitted).
36
Kraig contends that the government failed to prove that he intentionally joined or participated in a conspiracy to defraud the IRS. Kraig also seems to contend that lawyers are held to a different standard when evaluating their participation in a conspiracy. Kraig states: "the actions of a lawyer in representing his/her client can only create an inference that the attorney was connected to and a willing participant in a conspiracy if the evidence establishes that the attorney 'understood that [his/her] facially proper undertakings were part of [an illegal scheme.]' " Appellant's brief at 19 (citing United States v. Klein, 19 F.3d 20 (6th Cir.1994) (unpublished)). Klein holds that this understanding can only be inferred if the evidence establishes that (1) the lawyer's involvement in the operation of the illegal enterprise was so pervasive that his knowledge of its illegal nature was reasonably certain or (2) he misrepresented or actively concealed facts about the illegal enterprise. Klein, slip op. at 7-8 (the "sheer number" of transactions with which Klein was involved gave rise to an inference that Klein knowingly and wilfully participated in the conspiracy to defraud). Kraig contends that he meets neither of the Klein criteria.
37
First, to the extent that Kraig maintains that lawyers should be held to a different standard from nonlawyers, we disagree. The cases cited by Kraig do not establish any different standard for lawyers when reviewing their participation in a conspiracy. Second, as detailed below, it appears from the evidence that Kraig meets both criteria set out in the cases on which he relies. Kraig's involvement in Sturman's operation was "so pervasive that [his] knowledge of its illegal nature was reasonably certain" and Kraig "misrepresented or actively concealed facts" about Sturman's activities.
38
Ample evidence was submitted at trial from which the jury could have convicted Kraig. The most harmful testimony came from Ginsberg. As to pre-levy conduct, Ginsberg testified that in 1988, well before the tax levy against Sturman, Ginsberg turned to Kraig for "information, advice and help in dealing with Gemstone in general." Ginsberg Tr. at 207, J.A. at 405. Ginsberg testified that Kraig was "the person that knew most of the details about Gemstone. [Kraig] gave me all the information, all the files, and he had been involved in many of the transactions that had come to me in the files.... [H]e was Reuben's attorney and close friend and he could get things done and he could tell me who to deal with and just provide me with information to help me." Id. Ginsberg further testified that "[Kraig] had given me outlines of which properties were to be purchased [by Gemstone], how they were to be purchased, where the money was to come from...." Ginsberg Tr., at 216, J.A at 414. In 1989, about the time the levy was assessed, Ginsberg sent a memo to Kraig and others outlining how he planned to transfer different properties into Gemstone's name. Gov't Ex. 30, J.A. at 207.
39
After the tax levy was assessed, evidence demonstrates that Kraig participated in keeping the IRS from discovering who actually owned Gemstone. Ginsberg testified that at least by March 1989 Kraig knew that Gemstone was actually owned by Sturman and not by a trust. Ginsberg Tr. at 240, J.A at 439. Kraig and Ginsberg then lied to the lawyers they had hired to file a wrongful levy action against the United States on Sturman's behalf when they told the lawyers that a Swiss citizen named Kummer owned the trust and manufactured a false affidavit so stating. Ginsberg Tr. at 235, 253-54, J.A. at 433, 451-52.
40
Other testimony showed that Kraig was involved in concealing assets from stores Sturman sold. Kraig was involved in drafting the sales contracts to make it look like Eduardo Stockali was the seller. Checks made out to Stockali were sent to Kraig who sent them to Stockali in Switzerland. Stockali then deposited the checks in offshore bank accounts. Kraig sent copies of the checks to Sturman so Sturman could keep track of how much was being deposited in the offshore accounts. Ginsberg Tr. at 265, J.A. at 463; Bordone Tr. at 60-61, J.A. at 250-51.
41
Other activities between 1985 and 1993 also should have alerted Kraig that his actions on behalf of Sturman were illegal. Sturman's offices were raided by the IRS in 1985 while Kraig was a tenant in the space. Later in 1985, Sturman was indicted in a 16-count conspiracy for tax fraud. Several lawyers and accountants quit representing Sturman and told Kraig why they were leaving and advised him to leave too. The evidence shows that Kraig knew that Sturman owed taxes and conspired to deprive the government of the information it needed to ascertain and collect those taxes, as well as concealing assets.
42
Therefore, the record indicates that the jury reasonably could have inferred from the evidence that Kraig knew of the conspiracy, willfully joined the conspiracy and participated in fulfilling the objectives of the conspiracy both before and after the assessment of the tax levy against Sturman. Kraig's conviction under the defraud clause of 18 U.S.C. § 371 is supported by adequate evidence.
B. Sentencing
1. Kraig's Role in the Offense
43
The District Court enhanced Kraig's base offense level by three levels for his role as a "manager" in the conspiracy. Kraig challenges this enhancement because he contends that the evidence does not show that he in any way controlled or supervised any of the other coconspirators.
44
U.S.S.G. § 3B1.1(b) provides a three-level enhancement if the defendant is a "manager or supervisor" of criminal activity that involves five or more participants or is otherwise extensive. Contrary to Kraig's assertion, the precedents in our Court hold that the evidence need not show that Kraig was the manager or supervisor of five other persons, but rather that he had a managerial or supervisory role in illegal conduct involving five or more persons. See, e.g., United States v. Dean, 969 F.2d 187, 197 (6th Cir.1992), cert. denied, 507 U.S. 1033, 113 S. Ct. 1852, 123 L. Ed. 2d 475 (1993) (guidelines require five participants, not five subordinates to defendant).
45
The criminal activity here clearly involved more than five participants. The indictment here names four participants and by including Reuben Sturman, not named in the indictment at issue here but clearly a participant in the conspiracy, the total is at least five. Moreover, there is evidence that many more people were involved in the conspiracy. See Memorandum Opinion Regarding Sentencing at 4-5, J.A. at 52-53.
46
As to Kraig's role in the conspiracy, the evidence supports the finding that he recruited lawyers and accountants to participate in the scheme. He recruited attorney Robert Garfield to consolidate various real estate holdings of Sturman's into one entity that became Gemstone. Kraig contacted the Panamanian law firm that formed Gemstone. The testimony also demonstrates that Kraig provided information about Sturman's various holdings to the numerous accountants and lawyers working for Sturman and it was to Kraig that these persons turned for information regarding Gemstone. Given this ample evidence, it was within the District Court's discretion to enhance Kraig's base offense level by three levels.
47
2. Calculation of Kraig's Base Offense Level
48
a. Which Subsection to Use
49
Kraig's base offense level was established pursuant to U.S.S.G. § 2T1.9, Conspiracy to Impair, Impede or Defeat Tax. Kraig does not contest the correctness of using this guideline, but contends that the wrong subsection of the guideline was used in determining his base offense level. Subsection (a) provides that the greater of (1) the base offense level for section 2T1.1 or section 2T1.3, whichever is applicable depending on the underlying conduct, or (2) base offense level 10 should be applied. Section 2T1.1, Tax Evasion, and section 2T1.3, Fraud and False Statements Under Penalty of Perjury, provide that the base offense level for these crimes is to be determined by applying the tax tables contained in section 2T4.1.
50
The District Court determined that section 2T1.9(a)(1) applied and therefore looked to section 2T1.1 and section 2T1.3 as directed. The District Court determined that either section 2T1.1 or section 2T1.3 could be applied in this case and because they both use the tax table in the same way, as a practical matter, therefore, it was not necessary to determine which section applied. Both sections 2T1.1 and 2T1.3 direct the user to establish the "tax loss" caused by the conduct and to then look to the tax loss table in section 2T4.1 to determine the base offense level. Kraig contends that because there was no "tax loss" as defined in the sections 2T1.1 and 2T1.3 and his offense is not similar to either of the tax offenses covered by sections 2T1.1 or 2T1.3, the District Court should have defaulted to section 2T1.9(a)(2) and imposed a base offense level of 10.
51
We do not agree with Kraig's interpretation. The plain language of section 2T1.9 states that the applicable statutory provision is 18 U.S.C. § 371. Application Note 2 provides that the base offense level should come from sections 2T1.1 or 2T1.3, whichever is most applicable, if the base offense level is more than 10. As the base offense level applicable here under either section is greater than 10, the plain language of the guideline directs that one of these two sections is to be used. The case law is in agreement. See, e.g., United States v. Moore, 997 F.2d 55, 60 (5th Cir.1993); United States v. Hunt, 25 F.3d 1092 (D.C.Cir.1994).
52
b. Calculating the Tax Loss
53
Kraig asserts that if this Court determines that the tax loss table under § 2T4.1 does apply to determine his base offense level, the District Court's calculation of the tax loss here was based on improper valuations of the properties involved. Kraig maintains that the tax loss did not exceed $1,500,000 and that the base offense level, therefore, should have been 17. We do not agree. The trial court conservatively estimated the tax loss at between $1,500,000 and $2,500,000 for a base offense level of 18.
54
In assessing the amount of tax loss, the district court is to make a "reasonable estimate" of the amount of the loss that defendant intended to inflict, not the actual amount of the government's loss. United States v. Moore, 997 F.2d at 55. See also Sentencing Memorandum at 3, J.A. at 51.
55
The trial court estimated the value of four properties in arriving at the estimated amount that the conspiracy attempted to conceal from the government to be in excess of $1,500,000 but less than $2,500,000. This is a conservative estimate and is supported by the evidence. The trial court purposely omitted including the value of two properties where it found the amounts more tentative. Sentencing Memorandum Opinion at 4, J.A. at 52. The District Court's loss valuation is not clear error and is affirmed.
3. Downward Departure
56
Kraig also contends that the trial court abused its discretion by failing to grant his request for a downward departure based on the "atypical" nature of the case. Because the sentence imposed by the trial court is within the guideline range, the sentence is not appealable on this basis unless it appears that the trial court was not aware of its discretion to depart downward. The trial court specifically stated that "[t]he Court has considered and rejected the suggestion" that a downward departure is appropriate. Sentencing Memorandum at 6, J.A. at 54. Moreover, the reasons given by Kraig to warrant departure are not that unusual. Kraig focuses mainly on the fact that he is an attorney who was zealously representing his client and was blinded to that client's improper conduct because he believed that the government was "out to get" his client due to the nature of his business.
4. Government's Cross-Appeal
57
a. Enhancement for Use of "Sophisticated Means"
58
The sentencing guidelines allow an upward adjustment of two levels for use of "sophisticated means" in a tax evasion case. U.S.S.G. § 2T1.1(b)(2). A determination of whether conduct constitutes "sophisticated means" is a question of fact for the District Courts and is reviewed for clear error. Although the conspiracy at issue here was complex, the sophisticated means enhancement requires the sentencing court to look at the actions taken by the individual. A defendant involved in a complex or repetitive tax conspiracy is not automatically given a sophisticated means enhancement if his or her personal involvement did not constitute sophisticated means.
59
Kraig did not personally open the Swiss bank accounts or set up the shell corporations--this was the work of the Panamanian law firm. While the evidence demonstrates that Kraig undoubtedly knew of their existence and function in the conspiracy, his personal involvement with them was minimal.
60
A close question is presented as to Kraig's personal use of sophisticated means. Although we might have reached a different conclusion than the District Court, we must "accept the findings of fact of the district court unless they are clearly erroneous and shall give deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e). We would violate this admonition were we to substitute our judgment on this issue.
61
b. Acceptance of Responsibility
62
U.S.S.G. § 3E1.1 provides for a two-level reduction in the offense level if the defendant clearly demonstrates affirmative acceptance of personal responsibility for his criminal conduct. The trial court granted Kraig's request for a downward adjustment for acceptance of responsibility, made for the first time at the sentencing hearing, after listening to Kraig's statement at the sentencing hearing. The government argues on cross-appeal that granting the request was in error both because it was not timely made and because the facts do not warrant the departure. The government points out that Kraig maintained his innocence, before, during and after trial, and only partially accepted responsibility after his conviction.
63
Conviction by trial does not automatically preclude a defendant from consideration for a reduction based on acceptance of responsibility. In certain circumstances a defendant may clearly demonstrate an acceptance of responsibility even though he exercises his right to trial. In granting the request, the District Court recognized that it was a "close call" and acknowledged that he had not encountered a case quite like this one before. The District Court seemed to rely primarily on the points that (1) Kraig was a lawyer with an unblemished record up to that point, (2) his conduct resulted from Kraig's zealous advocacy on behalf of Sturman in his adult entertainment business and (3) Kraig believed that the government was "out to get" Sturman any way it could to stop his adult entertainment business.
64
The standard of review here is whether the finding was clearly erroneous. While we recognize that other sentencing courts may have come to a different conclusion regarding this matter, acceptance of responsibility is uniquely within the province of the District Court and we do not find clear error. U.S.S.G. § 3E1.1, comment. (n. 5); United States v. Fleener, 900 F.2d 914, 917 (6th Cir.1990) (grant of reduction for acceptance of responsibility affirmed even though defendant put government to its burden at trial).
65
Furthermore, we give deference to the sentencing judge in determining acceptance of responsibility, particularly where the sentencing judge also presided over the entire trial, as the judge did here. The District Court was in the best position to gauge Kraig's state of mind and to assess his credibility and this Court will not lightly overturn that finding.
66
For the foregoing reasons, the judgment of the District Court is affirmed.
*
The Honorable Robert L. Echols, United States District Judge for the Middle District of Tennessee, sitting by designation
1
References to the Joint Appendix filed in this case hereinafter will be referred to a "J.A. at ___." | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/701838/ | 62 F.3d 1282
UNITED STATES of America, Plaintiff-Appellee,v.Reginald Andre ROBINSON, Defendant-Appellant.
No. 95-6042.
United States Court of Appeals,Tenth Circuit.
Aug. 14, 1995.
Patrick M. Ryan, U.S. Atty., and Jim Robinson, Asst. U.S. Atty., Oklahoma City, OK, and Deborah Watson, Atty., Dept. of Justice, Washington, DC, for plaintiff-appellee.
June E. Tyhurst, Asst. Federal Public Defender, Oklahoma City, OK, for defendant-appellant.
Before BALDOCK, HOLLOWAY, and BRORBY, Circuit Judges.
HOLLOWAY, Circuit Judge.
1
This direct appeal challenges an order of the district judge revoking supervised release and imposing a sentence of 12 months' imprisonment under 18 U.S.C. Sec. 3583. The defendant-appellant argues that because he had served the maximum five-year prison term provided in the statute under which he was convicted, 18 U.S.C. Sec. 924(c), the judge had no authority to impose the additional sentence for imprisonment under the supervised release statute. A timely appeal was taken from the order of the district court.1
2
* The order in question was entered as the ruling on a motion to dismiss a petition on supervised release. The petition was filed on August 20, 1993, by the United States Probation Office, which alleged that defendant had violated the conditions of his supervised release. In September 1988 defendant had entered a guilty plea to one count of an indictment which charged him with violating 18 U.S.C. Sec. 924(c), carrying a firearm during a drug trafficking offense. In the district court the government dismissed the other four counts of the indictment, and defendant was sentenced to five years' imprisonment as the statute provided and three years' supervised release to commence on defendant's release from imprisonment.
3
After defendant's release from federal custody in 1993 when he completed serving his sentence on the underlying firearms offense, defendant returned to the Western District of Oklahoma. He had been sentenced there and had commenced the period of supervised release in that district. A petition on supervised release was filed in August 1993 by the United States Probation Office. The petition alleged violation of defendant's conditions of supervised release. It stated, inter alia, that defendant had left the Western District of Oklahoma without permission; that he was arrested in August 1993 by Los Angeles, California, police officers in Compton, California, and charged with being a felon in possession of a firearm; and that he was convicted and sentenced to imprisonment in California. After serving part of that California sentence, defendant was placed on state parole status.
4
Defendant was taken into custody in October 1994 by federal officers on the petition on supervised release and a federal warrant. On November 9, 1994, defendant moved in the court below to dismiss the petition on supervised release. He argued, as he does on appeal, that because he had served the maximum sentence (five years) provided by 18 U.S.C. Sec. 924(c), the judge had no authority to impose an additional term of imprisonment under 18 U.S.C. Sec. 3583. The district judge disagreed, holding that pursuant to Sec. 3583 a court is authorized to revoke supervised release; that such a result follows from the statute's language; and that United States v. Purvis, 940 F.2d 1276 (9th Cir.1991); United States v. Wright, 2 F.3d 175, 180 (6th Cir.1993); United States v. Jamison, 934 F.2d 371, 373-75 (D.C.Cir.1991); and United States v. Hoffman, 733 F. Supp. 314, 315-16 (D.Alaska 1990), support her ruling.
5
On this reasoning the motion to dismiss the petition for supervised release was denied. At a hearing on January 24, 1995, below, defendant appeared personally and with his counsel, the Assistant Federal Public Defender. He stipulated to the facts alleged in the petition on supervised release. After being satisfied that the stipulation was knowingly and voluntarily entered, the judge found that defendant had violated the terms of his supervised release as alleged. After hearing from all counsel and defendant personally, the judge imposed a term of 12 months' incarceration for the violations of supervised release, providing that defendant should be credited with time already served in federal custody awaiting decision on the supervised release proceeding since October 11, 1994. From this order, defendant appeals.
II
6
The arguments before us concern a single legal ruling of statutory interpretation below, which we review de novo. United States v. Rockwell, 984 F.2d 1112, 1114 (10th Cir.), cert. denied, --- U.S. ----, 113 S. Ct. 2945, 124 L. Ed. 2d 693 (1993).
7
The defendant argues that additional imprisonment in these circumstances is not supported by the text or the legislative history of the supervised release statute, 18 U.S.C. Sec. 3583. He says that the order here conflicts with the statute of conviction--18 U.S.C. Sec. 924(c)--which limits incarceration to five years; that there is no clear and unambiguous expression of an intent to supersede the maximum imprisonment provided by that statute of conviction. Defendant points out that Sec. 3583 does not require a court to impose supervised release in every case; that only if the statute of conviction requires supervised release is the sentencing court required to impose it, citing United States v. Allen, 24 F.3d 1180, 1189 (10th Cir.1994).
8
Defendant reasons that Sec. 3583(a) expressly defers to the statute of conviction when the latter contains more specific requirements than the supervised release statute. Defendant maintains that Sec. 924(c) takes precedence over the more general text of the supervised release statute which provides for discretion to revoke, modify or extend the term of supervised release for violations. Appellant's Brief at 5-6.
9
The key provisions in the supervised release statute do not support the defendant's position.2 We feel that the provisions of Sec. 3583(a) are clear and unambiguous in extending to the sentencing judge discretionary authority "as a part of the sentence" to impose the supervised release period requirement. Moreover, the same statute in Sec. 3583(e)(3) unambiguously gives discretion to revoke a term of supervised release and "require the defendant to serve in prison all or part of the term of supervised release...." * We are persuaded by Judge Reinhardt's cogent reasoning interpreting the statute in United States v. Purvis, 940 F.2d 1276, 1278 (9th Cir.1991). The district judge here in her persuasive order noted that defendant makes the same argument that Purvis rejected, namely that "the total imprisonment that may be imposed pursuant to a combination of the initial sentence of imprisonment and a revocation of supervised release may not exceed the statutory maximum...." 940 F.2d at 1278. The Ninth Circuit concluded:
10
We hold that Sec. 3583 authorizes the revocation of supervised release even where the resulting incarceration, when combined with the period of time the defendant has already served for his substantive offense, will exceed the maximum incarceration permissible under the substantive statute.
11
Id. at 1279 (footnote omitted).
12
We agree with this interpretation of Sec. 3583, as did the district judge here. We find no deference, which the defendant here does, to the statute of conviction by the supervised release statute in this connection. Instead we feel the supervised release statute unambiguously authorized the imposition of the twelve months of incarceration as ordered here. The contrary interpretation suggested by defendant would impair the deterrent mechanism which we feel was obviously intended by Congress.
13
Other courts of appeals have reached the same result. In United States v. Wright, 2 F.3d 175, 179-80 (6th Cir.1993), the Sixth Circuit also rejected a similar contention made there in opposition to the imposition of a sentence of federal incarceration for violation of the conditions of supervised release. The specific question raised there was stated by the Sixth Circuit to have been
14
whether the district court abused its discretion by sentencing defendant to a period of 36 months incarceration for the supervised release violation, when defendant had already served 36 months incarceration on his original sentence and the total of the two sentences imposed allegedly exceeds the maximum penalty for the underlying offense, five years.
15
Id. at 176.
16
The court rejected the defendant's contention. It first pointed out that because the defendant there had pled guilty to three counts, "under the applicable statutes, defendant could have received a maximum of eleven years, not five years as he contends...." Id. at 179. Then the court stated this alternative ground for affirming:
17
Moreover, even assuming arguendo that the 36-month sentence for the violation of supervised release when combined with the 30-month incarceration on the underlying offense did violate the statutory maximum, the sentence imposed by the district court for the violation of supervised release would still be proper. First, a different statute, 18 U.S.C. Sec. 3583, authorizes imposition of a term of supervised release in addition to the maximum term of imprisonment provided for in prohibiting the underlying offense. See United States v. Montenegro-Rojo, 908 F.2d 425, 432-33 (9th Cir.1990)....
18
....
19
Accordingly, it is possible for a defendant to be sentenced and serve the statutory maximum term of imprisonment for the offense and after his release from prison to be subject to further imprisonment if he violates the terms of his supervised release. Therefore, the sentence imposed by the district court for the violation of supervised release is not an abuse of discretion, even if when combined with defendant's original sentence it exceeded the statutory maximum for the underlying offense.
20
2 F.3d at 179-80. Accord United States v. Celestine, 905 F.2d 59, 60 (5th Cir.1990); United States v. Hoffman, 733 F. Supp. 314, 315-16 (D.Alaska 1990).
21
Similarly, in several appeals from original sentences courts have upheld the imposition of a term of supervised release in addition to a term of imprisonment over the objection that the potential for a period of imprisonment in excess of the statutory maximum was legally invalid, thus explicitly or implicitly endorsing the conclusion we reach here. E.g., United States v. Jenkins, 42 F.3d 1370 (11th Cir.1995); United States v. Watkins, 14 F.3d 414, 415 (8th Cir.1994); United States v. Jamison, 934 F.2d 371, 372-75 (D.C.Cir.1991); United States v. Montenegro-Rojo, 908 F.2d 425, 431-34 (9th Cir.1990); United States v. Butler, 895 F.2d 1016, 1017-18 (5th Cir.1989) cert. denied, 498 U.S. 826, 111 S. Ct. 82, 112 L. Ed. 2d 54 (1990). Further, based on the same reasoning that supervised release is a separate part of the original sentence, several courts have held that on revocation of supervised release, the length of time for which a defendant may be incarcerated pursuant to Sec. 3583 is not limited by the maximum guideline range applicable to his original sentence. United States v. Mandarelli, 982 F.2d 11 (1st Cir.1992) (per Breyer, then C.J.); United States v. Smeathers, 930 F.2d 18, 19 (8th Cir.1991); United States v. Stephenson, 928 F.2d 728, 730-31 (6th Cir.1991) ("The possibility of reincarceration for violation of a condition of supervised release is a cornerstone of the sentencing structure."); United States v. Dillard, 910 F.2d 461, 466-67 (7th Cir.1990).
22
Additionally, in United States v. Soto-Olivas, 44 F.3d 788, 790 (9th Cir.), cert. denied, --- U.S. ----, 115 S. Ct. 2289, 132 L. Ed. 2d 290 (1995), employing the same rationale that supervised release is a separate part of the original punishment, the court held that double jeopardy did not bar a subsequent prosecution for the same conduct which had formed the basis for the revocation of supervised release and imprisonment under Sec. 3583. The court there specifically noted that the nature of Congress' plan for supervised release means that one who, like Robinson, violates the terms of release may be required to serve a total period of imprisonment greater than the maximum provided under the statute of conviction. Id.
23
We are convinced that the interpretation of the statutes by the district judge is clearly correct and accordingly her order is
24
AFFIRMED.
1
The defendant-appellant has requested oral argument; the government's brief states that argument is not necessary. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument
2
The critical statutory provisions appear in 18 U.S.C. Sec. 3583:
(a) In general.--The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment, except that the court shall include as a part of the sentence a requirement that the defendant be placed on a term of supervised release if such a term is required by statute....
....
(e) Modification of conditions or revocation.--The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6)--
....
(3) revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on post release supervision, if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this paragraph may not be required to serve more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in prison if such offense is a class B felony, more than 2 years in prison if such offense is a class C or D felony, or more than one year in any other case; ....
18 U.S.C. Sec. 3583 (emphasis added).
The district court apparently referred to the version of the statute in effect before the 1994 amendments became effective. We see no substantive difference in the language of the above quoted portions of the statute that would impact on the issue submitted, so we refer to the current language. One difference of potential importance has not been discussed by the parties. The 1994 amendments to subsection (g) make it mandatory for supervised release to be revoked and the defendant incarcerated if he possesses a firearm in violation of the conditions of supervised release, as Robinson admittedly did. Because the district court plainly did not rely on that provision, relying on the discretionary power to revoke in subsection (e)(3) instead, we need not consider whether revocation of the term of supervised release imposed as a part of Robinson's original 1988 sentence under this amendment to the statute would pose ex post facto problems. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/726368/ | 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.Salvador Ali MARADIAGA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 95-70238.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 11, 1996.Decided Aug. 20, 1996.
1
Petition to Review a Decision of the Immigration and Naturalization Service, INS No. Azh-ftb-nga.
INS
PETITION GRANTED IN PART, DENIED IN PART
2
Before: FERNANDEZ and TASHIMA, Circuit Judges, and MERHIGE, Senior District Judge.*
3
MEMORANDUM**
4
Salvador Ali Maradiaga ("Maradiaga"), a native and citizen of Nicaragua, departed his country and entered the United States without inspection in 1989, in violation of § 241 of the Immigration and Nationality Act (the "Act"), 8 U.S.C. § 1251(A)(2). We deny the petition as to the Board of Immigration Appeals' (the "Board") denial of Maradiaga's request for asylum and withholding of deportation, under sections 208 and 243(h) of the Act, 8 U.S.C. §§ 1158 and 1253(h), but grant the petition as to the Board's determination that he did not qualify for suspension of deportation under section 244 of the Act, 8 U.S.C. § 1254.
I.
5
Maradiaga claims that while a student in Nicaragua, Sandinistas removed him and others, who refused to participate in pro-Sandinista rallies and political meetings, from school and forced them to perform unpaid labor. He admits, however, that he did not view this work as punitive, and was even allowed to enroll in a university during this time. Maradiaga only completed a few months of university study, however, because he refused to serve in the Sandinista military. Shortly thereafter, Maradiaga left Nicaragua, and after passing through Guatemala and Mexico, arrived in the United States for the first time in 1983.
6
After arriving in the United States, Maradiaga married a lawful permanent resident and has been continuously employed since that time. He alleges that his only departure from the United States was a four-month return to Nicaragua in 1989. He made this trip in an attempt to obtain an immigrant visa at the United States Embassy in Managua, Nicaragua.
7
Maradiaga left for Nicaragua on a Mexicana flight on April 18, 1989, and his return ticket to the United States was for May 6, 1989. While in Nicaragua, he made three or four trips to the U.S. Embassy in Managua and met with the American Counsul in late April, 1989. His application for a visa, however, was denied in late April, 1989, after testing positive for the HIV virus. A positive HIV test is a ground for exclusion under the Act. See section 212(a)(i)(A)(i) of the Act, 8 U.S.C. § 1182(a)(1)(A)(i). Rather than using his airplane ticket and facing a rejected re-entry into the U.S., Maradiaga cashed in his return ticket.
8
Maradiaga claims that sometime during May or June of this trip, he was arrested by Sandinista Ministry of Interior authorities suspicious of his visits to the U.S. Embassy. He was never charged or represented by counsel and was allegedly told that he was a "pro-Yankee" suspect. He was detained for about two weeks and mistreated by being pushed to the floor, threatened with unlimited imprisonment, and denied access to lavatory facilities. Maradiaga was questioned about his reasons for visiting the U.S. Embassy and accused of being a Contra sympathizer. He denied having any Contra contacts in the United States and was released after two weeks detention.
9
A month after his release, Maradiaga began to plan his return to the United States. He stayed in Nicaragua during this time while awaiting a visa to travel to Guatemala. Maradiaga claims that when leaving for Nicaragua in 1989, he received a passport through the Nicaraguan Embassy in Washington, but left the passport with his parents because "I was afraid I could lose it." With no return ticket and no passport, Maradiaga planned to enter illegally and then request political asylum. He eventually arrived in the U.S. four months after originally departing for Nicaragua, and admitted doing so illegally.
10
After returning to the United States, Maradiaga claims to have received two letters sent by his adoptive father, recounting several visits by Sandinista police looking for Maradiaga and questioning the father, and warning Maradiaga not to return to Nicaragua.1 Also after returning to the United States, Maradiaga first learned that he was Jewish, when his adoptive parents told him that his natural mother had been Jewish.2 Currently, he regularly attends synagogue services. He claims that if forced to return to Nicaragua, he would not be able to practice his religion because "there is no synagogue" and a majority of the Jewish people left at the time of the revolution. He said that the synagogue was partially destroyed. Although he claims that there is antisemitism in Nicaragua, he admits, "I think with [President] Chamorro there might be good relations." Maradiaga believes that the synagogue and property, previously confiscated by the government from Nicaraguan Jews, has not been returned.
11
Maradiaga currently has no family in the United States. His only family are his adoptive parents, who are in Nicaragua. He and his wife have been separated since his 1989 return from Nicaragua. She did not accompany him to Nicaragua because "she didn't want to go because we already had problems." Maradiaga belongs to no organizations other than his labor union. His only valuable property is $3,000 worth of jewelry, and his savings and checking bank accounts have been closed and cancelled. He speaks little English.
12
One week after his 1989 return from Nicaragua, and prior to being charged with deportability, Maradiaga applied for political asylum. That application was denied by the INS, and on October 10, 1989, Maradiaga was served with an Order to Show Cause why he should not be deported from the United States.
13
At various preliminary hearings before the Immigration Judge ("IJ"), Maradiaga renewed his political asylum and withholding of deportation claims, and also added a claim for religious persecution and an application for suspension of deportation. On May 8, 1991, the IJ conducted a hearing on the merits of Maradiaga's claims. The IJ denied the applications for asylum, withholding of deportation, and suspension of deportation, but granted Maradiaga's request for voluntary departure. Maradiaga appealed to the Board.
14
After reviewing the record de novo, on January 24, 1995, the Board affirmed the IJ's decision. First, as to the suspension of deportation claim, the Board found Maradiaga's trip to Nicaragua, which interrupted his continuous presence, was not "brief, casual, and innocent." Therefore, because he did not physically reside in the United States for seven continuous years, as required under the Act, he did not qualify for suspension of deportation.
15
In denying Maradiaga's request for asylum, the Board initially found that petitioner failed to establish "past persecution," noting that neither Sandinista pressure to perform volunteer labor, nor the 1989 arrest rose to a necessary level for finding past persecution based on political opinion.
16
The Board also determined that Maradiaga failed to demonstrate that the change of government in Nicaragua has not reduced or eliminated the authorities' interest in him. The record shows that Maradiaga had no connections to the Contras, and the orders of detention and letters from his father pre-date the Sandinistas' 1990 election loss. Therefore, the Board found no fear of future persecution on account of political opinion.
17
Finally, the Board found no fear of future persecution on account of religion. Maradiaga did not find out that he was Jewish until his return to the United States, and was never persecuted on account of his religion during his time in Nicaragua. Additionally, the Board noted that since 1990, the Nicaraguan government has offered to return the synagogue in Managua for religious celebration, and the Jewish community is attempting to resume services. The Board found no evidence that Jews in Nicaragua are systemically persecuted based on religion or ethnicity, or that Maradiaga would be personally persecuted. In light of the denial of Maradiaga's asylum claims, the Board also denied his claim for withholding of deportation.
18
Despite denying the claims for this requested relief, the Board nevertheless granted Maradiaga voluntary departure, effective within thirty days of the date of the order.
II.
A. ASYLUM
19
(i) Fear of Future Persecution Based on Religion
20
Section 208(a) of the Act, 8 U.S.C. § 1158(a), gives the Attorney General discretion to grant political asylum to any alien the Attorney General determines to be a "refugee" within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A). A refugee is defined as an alien unwilling to return to his or her country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). To establish eligibility on the basis of a "well-founded fear of persecution," Maradiaga's fear of persecution must be both subjectively genuine and objectively reasonable. Ghaly v. INS, 58 F.3d 1425, 1428 (9th Cir.1995).
21
We review the Board's determination that Maradiaga failed to demonstrate a "well-founded fear of persecution," including its factual findings, for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); 8 U.S.C. § 1105a(a)(4). Maradiaga must demonstrate that "the evidence [he] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. at 817. Maradiaga has failed to meet this burden.
22
Since the Sandinistas were defeated in the 1990 elections, the Chamorro government has offered to return the synagogue in Managua to the Jews, and the Jewish community in Nicaragua is currently attempting to resume services in the synagogue. Furthermore, Maradiaga has presented no evidence that Jews in Nicaragua are currently being systematically persecuted based on their religion. In fact, Maradiaga previously admitted that "I think with Chamorro there might be good relation." As the Board noted, while Maradiaga may face "personal discrimination or bigotry" in his country, "this discrimination does not rise to the level of persecution under the immigration laws." Finally, there is no evidence that the Nicaraguan government has ever persecuted Maradiaga in the past because of his religion, nor is there evidence that the Nicaraguan government is, or would be, interested in whether he is Jewish.
23
(ii) Persecution Based on Political Opinion
24
Maradiaga argues that his treatment at the hands of the Sandinistas while imprisoned in 1989 rose to the level of persecution and was in effect "torture." He claims that in "being denied access to lavatory facilities," he was forced to defecate in his own cell, and maintains that these facts compel a finding that the treatment he was subjected to constituted physical and mental torture amounting to severe persecution. Additionally, Maradiaga asserts that the persecution he suffered while imprisoned was because of his political opinions, essentially arguing that his mistreatment was based upon a belief by the Sandinistas that he was allied with the Contras or the United States. We reject Maradiaga's arguments.
25
Under the analysis of Matter of Chen, Int.Dec. 3104 (BIA 1989), a grant of asylum may be proper even if there is no reasonable likelihood of present persecution, as long as the past persecution was so severe that returning the applicant to his home country would be inhumane. Id. at 4-5. In Chen, the petitioner was tortured systematically for eight years during China's Cultural Revolution because of his religious beliefs. During the eight-year period, he was locked in a room for six months, continually beaten and starved, and denied medical care. Id. at 5-6.
26
The facts of this case do not rise anywhere near the level of torture found in Chen. While confining an individual to a cell with no lavatory facilities may be considered inhumane, Maradiaga was only confined for a two-week period, and was released as soon as officials were satisfied that he was not connected to the Contras. He may have been pushed to the ground, but there is no evidence that he was brutally beaten like the petitioner in Chen. Certainly, Maradiaga was not subjected to the systematic and continuous torture necessary to find the extreme past persecution which he is compelled to show.
27
Furthermore, we agree with the Board that the two-week detention was not ultimately on account of his political opinion. The record indicates that Maradiaga was confined because officials were suspicious of his trips to the United States Embassy in Managua. In INS v. Elias-Zacarias, 502 U.S. at 482-83 (1992), the Supreme Court explained that an alien must prove that the persecutor's motive is to harm the alien specifically because of his political opinion. The record in this case does not reflect that Maradiaga had a known political opinion at the time of his arrest. Additionally, the mistreatment appears to have been conducted in an effort to elicit information from Maradiaga about his connections to the Contras and the U.S. government. He was clearly not imprisoned simply because of his political beliefs. Finally, Violet Chamorro's 1990 victory over the Sandinistas has considerably changed the political climate in Nicaragua. Although Sandinistas may continue to have power within the government, Maradiaga has failed to present any evidence that he would be a target for persecution by the new government.
28
Maradiaga has failed to present "credible, direct, and specific" evidence of facts supporting a reasonable fear of persecution, Ghaly v. INS, 58 F.3d at 1428, and therefore, we uphold the Board's determination that Maradiaga failed to establish a well-founded fear of future persecution based on religion or political opinion and its denial of his claim of asylum.
B. Mandatory Withholding of Deportation
29
Section 243(h) of the Act, 8 U.S.C. § 1253(h), requires the Attorney General, subject to certain exceptions not relevant here, to withhold deportation "if the Attorney General determines that such alien's life or freedom would be threatened ... on account of race, religion, nationality, membership in a particular social group, or political opinion." An alien is statutorily eligible for such relief if he or she demonstrates a "clear probability of persecution." Ghaly, 58 F.3d at 1429. This standard is more stringent than the "well-founded fear" standard applicable to requests for asylum, and it can be met only by showing that it is more likely than not that the alien will be persecuted if deported. Id. "Therefore, failure to satisfy the lesser standard of proof required to establish eligibility for asylum necessarily results in a failure to demonstrate eligibility for withholding of deportation as well." The decision to deny withholding of deportation is reviewed for substantial evidence. Ghaly, 58 F.3d at 1429.
30
Having decided that Maradiaga failed to establish a well-founded fear of persecution, we also hold that he "cannot meet the higher burden of establishing a clear probability of persecution." Cuadras v. INS, 910 F.2d 567, 572 (9th Cir.1990). Therefore, we uphold the Board's denial of mandatory withholding of deportation.
C. Suspension of Deportation
31
Section 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1), authorizes the Attorney General to suspend the deportation of an alien who (1) has been physically present in the United States for not less than seven years immediately preceding the date of application; (2) is a person of good moral character; and (3) is "a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence."
32
As to the first requirement, the Supreme Court had previously held that any absence from this country, "however, brief, casual, or innocent," during the seven-year period precludes relief under the statute. INS v. Phinpathya, 464 U.S. 183, 196 (1984). In response to this decision, however, Congress enacted section 244(b)(2) of the Act, 8 U.S.C. § 1254(b)(2), which states that an:
33
alien shall not be considered to have failed to maintain continuous physical presence in the United States ... if the absence from the United States was brief, casual, and innocent and did not meaningfully interrupt the continuous physical presence.
34
(emphasis added). The factual finding that Maradiaga's departure was not "casual" is reviewed for substantial evidence. Hernandez-Luis v. INS, 869 F.2d 469 (9th Cir.1989).
35
The Board found that Maradiaga's departure in 1989 was not "casual," and therefore, his physical presence was meaningfully interrupted. The Board focused on the long, deliberate process involved in leaving this country in an effort to obtain an immigrant visa. The Board stated that obtaining an immigrant visa is the result of an often "long and complex process," and Maradiaga was "aware that his actions had potential immigration implications." Therefore, it determined that his departure cannot be considered "casual" in nature.
36
While the Board noted that Maradiaga was aware that his ability to return to the United States after being denied a visa was not only possible through "uncertain and surreptitious means," it did not consider Maradiaga's "means of return from Nicaragua to be a negative discretionary factor in the instant case." The Board did not consider this factor in a negative light because of the "sympathetic nature" of Maradiaga's learning of his medical condition, and of the fact that he applied for asylum immediately upon returning to the United States, rather than waiting for deportation proceedings to begin against him.
37
We are bound to defer to the Board's determination of what factors may be considered in determining whether a departure was casual, unless the agency's interpretation is plainly contrary to the sense intended by the Congress. U.S. D.O.C. v. F.E.R.C., 36 F.3d 893, 896 (9th Cir.1994); Chemical Mfrs. Assn. v. NRDC, 470 U.S. 116, 125 (1985). In light of the Ninth Circuit's recent decision in Castrejon-Garcia v. INS, 60 F.3d 1359 (9th Cir.1995), however, we reverse the Board's determination that Maradiaga's trip to Nicaragua was not "casual."
38
In Castrejon, we overturned a Board determination that a petitioner who took an eight-day trip to Mexico in order to secure a visa from the American Consulate had failed to maintain a "continuous physical presence" in the United States. We explained that (1) when petitioner's absence was for no more than eight days, his absence is "brief;" (2) when the purpose of his absence is to obtain a visa, his absence is "innocent"; (3) when the purpose of his absence is to regularize his status in the U.S., he has not "meaningfully interrupted his physical presence;" and (4) when his absence is on a single occasion it is "casual." Id. at 1363. We noted that § 1254 must not be construed to "penalize an effort to become a lawful resident by a man who has been in this country continuously for twenty-five years, has a family, a business, and a moral character that has been determined to meet the statutory standard." Id. Finally, we explained that the "evident statutory purpose" of § 1254 is that an individual who lives continuously in the United States for seven years does not destroy his eligibility by "actions that do not affect his commitment to living in this country." Id. at 1362.
39
Similar to the petitioner in Castrejon, Maradiaga left the United States in an attempt to secure an immigrant visa. He did so in order to become a lawful resident of this country. He did not, however, ever take actions that called into question his commitment to living in this country. Rather, he made one isolated trip to Nicaragua in order to secure his ability to stay in the United States.
40
The very reasons on which the Board decided Maradiaga's departure was not "casual" were effectively rejected by this Court in Castrejon. In fact, in both Castrejon and the instant case, the Board used similar language in its opinions regarding the "deliberate" nature of a departure to obtain an immigrant visa. The Castrejon Court, however, held that an individual's trip outside this country for the purpose of obtaining an immigrant visa should not be held against him, and does not necessarily render the trip as being a "meaningful interruption" of his presence in the United States.
41
The INS attempts to distinguish Castrejon by arguing (1) that Maradiaga's stay was for four months, not eight days, and therefore was not "brief"; (2) that his purpose in applying for the visa was not "innocent" because he intended to obtain a visa based on a marriage to a lawful permanent resident, when in fact, he was having marital problems with his wife, and unlike Castrejon, Maradiaga stayed in Nicaragua after the Consulate denied his visa; and (3) Maradiaga willfully re-entered the United States after being informed that he was excludable based on his medical condition, unlike Castrejon, who returned prior to a decision being rendered in his case. We reject these arguments.
42
First, although Petitioner's stay in Nicaragua was for a considerably longer time than Castrejon, part of that time was spent in a Nicaraguan jail, while another part of the time was spent attempting to find a way to re-enter this country. While his stay was not as "brief" as that of Castrejon, Maradiaga should not be blamed for his extended stay. Clearly, he did not intend to stay for four months, as evidenced by his return airline ticket. He was forced to stay only after finding out he was HIV positive and could not legally re-enter this country. We agree with the Board's determination that Maradiaga's actions in re-entering this country illegally should not be held against him in light of his sympathetic medical condition and his immediate request for asylum upon entering the country. His trip began in an effort to obtain an immigrant visa, an action approved by Castrejon, and was prolonged by the two-week detention and Maradiaga's efforts to re-enter the country. Therefore, in light of these circumstances, we find his departure to be "brief."3
43
As discussed previously, Maradiaga entered this country illegally only after finding out he was HIV positive. He also re-entered and immediately sought asylum. Furthermore, although Maradiaga admitted having marital problems at that time, he was not in fact divorced, nor was there evidence that divorce was imminent. Therefore, we find his departure was "innocent."
44
Finally, based on the definition of "casual" put forth by Castrejon, that being "occasional," we find Maradiaga's single trip outside the United States to be "casual."
45
Accordingly, despite the deference afforded the Board's decision on this issue, and in light of Castrejon, we find that Maradiaga's trip was brief, casual, and innocent, and did not result in a meaningful departure from this country. Therefore, his departure in the United States has been "continuous."
46
Having decided that Maradiaga's departure was in fact "continuous," we must also decide whether Maradiaga is a person of "good moral character" and whether "extreme hardship" would result from his deportation. 8 U.S.C. § 1254(b)(2). In denying the claim for suspension of deportation, the IJ decided that Maradiaga was of "good moral character," but found that he would not suffer "extreme hardship" upon return to Nicaragua. The IJ based this determination on the fact that Maradiaga had not developed AIDS, was in good health, and had not substantially extended himself into the general society and culture of the United States. The Board, however, never ruled on these issues after making the dispositive determination that Maradiaga's departure was not "casual." The parties have also not briefed these issues on appeal.
47
In light of these facts, we overturn the Board's determination that Maradiaga was not eligible for suspension of deportation for failing to have a "continuous" presence in the United States, and REMAND the case to the Board for a determination of Maradiaga's moral character and the potential for "extreme hardship" if he were forced to return to Nicaragua.4
III.
48
In conclusion, we DENY the petition as to the Board's denial of Maradiaga's request for asylum and withholding of deportation. As to the suspension of deportation claim, we GRANT the petition as to the finding that Maradiaga's 1989 departure was not "casual," and therefore broke the continuity of his presence in this country. We REMAND the case to the Board for a determination of Maradiaga's moral character and the potential, in light of his medical condition, for extreme hardship if forced to return to Nicaragua.
*
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
The Board noted that these letters were not accompanied by envelopes or other indicia that they were sent from Nicaragua
2
This is why, Maradiaga explained, his first asylum application, states that he is Catholic (which is the religion his adoptive parents raised him). He does not consider himself to be a devout Catholic
3
See Kamheangpatiyooth v. INS, 597 F.2d 1253, 1258 (9th Cir.1979), where the Ninth Circuit stated that "an absence of six or even 16 months does not interrupt the requisite continuity of physical presence as a matter of law."
4
At the IJ hearing, Maradiaga testified that he would face hardship upon return to Nicaragua, because he would not be able to easily obtain the medication he currently receives for his HIV condition. Furthermore, his doctor stated that Maradiaga would develop AIDS upon returning to Nicaragua | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1736057/ | 519 So. 2d 140 (1988)
STATE of Louisiana
v.
Earnest F. PATRICK, Jr.
No. 87-K-2534.
Supreme Court of Louisiana.
February 12, 1988.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576365/ | 35 So. 3d 165 (2010)
Randall WILLIAMS, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-2923.
District Court of Appeal of Florida, Third District.
May 26, 2010.
Carlos Martinez, Public Defender, Gwendolyn Powell Braswell and Melissa Del Valle, Assistant Public Defenders, for appellant.
Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
SHEPHERD, J.
The appellant challenges, by direct appeal, the trial court's technical denial of his Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct illegal sentence,[1] in which he asserted his written sentence failed to conform to the sentencing judge's oral pronouncement and he was sentenced unlawfully to a three-year minimum mandatory sentence, in exchange for his plea of guilty to carrying a concealed firearm and possession of a firearm by a delinquent, under this State's 10-20-Life statute. See § 775.087(2)(a)1.a-r. Fla. Stat. (2008). We accept the State's proper concession of error on the former and reverse on the latter.
The State charged Appellant with carrying a concealed firearm and possession of a *166 firearm by a delinquent. Appellant agreed to a plea of guilty to the charges in exchange for a sentence of five years of imprisonment on each charge, with a three-year mandatory minimum. The plea colloquy does not identify upon which count the mandatory minimum was imposed. The written sentence states it was imposed on the concealed firearm charge. The plea colloquy reflects the sentencing judge ordered that both sentences were to run concurrently with each other and to a life sentence imposed on a separately charged and prosecuted murder conviction. This intent is not reflected in the written sentence.
The State concedes the written sentence should be amended to state both of the appellant's sentences should run concurrently with the life sentence in the companion case, and we so order. See Catalan v. State, 911 So. 2d 203, 204 (Fla. 3d DCA 2005) ("Where there is a difference between the court's oral pronouncement and a written order, the oral pronouncement controls."). The State also concedes the written sentence is in error to the extent it seeks to make mandatory three years of the five-year sentence imposed on Appellant for carrying a concealed firearm, because carrying a concealed firearm is not a qualifying offense under the 10-20-Life statute. See § 775.087(2)(a)1.a-r.
The State argues, nevertheless, that because the plea colloquy does not identify to which of the convictions in this case carrying a concealed firearm or possession of a firearm by a delinquent the enhancement was to be applied, the three-year minimum mandatory sentence can be applied to Appellant's conviction for possession of a firearm by a delinquent. In support of this argument, the State points out the information charged Williams with "unlawfully and feloniously own[ing] or hav[ing] in said defendant's care, custody, possession or control firearm, when at said time and place, the defendant had previously been found to have committed a delinquent act that would be a felony if committed by an adult of this court of this state ... in violation of s. 790.23(1)." Although an argument can be constructed that it is not clear from the information on this count whether Williams' general plea of guilty was for possession of a firearm by a convicted felon under section 790.23(1)(a) or by a delinquent under section 790.23(1)(b) due to the absence of a second parenthetical in the charging document the State's theory, as we understand it we find this argument to be unpersuasive.[2] The 10-20-Life statute authorizes the imposition of a three-year minimum mandatory sentence when a defendant is convicted of "possession of a firearm by a felon." § 775.087(2)(a)1.r. (emphasis added). We are of the view that the only fair way to read the information in this case is to find the appellant was charged with possession of a firearm by a delinquent. We also take judicial notice of the certified copy of Williams' Criminal Justice Information Center printout, recently filed by defense counsel, showing all of Williams' prior convictions (excluding the murder conviction for which Williams was sentenced concurrently *167 with the convictions in this case) were juvenile adjudications. We agree with the reasoning of the First District Court of Appeal's recent opinion in Potter v. State, 997 So. 2d 1215, 1216 (Fla. 1st DCA 2008), that because the offense of possession of a firearm by a delinquent is not specifically listed in the 10-20-Life statute as one for which a court is authorized to impose a minimum mandatory sentence, the trial court erred in this case in imposing a minimum mandatory sentence on this count as well. Although the appellant expressly agreed to the sentence as part of a negotiated plea agreement, a defendant cannot assent to an illegal sentence. See Gregory v. State, 997 So. 2d 1287, 1288 (Fla. 3d DCA 2009).
Accordingly, we reverse the appellant's sentence and remand for the trial court to conform its oral pronouncement to its written sentence and strike the three-year minimum mandatory term. Because these amendments are ministerial acts, Appellant need not be present for resentencing. See Velez v. State, 988 So. 2d 707, 708 (Fla. 3d DCA 2008).
NOTES
[1] Florida Rule of Criminal Procedure 3.800(b)(2) authorizes a defendant pursuing a direct appeal to file a motion to correct illegal sentence in the trial court after he files his notice of appeal, but before the filing of the initial brief. If no order on the motion is filed by the trial court within sixty days, the motion is deemed denied. Fla. R.Crim. P. Rule 3.800(b)(1)(B). We refer to such a denial here as a "technical denial."
[2] Section 790.23(1) of the Florida Statutes reads in relevant part:
790.23. Felons and delinquents; possession of firearms, ammunition, or electric weapons or devices unlawful
(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:
(a) Convicted of a felony in the courts of this state;
(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age; ... | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576348/ | 35 So. 3d 136 (2010)
John G. WILCOX, Appellant,
v.
Juana MUNOZ, Appellee.
No. 2D08-5743.
District Court of Appeal of Florida, Second District.
May 21, 2010.
*138 Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
Philip Averbuck, Highland City, for Appellee.
SILBERMAN, Judge.
John G. Wilcox, the Former Husband, seeks review of the trial court's order granting his postjudgment petition to modify his child support obligation. The Former Husband raises four challenges to the court's order below. Our review of this case is limited by the parties' failure to arrange for a recording of the proceedings below. However, because the trial court failed to make findings regarding the parties' incomes and ability to pay and erroneously ordered the parties to equally share child care expenses, we reverse.
The parties were divorced in 2005 in New Jersey. The final judgment of dissolution incorporated a marital settlement agreement in which the parties agreed that the Former Wife would have sole legal custody of the Former Wife's nephew, whom the parties had adopted. The Former Wife waived any right she had to alimony in exchange for the Former Husband's promise to pay child support of $276 weekly ($1186.80 monthly). This amount was calculated using the New Jersey child support guidelines based upon the Former Husband's net weekly income of $1688 ($7258.40 monthly) as a composer. The Former Husband agreed to pay seventy percent of employment-related child care expenses for a live-in nanny. The Former Husband also agreed to pay seventy percent of any noncovered medical, dental, and prescription medication expenses for the child. These percentages reflected the Former Husband's percentage share of the child support need.
The agreement recognized that the Former Husband was going to be unemployed in June 2005 and that such an event would constitute a substantial change in circumstances that might entitle him to have the child support award modified "taking into account all of the circumstances at that time." As anticipated, the Former Husband subsequently filed a petition to modify his child support obligation and alleged that his income had substantially decreased.
The Former Husband submitted a financial affidavit that reflected a net monthly income of $1109. The Former Wife submitted a financial affidavit that reflected a net monthly income of $1939. The trial court thereafter entered an order finding that the Former Husband had "suffered a change in income" and decreasing the child support award from $1186.80 monthly to $754.27 monthly "[p]ursuant to the Child Support Guideline calculation." The order made no findings regarding the parties' incomes or their ability to pay and did not attach a child support guidelines worksheet. Additionally, the order required each party to equally share one-half of the child care expenses and any noncovered medical, dental, and prescription medication expenses.
The Former Husband filed a motion for rehearing in which he argued that the trial court had erred by (1) failing to make findings of fact regarding the parties' incomes and miscalculating the child support award, (2) failing to add the child care expenses to the basic child support obligation, (3) failing to allocate the noncovered medical, dental, and prescription medication expenses on a percentage basis, and (4) ordering the first payment due May 1, 2008. The trial court denied the motion, and this appeal followed.
On appeal, the Former Husband re-argues the first three issues he raised in his *139 motion for rehearing. Additionally, the Former Husband raises the new argument that the court erred in failing to make the new child support award retroactive to the date of filing. Because the parties failed to arrange for a recording of the hearing on the petition to modify, our review is limited to errors that occur on the face of the final judgment. Mobley v. Mobley, 18 So. 3d 724, 725 (Fla. 2d DCA 2009); Soto v. Soto, 974 So. 2d 403, 404 (Fla. 2d DCA 2007).
1. Findings of Fact
Section 61.30, Florida Statutes (2006), provides guidelines establishing the amount of child support to be awarded based on the parties' combined net monthly incomes. If the award deviates from the guidelines by more than five percent, the final judgment must explain why the guidelines amount is unjust or inappropriate. § 61.30(1)(a). To calculate the award of child support, the court should add the net monthly incomes for both parties together and look to the statutory chart to determine the corresponding minimum child support need. § 61.30(5-6). The court then calculates each party's percentage share of the child support need by dividing their net monthly income by the combined net monthly income. § 61.30(9). Each party's actual dollar share is then calculated by multiplying the minimum child support need by the party's percentage share. § 61.30(10).
It is well-settled that a trial court errs by failing to make findings of fact regarding the parties' incomes when determining child support. See Guida v. Guida, 870 So. 2d 222, 225 (Fla. 2d DCA 2004); Valdes v. Valdes, 6 So. 3d 731, 732 (Fla. 1st DCA 2009); Todd v. Guillaume-Todd, 972 So. 2d 1003, 1007 (Fla. 4th DCA 2008). This is because findings regarding the parties' incomes are necessary for a determination of whether the support ordered departed from the guidelines and, if so, whether that departure was justified. Jones v. Jones, 636 So. 2d 867, 867 (Fla. 4th DCA 1994). Thus, the failure to include findings regarding the parties' incomes for purposes of child support calculations renders a final judgment facially erroneous, and the absence of a transcript does not preclude reversal on that basis. Guida, 870 So.2d at 225; Aguirre v. Aguirre, 985 So. 2d 1203, 1207 (Fla. 4th DCA 2008); Todd, 972 So.2d at 1007.
We are mindful that, in cases involving equitable distribution and alimony, this court has held that the lack of a transcript precludes a party from establishing that any error in failing to make the required findings was harmful. See Esaw v. Esaw, 965 So. 2d 1261, 1265 (Fla. 2d DCA 2007). In Esaw, the wife challenged the trial court's failure to make specific factual findings in support of its alimony and equitable distribution awards, but the record did not contain a transcript of the dissolution proceedings. Id. at 1263. This court recognized that it was reversible error for a court to fail to include findings of fact in support of alimony and equitable distribution. Id. at 1263-64.
However, the court also recognized that it was the wife's burden to demonstrate harmful error arising from those omissions. Id. at 1264. The court explained that, to establish harmful error, the wife was required to show that "`it is reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed.'" Id. (quoting Fla. Inst. for Neurologic Rehab., Inc. v. Marshall, 943 So. 2d 976, 979 (Fla. 2d DCA 2006)). The court concluded that the absence of the transcript precluded the wife from meeting this burden. Id. at 1265.
Esaw is distinguishable from this case for two reasons. First, the court in *140 Esaw did not address the issue of the trial court's failure to make findings required to support an award of child support. Simply put, child support is different than alimony or equitable distribution. "Child support `is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.'" Serio v. Serio, 830 So. 2d 278, 280 (Fla. 2d DCA 2002) (quoting Armour v. Allen, 377 So. 2d 798, 800 (Fla. 1st DCA 1979)). The right to child support belongs to the child, and it cannot be waived by parents. Id. We are thus disinclined to extend Esaw to cases involving child support awards.
Second, in this case, unlike in Esaw, the Former Husband makes specific allegations of harm arising from the absence of factual findings. This court's ruling in Esaw turned on the wife's failure to meet her burden of establishing harmful error due to the lack of a transcript. 965 So.2d at 1265. In analyzing the wife's burden, this court noted that "the wife has made no attempt to show how the inadequacy of the findings constitutes harmful error." Id. Thus, this court concluded, "Because the wife did not provide a transcript or appropriate substitute and did not demonstrate harmful error, we will not reverse the judgment on the basis of the wife's claim that the findings are inadequate." Id.
In this case, however, the Former Husband makes a specific claim of harm resulting from the trial court's failure to make findings regarding the parties' incomes. The Former Husband claims that, based upon the parties' incomes, the child support award is not supported by the child support guidelines. The Former Husband argues that the child support was improperly calculated as evidenced by the fact that the award is nearly seventy percent of his income as listed on his financial affidavit.[1]
2. Child Care Expenses
The Former Husband argues that the trial court erred by ordering the parties to equally share the child care expenses. Section 61.30(7) provides, in pertinent part, as follows:
Child care costs incurred on behalf of the children due to employment, job search, or education calculated to result in employment or to enhance income of current employment of either parent shall be reduced by 25 percent and then shall be added to the basic obligation. After the adjusted child care costs are added to the basic obligation, any moneys prepaid by the noncustodial parent for child care costs for the child or children of this action shall be deducted from that noncustodial parent's child support obligation for that child or those children.
The Former Husband correctly argues that the court should have included seventy-five percent of the child care expenses in the basic child support amount as required by section 61.30(7). See Calero v. Calero, 996 So. 2d 244, 246 (Fla. 4th DCA 2008); Guard v. Guard, 993 So. 2d 1086, 1091 (Fla. 5th DCA 2008). This error is apparent on the face of the record because the court instead ordered that the parents equally share child care expenses.
3. Noncovered Medical, Dental, and Prescription Medication Expenses
The Former Husband argues that the trial court failed to comply with section 61.30(8) in ordering the parties to equally share the child's noncovered medical, *141 dental, and prescription medication expenses. Section 61.30(8) provides, in pertinent part, as follows:
Health insurance costs resulting from coverage ordered pursuant to s. 61.13(1)(b), and any noncovered medical, dental, and prescription medication expenses of the child, shall be added to the basic obligation unless these expenses have been ordered to be separately paid on a percentage basis.
It is error for the court to equally divide the noncovered medical, dental, and prescription medication expenses when the court arrives at an unequal percentage share of child support. See Martinez v. Martinez, 911 So. 2d 288, 289 (Fla. 2d DCA 2005); Salazar v. Salazar, 976 So. 2d 1155, 1157 (Fla. 4th DCA 2008); Forrest v. Ron, 821 So. 2d 1163, 1168 (Fla. 3d DCA 2002). We are unable to determine whether the court's award of noncovered medical, dental, and prescription medication expenses was error because of the court's failure to provide findings of fact regarding the parties' incomes and the parties' percentage share of the child support need. On remand, the court should review this award to ensure it reflects the parties' percentage share of the child support need.
4. Retroactivity
The Former Husband argues that the trial court erred by failing to order modification of child support retroactive to the date of filing. A trial court abuses its discretion in refusing to modify child support retroactively to the date of filing the petition if the need for support and the ability to pay existed at the time of filing. See Martland v. Arabia, 987 So. 2d 118, 120 (Fla. 4th DCA 2008); Bardin v. State, Dep't of Revenue, 720 So. 2d 609, 611 (Fla. 1st DCA 1998). However, the Former Husband cannot establish error because the record does not reflect that he actually established need and ability to pay retroactive to the date of filing the petition. Also, the record does not reflect that he requested that the award be retroactive. See Esaw, 965 So.2d at 1265. The Former Husband's petition for modification does not contain such a request, the record does not contain a transcript of the hearing on the petition, and the Former Husband did not argue for retroactivity in his motion for rehearing. Thus, we cannot conclude that the trial court erred regarding this issue.
In conclusion, the trial court erred by failing to make findings regarding the parties' incomes and ability to pay and erroneously ordered the parties to equally share child care expenses. Although the record does not contain a transcript of the hearing below, these errors are apparent on the face of the record and require reversal of the order in its entirety. On remand, the court should recalculate child support and enter a new order specifying the basis for modification of child support, including the parties' incomes and percentage share of the child support need. The court should include seventy-five percent of the child care expenses in the basic child support amount before determining the allocation of each party's share of child support. The court should also ensure that the Former Husband's share of the child's noncovered medical, dental, and prescription medication expenses is proportionate to his percentage share of the child support need. If the Former Husband did indeed request and establish a basis for retroactive modification of child support, the court may adjust the effective date of the award as well.
Reversed and remanded.
ALTENBERND, J., and FULMER, CAROLYN K., Senior Judge, Concur.
NOTES
[1] Indeed, if the child support obligation is calculated from the parties' incomes as listed on their financial affidavits without consideration for child care costs, the total child support obligation would be $654 and the Former Husband's monthly obligation would be approximately $235. See § 61.30(6), (9), (10). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/862739/ | Unable to extract the content from this file. Please try reading the original. | 01-03-2023 | 04-26-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576383/ | 109 Wis. 2d 75 (1982)
325 N.W.2d 82
John GROGAN, Joan Huegel, James Radtke and Christina Washington, Plaintiffs-Appellants,
v.
PUBLIC SERVICE COMMISSION OF WISCONSIN, Defendant-Respondent.[]
No. 81-1947.
Court of Appeals of Wisconsin.
Submitted on briefs May 13, 1982.
Decided September 22, 1982.
*76 For the plaintiffs-appellants the cause was submitted on the briefs of William A. Denny and Terry J. Booth, and Denny, Yanisch & Binder of Milwaukee.
For the defendant-respondent the cause was submitted on the brief of Steven M. Schur, chief counsel, and Steven Levine, assistant chief counsel, Public Service Commission of Wisconsin.
Before Gartzke, P.J., Bablitch, J. and Dykman, J.
GARTZKE, P.J.
Plaintiffs use outdoor natural gas lights to illuminate their homes. They seek a declaratory judgment invalidating the Public Service Commission's rules prohibiting the supply, and thus the use, of natural gas for outdoor residential lighting and an order restraining the commission from enforcing the rules. Plaintiffs assert that the commission lacks authority to apply the challenged rules to gas lights in use before the effective date of the rules and that the rules are unconstitutional.[1]
The trial court found that plaintiffs own gas lights which they operated before the effective date of the challenged rules but concluded that the rules are valid and entered judgment so declaring. We conclude that the commission lacks authority to prohibit supplying natural gas to lights "ordered and received" before the effective date of the commission's rule specifying gas lights as a nonessential use. We therefore reverse.
*77 The rule prohibiting supplying natural gas for plaintiffs' lights is sec. PSC 136.02(4), Wis. Admin. Code, adopted October 19, 1979, and effective November 1, 1979, which provides in relevant part:
(4) GENERAL PROHIBITION ON SALE OF NATURAL GAS FOR USE IN OUTDOOR LIGHTING. (a) Prohibition. No local distribution company shall supply natural gas for use in outdoor lighting.
(b) Effective dates . . . .
. . . .
4. In the case of any outdoor lighting fixture used in connection with a residence to which natural gas was being supplied by the local distribution company for outdoor lighting use on November 9, 1978, the prohibition stated in par. (a) of this section shall be effective January 1, 1981.
Under secs. PSC 134.062(2) (e) and 136.10, Wis. Admin. Code, the continued use of a natural gas light in violation of sec. PSC 136.02 constitutes grounds for which a utility may disconnect gas service to a customer.
We do not decide constitutional issues if the resolution of other issues can dispose of an appeal. Kollasch v. Adamany, 104 Wis. 2d 552, 561, 313 N.W.2d 47, 51 (1981). Accordingly, we first examine the commission's authority to prohibit plaintiffs' continued use of their outdoor natural gas lights. If the commission lacks that authority, the constitutional issues are moot.
[1]
An administrative agency possesses only so much power as is expressly conferred or necessarily implied from the statutes under which it operates. Brown County v. H&SS Department, 103 Wis. 2d 37, 48, 307 N.W.2d 247, 252 (1981). The nature and scope of an agency's authority is therefore a matter of statutory interpretation or construction. An appellate court need not defer to the trial court on matters involving the meaning of statutes. Engineers & Scientists v. Milwaukee, *78 38 Wis. 2d 550, 554, 157 N.W.2d 572, 574 (1968).
Plaintiffs contend the commission's statutory authority is derived solely from sec. 196.97, Stats.,[2] which provides in relevant part:
(1) No gas utility doing business in this state or other person may install, connect or cause to be installed or connected to the distribution system any device which constitutes a nonessential use of natural gas, unless such devices have been ordered and received by any person prior to the effective date of each rule specifying a nonessential use of natural gas under sub. (2), including item inventories held by retailers or wholesalers.
(2) The commission shall, by rule, specify criteria for determining a nonessential use of natural gas for purposes of this section. The commission shall, by rule, specify each nonessential use of natural gas under this section. . . .
(3) The commission may make rules as it deems necessary to carry out the purposes of and to enforce this section. The commission shall provide for exemptions for nonessential uses of natural gas for reasons of health, safety or unusual hardship. (Emphasis added.)
The commission asserts that when adopting the challenged rules, it relied upon general grants of authority in secs. 196.03, 196.20, 196.26 (1), 196.37(2) and 196.62, Stats.,[3] rather than proceeding under sec. 196.97. The *79 commission contends that its general authority permits it to regulate the use of natural gas for conservation purposes. It finds judicial recognition of that authority in Wisconsin's Environmental Decade, Inc. v. PSC, 69 Wis. 2d 1, 16, 230 N.W.2d 243, 251 (1975).
We conclude that the commission relied at least in part on sec. 196.97, Stats., when it adopted the rule prohibiting the supply of natural gas for appellants' lights, sec. PSC 136.02(4), Wis. Admin. Code.[4] Because, however, the commission referred to "ch. 196 in general" in its order adopting the challenged rules, we decide this appeal on the assumption that the commission relied solely on general statutory authority rather than on sec. 196.97.
The statutes relied on by the commission for a general grant of authority to regulate for conservation purposes have been broadly described as cloaking the commission with "power to regulate so that the rules and practices of the utilities do not render service inadequate or insufficient." Wisconsin's Environmental Decade, 69 Wis. 2d at 16, 230 N.W.2d at 251. We need not decide whether that power allows the commission to regulate generally for conservation goals. We simply make the additional *80 assumption that the commission correctly asserts that secs. 196.03, 196.20, 196.26(1), 196.37(2) and 196.62, Stats., authorize it generally to regulate natural gas usage for conservation purposes.
The commission's authority to regulate for conservation purposes must be implied, for nowhere in secs. 196.03, 196.20, 196.26(1), 196.37(2) and 196.62, Stats., is the commission expressly granted that power. Section 196.97, on the other hand, is a specific grant of authority. That grant conflicts with the implied general authority we assume the commission possesses. Under sec. 196.97 (1) a gas utility may lawfully connect devices which constitute nonessential uses if the device was ordered and received before the effective date of a commission rule specifying the particular use as nonessential. This express statutory limitation on the power of the commission to prohibit an act by a gas utility conflicts with the general authority relied on.
If a specific statutory grant of authority to a state agency conflicts with a more general grant to the agency, the specific statute controls. Martineau v. State Conservation Commission, 46 Wis. 2d 443, 449, 175 N.W.2d 206, 209 (1970). This is especially true when, as here, the specific grant occurs after the general grant.[5]Id. See also Sigma Tau Gamma Fraternity House v. Menomonie, 93 Wis. 2d 392, 402, 288 N.W.2d 85, 89 (1980) (rule applied to grant by state of condemnation authority to a municipal corporation).
The commission contends that a specific statutory grant prevails over a general grant only if an irreconcilable *81 conflict exists between the grants. Peterson v. Natural Resources Board, 94 Wis. 2d 587, 597, 288 N.W.2d 845, 850 (1980), so held.
[2]
Because, however, we must resolve doubts regarding implied powers against the existence of such powers, State (Dept. of Admin.) v. ILHR Dept., 77 Wis. 2d 126, 136, 252 N.W.2d 353, 357-58 (1977), we conclude that the "irreconcilable conflict" requirement does not apply if the conflict is between an express specific grant and an implied general grant of authority. In the absence of strong evidence indicating a contrary legislative intent, it would be anomalous to imply general power to do that which the legislature has expressly and specifically forbidden.
We conclude that the implied general authority of the commission to regulate for conservation purposes, which we assume exists, is limited by the express provisions of sec. 196.97, Stats. We therefore turn to the question whether sec. PSC 136.02(4), Wis. Admin. Code, complies with sec. 196.97.
Under sec. 196.97(2), Stats., the commission is required "by rule [to] specify each nonessential use of natural gas" before it can prohibit the installation or connection of devices constituting nonessential uses. That precondition to the exercise of its authority is implicit in subsecs. (1) and (2). "Every administrative agency must conform precisely to the statutes from which it derives power." Mid-Plains Telephone v. PSC, 56 Wis. 2d 780, 786, 202 N.W.2d 907, 910 (1973).
[3]
The commission specified outdoor natural gas lighting as a nonessential use when it adopted sec. PSC 136.05(3) (a), Wis. Admin. Code, effective March 1, 1980. Because it is undisputed that plaintiffs' lights were installed and used before that date, their lights were lawfully connected to the distribution system under the express terms *82 of sec. 196.97(1), Stats.[6] Accordingly, the commission lacks authority to apply the prohibition on the supply of natural gas for use in outdoor lights contained in sec. PSC 136.02(4) against the plaintiffs.
Emphasizing that sec. 196.97, Stats., is directed against "nonessential" uses of natural gas, the commission contends the statute does not prevent it from prohibiting gas lights as a useless wasteful dissipation of the state's natural gas supply. We reject the contention. The commission has not prohibited gas lights because they are "wasteful."
The commission gave notice of the proposed rule prohibiting gas lighting, stating the rule was to minimize the effects of "inefficient and/or wasteful use of energy." The commission made milder findings of fact to support its order promulgating ch. PSC 136, Wis. Admin. Code. The commission found only that the use of gas for lights is "inefficient."
Finding lack of authority to prohibit the supply and use of natural gas to plaintiffs for their residential lights, we do not reach the constitutional issues raised by plaintiffs.
By the Court. Judgment reversed and cause remanded with directions to enter judgment declaring sec. PSC *83 136.02(4) (b)4, Wis. Admin. Code, invalid insofar as it prohibits the supply of natural gas for outdoor residential lighting for plaintiffs' gas lights ordered and received prior to March 1, 1980, and to determine whether an order should be entered restraining the commission from enforcing secs. PSC 134.062(2) (e) and 136.10, Wis. Admin. Code.
NOTES
[] Petition to review denied.
[1] The amended complaint attacks generally the validity of secs. PSC 136.01, 136.02, 136.03, 136.10 and 134.062(2) (e), Wis. Admin. Code. Plaintiffs' brief on appeal does not challenge secs. PSC 136.01 and 136.03 specifically. Except for their equal protection argument, plaintiffs' challenge is limited to the validity of the rules as applied to lights in use before the effective date of the rules.
[2] Section 196.97, Stats., was created by sec. 2, ch. 369, Laws of 1977, and amended in particulars not relevant to this appeal by secs. 32 and 33, ch. 154, Laws of 1979.
[3] Section 196.03 (1), Stats., requires utilities "to furnish reasonably adequate service and facilities." Section 196.20 authorizes the commission to regulate utility rates. Section 196.26(1) (repealed and recreated by secs. 6-11, ch. 148, Laws of 1981, subsequent to the commencement of this lawsuit) authorizes the commission to investigate complaints against a utility charging that a "practice or act affecting or relating to the production, transmission, delivery or furnishing of heat, light, water or power or any service in connection therewith . . . is in any respect unreasonable, insufficient or unjustly discriminatory, or that any service is inadequate or cannot be obtained . . . ." Section 196.37(2) authorizes the commission to fix reasonable acts, practices or service to be furnished by utilities. Section 196.62 prohibits a utility from subjecting persons to unreasonable prejudice or disadvantage.
[4] Chapter PSC 136, Wis. Admin. Code, entitled, "Gas Conservation," was adopted by an emergency order of the commission October 19, 1979. The order states that the commission adopts secs. PSC 136.01, 136.02, 136.03, 136.10 and 134.06(2) (e), pursuant to ch. 196, Stats., in general and secs. 196.37(2) and 227.014 (2) (a) and 10 C.F.R., part 516 et seq. However, sec. PSC 136.01 (1) as adopted by that order provides, "Chapter PSC 136, Wis. Adm. Code, constitutes a general order of the Public Service Commission, authorized by s. 227.014 and 196.97, Wis. Stats." (Emphasis added.)
[5] The statutes relied on by the commission existed when Wisconsin's Environmental Decade, Inc. v. PSC, 69 Wis. 2d 1, 230 N.W.2d 243 (1975), was decided in 1975, whereas sec. 196.97, Stats., was created effective May 19, 1978. See legislative history in n. 2, supra.
[6] It is undisputed that plaintiffs' lights were in use before October 19, 1979. Plaintiffs incorrectly assume that the effective date of sec. PSC 136.02(4) (b)4, Wis. Admin. Code, was the date of its adoption as an emergency order, October 19, 1979. We first note that the effective date of an emergency order, under sec. 227.027(1), Stats. 1979-80, is the date of its publication in the official state paper, which occurred November 1, 1979. The effective date of the emergency order was, therefore, November 1, 1979, despite a statement in Wis. Admin. Reg. No. 287, November 1979, that the emergency rules "were effective November 2, 1979." However, because the commission did not acquire statutory authority to ban nonessential uses of natural gas until the effective date of sec. PSC 136.05, it is the effective date of the latter rule which is controlling. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576378/ | 325 N.W.2d 845 (1982)
NATIONAL BANK OF SOUTH DAKOTA, Guardian Ad Litem for Debbie Carstensen and Bonnie McCoy, Plaintiff and Appellant,
v.
Richard L. LEIR; Kay Streeter; Annamae Blume; and Noreen Lemery, Defendants and Appellees, and
Glenn Franklin Brown; and Iva Brown a/k/a Ivy Brown, Defendants.
No. 13561.
Supreme Court of South Dakota.
Argued February 22, 1982.
Decided November 3, 1982.
Rehearing Denied December 13, 1982.
Gregory A. Eiesland of Lynn, Jackson, Shultz & Lebrun, Rapid City, for plaintiff and appellant; Gary D. Jensen of Lynn, Jackson, Shultz & Lebrun, Rapid City, on brief.
Glenn H. Johnson and Jerry D. Johnson of Banks & Johnson, Rapid City, for defendants and appellees.
MORGAN, Justice.
This is an appeal from a summary judgment against the appellant, National Bank of South Dakota, guardian ad litem for D.C. and B.M., minors (guardian). Guardian sued defendant social workers for their alleged *846 negligent placement and supervision of D.C. and B.M. in a foster home. The trial court entered summary judgment against guardian and in favor of social workers on the grounds that these social workers are immune from suit under the sovereign immunity doctrine. Guardian appeals and we reverse and remand.
In May 1975 social workers placed sisters D.C., then seven years of age, and B.M., then four years of age, in the foster home of Glenn and Ivy Brown. For the next two years, the sisters were sexually abused by their foster father, State v. Brown, 285 N.W.2d 843 (S.D.1979), and physically abused by both of their foster parents. According to Department of Social Services' (Department) files maintained by these social workers, a number of incidents took place while the sisters were in the Brown foster home. During this time, social workers received complaints from the neighbors that the Browns were abusing D.C. and B.M. Additionally, D.C. and B.M.'s mother reported to the social workers that there were "rumors" about Glenn Brown, that B.M. was forced to sleep on the floor, and that B.M. had bruises that may be caused by abuse. Social workers, however, accepted the Browns' explanation that B.M.'s bruises resulted from her "accident prone" nature. Despite these complaints of abuse and their knowledge of Browns' animosity toward the children's mother,[1] the social workers did not remove the children from the Browns' home.
Also during this two-year period, significant changes were noted in D.C.'s and B.M.'s behavior. According to Department's files, although D.C. previously was an excellent student, her grades dropped and in April 1977 when she was hospitalized for abdominal disorders the physician attributed her illness to emotional problems. The younger sister, B.M., lapsed into a baby role, was nasty to other children, would injure herself, continued going through eating motions when her plate was empty, and was "very destructive." At this time, one of the social workers noted in her file that she had "encouraged [Mrs. Brown] to forget about those [rumors of abuse] as [Mrs. Brown] can't do an effective job of mothering if she keeps worrying about what everyone will say."
While D.C. and B.M. were placed in the Browns' foster home, the social workers only once talked to the sisters alone and that discussion involved their mother's visitations. Although one social worker noted in her file that she had a "suspicious attitude" and "doubts about the wholesomeness of the [Brown] family situation," D.C. and B.M. were left in the Browns' care until a car accident in June 1977 in which Mrs. Brown was injured. After the car accident, the sisters were placed in a different foster home and in August 1977 they were returned to their natural mother. Shortly after the sisters were returned to their mother, they informed her of the physical and sexual abuse. State v. Brown, 285 N.W.2d at 844. Subsequently, as a result of his sexual abuse of D.C. and B.M., Glenn Brown was convicted of four counts of rape in the first degree, and two counts of indecent molestation of a minor child.[2]Id.
As guardian ad litem for D.C. and B.M., guardian instituted this action against social workers, alleging that social workers' neglect and violations of Department's rules and regulations made possible the continuing sexual and physical abuse of D.C. and B.M. Social workers denied the allegations and filed a motion to dismiss, asserting that they are immune from suit under the sovereign immunity principles announced in High-Grade Oil Co. v. Sommer, 295 N.W.2d 736 (S.D.1980). The trial court, treating the motion as one for summary judgment, granted summary judgment in favor of social workers. Guardian now appeals and the sole issue facing the court is whether social workers, as state employees, are immune from suit for acts of negligence under the sovereign immunity doctrine. *847 For the purpose of this opinion only, we assume that the guardian has a valid claim for negligence.
Sovereign immunity provides the state with immunity from suit unless the state has consented to the particular suit alleged. Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981); Conway v. Humbert, 82 S.D. 317, 145 N.W.2d 524 (1966); see 72 Am.Jur.2d States §§ 99-114 (1974). As an outgrowth of sovereign immunity, a public officer may also be immune from suit when acting within the scope of his authority. Sioux Falls Const. Co. v. City of Sioux Falls, 297 N.W.2d 454 (S.D.1980). In some instances, a suit, although nominally against a public officer in an individual capacity, actually is a suit against the state where the state is the real party against which relief is sought. In these instances, the suit is barred by sovereign immunity. High-Grade Oil Co. v. Sommer, supra.
Initially, this court must determine whether this action by guardian ad litem is an action against the state. As stated in High-Grade Oil, an action is against the state,
[w]here the state is the real party against which relief is sought, and where a judgment for the plaintiff although nominally against the officer as an individual, could operate to subject the state to liability[.][3]
295 N.W.2d at 737. See White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614 (1925).
In High-Grade Oil, this court held that the action, although nominally against a state employee, was actually against the state. The South Dakota Constitution, art. XIII, § 9, provides that highway construction is a function of state government. The legislature vested that responsibility in the Department of Transportation. A decision in High-Grade Oil adverse to Sommer would require the Department of Transportation to alter the curve. Maxwell v. State, 391 So. 2d 1230, cert. den. 394 So. 2d 281 (La.App.1980); State Farm Mut. Auto. Ins. Co. v. Slaydon, 376 So. 2d 97 (La.1979); Wilson v. State, 364 So. 2d 1313 (La.App.1978), cert. den. 366 So. 2d 563 (1979); Furness v. Michigan Public Service Com'n, 100 Mich.App. 365, 299 N.W.2d 35 (1980). Such a requirement places a financial burden upon the state and, of course, subjects the state to liability. Because the decision would have subjected the state to liability, the High-Grade Oil action was in effect an action against the state and barred by sovereign immunity.[4]
In contrast to High-Grade Oil, an adverse decision in the instant case would not subject the state to liability. Where the suit in High-Grade Oil stems from the design and construction of a curve in a highway, the suit against social workers stems from their own personal action and inaction. A finding of negligence in the instant case would impose financial liability upon the social workers not the state. Because this suit does not expose the state to liability, this action is not barred by sovereign immunity as an action against the state.
After determining that this is not an action against the state, we now must determine *848 whether this action is against social workers in their official capacities or as individuals. The immunity available to employees of governmental units is actually "an outgrowth of the doctrine of governmental immunity." Sioux Falls Const. Co. v. City of Sioux Falls, 297 N.W.2d at 458. In some instances, sovereign immunity will bar a suit against an employee acting within the scope of his employment. Sioux Falls Const. Co. v. City of Sioux Falls, supra (citing to Restatement (Second) of Torts § 895D (1979)). See 72 Am.Jur.2d States § 115 (1974).
Whether immunity is available to a governmental employee depends upon the nature of the function exercised by the employee. Sioux Falls Const. Co. v. City of Sioux Falls, supra; Walters v. City of Carthage, 36 S.D. 11, 153 N.W. 881 (1915); State v. Ruth, 9 S.D. 84, 68 N.W. 189 (1896); see 72 Am.Jur.2d States § 115 (1974). Immunity extends to an employee who, while acting within the scope of his employment, exercises a discretionary function. Sioux Falls Const. Co. v. City of Sioux Falls, supra. In reviewing the discretionary versus ministerial dichotomy, we have held that a state employee who "fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such duty." State v. Ruth, 9 S.D. at 90, 68 N.W. at 190. See, Conway v. Humbert, supra; Walters v. City of Carthage, supra.
In Sioux Falls Const. Co.,[5] we looked to Restatement (Second) of Torts § 895D (1979), in determining what is a discretionary function. The factors listed therein at comment f include:
(1) The nature and importance of the function that the officer is performing....
(2) The extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment by the court on the conduct of a coordinate branch of government....
(3) The extent to which the imposition of liability would impair the free exercise of his discretion by the officer....
(4) The extent to which the ultimate financial responsibility will fall on the officer....
(5) The likelihood that harm will result to members of the public if the action is taken....
(6) The nature and seriousness of the type of harm that may be produced....
(7) The availability to the injured party of other remedies and other forms of relief.
In Sioux Falls Const. Co., we distinguished between discretionary and ministerial factors and examined the actions under which the employee claimed immunity. There, the court examined the employee's failure to either protect the plaintiff's equipment or to inform the plaintiff that he was not protecting the equipment. The court found that none of the above factors even suggested that the employee's decision to not act was a discretionary decision; the employee was exercising a ministerial function and thus, was not immune from suit. In State v. Ruth, supra, this court held that an employee's actions were ministerial because:
[The employee] had no alternative but to act. In making the estimate, he was, of course, required to exercise judgment and discretion; but the law did not permit him to decide whether or not any estimate should be made within the time specified by the statute. We think, in failing to act at all, he disregarded a plain provision of the law, and failed to *849 perform a merely ministerial duty. It is the nature of the particular duty, and not the character of the office, which determines whether or not a duty is ministerial.
9 S.D. at 91, 68 N.W. at 190-91.
Although we have before us a narrow issue, several other jurisdictions have addressed whether a social worker's functions on the placement, maintenance and care of children in foster care are discretionary or ministerial. These jurisdictions agree that such functions are ministerial and consequently the doctrine of sovereign immunity is not available to bar liability for negligence. Hanson v. Rowe, 18 Ariz.App. 131, 500 P.2d 916 (1972); Elton v. County of Orange, 3 Cal. App. 3d 1053, 84 Cal. Rptr. 27 (1970); Johnson v. State, 69 Cal. 2d 782, 73 Cal. Rptr. 240, 447 P.2d 352 (1968); Koepf v. County of York, 198 Neb. 67, 251 N.W.2d 866 (1977); Bartels v. County of Westchester, 76 A.D.2d 517, 429 N.Y.S.2d 906 (1980); see Ramos v. County of Madera, 4 Cal. 3d 685, 94 Cal. Rptr. 421, 484 P.2d 93 (1971).[6]
In Elton v. County of Orange, supra, the California Appellate Court distinguished ministerial functions from discretionary functions in a suit by a foster child, for injuries suffered as a result of physical and mental abuse by foster parents. In holding that a cause of action was stated, the court determined that:
Decisions made with respect to the maintenance, care or supervision of [a foster child], or in connection with her placement in a particular home, may entail the exercise of discretion in a literal sense, but such determinations do not achieve the level of basic policy decisions, and thus do not [warrant immunity].
3 Cal.App.3d at 1058, 84 Cal.Rptr. at 30. Since the acts were ministerial, not discretionary, the defendants were not immune from a suit for negligence.
The Nebraska Supreme Court in Koepf v. County of York, supra, also distinguished between ministerial and discretionary functions. Koepf involved a suit brought by a mother for the death of her minor child from a beating by a foster parent. As in Elton, supra, the court held that decisions involving the placement, maintenance, care or supervision of a child in a foster home are not basic policy decisions and thus do not fall within the discretionary-function exemption to immunity. Most recently, a New York Court agreed with this analysis in Bartels v. County of Westchester, supra. In Bartels, the court held the actions of county employees in failing to supervise a foster child were ministerial in nature. Consequently, the defendants could not avoid liability for injuries sustained by the child at the hands of the foster parent.
In the present case, the actions for which social workers claim immunity involve the placement and follow-up of these children in foster care.[7] The care and *850 placement of children is an important function and there is strong likelihood that serious harm will result to members of the public if it is performed incorrectly. Elton v. County of Orange, supra; Bartels v. County of Westchester, supra. Although some discretion in its literal sense is involved in foster care, social workers do not make policy decisions involving foster care placement. The criteria for placement and standards for follow-up of foster children are already established. Social workers are merely required to carry out or administer these previously established standards. The placement and follow-up of children in foster care according to preestablished standards is a routine, ministerial function. Hanson v. Rowe, supra; Elton v. County of Orange, supra; Johnson v. State, supra; Koepf v. County of York, supra; Bartels v. County of Westchester, supra. Since the actions for which social workers claim immunity are ministerial in nature, we hold that the doctrine of sovereign immunity does not extend to preclude a suit based upon these actions.
We reverse the circuit court's decision that this suit is barred by the doctrine of sovereign immunity and remand this case for trial on its merits.
WOLLMAN and DUNN, JJ., concur.
FOSHEIM, C.J., and ANDERST, Circuit Judge, dissent.
ANDERST, Circuit Judge, sitting for HENDERSON, J., disqualified.
FOSHEIM, Chief Justice (dissenting).
High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980), and Sioux Falls Construction Co. v. City of Sioux Falls, 297 N.W.2d 454 (S.D.1980), are the critical cases involved in the majority opinion.
I do not agree with the majority's interpretation of High-Grade Oil. There is language in that case that if the State could be subjected to liability then the State employee is protected by the doctrine of sovereign immunity. However, I believe the holding in High-Grade Oil was squarely based on the traditional rule that a governmental employee is protected by the doctrine while performing his duties. In High-Grade Oil appellants argued that appellee Sommer, the State Highway Engineer, was acting outside the scope of his employment because he violated certain design safety standards when he designed or approved the design of the highway. In response to appellants' argument this court stated, at 737-38:
We cannot agree. Under Article XIII, § 9 of our state constitution, construction and maintenance of public highways is a function of state government. The legislature by statute has vested the authority for such construction and maintenance in the Board of Transportation. Appellee is an employee of the Department of Transportation, the operational arm of the Board. Any action on his part in the performance of his duties, whether negligently done or otherwise, clearly is constitutional and is not void. In White Eagle, supra, the officers were sued in their official capacities, but the claim was that their actions were premised on an unconstitutional statute.
Considering then, as we must, that this is an action against the state, we next review appellants' attack on the doctrine of `governmental' or `sovereign immunity,' which terms are interchangeable. (footnote omitted)
Sioux Falls Construction is another matter. While it adopts the rationale of High-Grade Oil and other decisions of this court which refused to judicially abolish the doctrine of sovereign immunity, it proceeds to adopt a Restatement definition of immunity based on whether an employee is acting with discretion. Sioux Falls Construction adopted this test even though it conceded, at 458, *851 the possibility of some instances where a city could be immune while exercising a governmental function, yet an officer could be liable; or, in the alternative, a situation where a city could be liable while acting in a proprietary function, yet the officer could be immune.
To uphold governmental immunity as to the governmental unit only, while allowing the officers, agents, and employees to be held liable, would be chaotic.
Our adoption of the Restatement's discretion test, in effect, judicially revised the doctrine of sovereign immunity, contrary to this court's consistent position that we would defer to the Legislature. For the reasons stated below, I repudiate my concurrence in the rationale of Sioux Falls Construction. The result, however, was correct. Sioux Falls Construction concerned a municipal corporation which was denied the benefit of the doctrine of sovereign immunity because it was not engaged in a governmental function, the city employee was likewise denied its benefit.
Leir and Kruger v. Wilson, 325 N.W.2d 851 (S.D.1982), apply the discretionary test adopted in Sioux Falls Construction and the state employees in each case are denied the benefit of the doctrine of sovereign immunity. The practical effect of the discretionary test is that it carves out a broad sector of governmental employees (those whose jobs do not require the use of discretion), who formerly were protected by the sovereign immunity doctrine, and singles them out to be personally liable for their negligence. Who are these employees? They are those least able to pay a personal judgment. Only policy-making employees (whose jobs require the use of discretion), and who therefore are the highest paid government employees, will be allowed to invoke the doctrine to shield themselves from personal liability.
Aside from these inequities, the test's great weakness is that it is so vague and multifaceted that the temptation to manipulate it to reach a desired result can be overwhelming. Witness the result in Leir. While their negligence was deplorable, can anyone seriously contend that social workers do not exercise discretion? Also, the result in Kruger driving a state car on state time is a ministerial function. Can driving a car be considered "ministerial" as that word has heretofore been used in the law?
Prior to Sioux Falls Construction this court applied a simple, straight-forward test to determine if the doctrine appliedwas the employee acting within the scope of his employment when the injury occurred? Aside from its simplicity, this test treats all governmental employees the same, regardless of their position and earnings. The discretionary test will, in my opinion, lead this court into a quagmire and allow personal liability actions against those least able to pay.
I would affirm the summary judgments entered in Leir and Kruger.
I am authorized to state that Circuit Judge ANDERST joins in this dissent.
NOTES
[1] Animosity arose from the prior relationships between the Browns and the children's mother. D.C.'s and B.M.'s mother is the sister of Mrs. Brown. Also, the children's mother was previously married to Glenn Brown's brother.
[2] Brown's convictions also involved two other minor children.
[3] A further test for determining whether an action is not against the state was set out by the court in White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614 (1925) and cited to in High-Grade Oil v. Sommer, 295 N.W.2d 736 (S.D.1980). In White Eagle, the court stated that an action is not against the state when the action is "maintained against defendants, who while claiming to act as officers of the state, violate and invade the personal and property rights of the plaintiffs under color or authority unconstitutional or void...." 205 N.W. at 617. The White Eagle test determines only if a suit is or is not against the state; the test does not determine if a suit is against an officer in an official or individual capacity. In White Eagle, the plaintiffs contended that the officers were acting under an unconstitutional statute. This test is not applied in the instant case because guardian does not contend that social workers were acting under unconstitutional authority.
[4] Compare Kruger v. Wilson, 325 N.W.2d 851 (S.D.1982), where an adverse decision would not subject the state to liability. In Kruger, a state employee allegedly negligently drove a state vehicle. The subsequent suit against the employee to recover for personal injuries and property damage would not result in financial consequences to the state. Thus the action in Kruger is not an action against the state.
[5] Sioux Falls Const. Co. v. City of Sioux Falls, 297 N.W.2d 454 (S.D.1980), dealt with sovereign immunity available to municipalities. As noted in High-Grade Oil, the sovereign immunity rule applied to municipalities differs from the rule applied to the state. The "municipality" rule distinguishes between governmental and proprietary functions, Sioux Falls Const. Co., supra, whereas the "state" rule does not. High-Grade Oil, supra. Nevertheless, similar factors are examined to determine whether a state employee is immune from liability as an individual. Kruger v. Wilson, supra.
[6] We cite these cases only for the proposition that a social worker's functions in the placement, maintenance and care of children in foster care are ministerial in nature. For a general discussion of governmental tort liability for social service agency's negligence in placement or supervision of children see Annot., 90 A.L.R. 3d 1214 (1979).
[7] We note and reject appellees' contention that our previous opinion in Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981), held that all state level employees are immune from suit. In Merrill, the action was brought against the school district and two teachers. There, we affirmed the summary judgment granted on the basis of sovereign immunity. As we noted in Merrill, the teachers were sued in their representative capacity. "The allegations against the defendants Birhanzel and Biehl do not claim personal liability for any wrongful acts in excess of their official authority." Id., at 523 n. 1. There was no evidence that the teachers were sued for personal negligence. As we held in Dohrman v. Lawrence County, 82 S.D. 207, 143 N.W.2d 865 (1966), when an employee is sued only in his representative capacity and not in his personal capacity, he was subject to the same immunity protection available to his employer. See Spielman v. State, 91 N.W.2d 627 (N.D.1958). That is the case we had in Merrill. Since the defendants were sued only in their capacity as representatives of the school district, they were immune from suit.
Similarly, in Arndt v. Hannum Trucking, 324 N.W.2d 680 (S.D.1982), administrator of deceased's estate brought an action against Sommer and Greek in their official capacities as Highway Engineer and District Engineer for the South Dakota Department of Transportation. There were no allegations that Sommer and Greek were personally responsible for the height of the wire which resulted in deceased's death by electrocution. Rather, the allegation was that Sommer and Greek were officially responsible because their positions provided for overall responsibility of highways. Since Sommer and Greek were sued only in their representative capacity, they are subject to the same immunity available to their employer, the state. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576430/ | 118 Mich. App. 414 (1982)
325 N.W.2d 443
BELL
v.
MERRITT
Docket No. 56379.
Michigan Court of Appeals.
Decided July 21, 1982.
Tercha & Daavettila, for plaintiff.
Garfield W. Hood, for defendant.
Before: R.B. BURNS, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.
V.J. BRENNAN, J.
On the evening of January 10, 1980, plaintiff was struck by defendant's automobile while he was attempting to cross a highway. The jury found that both plaintiff and defendant were negligent. The jury attributed to plaintiff 65% of the fault of this accident and assessed plaintiff's recoverable damages at $42,000. From that judgment, defendant appeals as of right.
The testimony revealed that plaintiff attempted to hitchhike home after taking an examination at Michigan Technological University. Plaintiff managed to hitchhike part-way to his fraternity house but had problems making a second connection. After trudging through the snow and darkness for *417 some time, he observed a sign for a pay phone located across the road. As he was crossing the road, he was struck by defendant's automobile.
Defendant testified that his windshield wipers and headlights were in perfect working order. He additionally stated that his windshield was clean and his vision was not impaired. He estimated that his speed was somewhere around 45 miles per hour. There was testimony that either rain or snow was falling at the time.
Defendant stated that he saw the plaintiff for the first time when he was approximately 15 to 20 feet in front of the plaintiff. He instinctively applied the brakes, but there was insufficient time to stop and he struck plaintiff. Plaintiff was hit by the left front side of defendant's car.
There was testimony that, shortly before the impact, the defendant had passed an automobile which was proceeding in the opposite direction. The clothing of the plaintiff was described as either a dark or medium blue jacket and either beige, khaki, or brown corduroy pants. One person described plaintiff's appearance as he was lying alongside the road as "a big black object". A police officer testified that he had observed alongside the right side of the highway a set of footprints which showed that the person made an abrupt left turn onto the highway. The officer further concluded that plaintiff was close to the center of the road when he was struck.
Initially, defendant claims that the trial court erred when it failed to direct a verdict in his favor on the ground that there was no evidence that showed he was negligent. A directed verdict is proper if, after considering the evidence and all legitimate inferences therefrom in a light most favorable to plaintiff, no reasonable person could *418 find that defendant was negligent. Hayes v General Motors Corp, 106 Mich. App. 188, 192; 308 NW2d 452 (1981). In the instant case, the testimony established that the road was wet and slushy and that rain, freezing rain, or snow was falling. Defendant was traveling at a speed of 45 miles per hour at night. His vision was unobstructed, his windshield was clean, and his lights and wipers were in operating condition. Defendant testified that he did not see plaintiff until he was 20 feet in front of him. While the evidence was not overwhelming, it was sufficient to raise a jury question as to whether there was some negligence on the part of the defendant. Earls v Herrick, 107 Mich. App. 657, 662; 309 NW2d 694 (1981), Beals v Walker, 98 Mich. App. 214, 224; 296 NW2d 828 (1980), lv gtd 411 Mich. 900 (1981). Therefore, there was no error on the part of the trial court in failing to direct a verdict in defendant's favor.
Next, defendant claims that the trial court erred in failing to grant defendant's motion for a directed verdict upon the issue of subsequent negligence. Defendant's motion was made after completion of opening statements and was renewed at the conclusion of proofs.
A directed verdict after opening statement is proper only when the opening statement plus the pleadings fail to establish plaintiff's right to recover. Ambrose v Detroit Edison Co, 380 Mich. 445, 453-455, 459-460; 157 NW2d 232 (1968). After reviewing the record, we find that plaintiff's opening statement and the pleadings in this case were sufficient to prevent a directed verdict after opening statement.
We also find that the trial court did not err in failing to grant the motion at the conclusion of proofs.
*419 In Zeni v Anderson, 397 Mich. 117, 152; 243 NW2d 270 (1976), the Supreme Court adopted 2 Restatement Torts, 2d, §§ 479, 480, pp 530, 535, as properly stating the law of last clear chance (subsequent negligence) in Michigan. Section 479 refers to the "helpless plaintiff" and states that a plaintiff who has negligently subjected himself to a risk of harm from the defendant's subsequent negligence may recover for harm caused thereby if, immediately preceding the harm, the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care and the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm when he knows of the plaintiff's situation and realizes or has reason to realize the peril involved in it. Section 480 refers to the "inattentive plaintiff" and states that a plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant's negligence in time to avoid the harm to him can recover if, but only if, the defendant knows of the plaintiff's situation and realizes that the plaintiff is inattentive and, therefore, unlikely to discover his peril in time to avoid the harm and, therefore, is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.
A directed verdict should not be granted whenever a fact question exists upon which reasonable persons can differ. Beals v Walker, supra. We find that there was evidence indicating that plaintiff could fall into one of the two restatement categories as either a helpless plaintiff or an inattentive plaintiff. Plaintiff had no recollection of the accident. Defendant first saw plaintiff when plaintiff was 15 to 20 feet in front of him but was unable to *420 stop. When plaintiff was hit he was almost in the middle of the road. Therefore, we find that the trial court properly denied defendant's motion for a directed verdict.
Defendant also asserts that plaintiff should have been required to concede negligence before asserting subsequent negligence. This claim lacks merit because it is not necessary that plaintiff elect between theories of subsequent negligence and negligence. St John v Nichols, 331 Mich. 148, 153; 49 NW2d 113 (1951), Leemon v Leemon, 56 Mich. App. 424, 430; 224 NW2d 328 (1974).
In addition, defendant maintains that plaintiff could not base his claim on the doctrine of subsequent negligence because that doctrine does not survive the adoption of comparative negligence as established in Placek v Sterling Heights, 405 Mich. 638; 275 NW2d 511 (1979). This problem was mentioned in Placek, supra, 700, fn 11, and in Kirby v Larson, 400 Mich. 585, 645; 256 NW2d 400 (1977). While this doctrine may have outlived its usefulness after the adoption of comparative negligence, Schwartz, Comparative Negligence, § 7.2, pp 137-138; Prosser, Torts (4th ed), §§ 66, 67, pp 429-432, 438-439, we do not believe that this case presents the proper opportunity for the doctrine's demise.
Regarding jury instructions, the defendant claims that the trial court erred by instructing the jury that plaintiff should be entitled to a presumption of due care because of his lack of memory. This instruction is contained in SJI 10.09. Defendant made a timely objection. We find no error since the jury found that the plaintiff was 65% negligent.
Defendant also claims that the trial court erred by giving SJI 12.01 and 12.02. These two instructions addressed the matter of plaintiff's violation *421 of MCL 257.655; MSA 9.2355, failure to walk on the left side of the road facing traffic. We note that defendant failed to object to the trial court's instructions on the ground that plaintiff should have been found negligent as a matter of law for violating the statute. Defendant's objection to these instructions came solely in his motion for a new trial which is insufficient to preserve this issue for appeal. GCR 1963, 516.2. We further note that even if an error had occurred on this point, the error would be harmless as all the evidence indicated that plaintiff had been struck in the middle of the road and not as the result of walking on the right side of the road with his back to traffic.
Further, the defendant claims that the trial court erred in the wording of its instruction on the negligence of plaintiff for violating the statute by substituting the word "practical" for the word "practicable". While it is possible that the word "practical" was improper, this error can be considered harmless.
Defendant also claims that the trial court erred by failing to give supplemental instructions to the jury on the doctrine of subsequent negligence after the jury requested such instructions and by refusing to allow defendant to call a juror to the stand in order to show that the jury did not understand the instructions on subsequent negligence.
It is not entirely clear what the jury was requesting instruction on. The request stated:
"Could we please have a clarification of the various forms of contributory negligence the things we were told about different cases of different parties being negligent * * * or canceling each other out, * * * it went by rather quick and we want to refresh our memories I hope you understand this request * * *."
*422 We find no abuse of the trial court's discretion in declining to give additional instructions. We further find that the trial court acted properly in refusing to allow the juror to testify. Hoffman v Monroe Public Schools, 96 Mich. App. 256, 261; 292 NW2d 542 (1980).
Finally, the defendant claims that the trial court erred by denying defendant's motion for a new trial on the basis that the verdict was against the great weight of the evidence. GCR 1963, 527.1(5). The granting or denial of a motion for a new trial is within the sound discretion of the trial court. Willett v Ford Motor Co, 400 Mich. 65, 70-71; 253 NW2d 111 (1977). However, the rule does not give the trial court unlimited power to grant a new trial merely because it does not agree with the verdict. The court may not substitute its judgment for that of the finders of fact. Humphrey v Bay Refining Co, 16 Mich. App. 394; 168 NW2d 314 (1969), lv den 382 Mich. 760 (1969). Where there is competent evidence to support the finding of the jury, its verdict should not be set aside. We find no abuse of discretion on the part of the trial court. There was evidence to support the jury's verdict that defendant was negligent. Under such circumstances, the verdict cannot be said to be against the great weight of the evidence.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576421/ | 731 S.W.2d 474 (1987)
ESTATE OF Alice HELMICH, Plaintiff-Respondent,
v.
Thomas J. O'TOOLE, et al., Defendants-Appellants.
No. 51783.
Missouri Court of Appeals, Eastern District, Division Three.
May 12, 1987.
Motion for Rehearing and/or Transfer Denied June 9, 1987.
Application to Transfer Denied July 14, 1987.
*475 Terrance L. Farris, Clayton, for defendants-appellants.
Steven M. Hamburg, Clayton, for plaintiff-respondent.
CRANDALL, Judge.
Defendants, Thomas J. O'Toole, Marianne O'Toole, and Tracey O'Toole, appeal the judgment in a court-tried case from St. Charles County, in favor of plaintiff, Estate of Alice Helmich, setting aside a deed to real property located that county. Defendants, Thomas J. O'Toole and Kathryn Watkins, appeal the grant of summary judgment by the Circuit Court in St. Louis County, in favor of plaintiff, setting aside a deed to real property located in St. Louis County and ordering Thomas J. O'Toole to remove his name from a certain certificate of deposit. The appeals have been consolidated for our review. We affirm the judgment of the St. Charles County Circuit Court. We affirm in part and reverse and remand in part the judgment of the St. Louis County Circuit Court.
We first consider the St. Charles County appeal. Our standard of review of this court-tried case is governed by the oft-cited Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). It is the prerogative of the trial court to determine the credibility of the witnesses, accepting or rejecting all, part, or none of the testimony. Haynes v. Missouri Property Ins. Placement Facility, 641 S.W.2d 497, 500 (Mo.App.1982). On appeal, we accept as true the evidence and reasonable inferences therefrom favorable to the prevailing party and disregard contradictory evidence. MacCurrach v. Anderson, 678 S.W.2d 459, 463 (Mo.App. 1984). Except in a rare case, the fact that *476 there is evidence which would support a different conclusion is not material. The question is whether there is substantial evidence to support the conclusion that was reached. With these principles in mind, we now consider the evidence.
Alice Helmich was an eighty-one year old woman who had never married. She owned a home in St. Louis County, in which she resided. She also owned a farm in St. Charles County, which consisted of approximately 129 acres. The farm was of considerable value.
Miss Helmich enjoyed a close personal relationship with a nephew, Raymond Helmich, who was an attorney. Raymond Helmich assisted Miss Helmich in the management of her business and financial affairs. In conjunction with these duties, he was named as joint tenant with right of survivorship on some of her bank accounts and his name was placed on her safe deposit box.
Raymond Helmich died in September, 1983. His death left Miss Helmich "depressed, distraught, and lonely." She was also angry at his widow, Sandra Helmich. The rift between them had been precipitated by a disagreement over whether certain medical procedures should have been employed to prolong Raymond Helmich's life.
Raymond Helmich had been associated in the practice of law with Thomas J. O'Toole. After Raymond Helmich's death, Mr. O'Toole became increasingly friendly with Miss Helmich. He took over the task of helping her with her business affairs. In December, 1983, Miss Helmich put Mr. O'Toole's name on her safe deposit box. She also made him joint owner with right of survivorship of a certificate of deposit in the face amount of $13,000 and of a savings account of approximately of $3,400.
At that point in time, Miss Helmich had been under the treatment of a physician since 1981. She was in poor health physically. She was blind in one eye. She had been diagnosed previously as suffering from breast cancer. In January, 1983, a mastectomy had been performed.
On January 1, 1984, Miss Helmich became ill and called Mr. O'Toole to take her to the hospital. On January 2, she suffered cardiorespiratory arrest which resulted in a loss of oxygen to the brain. Her condition was diagnosed as "anoxic encephalopathy." She was placed in the intensive care unit for about one week. Three weeks later, she was transferred to the rehabilitation unit for physical therapy. Prior to her discharge, attending physicians recommended that she have help in caring for herself. Miss Helmich was adamant about not being placed in a nursing home.
Miss Helmich was released from the hospital on February 8, 1984. Mr. O'Toole's mother-in-law, Mrs. Kathryn Watkins, moved into Miss Helmich's home to care for her. On February 19, 1984, Miss Helmich executed a will. Although the testimony is not entirely clear on this point, she apparently bequeathed her farm in St. Charles County to Mr. O'Toole, his wife, Marianne and his daughter, Tracey; and her house in St. Louis County to Mrs. Watkins. Three days later, on February 22, 1984, she signed two quit claim deeds. She deeded her farm in St. Charles County as follows: "Alice Helmich and Thomas J. O'Toole and Marianne O'Toole and Tracey Marie O'Toole, as joint tenants, with right of survivorship, and not as tenants in common." She conveyed her home in St. Louis County to Alice Helmich, Kathryn Watkins, and Thomas O'Toole, as joint tenants with right of survivorship. The deeds were recorded by Mr. O'Toole. After April 27, 1984, Miss Helmich refused the help of the O'Toole family. She repudiated the will and asked the O'Toole family to return her property. They refused.
Miss Helmich testified at trial. She stated that, in early April, 1984, she asked Mr. O'Toole for the documents which she had signed. Upon reading the will and the deeds, she was "shocked" to discover their contents. She remembered signing the documents, but claimed that she did not understand what she was signing at the time. She stated that she had not read over the documents or used her magnifying glass before signing them. Further, she could not recall entering into any agreement with the O'Toole family with regard *477 to her care. On April 27, 1984, she told Mrs. Watkins to get out of her home because she did not want to be cared for by a "stranger." She has not allowed the O'Toole family to help her since that date.
Thelma Arms, a neighbor and friend of Miss Helmich, visited her often. She testified that Miss Helmich did not recognize her in the hospital and frequently forgot her previous visits. Thelma Arms witnessed the will drawn up by Mr. O'Toole. She said that Miss Helmich needed to be helped to the table to sign the will. Miss Helmich did not converse with Thelma Arms during the execution of the will. She only responded that she was "not well" when Thelma Arms inquired about her health. When she witnessed the will, Thelma Arms did not know that she was attesting to Miss Helmich's sound mind and memory. She also testified that Miss Helmich needed a magnifying glass to read. She related that Miss Helmich had told her that Mr. O'Toole was "standing in" for her nephew.
Craig Cook, a longtime friend of Miss Helmich, testified that he visited her in the hospital and at home. He stated that she was confused and talked about animals and people who were dead as if they were still alive. He said that, on one of his visits to the hospital, she had asked him to move into her house to care for her. He stated that, when he visited Miss Helmich at her home, Mrs. Watkins would frequently whisper to him that Miss Helmich was "crazy."
Gerald Goodman, a friend and veterinarian who treated Miss Helmich's pets, also visited Miss Helmich in the hospital and at her home. He said that Miss Helmich talked about her dog as if the animal were still alive.
Sandra Helmich, a psychiatric nurse and the widow of Miss Helmich's nephew, Raymond, testified that Miss Helmich would incorrectly identify visitors and would inquire about people who were deceased. She said that, when she visited Miss Helmich at her home, Mrs. Watkins always remained in the room with them. When questioned about Miss Helmich's mental condition, Sandra Helmich described her as being "in and out" of a confused state of mind.
The deposition of Miss Helmich's treating physician, Dr. William Emerson, was read into evidence at trial. He had treated Miss Helmich since 1981. He stated that Miss Helmich was "oriented as to person, place, and time." In his opinion, however, she was not "capable of independent decision making or care." He said that she had improved steadily both in the hospital and after her return home. He reported, however, that she still exhibited some distinctive signs of anoxic encephalopathy; such as, impaired memory and recall, and frequent agitation. In addition, she required "prompting" to do simple tasks on her own and lacked sufficient judgment to handle her ordinary business affairs.
On May 29, 1984, Alice Helmich filed a petition in the Circuit Court of St. Louis County to set aside the deed to her home as well as "other conveyances." On July 10, 1984, Alice Helmich filed a similar petition in the Circuit Court of St. Charles County to set aside the deed to her farm.
The St. Charles County matter was tried first. After the trial commenced, Alice Helmich died and the Estate of Alice Helmich was substituted as party plaintiff. The Circuit Court of St. Charles County issued findings of fact and conclusions of law and ordered that the quit claim deed to the farm be set aside. Thereafter, the Circuit Court of St. Louis County entered summary judgment in plaintiff's favor, ordering the deed to the house to be set aside and ordering Mr. O'Toole to remove his name from the certificate of deposit at United Postal Savings.
In their first point, defendants contend that the St. Charles County trial court erred "in finding Alice Helmich mentally incompetent at the time the deeds were executed as there was no substantial evidence to support this finding and the weight of the evidence demonstrated that Alice Helmich was mentally competent."
"The cancellation of a deed is an extraordinary proceeding in equity and in *478 order to justify such cancellation, the evidence in support thereof must be clear, cogent and convincing." Queathem v. Queathem, 712 S.W.2d 703, 706 (Mo.App. 1986). The burden is upon those who seek to have the deed set aside to establish that, at the time of its execution, the grantor lacked sufficient mental capacity. Cruwell v. Vaughn, 353 S.W.2d 616, 624 (Mo.1962). Evidence as to the grantor's condition, both before and after the date of execution, is relevant as to grantor's mental capacity to execute a deed on a given day. Peterein v. Peterein, 408 S.W.2d 809, 814 (Mo.1966). The question is: Did Miss Helmich have the mental capacity sufficient to understand the nature of the transaction, to know the extent of her property, and to recognize the objects of her bounty? See Farr v. Lineberger, 207 S.W.2d 455, 459 (Mo.1948).
In the instant case, close friends and relatives of Miss Helmich described her as being forgetful, confused, and in a weakened physical condition in January and February of 1984. Their observations were reinforced by her treating physician's testimony that she suffered from anoxic encephalopathy, which was reflected in her impaired memory. The doctor also stated that she lacked sufficient judgment and capacity to handle her ordinary business affairs.
"Testimony from family, social, and business relations with an opportunity to observe conduct, habits, and mental peculiarities is entitled to great weight." Foster v. Henderson, 538 S.W.2d 910, 913 (Mo. App.1976). Miss Helmich's family, friends, and doctor were familiar with her weakened physical and mental condition after her illness in January. They maintained that she did not fully realize the consequences of executing the deed in question. See Spaunhorst v. Spaunhorst, 650 S.W.2d 650, 654 (Mo.App.1983).
Although defendants presented evidence which contradicted that of plaintiff, three of the witnesses were the grantees of the property and the defendants in the present action. They were therefore interested witnesses. The witnesses to the will, who testified on behalf of defendants, hardly knew Miss Helmich and saw her only when she executed the will. Finally, the physician who testified as defendants' expert formed his opinions as to Miss Helmich's mental competency solely on the basis of a review of her medical records. He neither gave her a thorough physical examination nor observed her behavior.
Plaintiff's evidence was sufficient to satisfy the burden of showing that Miss Helmich, on February 22, 1984, lacked the mental capacity to execute the deed to her farm in St. Charles County. The trial court did not err in ordering the deed cancelled. Defendants' first point is denied.
In their second point, defendants contend that the trial court erred in finding that Alice Helmich executed the deed to her farm as a result of undue influence exerted by Mr. O'Toole while he was in a confidential relationship with her. In view of our holding under point one, it is unnecessary to address that point.
In their third point, defendants argue that the trial court erred in admitting into evidence the deposition of Dr. William Emerson, Miss Helmich's treating physician. They contend that, in order to use a physician's deposition at trial, there must be proof that the physician is engaged in the discharge of his professional duties at the actual time of trial. Defendants rely on Rule 57.07(a)(3)(c) which provides that any part or all of a deposition may be used against any party present or represented at the taking of the deposition or who had proper notice thereof, if the witness is a "physician and engaged in the discharge of his professional duty at the time of trial...."
During the deposition, the following exchange occurred between plaintiff's counsel and Dr. Emerson:
Q. And you treat patients at your office?
A. Yes, sir.
Q. And you also treat patients at area hospitals, is that correct?
A. Yes.
Q. Doctor Emerson, if this case about which you are to testify was called to be *479 tried during the day, would you find it impossible to attend the trial of the case?
A. Extremely so.
Initially, we note that in a court-tried case it is practically impossible to predicate reversible error on the erroneous admission of evidence. In the Interest of J.A.J., 652 S.W.2d 745, 749 (Mo.App.1983). The party making that contention must demonstrate the absence of sufficient competent evidence to support the challenged judgment. Id. Here, defendants failed to meet that burden.
In addition, there was no error in the admission of the deposition. Dr. Emerson testified that he was a practicing physician in St. Louis County who treated patients during the day and that it would be impossible for him to attend the trial in St. Charles County. The testimony in the deposition need not refer to the specific date of trial. Such a requirement would place an almost impossible burden on the proponent of the deposition. Defendants had ample opportunity to cross-examine the doctor at the time of the deposition about his unavailability for trial. They chose not to do so. We find no abuse of the trial court's discretion in admitting the deposition. Defendants' third point is denied.
In their fourth point, defendants claim that the St. Louis County Circuit Court erred in granting plaintiff summary judgment and in ordering the deed to Miss Helmich's residence to be set aside and Mr. O'Toole's name removed from a certain certificate of deposit.
Summary judgment is a drastic remedy. The appellate court must scrutinize the record in the light most favorable to the party against whom summary judgment was rendered and resolve all doubts in favor of that party. Union Electric Co. v. Clayton Center Ltd., 634 S.W.2d 261, 262 (Mo.App.1982). If a genuine issue of fact exists, summary judgment cannot be granted. Id. at 263.
Here, the question is whether plaintiff is entitled to summary judgment in the St. Louis County Circuit Court action on the basis of the collateral estoppel effects of the judgment rendered by the St. Charles County Circuit Court. Collateral estoppel, or issue preclusion, provides that a fact judicially determined in one action may not be litigated again in another action involving other different issues. Novack v. Newman, 709 S.W.2d 116, 118 (Mo.App. 1985). The test for determining whether the application of collateral estoppel is appropriate is: (1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit. Id.
We first consider whether summary judgment was proper on the issue of the cancellation of the deed to the residence in St. Louis County. Defendant's sole contention on that issue is that the underlying St. Charles County judgment was erroneous. In view of our holding affirming that judgment, we deny defendants' claim of error.[1]
We next turn to the issue of whether summary judgment was proper on the issue of the validity of the transfer of the certificate of deposit into joint ownership. Viewed against the backdrop of the four-pronged test for collateral estoppel, the facts do not warrant the application of collateral estoppel to resolve that issue. The issues in the St. Charles County action and in the St. Louis County action were not identical. The St. Charles County action concerned the issue of the execution of a deed to real property; whereas the issue in the St. Louis County action was the transfer of a certificate of deposit into joint ownership. The execution of the deeds *480 took place on February 22, 1984, after Miss Helmich suffered anoxic encephalopathy during her hospitalization in January, 1984. In contrast, Miss Helmich had placed the certificate of deposit in her and Mr. O'Toole's name in December, 1983, which was prior to her hospitalization. Defendants did not have a full and fair opportunity to litigate Miss Helmich's competency or Mr. O'Toole's undue influence with regard to the transfer of the certificate of deposit. It was error for the St. Louis County Circuit Court to grant summary judgment on the issue of the transfer of the certificate of deposit on the basis of the judgment rendered in the Circuit Court of St. Charles County.
The judgment of the Circuit Court of St. Charles County is affirmed. The judgment of the Circuit Court of St. Louis County is affirmed in part and reversed and remanded in part.[2]
PUDLOWSKI, P.J., and KAROHL, J., concur.
NOTES
[1] We note that Kathryn Watkins was not a party to the St. Charles County action because she was only a grantee of the deed in St. Louis County. The lack of identity of the parties in both actions cuts against the application of collateral estoppel to set aside the deed in the St. Louis County action. That fact, however, is not raised on appeal as a reason to preclude summary judgment. Accordingly, we decline to address that issue.
[2] Plaintiff's motion to dismiss defendants' appeal and motion for damages for frivolous appeal are denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576401/ | 35 So. 3d 396 (2010)
STATE of Louisiana
v.
Deitray LOMAX.
No. 2009-KA-1129.
Court of Appeal of Louisiana, Fourth Circuit.
March 24, 2010.
*397 Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Nisha Sandhu, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Appellee.
John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge DAVID S. GORBATY).
JAMES F. McKAY III, Judge.
The defendant was charged by bill of information with two Counts; Count 1 possession of heroin pursuant to La. R.S. 40:966(C)(1) and Count 2 felon in possession of a fire arm pursuant to La. R.S. 14:95.1. Following a trial by jury the defendant was found guilty as charged as to Count 1. The district court declared a mistrial as to Court 2. The defendant appeals his conviction and sentence for the possession of heroin pursuant to La. R.S. 40:966(C)(1). After a careful review of the record we affirm the defendant's conviction and sentence.
STATEMENT OF THE CASE:
On July 12, 2007, the defendant was charged with possession of heroin (count one) and possession of a firearm by a convicted felon (count two), violations of La. R.S. 40:966(C)(1) and 14:95.1, respectively. On July 17, 2007, defendant entered pleas of not guilty. On September 13, 2007, defense counsel filed motions to suppress the evidence and the statement. Following a motion hearing, the matter was taken under advisement. On September 21, 2007, the trial court denied the motion to suppress the evidence. On August 12, 2008, defense counsel filed a motion in limine seeking to exclude from trial any reference to the defendant's prior convictions and to force the state to accept the defendant's stipulation on the prior convictions; the motion was denied.
Trial began on November 17, 2008, and was continued to January 27, 2009. On that date, defendant pleaded guilty pursuant to State v. Crosby, 338 So. 2d 584 (La. 1976). He was sentenced on each count to serve ten years at hard labor with credit for time served and concurrent with each other. On February 11, 2009, the district court granted the defendant's motion to withdraw his pleas of guilty and granted him a new trial. On March 10 and 11, 2009, defense counsel filed a motion to declare La.C.Cr. P. art. 782(A), which allows non-unanimous jury verdicts, unconstitutional, and a motion to sever the counts, respectively; both motions were denied on March 18, 2009. On April 15, 2009, defense counsel filed a motion for jury charges and an oral motion to recuse the district court judge. On April 20, 2009, defense counsel filed a written motion to recuse the district court judge; the *398 motion was denied on April 15, 2009. On May 5, 2009, a twelve person jury was impaneled. The defense counsel moved for a mistrial when evidence of a prior conviction was inadvertently published to the jury; the motion was denied. A supervisory writ was filed in this court; the writ was denied, 2009-K-0596. On that same day, the motion to recuse was withdrawn by defense counsel's supervisor. On May 7, 2009, following a jury trial, the defendant was convicted on the charge of possession of heroin. The jury was unable to render a verdict on the charge of possession of a firearm by a convicted felon; the trial court declared a mistrial on that charge. On June 4, 2009, the defendant was sentenced to serve ten years at hard labor with credit for time served.
STATEMENT OF THE FACTS
On May 11, 2007, Detective Sislo, accompanied by approximately ten detectives and officers, executed a no knock search warrant for the premises located at 8600 Chef Menteur Highway, apartments 10 and 11. Detective Sislo entered apartment 11. Officers Charles Love and Bronson Gettridge entered apartment 10. Officers Love and Gettridge informed Sislo that they had confiscated a nine millimeter handgun and seven packets of a tan substance wrapped in tin foil from the defendant. The handgun and tin foils were placed into evidence and deposited in the New Orleans Police Department's evidence and property room.
Detective Sislo testified that the search warrant was obtained pursuant to information received from a confidential informant. The informant told police that a man named Ian, and another man called Santa Clause, a.k.a. Norman Clark, were selling drugs from the suspect location. Acting on this information the police conducted an investigation on May 10, 2007 to corroborate the informant's tip. The informant was observed going to the suspect location and making a narcotics purchase which he turned over to Detective Sislo. Neither the informant nor Detective Sislo had any contact with the defendant. Detective Sislo stated that the targets of the search warrant were Ian and a man named Richard Salazar, Norman Clark's roommate. He further testified that he had no knowledge if the defendant lived in apartment 10 or 11. Following the search, he inventoried all items seized from both apartments. Detective Sislo testified that the defendant was inside apartment 10 when the search warrant was executed.
On May 11, 2007, Officer Charles Love participated in the execution of a no knock search warrant for the premises located at 8600 Chef Menteur Highway, apartment 10. Upon entering the apartment Officer Love observed the defendant sitting at a table. The defendant stood up and began to run towards the back of the apartment. Officer Love and the other officers ordered the defendant to get on the floor. In attempting to handcuff the defendant, Officer Love observed that the defendant's hands were clenched. The defendant was ordered to relax and stop resisting. While handcuffing the defendant his hand opened and Officer Love observed a clear plastic bag containing tin foil wrapped packets. The defendant was rolled onto his side, and Officer Love's partner, Officer Gettridge, conducted a pat down search for weapons. Officer Gettridge discovered a handgun in the defendant's waistband.
Officer Love testified that two men, a woman and several children were also in the apartment when the search warrant was executed. He stated that the defendant resisted the officers; he and his partner struggled to place the defendant in handcuffs. He denied that the defendant told him that he did not live in the apartment. He stated that the defendant was *399 not the target of the search warrant. Once the defendant was in handcuffs he was taken outside so that other officers could conduct the search of the apartment. No money or drug paraphernalia was found on the defendant.
On May 11, 2007, Officer Bronson Gettridge participated in the execution of a no knock search warrant for the premises located at 8600 Chef Menteur Highway, apartment 10. Upon entering the apartment Officer Gettridge observed the defendant get up from a table, attempt to run towards the back of the apartment, stumble and fall. The defendant was detained on the floor. The defendant moved his hands underneath his body as if he were concealing a weapon or some other object. The defendant was handcuffed. Officer Gettridge's partner, Officer Love, observed several foil wrapped packets in the defendant's hand. Officer Gettridge searched the defendant and found a handgun in his waistband. The handgun was turned over to Detective Sislo.
Officer Gettridge testified that Ian Ballard and William Jones were also in the apartment when the search warrant was executed. He stated that the defendant did not comply with the officers when they ordered him to stop and get down. The defendant fell as he attempted to run towards the rear of the apartment. He did not remember if the defendant told him that he did not live in the apartment.
Officer Joseph Pollard, latent fingerprint examiner for the New Orleans Police Criminal Records Department, took the defendant's fingerprints and compared them to a certified arrest register belonging to defendant.[1] He concluded that the defendant's fingerprints matched those on the arrest register. Officer Pollard testified that he did not participate in the arrest of the defendant or in the execution of the search warrant.[2]
Charell Arnold, an investigator for the Orleans Indigent Defender's Office, testified that she conducted an investigation of 8600 Chef Menteur Highway, apartments 10 and 11. In the course of her investigation she learned that Ian Ballard lived in apartment 11.
Ms. Arnold testified that on May 11, 2007 she was in Chicago and had no personal knowledge of what occurred at the time the search warrant was executed.
On May 11, 2007, Aneaka Ballard, cousin of the defendant and wife of Ian Ballard, was inside apartment 11 at the time the search warrant was executed; the apartment belonged to her husband, Ian. She had gone to the apartment to pick up her five children who were being babysat by their father, Ian, while she was in the hospital with another child. The defendant arrived shortly after she arrived. Another man, Melius, was also in the apartment. On a table she observed a handgun in a bag. Within minutes the police kicked in the door, entered and knocked defendant to the floor. The police were hollering, "where Ian, ... where Ian Ballard, who is Ian Ballard?" The defendant was yelling, "f____k, f____k". Ms. Ballard testified that she did not see the defendant holding anything in his hands and did not see the police take a gun from him.
Ms. Ballard testified that the defendant was sitting at a table next to Melius when *400 the police entered the apartment. Immediately after entering the apartment the police ordered her and her children to go outside. She admitted that she could not see if the defendant had anything in his hands when he came into the apartment. She admitted to having a prior conviction for forgery.
The defendant testified that he had a conviction for first-degree robbery in 2000 and for simple robbery in 2002. He stated that Ian Ballard is his cousin's husband. The night before his arrest he slept over at his cousin Randy's apartment, which was across the court from Ian's apartment. He and Randy had an argument, and Randy told him to leave. He went to Ian's apartment to wait for his girlfriend, Katina, to pick him up and take him home. Ian, Melius, Aneaka and Aneaka's children were inside the apartment. Inside the apartment he observed a handgun and some silver foil packs on a table. He stated that he had nothing to do with those items, and he could not tell Ian what to do in his own home. He was sitting on a stool waiting for his girlfriend to arrive when the police entered the apartment. He was knocked to the floor. One of the officers placed a gun to his face and another placed his knee in his back; he was handcuffed. He attempted to turn over to ask what was happening, but the police ordered him to "shut the `f up, shut the 'f up." The police were yelling, "where's Ian, who's Ian." He denied being in possession of heroin or a handgun.
He denied that he associated with Ian or Melius. He stated that he was sitting at the table with Melius to tell him about the fight he had with Randy. He admitted that it was a bad decision not to leave the apartment when he observed the handgun and drugs on the table. He accused the arresting officers of lying that they found him in possession of heroin and a handgun.
ERRORS PATENT
A review for errors patent reveals none.
DISCUSSION
ASSIGNMENT OF ERROR NUMBER 1
By his first assignment of error, the defendant asserts that the trial court erred by denying his motion to sever the counts. The defendant argues that because the counts were tried together, the jury was unduly influenced by the State suggesting that he was a "dangerous man in possession of a firearm." He attributes his conviction for possession of heroin to the jury learning of his prior conviction for simple robbery used to support the possession of a firearm by a convicted felon charge.
La.C.Cr.P. art. 493 provides:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.
Nonetheless, La.C.Cr.P. art. 495.1 provides that if the defendant or the State is prejudiced by the joinder of offenses in a bill of information or at trial, "the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires." In State v. Demise, 98-0541, p. 7 (La.4/3/01), 802 So. 2d 1224, 1232, the Court discussed the standard for reviewing a trial court's ruling on a motion to sever counts:
A motion to sever is addressed to the sound discretion of the trial court, and the court's ruling should not be disturbed on appeal absent a showing of an *401 abuse of discretion. Brooks, 541 So.2d at 804 (citing State v. Williams, 418 So. 2d 562, 564 (La.1982)). In ruling on such a motion, the trial court must weigh the possibility of prejudice to the defendant against the important considerations of economical and expedient use of judicial resources. In determining whether joinder will be prejudicial, the court should consider the following: (1) whether the jury would be confused by the various counts; (2) whether the jury would be able to segregate the various charges and evidence; (3) whether the defendant would be confounded in presenting his various defenses; (4) whether the crimes charged would be used by the jury to infer a criminal disposition; and (5) whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. Id. (quoting State v. Washington, 386 So. 2d 1368, 1371 (La.1980)). However, the fact that evidence of one of the charges would not be admissible under State v. Prieur, 277 So. 2d 126 (La.1973), in a separate trial on the joined offense, does not per se prevent the joinder and single trial of both crimes, if the joinder is otherwise permissible. State v. Davis, 92-1623, p. 9 (La.5/23/94), 637 So. 2d 1012, 1019 (citing State v. Celestine, 452 So. 2d 676 (1984)). Finally, there is no prejudicial effect from joinder of two offenses when the evidence of each is relatively simple and distinct, so that the jury can easily keep the evidence of each offense separate in its deliberations. Brooks, 541 So.2d at 805.
See also State v. Carter, 99-2234, pp. 34-35 (La.App. 4 Cir. 1/24/01), 779 So. 2d 125, 145, where this court stated: "Generally, `there is no prejudice and severance is not required if the facts of each offense are not complex, and there is little likelihood that the jury will be confused by the evidence of more than one crime,'" citing State v. Lewis, 557 So. 2d 980, 984 (La.App. 4 Cir. 1990). A defendant bears a heavy burden of proving prejudicial joinder of offenses, and he must make a clear showing of prejudice. Lewis, supra.
In its written reasons for denying the severance, the trial court cited State v. Morris, 99-3075 (La.App. 1 Cir. 11/3/00), 770 So. 2d 908. In Morris, the appellate court considered whether trial of multiple offenses including the charge of possession of a firearm by a convicted felon was prejudicial. The defendant argued that the jury's exposure to his prior conviction, as predicate to his firearm charge, implied to the jury that he had a criminal disposition. This argument was rejected as conclusory and unsupported by the facts. Furthermore, the appellate court found that the evidence of the defendant's guilt on the other charges was overwhelming, and any failure to sever was harmless error.
Applying the Washington factors, it does not appear that the trial court abused its discretion by denying the defendant's motion to sever the counts. The defendant has not shown that the jurors were confused by the presentation of the evidence or that they could not segregate evidence as to the two counts.
In addition, the defendant has not shown either of the last two Washington factors, either that the joinder of these two offenses caused the jury to infer a criminal disposition on his part, or that the joinder made the jury hostile. Indeed, although the jury found him guilty as charged as to the possession of heroin count, it failed to return a verdict on the felon in possession of a firearm count. Officers Love and Gettridge testified that the clear plastic bag containing foils of heroin was clenched in the defendant's hand when he was detained and handcuffed. The evidence of *402 his guilt for possession of heroin was overwhelming. The defendant has failed to show prejudice or that he was hindered in presenting a defense on the possession of heroin charge. Accordingly, the trial court did not abuse its discretion in denying the motion to sever the counts. This assignment has no merit.
ASSIGNMENT OF ERROR NUMBER 2
Before the commencement of the trial, the defendant unsuccessfully filed a motion in limine offering to stipulate that he had been convicted of a felony that was a predicate offense pursuant to La. R.S. 14:95.1 and requesting that the State be precluded from introducing evidence of his prior conviction. The defendant asserts the district court erred by denying the motion.
The law prohibiting certain felons from possessing firearms is codified in La. R.S. 14:95.1 and reads in pertinent part:
A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony ..., to possess a firearm or carry a concealed weapon.
Possession of a firearm by a convicted felon requires proof of: 1) the possession of a firearm; 2) a previous conviction of an enumerated felony; 3) absence of the ten year period of limitation; and 4) general intent to commit the offense. La. R.S. 14:95.1.
Defendant, citing Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997), argues that his trial was tainted by unfair prejudice because the jury was told the name and nature of his previous felony conviction. In Old Chief, the defendant, who had previously been convicted of assault causing serious bodily injury, was charged with various federal crimes, including being a felon in possession of a firearm pursuant to 18 U.S.C. Section 922(g)(1). In reversing the defendant's conviction, the United States Supreme Court concluded that in a felony possession of a firearm case pursuant to Section 922(g)(1), the government may not reject the defendant's offer to stipulate to the prior conviction, and evidence of the name and nature of the prior conviction are inadmissible.
The Louisiana Supreme Court in State v. Ball, 99-0428, (La.11/30/99), 756 So. 2d 275, declined to follow Old Chief, first because the United State Supreme Court's decision was not based on constitutional principles which would be binding on the states, but instead was based on the specific language of 18 U.S.C., Section 922, and second because the Louisiana statute defines the crime by specific enumerated prior offenses, contrary to the broad definition in the federal statute which was the subject of Old Chief.
In Ball[3], the Court stated:
Further, to fully and fairly implement the defendant's desired result in this case, more would be required than merely accepting the defendant's stipulation and prohibiting the state from mentioning the name of the prior felony conviction. In addition, the trial court could be required to prohibit the reading of the indictment in its entirety, which in this case contained the name and date of the prior conviction as well as the sentence imposed, and the judge would not be allowed to fully instruct the jury as to the law governing the case, both of which are required under general principles *403 of law ... La.C.Cr.P. art. 483 ... under Louisiana Code of Criminal Procedure article 802, "[t]he court shall charge the jury: (1) As to the law applicable to the case; ... Thus, the trial judge must fully advise the jury as to the law of La. R.S. 14:95.1, and that includes naming the prior felony convictions that disqualify a defendant from firearm possession".
Lastly, as recognized by the majority in Old Chief, the general rule is that "the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal may not stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it ... To force the state to accept defendant's stipulation would frustrate this general rule as well".
Ball at p. 280.
Accordingly, proof of a prior specifically enumerated felony conviction is an essential element pursuant to La. R.S. 14:95.1, and evidence of name and nature of the defendant's prior conviction may be presented to the jury by the state. This assignment is without merit.
ASSIGNMENT OF ERROR NUMBER 3
Prior to trial, defense counsel moved to have the district court declare Louisiana's statutory scheme which permits non-unanimous jury verdicts unconstitutional; the motion was denied. The district court subsequently charged the jury that it did not need to reach a unanimous verdict to convict the defendant. The defendant asserts that the district court erred in denying the motion.
The defendant relies upon U.S. v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999).
The punishment for possession of heroin is confinement at hard labor. See La. R.S. 40:966(C)(1). Louisiana Constitution article I, § 17(A) and La.C.Cr. P. art. 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate a defendant's right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See State v. Belgard, 410 So. 2d 720, 726 (La.1982) and Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972).
The defendant's reliance on Blakely, Ring, Apprendi, Jones, and Booker, is misplaced. These Supreme Court decisions do not address the issue of the constitutionality of a non-unanimous jury verdict; rather, they address the issue of whether the assessment of facts in determining an increased penalty of a crime beyond the prescribed statutory maximum is within the province of the jury or the trial judge, sitting alone. Nothing in these decisions suggests that the jury's verdict must be unanimous for a defendant's conviction to be constitutional. Accordingly, La. Const. art. I, § 17(A) and La.C.Cr.P. art. 782(A) are not unconstitutional and, hence, not violative of the defendant's Sixth Amendment right to trial by jury. Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972). In addition, this Court rejected this argument in State v. Tillman, XXXX-XXXX (La.App. 4 Cir. 3/4/09), 7 So. 3d 65. Furthermore, in State v. Bowen, *404 215 Or.App. 199, 168 P.3d 1208 (Or.Ct. App.2007), the court ruled that a defendant was not entitled to request a jury instruction forbidding a conviction upon a less than unanimous jury verdict. The United States Supreme Court denied certiorari in Bowen v. Oregon, ___ U.S. ___, 130 S. Ct. 52, 175 L. Ed. 2d 21, (10/05/09). This assignment of error is without merit.
CONCLUSION
For the above and forgoing reasons we affirm the defendant's conviction and sentence.
AFFIRMED.
NOTES
[1] The defense stipulated to Officer Pollard's expertise in the taking, examination and comparison of fingerprints.
[2] Following Officer Pollard's testimony, the state and the defense stipulated to the expertise of Sergeant Harry O'Neil in the identification of narcotics and, that if Sergeant O'Neil testified, he would state that the substance in the foil packs taken from the defendant tested positive for heroin.
[3] In Ball, the defendant was arrested for stealing a minivan, a rifle and a shotgun. Upon learning that he had a prior conviction for simple burglary of an inhabited dwelling, defendant was charged and tried as a felon in possession of a firearm. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576435/ | 325 N.W.2d 227 (1982)
In the Interest of Bonita KLEIN.
Civ. No. 10187.
Supreme Court of North Dakota.
October 20, 1982.
*228 Beyer & Holm, Dickinson, for appellant Bonita Klein; argued by John O. Holm, Dickinson.
Owen K. Mehrer, State's Atty., Dickinson, for appellee State of N.D.
ERICKSTAD, Chief Justice.
Plaintiff/appellant, Bonita Klein, is appealing from an order entered by the District Court of Stark County denying her application for writ of habeas corpus. The crucial issue to be determined is whether or not the order denying Bonita Klein's application is appealable. For the reasons hereinafter stated, we dismiss her appeal.
On March 8, 1982, the Stark County Court with Increased Jurisdiction ordered that Bonita be involuntarily committed on the basis that she was severely mentally ill. § 25-03.1-02(11)(a), N.D.C.C. On March 9, 1982, Bonita filed an application for a writ of habeas corpus in the District Court of Stark County. The district court held a hearing on March 12, 1982. After reviewing the record of the county court, the district court found that Bonita's commitment was justified under Section 25-03.1-02(11)(b)(3), N.D.C.C. Therefore, the district court denied the writ. On appeal, counsel for Bonita is challenging the constitutionality of Section 25-03.1-02(11)(a), N.D.C.C.[1]
In Carruth v. Taylor, 8 N.D. 166, 77 N.W. 617, 621 (1898), we held that "... an order denying a writ of habeas corpus is not appealable." See, also, J.L.R. v. Kidder County Social Service Board, 295 N.W.2d 401, 404 (N.D.1980); Havener v. Glaser, 251 N.W.2d 753, 757 (N.D.1977); LePera v. Snider, 240 N.W.2d 862, 867 (N.D.1976); In re Zimmer, 64 N.D. 410, 253 N.W. 749, 750 (1934); State ex rel. City of Bismarck v. District Court in and for Burleigh County, 64 N.D. 399, 253 N.W. 744, 745 (1934); Ex parte Simonson, 54 N.D. 164, 209 N.W. 211 (1926). However, Bonita's counsel argues that Section 25-03.1-40(11), N.D.C.C., grants an individual the right of habeas corpus when confined to a treatment facility; therefore, Bonita was entitled to appeal the district court's order denying her writ of habeas corpus. Notwithstanding subsection (11), we conclude that the proper method of securing a writ of habeas corpus from this court would have been to file an original application with our court.
We could choose to review the district court's denial of the writ of habeas corpus by exercising our constitutional power of superintending control. Havener v. Glaser, 251 N.W.2d 753, 757 (N.D.1977); Green v. Wiese, 78 N.W.2d 776, 780 (N.D. 1956); State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 859 (1947); In re Zimmer, 64 N.D. 410, 253 N.W. 749, 750 (1934); State ex rel. City of Bismarck v. District Court in and for Burleigh County, 64 N.D. 399, 253 N.W. 744, 745 (1934). *229 However, in the case at bar, we decline to review the district court's denial of Bonita's application because Bonita is no longer involuntarily confined and to our knowledge there have been no attempts to further confine her by the filing of a new petition for involuntary hospitalization.
In addition to the aforementioned reasons, if involuntarily committed in the future, Bonita would have a right to an expedited appeal. Under Section 25-03.1-29, N.D.C.C.,[2] Bonita would have the right to appeal an order of involuntary commitment to the district court where a hearing would be held within 14 days after filing of the notice of appeal. In 1981, the North Dakota Legislature amended Section 25-03.1-29, N.D.C.C., so that as of January 1, 1983, the appeal would be directly to the Supreme Court.[3]
Assuming arguendo that Bonita had properly filed an application for an original writ of habeas corpus with this court under Article VI, Section 2 of the North Dakota Constitution and Section 32-22-06, N.D.C.C., we would have denied her application on the merits. Bonita's counsel alleges that committing her under the authority of Section 25-03.1-02(11)(a), N.D. C.C., violates her constitutional right of due process because the phrase "severely mentally ill" is void for vagueness. She relies on O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975). A necessary predicate to adjudicating the posed constitutional issue is to determine whether or not Bonita should have been involuntarily committed under Section 25-03.1-02(11)(a). Upon examining the record, we conclude that Bonita was committable under Section 25-03.1-02(11)(b)(3), N.D.C.C.[4] In making this determination, we regard as significant the testimony of Dr. Sherman Severson, a psychiatrist. The pertinent parts of Severson's testimony follow:
"Q What caused this latest hospitalization?
* * * * * *
"A ... She seemed to get very angry for no reason. And just did not seem to be well ... and capable of taking care of herself.
* * * * * *
"Q What can you point to specifically, that indicates that she does have any problems?
* * * * * *
"A ...
But it's my concern that she's not going to be able to take care of herself if she were to be discharged.
* * * * * *
*230 "Q The petition indicates that she can reasonably be expected within the near future to intentionally or unintentionally seriously physically harm herself or another person. And has engaged in an act or acts and made significant threats that are supportive of this expectation and therefore requires treatment.
"Are you aware of anything that specifically relates to those areas?
"A Yes, I'mI basically felt that she wouldn't be able to take care of herself because of neglect. That she isn't going to be able to take care of her basic needs. And therefore she's going to be injuring herself.
* * * * * *
"A ... Where as previously she has lived in her own apartment or her own house and managed a job and managed to take care of herself quite well.
"She is not able to do that at this point. So I believe there has been a deterioration in her functioning.
* * * * * *
"Q If sheis she of an imminentis she putting herself in imminent danger of seriously or substantially injuring herself?
"A Again we don't see evidence for that. You know, I can't say just how she might do that in the near future. I'm saying that it will eventually be that way by neglect because she is not using good judgment about herself.
* * * * * *
"Q ... Would taking medication today solve her problems for today....
* * * * * *
"A I believe that it'sthat it's necessary for her to function normally to take the medication. With the medication she has a chance to get along and function normally and indefinitely.
"Without the medication she is going to have periodic break-downs and not be able to function.
* * * * * *
"Q You feel that she would be basically unable to attend to her basic physical needs?
"A Yes."
Thus, an adjudication of the constitutionality of Section 25-03.1-02(11)(a), N.D.C.C., would be tantamount to rendering an impermissible advisory opinion. In re Novak's Estate, 73 N.D. 41, 11 N.W.2d 64 (1943).
A de novo review of the record is proper in this instance because Bonita's counsel alleges that she was restrained in violation of her constitutional rights. Application of Stone, 171 N.W.2d 119, 121 (N.D.1969); Fournier v. Roed, 161 N.W.2d 458, 460 (N.D.1968). In reviewing this case, we have not applied the clearly erroneous test of Rule 52(a), N.D.R.Civ.P., because we have considered it, for purposes of discussion, as though original jurisdiction had been sought and the case were tried anew. This distinguishes this case from Mansukhani v. Pailing, 318 N.W.2d 748, 751 (N.D. 1982) and Mansukhani v. Pailing, 300 N.W.2d 847 (N.D.1980), cert. denied, 454 U.S. 818, 102 S. Ct. 98, 70 L. Ed. 2d 88 (1981).
We therefore dismiss Bonita's appeal from a denial of her application for writ of habeas corpus.
SAND, VANDE WALLE, PEDERSON and PAULSON, JJ., concur.
NOTES
[1] Section 25-03.1-02(11)(a), N.D.C.C., reads as follows:
"11. `Person requiring treatment' means either a person:
a. Who is severely mentally ill; ..."
[2] Section 25-03.1-29, N.D.C.C., reads in pertinent part:
"The respondent shall have the right to an expedited appeal from an order of involuntary commitment or alternative treatment, a continuing treatment order, an order denying a petition for discharge, or an order of transfer. Upon entry of an appealable order, the court shall notify the respondent of the right of appeal and the right to counsel. The notice of appeal must be filed within thirty days after the order has been entered. Such appeal shall be to the district court and the hearing shall be commenced within fourteen days of filing of the notice of appeal...."
[3] The relevant portion of Section 25-03.1-29, N.D.C.C., as amended, states the following:
"The respondent shall have the right to an expedited appeal from an order of involuntary commitment or alternative treatment, a continuing treatment order, an order denying a petition for discharge, or an order of transfer. Upon entry of an appealable order, the court shall notify the respondent of the right of appeal and the right to counsel. The notice of appeal must be filed within thirty days after the order has been entered. Such appeal shall be to the supreme court and the hearing shall be commenced within fourteen days of filing of the notice of appeal...."
[4] Section 25-03.1-02(11)(b)(3), N.D.C.C., reads as follows:
"11. `Person requiring treatment' means either a person:
b. Who is mentally ill, an alcoholic, or drug addict, and there is a reasonable expectation that if the person is not hospitalized there exists a serious risk of harm to himself, others or property. `Serious risk of harm' means a substantial likelihood of:
* * * * * *
(3) Substantial deterioration in physical health, or substantial injury, disease, or death resulting from poor self-control or judgment in providing one's shelter, nutrition, or personal care." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576463/ | 346 S.W.2d 311 (1961)
Leroy BENGE and Bonnie Gregory, Appellants,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
May 5, 1961.
Ray C. Lewis, Lewis & Weaver, London, for appellants.
*312 John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
STEWART, Judge.
This is an appeal from a judgment entered on a verdict which found Leroy Benge, aged 21, and Bonnie Gregory, aged 16, guilty of storehouse breaking and fixed the punishment of each at confinement for one year in the penitentiary. See KRS 433.190. We shall herein refer to the parties who have appealed as "defendants."
Reversal of the judgment by Bonnie Gregory is sought on the ground, among other things, that, since he was an alleged juvenile offender, the Laurel Circuit Court never obtained jurisdiction to try and dispose of the case growing out of the indictment returned against him. Leroy Benge claims, among other things, the lower court abused its discretion when it refused to sustain his motion for a continuance and, as a consequence, committed an error that was prejudicial to his substantial rights. Other grounds are urged for reversal of the judgment but we conclude the above contention of each defendant has merit and we shall, in a great measure, confine our discussion in this opinion to these two grounds. Nevertheless, as each defendant will undoubtedly be tried again on the same charge we shall resolve those points defendants have raised that may recur at another trial.
Did the circuit court have authority to indict and try Bonnie Gregory for the offense of which he was convicted?
KRS 208.170(1) provides, insofar as it is pertinent, that if it appears a child sixteen years or older who is brought before a juvenile court for a hearing has committed a felony, and the juvenile judge believes the best interests of the child and of the public require the child to be tried as an adult criminal, "the (juvenile) court in its discretion may make an order transferring the case to the circuit court of the county in which the offense was committed." See KRS 208.020(2) which sets forth the maximum age a child may be dealt with under the above subsection.
The order of the juvenile court of Laurel County, in certifying the case of Bonnie Gregory to the Laurel Circuit Court for final disposition, recited that the purpose of such a transfer was "for indictment and trial as an adult for the crime of breaking and entering into Sparkman Ready Mix and London Concrete Block Co. and stealing therefrom * * *." However, Bonnie Gregory was thereafter actually indicted and tried for breaking, entering and stealing from a storehouse belonging to one Hayner Mills. The prosecuting witness who testified his store had been broken into was Henry Mills. The record contains no evidence which discloses that the Hayner Mills named in the indictment and the Henry Mills who testified at the trial are identical. It is not in dispute that the crime of breaking into and stealing from the storehouse of Hayner Mills (or of Henry Mills), of which Bonnie Gregory was accused and convicted in circuit court, is separate and distinct from the offenses of breaking and entering into and stealing from Sparkman Ready Mix and London Concrete Block Co., which last two cases were the only ones the juvenile court transferred to that court involving Bonnie Gregory.
The Commonwealth maintains Bonnie Gregory waived his right to question on this appeal the jurisdiction of the Laurel Circuit Court as to the case before us, because at no time during the trial did he object to the procedure whereby that court undertook to try and determine the indictment which it returned against him. The Commonwealth points out specifically that this defendant did not protest the name used in the indictment (Hayner Mills), or at any time object to the testimony of Henry Mills during the trial, or offer any evidence that they were not one and the same person, with the result that he is precluded from coming forward with such a defense on this appeal. Furthermore, it is argued the jurisdiction issue arising out of the *313 failure by the juvenile court to transfer the case in controversy was not listed as a ground for consideration by the lower court in the motion made by this defendant for a new trial.
We find ourselves unable to accept the waiver theory advanced by the Commonwealth because of the view we have of the meaning and intent of the statutes of this state which apply to juvenile offenders. We construe the statutes that govern the proceedings that may be taken against a delinquent youth in a juvenile court or in a circuit court, after the proper transfer of such a case thereto, as establishing certain jurisdictional limitations and requirements, and not as providing merely personal rights or privileges in favor of a juvenile which the latter may or may not waive as he desires. We approve what was said in Ex parte Albiniano, 62 R.I. 429, 6 A.2d 554, 557, 123 A.L.R. 441, 445, when it spoke these words on this point:
"* * * Jurisdiction in proceedings such as are involved herein cannot be conferred on the superior court by the conduct of the accused minor, but depends upon the proper construction of the statute as applied to the facts then before the court. We find, therefore, that this contention advanced by the state, that the petitioner by his conduct waived certain rights, has no application in the present case."
In Heustis v. Sanders, Ky., 320 S.W.2d 602, it was held that the circuit court's jurisdiction is of a secondary and limited nature in respect to its dealing with the case of a juvenile offender. The juvenile court of each county, as provided by KRS 208.020(1), "shall have exclusive jurisdiction in proceedings concerning any child, living, or found, in the county" who has committed a public offense; and a circuit court may receive the case of an alleged youthful offender for final disposition only by transfer from the juvenile court, pursuant to KRS 208.170(1). In Edwards v. Commonwealth, 264 Ky. 4, 94 S.W.2d 25, in a prosecution in circuit court of a juvenile charged with a felony, it was held it must appear not only that the juvenile court had made an order transferring the case to circuit court for prosecution but also that all necessary steps to give the juvenile court jurisdiction to render such an order were followed. See also Robinson v. Kieren, 309 Ky. 171, 216 S.W.2d 925.
We adhere to the rule that the statutory provisions governing the attainment of jurisdiction to proceed against a juvenile offender must be rigidly complied with in either juvenile or circuit court, as the case may be. See Heustis v. Sanders, cited above. Therefore, since the juvenile court of Laurel County did not first proceed against Bonnie Gregory as to the public offense of which he was convicted and thereafter transfer this particular case to circuit court in conformity with KRS 208.170(1) for final trial, jurisdiction was not acquired by the latter court to prosecute Bonnie Gregory. It follows that the conviction of Bonnie Gregory must be set aside and held for naught.
It is our considered opinion Leroy Benge's motion for a continuance should have been sustained. A similar motion based upon the same averments contained in another affidavit was made by Bonnie Gregory, and likewise should have been sustained. It was shown that after the two defendants were indicted on June 6, 1960, they were arraigned on the following June 13th, and at that time their cases were set for trial four days later, or on June 17th. On the date of their arraignment they employed Ray C. Lewis as their attorney to represent them.
On June 17th, the day set for their trial, defendants and their attorney filed affidavits for a continuance until the next term, stating therein that they had been unable to prepare their cases for trial. The reason given was that their attorney, after his employment, had been compelled to leave Laurel County on June 14th and participate *314 in a trial in the Harlan Circuit Court set for June 15th. This attorney stated in his affidavit he had returned to Laurel County, arriving at London, the county seat, at noon on June 16th, and, under the circumstances, had not had sufficient time to prepare the defense of each defendant or to procure the attendance in court of witnesses to testify in their behalf. They also said they had subpoenaed one Ernest Ray Fee, a witness who could account for the forty packages of cigarettes found in their possession, but the sheriff had been unable to find him, and they needed more time to enable them to locate this witness and produce him in court.
A counter affidavit filed by the Commonwealth's attorney recited that on June 13th, Ray C. Lewis, soon after he had been retained to represent defendants, explained in open court about his case set for trial in the Harlan Circuit Court and the predicament he would be placed in with reference to defendants' case because of his commitment; that the trial judge then advised defendants to secure other counsel, if Lewis could not be present on June 17th to represent them; and that Lewis then told the trial judge his law partner would take charge of the case if he did not return in time to ready himself for the trial.
Other counsel was not employed by defendants and Ray C. Lewis, their attorney, was clearly not ready for the trial of defendants when they appeared in court on June 17th. Notwithstanding this fact the circuit court ruled that the trial should proceed.
Section 188 of the Criminal Code of Practice sets forth the principle of law that a continuance may be granted upon sufficient cause shown by either party. We have stated in many of our cases that the determination of what constitutes a sufficient cause is a matter within the sound discretion of the trial court. However, the discretion when exercised which results in the denial of a continuance is reviewable by this Court. Woosley v. Commonwealth, Ky., 282.S.W.2d 625.
In Johnston v. Commonwealth, 276 Ky. 615, 124 S.W.2d 1035, 1038, we wrote: "A request for a continuance of a trial is but a means to an end. The end is a fair trial." This pertinent statement on the point under discussion appears in the very recent case of Perkins v. Commonwealth, Ky., 305 S.W.2d 937, 939: "The constitutional right to counsel would be almost worthless unless reasonable time were allowed counsel to familiarize himself with the case and to prepare the defense."
We believe the lower court abused its discretion when it refused to grant defendants a continuance. After they had hired an attorney and he had informed the trial judge beforehand that he would be inextricably tied up in another court until the day before their trial was to be held and would not be prepared to defend them, defendants were peremptorily told they must seek other counsel. This action of the lower court was an unwarranted thrust at their fundamental right to retain the attorney of their choice to handle their cases. When on the day the trial was set it developed that defendants had not followed the direction of the trial judge by selecting other counsel to represent them, he was evidently irked by their disregard of his instructions and, in a summary manner, forced them to submit to an immediate trial, knowing full well they were unprepared to defend themselves Defendants' substantial rights were unquestionably violated when they were required to proceed with their trial under the circumstances.
We now turn our attention to other grounds that are assigned as errors which we believe should receive consideration, as they may arise at another trial of these defendants.
At the outset, defendants strongly insist they were entitled to a directed verdict, claiming the Commonwealth did not "make out a case" against them. We do not agree.
The evidence of Henry Mills was that his store was broken into during the night of *315 March 15, 1960, and a quantity of cigarettes and bologna sausage, two chickens, a knife, and other items of merchandise were stolen. The entry was made through a boarded-up window which had been previously broken. Upon discovery of the theft on the following morning, Mills followed the tracks of two men in the snow from the window for three or four hundred yards up the road to a place where the tracks disappeared.
Mills heard that a mule had been stolen from a nearby barn, so he walked one-half mile on down the road toward the barn, found the mule tracks, and followed them to within fifty yards of Clyde Gregory's house where the mule tracks turned around. At that point, he found part of a discarded raincoat with mule hair on it. He testified he saw a "print of where they set a sack down they had been carrying the stuff in" but he paid no attention to whether foot prints led off from this spot in any direction. He was present when an officer investigating the theft found a button near the tracks. Clyde Gregory is the brother of Bonnie Gregory.
The button later proved to be a match to those on a coat belonging to defendant, Leroy Benge, which coat showed a missing button. The fragment of raincoat corresponded to another piece of raincoat found in the former home of defendant, Bonnie Gregory; and a knife sheath similar to one that was stolen from the Mills store was also found in that house.
Defendants and several of their witnesses testified they went to the home of Bonnie Gregory's brother, Clyde, about 4:30 p. m. on March 15, 1960, and stayed until 9:00 a. m. on the next day, with the result that they were not near the store on the night it was broken into. Defendants had some cigarettes (about forty packs) which they said Benge had purchased from one Ernest Ray Fee for $1 and which they sold to Clyde Gregory for $2. The latter afterwards gave these cigarettes to Kentucky State Police Detective James L. Yaden, who had followed the mule tracks with Mills. The evidence discloses that these cigarettes were the same brands as some of the cigarettes taken from the Mills store. Ernest Ray Fee was subpoenaed but could not be located in Laurel County by the sheriff. Yaden testified Bonnie Gregory told him he took two frying chickens to his brother's house. Mills said he then investigated and discovered that two such chickens were missing from the store.
We have no difficulty in concluding that the evidence we have recited was sufficient to support the conviction of defendants.
The next complaint of defendants is that Charlie Pennington, a deputy sheriff of Laurel County, and James L. Yaden, the detective mentioned above, both of whom had investigated the store break-in under discussion, were permitted on direct examination, over the objection of defendants' attorney, to repeat statements made to them by Clyde Gregory and Betty, his wife, as to the time defendants came to their home. Although the Gregorys were then in court, neither had as yet been called upon to testify concerning the point in controversy, nor was it shown that either of the defendants was present when the statements attributed to them were made. It is contended this testimony was incompetent as hearsay.
This evidence was obviously inadmissible for the reason that the two officers were allowed to recite a portion of the conversation they had with the Gregorys during their investigation of the crime; that is, they were permitted to state what the Gregorys said as to the hour and day defendants arrived at their residence. Under the hearsay rule, and such evidence was hearsay, testimony must be rejected which has not been in some way subjected to the test of cross-examination under oath. See Kinder v. Commonwealth, Ky., 306 S.W.2d 265, 266.
Later, however, after Clyde Gregory had taken the stand as a witness for defendants and had fixed the time at 4:30 p. m. on March 15, 1960, when they had come to his *316 home, the trial judge properly ruled that Yaden and Pennington, after being called on rebuttal, could testify they heard Clyde Gregory state that defendants did not show up at his house until the morning of the next day (March 16th) at 4:30 a. m. The trial judge also correctly admonished the jury that this character of testimony was to be considered by them solely for the purpose of contradicting or impeaching Gregory's earlier inconsistent testimony, and was not to be received as substantive evidence. See 20 Am.Jur., Evidence, sec. 458, p. 405.
Certain remarks of defendant, Bonnie Gregory, were made after his arrest by the sheriff which tended to connect him with the commission of the crime, and it is insisted this evidence, which was objected to, should have been excluded because the other defendant was absent. Clearly such statements could be introduced as admissions against Bonnie Gregory's interest, but they were not competent to be used against his co-defendant, Leroy Benge, as he was not in the presence of the officer when such statements were made, and the trial judge should have so admonished the jury. This he did not do.
Defendants argue that the following instruction, given over their objection, was entirely wrong: "Instruction III. If upon the whole case you have a reasonable doubt of the defendants' having been proven to be guilty, you will find them not guilty."
Defendants maintain this instruction did not give the jury the right to convict one of them and acquit the other, which is what the jury should have been told. They rely on Howard v. Commonwealth, 240 Ky. 307, 42 S.W.2d 335, wherein an instruction was approved by this Court under which one of the defendants in that case could be found guilty and the other not guilty. If there be another trial of this case and the evidence be materially the same, we believe the instruction recommended for use in the Howard case would be a fairer one to give to the jury.
Wherefore, for the reasons shown the judgment is reversed and the case is remanded for proceedings in conformity with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576468/ | 346 S.W.2d 387 (1961)
Mollie Adams FOSTER et al., Appellants,
v.
L. M. S. DEVELOPMENT CO. et al., Appellees.
No. 15775.
Court of Civil Appeals of Texas, Dallas.
April 14, 1961.
Rehearing Denied May 12, 1961.
*388 Witts, Geary, Hamilton, Brice & Lewis, Jim K. Choate, W. S. Barron, Jr., and John B. Stigall, Jr., Dallas, for appellants.
Locke, Purnell, Boren, Laney & Neely, Carrington, Johnson & Stephens, Shank, Dedman & Irwin, and Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellees.
DIXON, Chief Justice.
On March 13, 1959 this action seeking cancellation of a long-term lease contract on downtown Dallas property was brought by appellants as lessors against appellees as lessees. The action was also for damages for the alleged wrongful withholding of possession of the property following cancellation.
The original lessors were Harry Foster, who died in 1949, and Mollie Adams Foster, then the wife and now the surviving widow of Harry Foster. Harry Foster left a will giving his one-half community interest in the title to the real estate in question to his two children, Paul Foster and Pola Foster Craft, Jr., now Mrs. Pola Foster Dean. To his sister-in-law, Bertha Adams, now Mrs. Bertha Adams Marshburn, along with his two children, Foster gave his one-half community interest in the net rental income from the property. Robert J. Dean, husband of Pola Foster Dean, and Vernon Marshburn, husband of Bertha Adams Marshburn, are parties to the suit. Texas Bank and Trust Company is a party to the suit as trustee for Mollie Adams Foster. The relatives of Harry Foster and the Bank as trustee are appellants in this appeal.
The appellees are H. Edward Smith, a vice-president of the Mercantile National Bank at Dallas, Mercantile Security Life Insurance Company, a corporation, L. M. S. Development Company, a corporation, and Mercantile National Bank at Dallas as trustee, said Bank being named as trustee in the deed of trust securing Equitable Life Insurance Society of the United States, holder of a $4,000,000 mortgage against the leasehold estate. The latter company will hereafter be referred to as Equitable.
In addition to the $4,000,000 first lien indebtedness held by Equitable there were two second lien notes each in the amount of $1,058,600.85 outstanding at the time suit was filed, said notes being dated September 26, 1958, both notes payable September 26, 1959, one of them payable to Neely G. Landrum, the other to John B. Mills.
Neither Equitable, nor Neely G. Landrum, nor John B. Mills is a party to this suit.
The lease dated October 1st, 1947 was for a term of 99 years and provided for rental *389 payments of $833.33 per month. Lessee was also required to pay taxes and insurance. Section Six of the lease further provided that Lessee on or before July 31, 1956 should do one of two things: either (1) spend not less than $30,000 improving the two-story building then located on the premises, or (2) raze the old building and construct a new building to be completed by the above named date.
It is the contention of appellants as lessors that appellees as lessees had neither spent as much as $30,000 on the old building by July 31, 1956, nor had they completed a new building by that date; but that by fraudulent means they concealed their breach of the contract until they had completed a modern 19-story office building in 1958, which building rested on several tracts of land, including the tract in controversy.
In reply appellees allege that (1) the agreement in Section Six is a covenant, not a condition, hence breach of it could not result in a forfeiture of the lease; (2) the express provisions of the lease bar any recovery by appellants because (a) there has been and would have been litigation concerning the lease at all relevant times, (b) the construction of the office building, though it was not completed by July 31, 1956, was performance of Section Six and cured any breach, (c) there were liens in existence at all relevant times; (3) appellants by accepting rent for almost two years after the alleged breach and by standing idly by while appellees spent several million dollars constructing an office building on the property, have waived the alleged breach and are estopped from asserting the breach; (4) there was no fraud as a matter of law and as a matter of the undisputed evidence; and (5) there was no breach of the contract as a matter of law and as a matter of undisputed evidence.
In the course of a lengthy trial 67 special issues were submitted to a jury which returned answers favorable in most part to appellants. However, upon motion non obstante veredicto judgment was rendered in favor of appellees, the lessees, that appellants, the lessors, take nothing.
I. Facts.
A. Preliminary Facts
On October 1, 1947 Harry Foster and wife Mollie Foster were the owners of property 70' × 45' on Commerce Street in Dallas. On said date, as lessors, they executed the lease in question with appellee H. Edward Smith as lessee. Next day Smith assigned his rights as lessee to L. M. S., Inc., a Texas corporation, in which Neely Landrum, John Mills and H. Edward Smith were the principal officers and stockholders.
Later L. M. S., Inc., was dissolved and its assets were assigned on July 3, 1953 to appellee Mercantile Security Life Insurance Company, in which Landrum, Mills and Smith, were again the principal stockholders and officers.
Still later another corporation, appellee L. M. S. Development Company was organized by Landrum, Mills and Smith, for the purpose of constructing the office building now known as Mercantile Dallas Building. The building was constructed on several pieces of property, one of which was the Foster lease herein involved. L. M. S. Development Company, by assignment dated September 1, 1958, acquired the rights of Mercantile Security Life Insurance Company in the Foster lease.
In connection with financing the construction of the office building L. M. S. Development Company on January 21, 1957 executed a deed of trust to J. D. Francis, as trustee for James Landrum and Cecil Mills, to secure payment of a note in the sum of $4,000,000. Landrum and Mills immediately assigned the note and deed of trust to Mercantile National Bank at Dallas, and the Bank advanced the money for the interim financing of the construction of the office building.
*390 The permanent financing of the building was thereafter effectuated when on September 25, 1958 Lans. Ch. M. S. Development Company executed an Indenture of Mortgage and Deed of Trust dated September 1, 1958, in the nature of a long-term loan in the principal sum of $4,000,000, bearing 41/2% interest to Mercantile National Bank at Dallas as trustee; and on September 26, 1958 said Indenture Mortgage secured by Deed of Trust was purchased by Equitable for a consideration of $4,000,000 cash, which was used to pay off the interim financing for the construction of the office building. Also on September 26, 1958 the two $1,058,000 notes were executed to Landrum and Mills.
Mercantile National Bank, named as trustee in the deed of trust, was sued only in its capacity as trustee, and appears in this appeal only in its capacity as trustee.
B. The Lease Contract
The lease contract in controversy is 25 pages in length with numerous paragraphs and sub-paragraphs. It is much too lengthy to be copied here, but it is appropriate that we give a condensed statement of those of its provisions which are material to our decision of this appeal.
The lease is very complete and seems to us to be clear and unambiguous in its terms.
Section Six is relied on by appellants to show that they are entitled to cancel the lease. Therefore we quote material parts of the Section:
"Section Six. New Building or Buildings.
* * * * * *
"All other provisions in this section to the contrary notwithstanding, lessee agrees that he, his heirs, personal representatives or assigns, will on or before July 31, 1956, do either one of two things:
"A. Improve the present building on the demised premises, spending at least $30,000 for such improvements, lessee having complete discretion as to what improvements shall be added; or
"B. Raze the present building on the demised premises, and erect in lieu thereof a new building, same to be completed on or before July 31, 1956, unless having been started in time for anticipated completion by that date there shall be delays beyond the control of Lessee, whereupon, if said building is completed with reasonable diligence, but subject to such delays beyond the control of the lessee, this Paragraph B shall be deemed to be complied with." (Emphasis ours.)
Section Seven gives lessee the right to make extensive alterations and repairs to any buildings on the premises.
Section Fourteen gives lessors or their agent access to the premises at all reasonable times for purposes of examination or inspection of the buildings and improvements on the premises.
Section Fifteen gives lessee broad rights to assign the lease or sublet the premises with or without the joinder of lessors. In event of assignment of the lease by first Lessee (H. Edward Smith) to a corporation, lessee personally shall be relieved of all responsibility under the terms of this lease "when the instrument of assignment is executed."
Section Seventeen gives Lessees the right to mortgage or encumber the leasehold estate subject to and subordinate to the terms of the lease in favor of lessors.
Section Eighteen is relied on by appellees to show that under the express provisions of the lease appellants are not entitled to cancel the lease. Therefore, we quote material parts of the Section:
"Section Eighteen. Default by Lessee and Rights and Remedies of Lessors in such Event. An event of default which may lead to a cancellation of *391 this lease shall exist (and there shall be no cancellation or termination of this lease prior to the expiration of the full term herein provided for excepting only in the event of a cancellation as provided for in this section), and there shall be an event of default only when the same shall occur as defined in one of the two following paragraphs, (emphasis ours) A and B, and the four subparagraphs thereof:
"A. In the event that there is a lien outstanding against the rights, titles and interests of lessee under the terms of this instrument, securing sums advanced for the construction of any new building or buildings, improvement or improvements, provided for in Section Six hereof, or to secure any renewal or extension of any part of such indebtedness, or to finance any other or additional building or improvement on the demised premises. So long as any such lien is outstanding, then an event of default shall exist only as defined in paragraph (1) below:
"(1) The nonpayment by Lessee to Lessors of any monthly installment of rent, or the nonpayment by Lessee to Lessors of any other sum due Lessors on account of payments by Lessors of taxes or insurance premium payable by lessee, all in accordance with the terms hereof; * * *.
"(B) In the event that there is no lien outstanding against the rights, titles and interests of lessee under the terms of this instrument, securing sums advanced for the construction of any new building or buildings, improvement or improvements provided for in Section Six hereof, or to secure any renewal or extension or any part of such indebtedness, or to finance any other or additional building or improvements on the demised premises. So long as there is no such lien outstanding, then an event of default shall occur as defined in subparagraph (2), (3) and (4) below:
"(2) A nonpayment continuing for ten days, followed by a ninety-day notice and continuing nonpayment during such ninety-day period of notice, all as provided for in subparagraph (1) hereof, shall constitute an event of default, * * *.
"(3) The failure of the lessee to comply with any other covenant, condition or agreement, provided in this instrument on the part of lessee to be performed, such nonperformance continuing for a period of at least thirty days; followed by the sending of a notice by lessors to lessee, if at their election lessors shall determine to send such a notice to lessee, which notice shall specifically set out the covenant, condition or agreement on the part of lessee which lessors assert not to be complied with, and which notice shall specify that it is the intention of lessors to cancel this lease for nonperformance of such covenant, condition or agreement, should the same not be performed within ninety days after such notice; followed by the continued nonperformance of such covenant, condition or agreement for the said period of ninety days referred to in such notice; and provided further that if during such ninety days it shall be determined that there has been no failure on the part of the lessee to fulfill said covenant, condition or agreement, or that such failure has been cured prior to the sending of such notice, or since, then no event of default shall occur, and in the event that before the expiration of such ninety-day period lessors and lessee shall have litigation pending for determination of whether the covenant, condition or agreement has been or has not been complied with, then the event of default for noncompliance therewith shall not occur until the conclusion of such litigation. * * *. (Emphasis ours.)
*392 "If an event of default as defined in this Section shall occur, lessors shall have the right, at their option, immediately to cancel this lease, and upon exercise of such option by the execution, acknowledgment and filing of a notice of cancellation in the office of the County Clerk of Dallas County, Texas, the lease shall terminate and lessors shall have the immediate right to re-enter and repossess the demised premises. If an event of default shall occur, however, and the breach of lessee which led to that event of default shall be cured before such cancellation of the lease, then no right to cancel the lease shall be based upon such breach or event of default. * * *" (Emphasis ours.) Section Twenty-Two contains this provision:
"* * * there shall be no right of lessors, or any one claiming by or through lessors, to terminate or cancel this lease, and there shall be no remedy involving cancellation or termination excepting only on the conditions and pursuant to the provisions of Section Eighteen of this instrument." (Emphasis ours.)
C. Subsequent Events
Appellees made improvements on the old building prior to July 31, 1956, but it is disputed whether these improvements cost as must as $30,000. Appellees claim that they spent that much and more counting sums expended by them and sums expended by sub-tenants. Appellants contend that appellees are not entitled to credit for sums spent by sub-tenants. They further contend that even if costs for improvements made by sub-tenants are included the total costs expended are less than $30,000.
It is undisputed that the huge 19-story office building, now known as Mercantile Dallas Building, was not completed by July 31, 1956. Construction of the building was begun prior to that date and tenants began moving in sometime in 1957. However, the structure was not completed until 1958.
Appellees have never been in default in their rental payments, or in their insurance and tax payments. However, in March or April 1958 John Stigall, Jr., attorney for Texas Bank and Trust Company, Trustee, made inquiry of Hubert Johnson, attorney for appellee, L. M. S. Development Company, as to whether $30,000 worth of improvements had been made on the old building by July 31, 1956. Appellants allege that Johnson's statement in reply to Stigall was a misrepresentation of the facts and constitutes fraud. We think it is plain that there was no fraud on Johnson's part, but we shall postpone a detailed statement of this phase of the controversy until we discuss the matter in our opinion.
Robert Dean was not satisfied so he consulted Carlton Winn, an attorney. After an exhaustive study of various documents, Winn, an able and reputable lawyer, in a letter of considerable length dated April 3, 1958, advised Dean that appellants had no grounds for cancellation. In substance he informed appellants that even if appellees had not spent $30,000 in improvements by July 31, 1956, appellees had not complied with Section Eighteen of the lease and that compliance was a pre-requisite for cancellation. Winn also pointed out that by continuing to accept rental payments appellants had in effect waived the breach of the contract. At the trial Dean testified that Winn's opinion satisfied him at that time.
By September 1958 the construction of the 19-story office building was completed. The time for permanent financing had arrived. Before advancing $4,000,000 to purchase a long-term mortgage Equitable required a certificate from lessors that the terms of the lease contract had been complied with. Appellants again consulted an attorney, Robert Strauss, also an able and reputable lawyer. After consulting Strauss, Paul Foster, Pola Foster Dean and her husband Robert Dean and W. P. Metcalf, *393 Trust officer of Texas Bank and Trust Company, Trustee for Mollie Adams Foster, executed a certificate dated September 12, 1958 in which they, as successors to the original lessors, stated that (1) the office building constructed by L. M. S. Development Company, complied with the provisions of the lease contract; (2) that Mercantile Security Life Insurance Company, assignee of the original lessee, H. Edward Smith, was not in default with respect to any of the terms and provisions of the lease; and (3) they were aware that their certificate was to be submitted to Equitable in connection with the sale to Equitable of the $4,000,000 mortgage.
In connection with the execution of this certificate Robert Dean, in a family conference, stated that he did not believe $30,000 worth of improvements had been made on the old building prior to July 31, 1956. Nevertheless, he and the other lessors signed the certificate.
The jury found, and there is evidence to support it, that appellants continued to accept rent after they knew of the breach of the covenants in Section Six of the lease. In fact they continued to accept rental payments until March 11, 1959.
On February 26, 1959 appellants gave notice to appellees of their intention to cancel the lease contract. On March 13, 1959 they filed this suit.
In answer to Special Issue No. 4(d) the jury found that the Indenture of Mortgage and Deed of Trust of September 25, 1958 would not have been placed on the property but for the lessors certificate of September 12, 1958.
In answer to Special Issue No. 18(b) the jury also found that appellants accepted rent after they knew that the Mercantile Dallas Building had not been commenced in time for completion on or before July 31, 1956.
In answer to Special Issue No. 22(a) the jury further found that appellants observed the construction of the Mercantile Dallas Building for a substantial period of time without objection or inquiry thereto.
Opinion
In their first six points on appeal appellants contend that they were entitled to judgment cancelling the lease because (1) the evidence and the jury verdict conclusively establish that appellees breached the provisions of the lease and appellants acted pursuant to the cancellation provisions thereof, (2) appellees failed to perform the condition imposed in Sub-sections A and B of Section Six of the lease, performance of which constituted a condition precedent to the vesting of the full 99-year leasehold; (3) the subsequent construction of the Mercantile Dallas Building did not prevent appellants' cancellation of the lease for these reasons: (a) time was the essence of the contract, therefore the lease provisions for construction of a new building on or before July 31, 1956 was a "non-continuing" provision which could not be fulfilled by a purported subsequent performance, (b) the provisions of Section Eighteen of the lease dealing with notice, demand and a waiting period of 90 days does not extend the time within which appellees could perform the provisions of Section Six, (c) appellees' own fraud gained for them the time necessary to complete the building before cancellation and they may not profit from their own fraud, but are estopped from asserting that completion of the building before cancellation cured their breach and prevented cancellation; (4) appellees' fraudulently created deed of trust lien to Mercantile National Bank at Dallas, Trustee, did not operate to prevent appellants from cancelling the lease; (5) appellants neither waived nor became estopped from terminating the lease; and (6) other liens created by appellees on the property do not bar appellants' right of cancellation.
We have concluded that all of appellants' first six points should be overruled.
*394 At the outset it is to be noted that there is no claim of fraud in the procuring and execution of the lease contract. The charges of fraud arose in connection with the alleged failure of appellees to perform the conditions of the contract subsequent to its execution, and concealing from appellants by false representations the fact of their failure to perform.
It is our opinion that the lessors' agreement in Section Six to do either of two things by July 31, 1956 (to spend $30,000 improving the old building, or raze the old building and construct a new building) was a covenant not a condition. There is no reverter provision in Section Six. Quite to the contrary, Section Twenty-Two of the contract expressly provides that there shall be no remedy involving cancellation except pursuant to the provisions of Section Eighteen. The last named Section limits the grounds of cancellation to certain described "events of default", and provides the method to accomplish a cancellation if (A) there is a lien outstanding against the leasehold estate and if (B) there is not a lien outstanding. The Section expressly provides that, following notice from the lessors, lessees will be given an opportunity to cure or remedy the event of default. Under the circumstances we see no merit in appellants' contention that compliance with Section Six by July 31, 1956 was a condition precedent to the vesting of appellees' rights, or a condition subsequent which operated as an automatic forfeiture of appellees' rights.
Implied conditions are not favored in law or in equity. The promise of an obligee will be construed as a covenant unless an intention to create a conditional estate is clearly and unequivocally revealed by the language of the instrument. Hearne v. Bradshaw, 158 Tex. 453, 312 S.W.2d 948; Knight v. Chicago Corporation, 144 Tex. 98, 188 S.W.2d 564; Grubb v. McAfee, 109 Tex. 527, 212 S.W. 464; 15 Tex.Jur.2d 717, 722. It has long been the rule that the remedy for breach of covenant is damages, not cancellation. Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S.W. 472; Guinn v. Clay, Tex.Civ.App., 324 S.W.2d 254.
Time was not the essence of the contract with respect to the provisions for spending $30,000 on the old building, or constructing a new building by July 31, 1956. Any intention to make time of the essence in the performance of a contract must be clearly manifested in the contract. Manton v. City of San Antonio, Tex.Civ. App., 207 S.W. 951; 13 Tex.Jur.2d 525-527. We find no such provision in this contract. Quite to the contrary the contract expressly provides that an "event of default" may later be cured.
It is our opinion that as a matter of law appellants are not entitled to cancel the lease contract for these additional reasons:
(1) Under the undisputed evidence the construction of the office building though it was completed belatedly, constituted a substantial compliance with the contract. It is to be remembered that appellees as lessees were not required to spend $30,000 or any other sum on improvement of the old building. They could either spend the $30,000 on the old building, or construct a new building. They could do either, but they were not required to do both. They could, if they chose, spend nothing on the old building, yet comply with the terms of their contract by tearing down the old building and constructing a new building in its stead. Appellees insist that they did spend $30,000 on the old building, but even if we say, for the sake of argument, that they did not do so, they nevertheless complied with their contract by electing to tear down the old building and constructing a new building. Since time was not the essence of the contract, the completion of the building, though late, constituted substantial performance.
(2) On February 26, 1959 when appellants gave notice pursuant to the terms of *395 the contract of their intention to cancel the lease, there was a $4,000,000 lien outstanding in favor of Equitable, and two liens for $1,058,000 each in favor of Landrum and Mills. Under Section Eighteen A of the lease if there was a lien outstanding appellants could not cancel except on default of appellees in their rental, insurance, or tax payments. It is undisputed that there had not been any such default by appellees.
Appellants say that the mortgage lien is not valid because it was tainted by fraud, of which fact Mercantile National Bank at Dallas had knowledge, and that this knowledge by the Bank must be imputed to Equitable because the Bank is trustee for Equitable in the deed of trust.
In the first place we find no evidence that the mortgage is tainted by fraud, or that the Bank, as trustee, had any such knowledge. In the second place we hold that even if the Bank, as trustee, in the deed of trust, did have knowledge of the alleged fraud, such knowledge is not to be imputed to Equitable. The Bank, with knowledge of both parties, was acting as trustee for both L. M. S. Development Company, the mortgagor, and for Equitable, the mortgagee. Under such circumstances it will not be presumed that knowledge on the part of the trustee of fraud of the mortgagor will be communicated to the mortgagee, nor will such knowledge by the trustee be imputed to the mortgagee. United Association of Journeymen, etc. v. Borden, Tex., 328 S.W.2d 739 (Syl. 7); Brady v. Garrett, Tex.Civ.App., 66 S.W.2d 502, 505; First Texas Joint Stock Land Bank of Houston et al. v. Chapman, Tex. Civ.App., 48 S.W.2d 651; Standard Savings & Loan Ass'n v. Fitts, 120 Tex. 303, 39 S.W.2d 25, 26, 27; Cooper et al. v. Ford et al., 29 Tex. Civ. App. 253, 69 S.W. 487, 489; Westinghouse Electric & Mfg. Co. v. Brooklyn Rapid Transit Co., D.C., 291 F. 863, 873.
(3) Appellants will not be heard to complain of appellees' alleged failure to spend $30,000 on the old building by July 31, 1956, or of their failure to complete the new building by that date, for appellants have waived and are estopped to assert such failures by (a) continuing to accept rental payments from appellees after they knew of such alleged breaches of contract, and (b) executing the certificate of September 12, 1958 demanded by Equitable before Equitable would purchase the long-term mortgage, in which certificate lessors, knowing the purpose of the instrument, certified that L. M. S. Development Company had complied with all the provisions of the lease contract.
Ordinarily waiver and estoppel are fact questions, but if the evidence is undisputed as to the material facts, as they are in this case, waiver and estoppel may be established as a matter of law. Dallas Farm Machinery Co. v. Minneapolis-Moline Co., Tex.Civ.App., 324 S.W.2d 578, 581; Masterson v. Bouldin, Tex.Civ.App., 151 S.W.2d 301, 305; 43-B Tex.Jur. 491; 31 C.J.S. Estoppel § 163 p. 461.
(4) Equitable, holder of a first lien of $4,000,000 against the leasehold estate and Neely G. Landrum and John B. Mills, each holders of second lien notes in the amount of $1,058,600.85 each, are not parties to this suit. Appellants claim that these notes and liens are invalid. Their validity cannot be litigated in this case without making the lien holders parties.
(5) Though appellees did not complete the office building by July 31, 1956, they did complete the building before appellants attempted to cancel the lease, and their belated completion of the building constituted a cure of the breach prior to cancellation under the terms of the lease.
Appellants, in an attempt to justify their failure to act sooner, say that Hubert Johnson and H. Edward Smith falsely represented to them that Section Six of the lease had been complied with in that $30,000 had been spent on the old building *396 prior to July 31, 1956; and that they believed and relied on said false representations otherwise they would have undertaken cancellation of the lease sooner.
The alleged misrepresentation by Johnson, attorney for L. M. S. Development Company, is alleged to have occurred in a telephone conversation with John B. Stigall, Jr., attorney for Texas Bank and Trust Company. What Johnson told Stigall was that sometime before he had raised the question with his clients and that they had furnished him with information sufficient to satisfy him, Johnson, that the money had been expended, that he had this information in his file which was not available at the time. Stigall knew that an affidavit had been furnished to Johnson by H. Edward Smith. Later Johnson sent his file on the subject to Robert B. Dean, one of the appellants, for Dean's own study in reaching his conclusions.
Johnson made it plain that his statement was based on information furnished to him by others, and he gave the source of the information. Fraud is not to be predicated on statements expressly represented to be made merely on information. 20A Tex.Jur. 92; 37 C.J.S. Fraud § 21, p. 259. Johnson was not one of the lessees; nor was he architect or contractor for lessees. He could do no more than pass on to others the information furnished to him by his clients. There was no fraud in his statement to Stigall or in his subsequent dealing with Dean.
Smith's fraud is alleged to consist of an affidavit he made to the effect that the $30,000 had been spent on the old building. Whether this affidavit was true or false is a fact question. Appellants say it was false, appellees say it was true.
Appellants contend that in computing the cost of the improvements it is not proper to take into account improvements made and paid for by lessees' tenants in the old building. Appellees contend that the improvements made by tenants should be included.
We agree with appellees. Section Six, providing for the improvements says: "* * * lessee having complete discretion as to what improvements shall be added." Section Fifteen, giving broad rights to assign or sub-let, provides that a sub-lessee shall have all or any part of the rights and privileges of the lessee with reference to the use of the premises. It is no concern of lessors that lessees made arrangements with sub-tenants to make some of the improvements. Jenkins v. John Taylor Dry Goods Co., 352 Mo. 660, 179 S.W.2d 54, 59; 24 Broad Street Corp. v. Quinn, 19 N.J.Super. 21, 87 A.2d 759.
On request of appellants the trial court in submitting the questions to the jury limited the inquiry to expenditures made by lessees themselves, excluding expenditures made by sub-tenants. Appellees objected but their objection was overruled. We think this was error.
That the matter influenced the jury is shown by the question sent by the jury to the court during their deliberations. "Does the word `assigns' refer to L. M. S. Inc., Mercantile Securities Life Ins. Co., and L. M. S. Development Company only and not the sublessee such as Miles, DeVera, etc. ?" The court answered the question by referring to the instruction in the charge.
In view of the fact that the issues in regard to improvements were not properly submitted we sustain appellees' cross-points Nos. 1 and 3. Consequently we must hold that there has not been a finding as to whether appellees actually spent $30,000 on the old building by July 31, 1956.
Appellants assert that even if improvements made by sub-tenants and included in the computation the testimony shows the cost of improvements was less than $30,000. In support of their position they cite us to discrepancies and duplicate entries in the accounts and vouchers. The accounts, vouchers and other exhibits pertaining to this part of the controversy are numerous. *397 bulky and complicated. To confirm appellants' contention we would have to resolve ourselves into a committee of auditors and carefully audit all the records. We shall not attempt to do so.
In any event, the question of whether appellees spent $30,000 in improvements prior to July 31, 1956 cannot control our decision, for as we have already pointed out, lessors after they had ceased to believe lessees, continued to accept rental payments, and on September 12, 1958 executed certificate to the effect that all provisions of the lease had been complied with. By reason thereof lessors have waived their right to cancel the lease, and are now estopped to do so on the grounds they assert.
Appellants' first six points on appeal are overruled.
In their seventh point appellants complain of the judgment denying them actual and punitive damages and failing to require appellees to pay off and discharge the outstanding liens against the leasehold estate. The actual damages sought by appellants were for the alleged withholding of possession of the property following cancellation of the lease. Since we have held that appellants had no right to cancel the lease it follows that they were not entitled to recover the damages they sought, and were not entitled to have the liens discharged. Their seventh point is overruled.
Appellants' eighth point asserts that it was error to render judgment in favor of H. Edward Smith, said Smith having failed to file an answer.
The judgment in favor of Smith was correct for these reasons: (1) Smith did file a written answer in the form of a disclaimer; (2) there was no proper finding that the affidavit of Smith in regard to the $30,000 of improvements was false; (3) Section Fifteen of the lease contract provided that upon assignment of the lease by lessee (Smith) to a corporation "lessee personally shall be relieved of all responsibility under the terms of this lease"; (4) Smith in person appeared, participated in the trial as a party, and gave his testimony. Even if no written answer of any kind had been filed in his behalf, appellants under the circumstances have waived their right to take advantage of his failure to file a written answer. Shaw v. Whitfield, Tex. Civ.App., 35 S.W.2d 1115; Guaranty State Bank v. Brill, Tex.Civ.App., 268 S.W. 260, 265; W. T. Rawleigh Medical Co. v. May-berry, Tex.Civ.App., 193 S.W. 199; Rules 67 and 90, Texas Rules of Civil Procedure; 25 Tex.Jur. 393 and 401. Appellants' eighth point is overruled.
In their ninth point appellants allege error of the trial court in rendering a take-nothing judgment in favor of appellees, since the record undisputedly establishes that appellants at least are entitled to the fee title to the property subject to the lease.
Appellants' action in trespass to try title was directed only at the leasehold estate in an effort to cancel the lease. Appellees did not and do not now deny that lessors own the fee title to the property, subject of course, to lessees' leasehold estate. There is no issue in the case in regard to lessors' fee title to the property. Therefore, the take-nothing judgment in no way affects lessors fee title to the property. Poth v. Roosth, 146 Tex. 7, 202 S.W.2d 442; Jinks v. Whitaker, 145 Tex. 318, 198 S.W.2d 85; Knight v. Chicago Corporation, 144 Tex. 98, 188 S.W.2d 564. Appellants' ninth point is overruled.
In support of their prayer that the judgment of the trial court should be affirmed, appellees have briefed seven counterpoints answering the nine points on appeal of appellants. These counterpoints have been covered in our discussion of appellants' points. The seven counterpoints of appellees are sustained.
Appellees also present twenty-three cross-points which, if sustained, would *398 make it improper to render judgment in favor of appellants. As we have already indicated, we think that cross-points Nos. 1 and 3 were well taken and should be sustained. However, since we have overruled appellants' points and have concluded that the trial court's judgment should be affirmed, it is unnecessary further to discuss or rule on appellees' cross-points, and we shall not do so.
The trial court correctly sustained appellees' motion for judgment non obstante veredicto. The judgment is affirmed.
WILLIAMS, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3041181/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3044
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Herbert Lyle Swallow, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: August 31, 2006
Filed: September 6, 2006
___________
Before SMITH, MAGILL, and BENTON, Circuit Judges.
___________
PER CURIAM.
Herbert Lyle Swallow appeals the sentence the district court1 imposed after he
pleaded guilty to knowingly engaging in a sexual act with another person who was
incapable of appraising the nature of the conduct and was physically incapable of
declining participation, in violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(2)(A).
He argues that the district court erred in including a vulnerable-victim enhancement
in its advisory Guidelines calculation.
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
We conclude that the district court did not clearly err in applying the
enhancement based on its finding that Swallow “knew or should have known” that the
victim was a “vulnerable victim.” See U.S.S.G. § 3A1.1(b)(1); United States v.
Anderson, 349 F.3d 568, 571 (8th Cir. 2003) (standard of review). A vulnerable
victim is a person “who is unusually vulnerable due to age [or] physical or mental
condition, or who is otherwise particularly susceptible to the criminal conduct.”
U.S.S.G. § 3A1.1, comment. (n.2). While Swallow argues that his intoxication and
alcoholic blackout kept him from realizing the victim’s vulnerability due to her own
intoxication, he does not deny that he had been drinking with the victim and that she
had passed out. The record supports the district court’s determination that Swallow
should have known that the victim was unusually vulnerable.
Accordingly, we affirm.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1576480/ | 118 Mich. App. 492 (1982)
325 N.W.2d 419
PEOPLE
v.
RICHARDSON
Docket No. 55864.
Michigan Court of Appeals.
Decided May 26, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal *494 Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
Turner & Turner, P.C. (by Donald A. Turner and Gary L. Kohut), for defendant on appeal.
Before: D.C. RILEY, P.J., and D.E. HOLBROOK, JR., and M.J. KELLY, JJ.
PER CURIAM.
The information charged that defendant "did willfully and maliciously destroy or injure the following described personal property, to wit: window of Scout Car #61, under the care, custody, or control of the above-named complainant, of the Melvindale Police Department, resulting in damage thereto". Defendant was convicted by a jury of malicious destruction of police property, MCL 750.377b; MSA 28.609(2). He was sentenced to from one to four years imprisonment and appeals as of right. Defendant assigns error to the court's refusal to grant his motion for a directed verdict at the close of the people's proofs and alternatively argues that the evidence was insufficient to support the jury's verdict.
When ruling on a motion for a directed verdict of acquittal, the trial court must consider all of the evidence presented by the prosecution up to the time the motion is made, and view it in the light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich. 354; 285 NW2d 284 (1979). The essential elements of malicious destruction of police property are that the defendant did (1) willfully and maliciously destroy or injure, (2) personal property belonging to the police department. These elements in this case were clearly established by the *495 testimony of Melvindale Police Officers Peters and Morabito, which was corroborated in part by the testimony of three Allen Park police officers.
Defendant is claiming that the people failed to prove that the property destroyed was the window of scout car number 61, which was under the care, custody, or control of the complainant. It was the failure of proof on this "element" that defendant contends required the granting of the directed verdict of acquittal. A variance between nonessential descriptive language in an information and the evidence adduced at the trial does not require a directed verdict of acquittal. People v Durr, 16 Mich. App. 763; 168 NW2d 633 (1969). All unnecessary allegations in an information are to be rejected as surplusage. MCL 767.47; MSA 28.987.
The reference to scout car number 61 and which officer had custody of the vehicle is surplusage. This language was included to identify the specific act for which defendant was charged. We conclude that defendant was sufficiently apprised of the charged offense and the facts against which he would be required to defend.
Defendant's alternative argument is that the jury verdict was contrary to the "law" as given by the trial court. This argument attacks the sufficiency of the evidence to support the verdict. The essence of the argument is that the jury instructions specifically stated that the destroyed property was scout car number 61 and no proof of this fact was shown.
The standard of review for an issue regarding sufficiency of evidence requires that the court view the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable *496 doubt. People v Delongchamps, 103 Mich. App. 151, 159; 302 NW2d 626 (1981). A rational trier of fact could have found that there was sufficient evidence of the essential elements of the crime which were proven beyond a reasonable doubt. We hold that the technical variance between the information and the evidence at trial does not require reversal.
Defendant argues, by way of a supplemental brief, that the court erred in failing to instruct the jury that the crime of malicious destruction of police property is a specific intent crime. The court also allegedly erred by failing to instruct the jury that the evidence of defendant's diminished mental capacity at the time that the alleged offense occurred must be considered as it relates to specific intent. Defendant cites People v Culp, 108 Mich. App. 452; 310 NW2d 421 (1981).
The court, in the case at bar, instructed the jury: "And third, that the defendant's act must have been done willfully and maliciously. * * * The phrase `willfully and maliciously' means that the defendant committed the act while knowing it to be wrong and without any just cause or excuse and did it intentionally or with a conscious disregard of known risk to the property of another." See CJI 32:1:01.
In Culp, the Court held, for the first time, that the crime of malicious destruction of property was a specific intent crime. At the trial, Culp had asked the court to instruct the jury on specific intent and that voluntary intoxication was a defense. The court in Culp gave CJI 32:1:01, as did the trial court in the case at bar. The Court of Appeals in Culp found that error occurred in the refusing to give the requested instruction on intoxication. The error was not predicated on a failure *497 to instruct on specific intent. Apparently, CJI 32:1:01, which defines willful and malicious, was sufficient to inform the jury of the needed specific intent.
The defendant did not object at the trial to the failure of the court to give an instruction on specific intent, CJI 3:1:16, or to instruct on the possible defense to the crime. In this important way, this case is distinguished from Culp. The instructions given were sufficient to instruct the jury as to the necessary intent. See People v Elmore, 92 Mich. App. 678; 285 NW2d 417 (1979). We find no manifest injustice and, therefore, affirm.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576492/ | 35 So. 3d 31 (2010)
FLINT
v.
STATE.
No. SC10-343.
Supreme Court of Florida.
April 16, 2010.
Decision Without Published Opinion Mandamus dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576498/ | 325 N.W.2d 58 (1982)
STATE of South Dakota ex rel. R. Van JOHNSON, Secretary of Revenue, Plaintiff and Appellee,
v.
MATHIS IMPLEMENT, INC., Richard Mathis, Secretary-Treasurer, Defendant and Appellant.
No. 13650.
Supreme Court of South Dakota.
Argued September 8, 1982.
Decided October 20, 1982.
John P. Dewell, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Andrew B. Reid, Piedmont, for defendant and appellant.
DUNN, Justice.
Mathis Implement, Inc. (appellant) appeals from an order of the trial court which would permit examination of appellant's *59 business records by the South Dakota Department of Revenue (appellee), through the use of a subpoena duces tecum. We dismiss the appeal for mootness.
On May 27, 1981, agents of appellee attempted to conduct an audit of appellant's records relating to the Interstate Fuel Tax Act which imposes a tax pursuant to SDCL 10-49. Appellant is the holder of Interstate Fuel User License # T-10426-4 and South Dakota Retail Sales Tax License # 63S-01296-3. Appellant refused to produce any records for the audit.
On August 13, 1981, appellee issued a subpoena duces tecum to the officers and employees of appellant commanding the production of the following records for examination:
All original sales records relating to all receipts from sales of tangible personal property including motor fuel or use fuel and from sales of services, all purchase records including all invoices, all disbursement journals, all check registers, all depreciation schedules, all bank statements, bills of lading, and all other like documents relating to the operation of Mathis Implement Company, Inc.
The subpoena duces tecum called for the production of these records to the appellee's agents at appellant's office at 1:30 p.m. on August 31, 1981.
On August 31, 1981, agents of appellee arrived at appellant's place of business pursuant to the subpoena duces tecum and requested the records of the company as therein stated. Appellant refused to turn over the requested documents. As before, appellant stated the records were protected from unreasonable searches and seizures and would not be produced without a search warrant. Thereafter, the agents left the premises.
On September 22, 1981, a show cause hearing was held to determine why appellant should not be held in contempt of court for failure to honor the subpoena duces tecum issued by appellee. On December 3, 1981, the trial court issued an order quashing the subpoena duces tecum as overly broad but ruling that appellant's records would be subject to a more specific subpoena duces tecum by the appellee.
The threshold question here is whether the appeal should be dismissed for mootness, since the subpoena duces tecum issued against appellant was quashed. "[A]n appeal will be dismissed as moot where, before the appellate decision, there has been a change of circumstances or the occurrence of an event by which the actual controversy ceases and it becomes impossible for the appellate court to grant effectual relief." Matter of Silver King Mines, Permit EX-5, 315 N.W.2d 689, 690 (S.D.1982) (quoting Rapid City Journal v. Circuit Court, Etc., 283 N.W.2d 563, 565 (S.D.1979)). In this case, no actual controversy exists because appellant's subpoena duces tecum was quashed and no further relief than that proscribed by the trial court can be given. Thus, the appeal is moot.
A public interest exception to this general rule may exist. The public interest exception is appropriate, however, only if the following criteria are met: "(1) general public importance, (2) probable future recurrence, and (3) probable future mootness." Stanley County School v. Stanley County Ed., 310 N.W.2d 162, 164 (S.D.1981) (quoting from Anderson v. Kennedy, 264 N.W.2d 714, 717 (S.D.1978)).
The first prong of the exception is met because the use of a subpoena duces tecum is an integral part of an administrative agency's enforcement procedures. Questions concerning the validity of its use are extremely important to the agencies and departments who carry out legislative directives. The second prong is satisfied, since it is likely others may challenge the validity of a subpoena duces tecum issued by state agencies in the future. The third prong, requiring probable future mootness, is not met, however. Here, the trial court left open the option that appellee may issue a more specific subpoena duces tecum which could be enforced. A challenge at that time by appellant, or someone in a similar position, would not be moot and a real controversy would be presented for this *60 court to decide. Since the public interest exception does not apply, we conclude this appeal is moot and decline to comment further on the issues raised by counsel. The appeal is dismissed.
All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576458/ | 35 So. 3d 1134 (2010)
Nancy MARSHALL, Assessor for the Sixth Municipal District for the Parish of Orleans
v.
Benjamin H. MAYNARD, Warren P. Valentino, Query Lance, Rutledge C. Clement, Jr., Douglas Brent Wood, Sherry B. Haydel, Amelia L. Flynn, Peter S. Michell, Aaron L. Jarabica, Frank A. Mumphrey, III, Bryan W. Fitzpatrick, Glenda D. Lavis, Paul S. Rosenblum, Dominic J. Gianna, Susan D. Krohn, Gothard J. Reck, Frederick O. Martty, Katherine F. Salvant, Kathryn A. Sturm, Jairo I. Santanilla, Patrick A. Talley, Jr., A.R. Fransen, Jr., John H. Lewis, William M. Pinsky, et al.
No. 2009-CA-1132.
Court of Appeal of Louisiana, Fourth Circuit.
March 24, 2010.
*1135 Stephen H. Kupperman, Jonathan R. Bourg, Barrasso Usdin Kupperman Freeman & Sarver, LLC, New Orleans, LA, for Plaintiff/Appellant.
Gothard J. Reck, Uhalt & Reck, New Orleans, LA, in Proper Person, Defendant/Appellee.
A. Remy Fransen, Jr., Fransen & Hardin, A.P.L.C., New Orleans, LA, in Proper Person, Defendant/Appellee.
David W. Oestreicher II, New Orleans, LA, in Proper Person and for Benjamin Maynard and B. Gathright.
Patrick A. Talley, Jr., Frilot L.L.C., New Orleans, LA, in Proper Person, Defendant/Appellee.
(Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
ROLAND L. BELSOME, Judge.
Appellant, Nancy Marshall, appeals the trial court's grant of Appellee's exception of prescription. We find that Appellant's claim was prescribed pursuant to La. R.S. 47:1998 and affirm.
FACTS AND PROCEDURAL HISTORY
Appellant, Nancy Marshall, the Assessor for the Sixth Municipal District for the Parish of Orleans, assessed the value of various properties owned by Defendants-Appellees in 2008, the results of which were available for public inspection for *1136 fifteen days thereafter. Appellees timely sought review of Appellant's assessments for the 2008 tax year with the Orleans Parish Board of Review, which unanimously found in favor of Appellees and determined that the 2008 assessments should be modified.
Appellant Marshall subsequently made a timely appeal to the Orleans Parish Board of Review's decision to the Louisiana Tax Commission ("LTC"), who utilized an independent certified property appraiser. After a hearing on February 26, 2008, the LTC made its own determinations on June 10, 2008 for the fair market value of the properties. On June 10, 2008, the LTC found that Appellant Marshall's assessments required modification and upheld the calculations of the Orleans Parish Board of Review. The June 10, 2008 decision of the LTC stated: "This order shall be effective upon the date of issuance." Appellant Marshall did not seek a rehearing of this determination.
Instead, Appellant appealed the LTC's decision by filing suit on September 8, 2008, naming property owner Appellees as Defendants. In response, Appellees filed, inter alia, exceptions of prescription, arguing that the appeal was prescribed pursuant to La. R.S. 47:1998, as Appellant had thirty days from June 10, 2008 to appeal the LTC's Order. After a hearing on May 15, 2009, the trial granted the exception of prescription on May 21, 2009, deeming the other exceptions moot. This appeal followed.
STANDARD OF REVIEW
A trial court's ruling on an exception of prescription is reviewed under the manifest error/clearly wrong standard. Davis v. Hibernia National Bank, 98-1164, p. 2 (La.App. 4 Cir. 2/24/99), 732 So. 2d 61, 63. The manifest error inquiry is not whether the trial court was right or wrong, but whether its determinations were reasonable. Rosell v. ESCO, 549 So. 2d 840, 844 (La.1989); Turnbull v. Thensted, 99-0025, p. 5 (La.App. 4 Cir. 3/1/00), 757 So. 2d 145, 149. If the trial court commits an error of law, however, the applicable standard of review is de novo. Edwards v. Pierre, 08-0177 (La. App. 4 Cir. 9/17/08), 994 So. 2d 648, 656.
DISCUSSION
Appellant assigns two errors for our review: first, that the trial court erred in finding that the time period for appealing the Louisiana Tax Commission's decision was within thirty days of the date of the order, pursuant to La. R.S. 47:1998, rather than thirty days from the date she received the decision in the mail, as provided by La. Admin. Code tit. 61 § 3103(U); and second, that the trial court erred in failing to apply the Louisiana Administrative Code.
With regard to the proper procedure for appealing final determinations of the Louisiana Tax Commission, La. R.S. 47:1998 provides, in pertinent part:
Any taxpayer or bona fide representative of an affected tax-recipient body in the state dissatisfied with the final determination of the Louisiana Tax Commission under the provisions of R.S. 47:1989 shall have the right to institute suit within thirty days of the entry of any final decision of the Louisiana Tax Commission in the district court for the parish where the Louisiana Tax Commission is domiciled or the district court of the parish where the property is located contesting the correctness of assessment.
La. R.S. 47:1998(A)(1)(a)(emphasis added).[1] Thus, Appellant argues that although *1137 the order was issued on June 10, 2008, and suit was not filed until September 8, 2008, it was nevertheless timely because it was filed within thirty days of August 8, 2008, relying upon La. Admin. Code tit. 61 § 3103(U).[2] August 8, 2008 is the date that Appellant alleges correspondence regarding the LTC's June 10, 2008 Order was received.
Appellant's argument that the Administrative Code takes precedence over the Louisiana Revised Statutes must fail, as the Louisiana Supreme Court has held that "an administrative construction cannot be given effect where it is contrary to or inconsistent with legislative intent." Jurisich v. Jenkins, XXXX-XXXX, p. 8 (La.10/19/99), 749 So. 2d 597, 602. Likewise, "[a]n administrative construction cannot have weight where it is contrary to or inconsistent with the statute." Jurisich v. Jenkins, XXXX-XXXX, p. 8, 749 So.2d at 602 (quoting Traigle v. PPG Indus., Inc., 332 So. 2d 777, 782 (La.1976)). Specifically, "the tax commission cannot adopt rules in contravention of state statutes." EOP New Orleans, L.L.C. v. Louisiana Tax Commission, XXXX-XXXX, p. 8 (La.App. 1 Cir. 9/28/01), 809 So. 2d 387, 392.
In this case, it is not asserted, nor did the trial court find, that either the language of La. R.S. 47:1998 or the wording of the LTC's Order was ambiguous or unclear; accordingly, no further interpretation is required. See ABL Management v. Board of Supervisors, XXXX-XXXX, p. 5-7 (La.11/28/00), 773 So. 2d 131, 135. If the Legislature had intended to incorporate a certified mail receipt requirement into the statute, the Legislature could have simply inserted it in one of the numerous amendments to La. R.S. 47:1998; yet, such a provision is notably absent from the language pertaining to the time delay for an appeal.[3] Pursuant to the plain wording of La. R.S. 47:1998 and the Order itself, the June 10, 2008 Order became effective on that date.[4] Appellant failed to appeal or seek a rehearing of that order within thirty days pursuant to La. R.S. 47:1998; thus, it became final on July 10, 2008, nearly two months before Appellant filed suit.[5]
Nevertheless, Appellant also makes the argument that, without one superseding *1138 the other, when read together, La. R.S. 47:1998 and La. Admin. Code tit. 61 § 3103(U) combine to allow for thirty days from receipt of correspondence regarding the LTC's Order, because La. R.S. 47:1998 does not specifically define "entry" or "final decision." This argument, however, must also fail. "Entry has been defined as a ministerial act of recording a statement of a final decision reached by a court or a quasi-court in the matter before it." Johnson v. Louisiana Tax Commission, XXXX-XXXX, p. 5 (La.App. 4 Cir. 1/16/02), 807 So. 2d 356, 359, n. 1 (citing EOP New Orleans, L.L.C. v. Louisiana Tax Commission, XXXX-XXXX, p. 9 (La. App. 1 Cir. 9/28/01), 809 So. 2d 387, 392). "[W]hen a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written." ABL Management v. Board of Supervisors, XXXX-XXXX, p. 6, 773 So.2d at 135. "It is presumed that every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used." Id. Accordingly, because La. R.S. 47:1998, which makes no reference to receipt of the Order by mail, is controlling under these facts and circumstances, the LTC's final decision was plainly "entered" on June 10, 2008.[6]
Appellant's arguments also fail pursuant to this Court's decision in Johnson v. Louisiana Tax Commission, which held that date an LTC decision is signed begins the running of the 30-day appeal period. Johnson v. Louisiana Tax Commission, XXXX-XXXX, p. 5, 807 So.2d at 359. In Johnson, this Court affirmed a taxpayer's exception of prescription pursuant to La. R.S. 47:1998 because the Assessor's petition was not filed within thirty days of signing, or entry, of the LTC's final decision. Id.
The LTC decision at issue in Johnson was signed on June 6, 2000; therefore, this Court specifically held that "pursuant to La. R.S. 47:1998(A)(1)(a), the time for applying for judicial review in this matter began to run on June 6, 2000," and "[t]he Assessor had thirty days from that date to file a petition for judicial review of the tax commission's decision absent a timely request for a rehearing." Id. (emphasis added). The Assessor in Johnson, like Appellant in this case, did not file a request for a rehearing. See id. Implicit in this Court's determination that the time for applying for judicial review begins to run on the date the LTC decision is signed is the finding that an LTC's decision is "entered" on that date. See id. Therefore, Johnson is directly applicable to the facts of the instant case.
Appellant's reliance on EOP New Orleans L.L.C. v. Louisiana Tax Commission is misplaced. EOP considered whether the Appellant's petition for judicial review was premature because it was filed prior to the expiration of the ten-day period allowed for a rehearing. EOP New Orleans L.L.C. v. Louisiana Tax Commission, XXXX-XXXX, p. 4 (La.App. 1 Cir. 9/28/01), 809 So. 2d 387, 389. While EOP found that La. Admin. Code tit. 61:3103 did not conflict with La. R.S. 47:1998 or 49:964 for the specific purpose of determining whether Appellant's petition was premature, EOP did not stand for the broad general proposition that La. R.S. 47:1998 and La. Admin. Code tit. 61:3103 are compatible in all respects. See id.
Therefore, pursuant to the plain language of La. R.S. 47:1998 and Johnson v. Louisiana Tax Commission, XXXX-XXXX, p. *1139 5, 807 So.2d at 359, Appellant's claim prescribed on July 10, 2008.[7] The trial court properly granted Appellees' exceptions of prescription.
CONCLUSION
For the foregoing reasons, we find that the trial court did not err in applying La. R.S. 47:1998. The trial court's judgment is hereby affirmed.
AFFIRMED.
NOTES
[1] See also La. R.S. 47:1989(D)(1)(providing that "[a]ll decisions by the tax commission are final unless appealed to the district court within thirty days").
[2] Title 61 provides, in pertinent part:
The parties to an appeal shall be notified in writing, by certified mail, of the final decision by the commission. The taxpayer or assessor shall have 30 days from receipt of the Order to appeal to a court of competent jurisdiction.
[3] Amended by Acts 1980, No. 601, § 1, eff. July 23, 1980; Acts 1982, No. 609, § 1; Acts 1986, No. 540, § 1; Acts 1988,. No. 588, § 1, eff. July 14, 1988; Acts 1988, No. 719, § 1; Acts 1995, No. 53, § 1, eff. July 1, 1995; Acts 1995, No. 272, § 1, eff. July 1, 1995; Acts 2000, 1st Ex.Sess., No. 74, § 1, eff. April 17, 2000; Acts 2001, No. 1149, § 1; Acts 2004, No. 461, § 3, eff. July 1, 2006; Acts 2006, No. 390, § 1; Acts 2009, No. 511, § 1. Additionally, prior to the April 17, 2000 amendment, the statute had previously provided simply for the right to bring suit within thirty days of the decision of the tax commission. See EOP New Orleans, L.L.C. v. Louisiana Tax Commission, XXXX-XXXX, p. 6 (La. App. 1 Cir. 9/28/01), 809 So. 2d 387, 390, n. 3.
[4] As part of the opposition to Appellees' exceptions, Appellant attached an affidavit from the Chief Deputy Assessor for the Sixth Taxing District which stated that the August 7, 2008 correspondence enclosed LTC orders from July 9, 2008, regarding three properties, as well as June 10, 2008. This is of no moment, however, as all parties to this appeal retain addresses listed on the affidavit as part of the LTC's June 10, 2008 Orders.
[5] Notably, Appellant did not cite to the Administrative Code in the petition and appeal from the Louisiana Tax Commission, and raised no other procedural basis for the lawsuit other than La. R.S. 47:1998 and La. R.S. 47:2321.
[6] Entry is defined by Black's Law Dictionary as "[t]he placement of something before the court or on the record." Black's Law Dictionary 554 (7th ed. 1999).
[7] Appellant also references Hurricane Gustav, which struck Louisiana on or about September 1, 2008 and resulted in several court closures, in support of the argument that prescription had not accrued. Appellant's cause of action had prescribed, however, prior to September 1, 2008. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576464/ | 35 So. 3d 1109 (2010)
Ron ABEL, et al
v.
NORTH OAKS MEDICAL CENTER, et al.
No. 2009 CW 1186.
Court of Appeal of Louisiana, First Circuit.
February 12, 2010.
*1110 Ron Abel, Donald Abel, Hammond, LA, and Melanie Dennison, Newport News, VA, Plaintiffs/Respondents.
Stephen M. Pizzo, Guice A. Giambrone, III, Kelly A. Dugas, Metairie, LA, for Defendant/Relators, Dr. James L. Nelson and Dr. Merrill O. Hines, Jr.
Ashley E. Sandage, Shaan M. Aucoin, Hammond, LA, for Defendant/Relator, North Oaks Medical Center.
Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
GUIDRY, J.
In this writ application, medical malpractice defendants, James Nelson, M.D. and Merrill O. Hines, Jr., M.D., seek review *1111 of the May 12, 2009, judgment of the district court remanding to a medical review panel new allegations of negligence. For the reasons that follow, we grant the writ application, reverse that portion of the May 12, 2009, judgment that remanded the case to a medical review panel and vacate the remaining portions of the May 12, 2009, judgment.
FACTS AND PROCEDURAL HISTORY
On September 14, 1998, Doris Abel underwent surgery to correct a severe gastroesophageal reflux problem. After the surgery, Ms. Abel developed complications showing signs of a suspected esophageal leak. Ms. Abel's condition worsened and Ms. Abel died on October 1, 1998.
Plaintiffs submitted their malpractice complaints against Drs. Nelson and Hines and North Oaks Medical Center ("NOMC") for review by a medical review panel. On September 17, 2003, a medical review panel convened and rendered an opinion in favor of the defendants.
On November 17, 2003, plaintiffs filed suit against Drs. Nelson and Hines and NOMC. Over the next several years, discovery was conducted and the district court set a discovery cut-off date of October 16, 2008. On October 29, 2008, Drs. Nelson and Hines filed a motion for a status conference to select a trial date, which the district court set for November 20, 2008.
Days before the status conference was to be held, plaintiffs requested leave of court to file a "First Supplemental and Amending Petition for Damages." The defendants objected, urging that the filing expanded the allegations and included additional claims not previously submitted to the medical review panel. Plaintiffs then filed a motion and order with the district court requesting the district court to remand the matter for resubmission to a new medical review panel for review of the new claims outlined in the First Supplemental and Amending Petition for Damages. The district court signed the order without a contradictory hearing. Thereafter, Drs. Hines and Nelson and NOMC filed motions for new trial on the remand issue. On May 12, 2009, the district court entered judgment denying defendants' motions for new trial, denying plaintiffs' motion for leave to file the first amended and supplemental petition, and granting plaintiffs' motion for remand and remanded the matter to a medical review panel for the sole purpose of reviewing the new allegations of negligence raised in plaintiffs' first supplemental and amending petition.
Drs. Nelson and Hines filed the instant writ application urging that the district court erred in granting plaintiffs' motion to remand the case back to a medical review panel as there is no procedure in the MMA for remanding a case back to a panel once an opinion has been rendered and suit has been filed.
DISCUSSION
This court granted certiorari in order to determine whether the medical review panel procedure enumerated under La. R.S. 40:1299.47 authorizes a district court to remand to a medical review panel new allegations of medical malpractice discovered after the panel rendered an opinion and suit has been filed.
The facts are not in dispute with respect to this writ application. Therefore, the issue before this court is whether the trial court correctly interpreted and applied the law. Appellate review of questions of law is simply a review of whether the trial court was legally correct or incorrect. Williams v. Notami Hospitals of *1112 Louisiana, Inc., 2004-2289 (La.App. 1 Cir. 11/04/05), 927 So. 2d 368, 372.
In reviewing the provisions of the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq. (the "Act") to determine the issue presented in this writ application, we are mindful that the Act must be strictly construed because it provides limitations on the liability of a health care provider and provides advantages to health care providers in derogation of the rights of tort victims. Williams, 927 So.2d at 373. One such advantage is that all malpractice claims against health care providers covered under the Act "shall be reviewed by a medical review panel." Williams, 927 So.2d at 373; La. R.S. 40:1299.47(A)(1)(a).
Louisiana Revised Statute 40:1299.47 governs the medical review panel proceeding. The Act requires that all medical malpractice claims against covered health care providers are to be submitted to a medical review panel prior to filing suit in any court. Williams, 927 So.2d at 372; La. R.S. 40:1299.47(B)(1)(a)(i).[1] Section A of La. R.S. 40:1299.47 governs the procedure for filing a request for review of malpractice complaints by a medical review panel.
As to initiating such a request, La. R.S. 40:1299.47(A)(2)(b) provides that a request for review of a malpractice claim "shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration or on the date of mailing of the request if mailed to the division of administration by certified or registered mail." Likewise, the Act requires that all requests for review of a malpractice claim identifying additional health care providers "shall also be filed with the division of administration." La. R.S. 40:1299.47(A)(2)(a). The use of the term "shall" in these statutory provisions indicate that these procedures are mandatory. While the Act does not specifically address reviewing malpractice claims that are discovered after a panel has rendered an opinion and suit has been filed, we conclude that the procedures the legislature mandates for filing a request for review by a medical review panel also encompass malpractices claims that are discovered after the panel has rendered an opinion and suit has been filed.
We also find that the language in La. R.S. 40:1299.47 describing the medical review panel's duty in the panel proceeding also provides support for our conclusion. In this regard, the Act provides that the panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. La. R.S. 40:1299.47(G). In discharging this duty, the Act specifically requires the panel to render one or more of the following expert opinions. The panel may find:
(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
(2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
*1113 (3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.
La. R.S. 40:1299.47(G)(1)(2)(3) (Emphasis added).
Clearly, to fulfill these requirements, the panel must be presented with a medical malpractice complaint as provided in Section A. Moreover, we find that once a panel renders an expert opinion on a malpractice complaint filed with the division of administration, its duty has been discharged. Therefore, if additional malpractice claims are discovered after the panel has rendered an expert opinion, which were not considered by the panel, a new attorney chairman must be selected and these new claims must be presented for review by a new medical review panel established according to La. R.S. 40:1299.47.
In the instant case, the parties do not dispute that plaintiffs' First Supplemental and Amending Petition for Damages outlines claims that were not presented to a medical review panel.[2] The Act provides that the exclusive manner available to plaintiffs to have their new malpractice claims submitted to a medical review panel for review is by the claimant filing a new request for review to the division of administration as provided in La. R.S. 40:1299.47. The ruling of the court is limited to the issue presented for review. We express no opinion on any exceptions or defenses available to the defendants pursuant to La. R.S. 40:1299.47(B)(2)(a).
CONCLUSION
The Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq., provides the procedures and process for submitting a malpractice claim for pre-suit review by a medical review panel. La. R.S. 40:1299.47. Under the Act, a request for review of a malpractice claim is initiated when a claimant files a request for review with the division of administration. La. R.S. 40:1299.47(A)(1)(b), (2)(b). The Act does not provide a procedure that allows the trial court to remand to a new medical review panel new claims of malpractice discovered after the medical review panel has rendered its expert opinion and suit has been instituted. A presuit review of any new claims of malpractice that are developed during the litigation of the medical malpractice action, which were not encompassed in the complaint and evidence considered by the medical review panel when it rendered its expert opinion, can only be presented for review by filing a new request for review with the division of administration. For the foregoing reasons, we find that the district court erred in remanding the matter back to a medical review panel. Accordingly, that portion of the May 12, 2009 judgment that remanded the case to a medical review panel is reversed, the remainder of the May 12, 2009 judgment is vacated, and the case is remanded to the district court for action in accordance with this ruling. Plaintiffs also filed a motion to dismiss the writ application. Plaintiffs' motion to dismiss the writ application is denied.
WRIT GRANTED, JUDGMENT REVERSED IN PART, VACATED IN PART, REMANDED.
NOTES
[1] No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section. La. R.S. 40:1299.47(B)(1)(a)(i).
[2] In their motion for remand, plaintiffs acknowledge that these new claims were not submitted to a medical review panel for presuit review. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576552/ | 346 S.W.2d 780 (1961)
Elcany CLARK, Jr., Appellant,
v.
Roy SMITSON, Appellee.
Court of Appeals of Kentucky.
January 20, 1961.
As Modified on Denial of Rehearing June 9, 1961.
*781 Robert H. Measle, Stilz, Rouse & Measle, Lexington, William Blanton, Bradley & Blanton, Paris, for appellant.
Joe G. Leibson, Leibson, Leibson & Leibson, Stanley A. Stratford, Louisville, for appellee.
STEWART, Judge.
This is an appeal from a judgment of $13,940 rendered in favor of appellee, Roy Smitson, against appellant, Elcany Clark, Jr., for personal injuries received in an automobile-pedestrian accident.
Appellant moved for a directed verdict at the conclusion of appellee's proof and at the conclusion of all the proof. Appellant also moved for a judgment notwithstanding the verdict or in the alternative for a new trial. All of these motions were overruled. On this appeal, as a ground for reversal of the judgment, appellant, at the outset, urges that appellee was guilty of contributory negligence as a matter of law, and as a consequence he was entitled to a peremptory. We conclude this contention has merit, and this obviates the necessity of considering certain other grounds assigned as reversible errors.
The accident occurred at 9:30 p. m. on Saturday, October 30, 1954, on South Main Street, which is also U. S. Highway No. 68, within the city limits of Paris, at a point in the middle of the block between 15th and 16th Streets. The street runs north and south and is four lanes wide, bearing traffic both north and south, the outer lane on each side being used for parking purposes. Automobiles were parked on both sides of the street, leaving only one lane open for south-bound and one open for northbound traffic. At the scene of the accident South Main Street is straight and as one travels south, the direction appellant was proceeding, the grade ascends gradually. The accident happened directly in front of the Bourbon County Stockyards, which takes up considerable space on the east side of South Main Street. Directly across the street, on the west side, the Yard House Restaurant is situated and 200 feet farther south the Drover's Inn Liquor Dispensary is located.
*782 Appellant testified he was behind the wheel of his car driving south in his traffic lane at a speed of 25 miles per hour (the statutory speed limit is 35 miles per hour at the particular place involved), and the accident occurred near the center line of the street when appellee collided with his car. Appellant and his wife, who was riding beside him in the car, stated that they did not see appellee until the car struck him. Appellant halted after the mishap, then drove on down the block to park his car. Appellant and his witnesses also brought out these facts: At the time and place of the accident it was dark; an overhead street light provided very little illumination; the pavement was dry; and appellant's car lights were on low, throwing a beam forward approximately 100 feet.
Appellee, on the occasion of his injury, was undertaking to cross South Main Street from the stockyards on the east side to the Yard House Restaurant on the west side. According to his own witness, William Doty Jefferson, he was "walking fast" bent over. Jefferson also testified the Clark car was running about 45 or 50 miles per hour, it was in the middle of the street at the moment of impact, and appellee was struck by the left front fender and the radiator. Appellee was knocked about 90 feet and landed on the east side of, but very near, the center line.
It is argued appellant was negligently operating his car on the occasion it collided with appellee because a jury could find from the evidence (a) he was driving between 45 and 50 miles per hour while in a 35-mile-per-hour speed zone; (b) he was straddling the center line of the street; and (c) he was not keeping a proper lookout ahead for automotive or pedestrian traffic. However, assuming appellant violated any one or all of these duties imposed upon him by law, was appellee chargeable with contributory negligence by reason of the disregard of some precautionary measure he failed to take? We believe that he was.
Ordinarily questions of negligence and contributory negligence are matters for the jury to determine; still, where the proof establishes without contradiction that a pedestrian who is injured has failed to exercise ordinary care for his own safety, he should in such a situation be held guilty of contributory negligence as a matter of law. In leaving a zone of safety and going into a pathway open to traffic, an obligation is placed upon every pedestrian to observe traffic conditions and to avoid placing himself in a position of peril where the operator of a motor vehicle may be unable to avoid injuring him. See Kelley v. Reece, Ky., 273 S.W.2d 369, and Monroe v. Townsend, 308 Ky. 123, 213 S.W.2d 803.
In the instant case, the evidence shows beyond any doubt that appellee walked blindly out into the street and stepped into a line of traffic on a much-traveled thoroughfare at a point between intersections. The testimony positively establishes that he looked neither to the right nor to the left as he proceeded forward. Had he even glanced in the direction from which appellant's car was approaching, he certainly could not have missed seeing it, as all his own witnesses, as well as all the others who testified in this case, stated both headlights on the on-coming Clark car were turned on and the car itself was in plain view.
KRS 189.570(4) (a) reads: "Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway." This statutory provision is very specific with regard to the duty of a pedestrian to surrender the right of way to a motor vehicle, the pedestrian's rights being paramount in crossing a roadway only when he is in a marked crosswalk or when he is traveling "within an unmarked crosswalk at an intersection." There is no dispute in this case but that there was no crosswalk painted *783 across the street at the point where the mishap occurred which produced appellee's injury, nor was the site of the accident at an intersection.
The lower court allowed testimony to be introduced to establish that the portion of the street where the accident took place was in fact an unmarked crosswalk, although such a location was at a place other than at a street intersection. This evidence consisted of proof that persons continually crossed and recrossed at all hours the segment of the street in question, with the result that an unmarked crosswalk could be said to have been constituted there by custom or usage. The case of Myers & Clark Co. v. Layne, Ky., 312 S.W.2d 463, is relied upon to support the ruling of the trial judge on this point.
In our opinion the Myers & Clark Company case did not go so far as to hold that a portion of a street, such as that in controversy in this case, could become a designated crosswalk by the practice or method sought to be invoked by appellee. How could a motorist ever know that an unmarked crosswalk had been created on any street at a particular place between intersections, just because people, unknown to him, customarily traveled over such a section of the street? Just how wide could it be said such a crosswalk would be? Or would it shift from place to place according to pedestrian street use? The above-quoted provision of law, which is so clear in its import, would be destroyed as a guide to vehicular travel on streets if we should allow its meaning to be enlarged in the manner contended for by appellee.
Furthermore, there is a sound reason for prescribing the rights and duties of motorists and pedestrians at or near intersections and for pointing out that those same rights and duties do not apply at other portions of the street. This is illustrated by the matter under discussion. The fact that there may be an unmarked crosswalk at an intersection is perfectly feasible because it is anticipated that people will cross streets at intersections. On the other hand, to say that a motor vehicle operator is presumed to know that some portion of a particular street between intersections has assumed the status of an unmarked crosswalk, for the reason that pedestrians for some time have crossed there each day, would amount to setting a trap for all motorists who travel on that street.
Another contention is that this case should have gone to the jury under a last clear chance instruction. From the evidence heretofore recited we believe it was amply established that the perilous position of appellee in the street was not apparent to appellant until the latter's car struck him, so that there was no opportunity to avoid the disaster. The last clear chance rule has no application, because appellant had no last chance to avoid the accident. See Swift & Co. v. Thompson's Adm'r, 308 Ky. 529, 214 S.W.2d 758.
We conclude appellee was contributorily negligent as a matter of law as to the accident, and it follows appellant's motion for a direct verdict should have been sustained.
Wherefore, the judgment is reversed with directions that it be set aside and that a new one be entered dismissing the complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576559/ | 612 F. Supp. 4 (1984)
DAVIDOFF EXTENSION S.A., a Swiss corporation, Plaintiff,
v.
DAVIDOFF INTERNATIONAL, INC., a Florida corporation, and Stewart S. Hoffman, Defendants.
Civ. A. No. 83-1435-CIV-KING.
United States District Court, S.D. Florida, Miami Division.
November 30, 1984.
*5 Jack E. Dominik, Jack E. Dominik, P.A., Miami, Fla., for plaintiff.
Stewart S. Hoffman, Davidoff Intern. Inc., U.S.A., Tamarac, Fla., for defendants.
ORDER AND FINDINGS OF FACT AND CONCLUSIONS OF LAW
JAMES LAWRENCE KING, Chief Judge.
This matter came on before the Court initially on August 17, 1983 on the plaintiff's order to show cause for preliminary injunction. At that hearing both defendants were represented by counsel, and plaintiff offered the testimony of Georges Schelker its sales manager and proffered its Exhibits. The matter was continued to take the testimony by way of deposition of defendant Stewart S. Hoffman on August 23, 1983. Thereafter the parties by counsel and by all the evidence adduced in the case thus far were heard in open court on August 31, 1983. The Court having heard the testimony of plaintiff's witness, seen its Exhibits, and having reviewed the pleadings and evidence submitted by the defendants, the defendants having not offered the testimony of Stewart S. Hoffman taken August 23, 1983 but the plaintiff having made it a matter of record, and this Court having been otherwise advised fully on the applicable law and a previous case in this Court captioned Davidoff Extension S.A. v. Davidoff Comercio Industria Ltda., et al (83-0649-Civ-JLK), where this Court entered an injunction and judgment by default against the defendant therein and in favor of Davidoff Extension, S.A., temporarily enjoined the defendants in this case from using the name Davidoff in connection with the sale of any tobacco related products. On October 3, 1984 trial was held. Plaintiffs presented Mr. Thomas Bensen, their exclusive United States distributor who testified as to the ongoing and escalating sales of Davidoff products in the United States. He was examined as an adverse witness by defendants primarily as to the Davidoff "Cuban connection."
Based upon the entire record in these proceedings and pursuant to Rules 52(a) and 65 FRCP the findings of fact and conclusions of law of this Court are:
Findings of Fact
1. Plaintiff, Davidoff Extension, S.A., a Swiss corporation, and its related companies including Oettinger Imex AG, is a well-known international marketer of tobacco products and has registered its trademark "Davidoff" with the United States *6 Patent and Trademark Office, Reg. Nos. 1,052,564 (PX A) and 1,058,684 (PX B). The trademark is used only on more expensive tobacco products, and plaintiff anticipated sales of trademarked tobacco products in the United States this year of approximately $800,000 (Aug. 17 Tr. 20). This estimate was confirmed as met by Mr. Bensen during his testimony on October 3, 1984 (Oct. 3, Tr. 17). Plaintiff's sales internationally of Davidoff tobacco products exceed one-hundred million dollars per year (PX C and D). The first sale (PX L) to plaintiff's distributor, Bensen International, to fill the pipeline in anticipation of a nine city promotion by Zino Davidoff and the Baroness Rothschild (PX M, Aug. 17 Tr. 12-13) was admitted by defendant Hoffman to amount to approximately $500,000 (Hoffman dep. pp. 83-85).
2. Plaintiff, through its exclusive importer, George Bensen & Son, Incorporated, enjoyed gross sales of Davidoff products in the United States in 1983 of between $300,000 to $400,000 (Oct. 3, Tr.17). Further, an approximation at gross sales for the year of 1984 will show a steady increase up to $500,000 (Oct. 3, Tr.17). Tom Bensen, president of George Bensen & Son, Incorporated, testified that the prestige of handling the Davidoff line has been very important to his company (Oct. 3, Tr. 24-25). He also testified as to inventory shortages of Davidoff cigars following many of the promotions in the United States (Oct. 3, Tr. 20).
3. Zino Davidoff, son of the founder of the original Davidoff store in 1907 and in joint promotion with the Baroness Rothschild of Davidoff cigars and Rothschild wines, has had interviews, television talk shows, and other publicity releases in nine major United States cities during the month of October 1983 (Oct. 3, Tr. 18-19). The dates and scheduling was offered in evidence by plaintiff through Georges Schelker (PX M, Aug. 17 Tr. 12-13), on the letterhead of John R. Walsh Associates of New York. This and a second tour in 1984 was confirmed by Mr. Bensen (Oct. 3, Tr. 20-21). Zino Davidoff is a worldwide known personality in the tobacco industry and has achieved extensive press media (EX R Oct. 3, Tr. 11) coverage and also published a book on cigars (PX E).
4. Individual defendant Stewart S. Hoffman was employed by Consolidated Cigar for approximately thirteen years; and then by Nicaraguan Cigar Company as national sales manager for a period of about three years. During the Nicaraguan revolution he returned to the United States to form Hoffman Cigar Company in about 1980 (Hoffman dep. pp. 7-8). Hoffman admitted knowing of the Davidoff cigars for many years (Hoffman deposition, p. 3). Hoffman went to visit plaintiff Davidoff's store in Toronto and spoke there with its manager, a Mr. Hines (Hoffman dep. p. 35). Although Stewart Hoffman had never been in Europe, he was well aware of the Davidoff brand name, knew of Zino Davidoff's book, and was of the opinion that the Davidoff cigars are the most expensive cigars in the world but not necessarily the best (Hoffman Dep. pp. 30, 41-42).
5. Only after visiting plaintiff's Davidoff store in Toronto did Stewart S. Hoffman form defendant Davidoff International, Inc. on December 2, 1982. He thereafter waited until January 3, 1983 to first contact "Davidoff International" in Europe. He used the letterhead of "Hoffman Tobacco Ltd." (PX H). Plaintiff Davidoff of Europe had no interest in doing business with Mr. Hoffman (PX H). Hoffman stated that his purpose for adopting the name was to protect it while doing business with the plaintiff (Hoffman deposition p. 34). Hoffman further stated that his name "Hoffman" was dead in the industry and could not support him (Hoffman pp. 110, 111).
6. Sometime in the Spring of 1983 Hoffman worked with Smoke Shop Magazine, and previously an advertising agency, to prepare a one page ad for "generic cigars" using the Davidoff name as well as Davidoff's distinctive stylized script form of the name on the advertising (PX G). Immediately upon learning of this advertising, plaintiff's Telex was sent to Mr. Hoffman *7 to cease and desist using the name "Davidoff" (PX H).
7. At all of the hearings and in all of the pleadings the defendants failed to present any proof as to why Stewart S. Hoffman or Davidoff International, Inc., his Florida corporation, had any rights in the name "Davidoff". Various defenses were offered indicating that there were two or three foreign contests over the right to the name Davidoff, but plaintiff offered Exhibit P setting forth its numerous registrations of the mark Davidoff including in its country of origin, Switzerland. Plaintiff further represents in Exhibit P that over seven hundred applications to register the related Davidoff marks have been filed throughout the world. One newspaper article offered by the defendant (DX, Aug. 31 Tr. 19-20), quoted the Cuban Government as claiming to have some right in the mark Davidoff, but even then it asserted that the Cuban Government was paying a royalty to the Davidoff people for using the mark. This fact was not denied at trial, and along with other exhibits, undermines the defenses to the effect that the mark Davidoff is controlled by the Cuban Government.
8. The testimony submitted of Dr. J. David Meisser (Meisser 87-89), the plaintiff's corporate trademark counsel, established the fact that Cubatabaco disclaims any proprietary rights in the trademark "Davidoff". This was documented and legalized and admitted in evidence with Dr. Meisser's deposition.
9. Defendant alleges that the Davidoff cigars coming into the United States contain Cuban tobacco, and that this importation is a violation of certain laws. Mr. Bensen, the plaintiff's exclusive United States distributor, said that this could not occur. He explained that the cigars coming into the United States are imported from Honduras, and a certificate of origin on a Form A is required. Because Honduras enjoys a "favored-nation" status, the cigars come in duty-free. All of the invoices are marked "These tobaccos contain no Cuban tobaccos of any origin" and this also appears on the boxes. Mr. Bensen was of the opinion that neither the manufacturers in Honduras or Davidoff Extension S.A. in Switzerland would jeopardize the relationship between themselves and the United States Customs Service by utilizing any amount of Cuban tobacco (Oct. 3, Tr. 23-24). On cross-examination Mr. Bensen also explained that if Davidoff Havana Cuban cigars are being sold in the United States they are being sold in direct violation of his agreement with the plaintiff (Oct. 3, Tr. 34). If any Davidoff Cuban tobacco cigars are coming into the United States, they may be coming in through the mails from individuals, but without any sponsorship of the plaintiff (Oct. 3, Tr. 35).
10. The most that defendants offered as to the establishment of their business were sales of approximately $1,000 per month (Hoffman p. 58) and that the advertising altogether represented an investment of $2,000 (Hoffman p. 58). The plaintiff's background advertising and volume as noted by all the Exhibits as well as the scheduled promotional tours vastly outweigh any investment defendants have in the name Davidoff.
11. Defendants' infringement was deliberate, willful, and fraudulent and in full knowledge of plaintiff's prior use and reputation. In addition to the utilization of the name "Davidoff" defendants have used the same stylization and script.
12. Where any finding of fact, in whole or in part, can be deemed a conclusion of law it shall. Where any conclusion of law, in whole or in part can be deemed a finding of fact, it shall.
Conclusions of Law
I. Plaintiff's trademark registrations 1,052,564 (PX A) and 1,058,684 (PX B) are valid.
II. It has been established that the burden of proof required to cancel a registered trademark based upon "unlawful use" is that of a clear and convincing nature. Satinine Societa in Nome Collettivo di S.A. e.m. Usellini v. P.A.B. Produits *8 et Appareils de Beaute, 209 U.S.P.Q. (BNA) 958 (TTAB 1981). No direct evidence was submitted by the defendants that plaintiff was shipping cigars containing Cuban tobacco into the United States. Mr. Bensen, plaintiff's exclusive distributor in the United States, further rebutted this inference in detail by explaining that the favored nation status of duty-free cigars would be lost if the Davidoff cigars were not pure Honduran cigars and submitted pursuant to the appropriate certification. In addition, he stated it would violate his exclusive agreement. He did concede, however, that others not under control of any of the parties here, could send individual boxes of Cuban cigars into the United States. Such activity, if it exists, does not affect the plaintiff in this action or the plaintiff's rights. Therefore, the defendants have not met this burden of clear and convincing proof.
III. The existence of a corporate charter with the name Davidoff is no defense since under Florida law as set forth in Shatterproof Glass Corp. v. Buckmaster, 256 So. 2d 531 (Fla. 2nd DCA 1972), it was held:
"... if the domestic corporation adopts and uses a name with a fraudulent purpose or with actual knowledge of the existence of the name being used by a foreign corporation, even though the foreign corporation is not qualified to do business in the state, an injunction will issue to restrain the domestic corporation from using the name."
Thus there can be no question under Shatterproof that a permanent injunction should issue since Stewart S. Hoffman admitted knowing of the Davidoff name prior to forming defendant Davidoff International, Inc., and indeed confessed it in the correspondence introduced in evidence in this case as Exhibit H.
IV. Defendants urge that plaintiff has not used its name or its products in the United States, and that the products cannot be purchased. This is inconsistent with the testimony of plaintiff's sales manager Georges S. Schelker and certainly rebutted by the $500,000 order from Bensen for the October 1983 promotion held in nine cities and outlined in plaintiff's Exhibit M. Further, plaintiff is a Swiss corporation. It has registered the Trademark Davidoff in Switzerland (PX P). The United States and Switzerland are both members of the International Convention for the Protection of Industrial Property (Paris Union); see, Callmann, The Law of Unfair Competition, Trademarks and Monopolies § 99.1(a) and App. XX (3d Ed.1982 Supp.) for a list of the member countries and the text of the treaty (Paris Convention) creating the Paris Union. The Paris Convention is self-executing and, by virtue of Article VI of the U.S. Constitution, a part of the law to be enforced by the courts; Vanity Fair Mills, Inc. v. T. Eaton Co. Ltd., 234 F.2d 633, 109 U.S.P.Q. (BNA) 438 (2d Cir.1956), cert. denied 352 U.S. 871, 77 S. Ct. 96, 1 L. Ed. 2d 76 (1956). Also, Lanham Act § 44 (15 U.S.C. § 1126) explicitly implements the Paris Convention together with other conventions or treaties relating to trademarks, trade names, or unfair competition; § 44(b) (15 U.S.C. § 1126(b)); SCM Corp. v. Langis Foods Ltd., 539 F.2d 196, 190 U.S.P.Q. (BNA) 288 (D.C.Cir. 1976); L'Aiglon Apparel, Inc. v. Lana Lobell, Inc., 214 F.2d 649, 102 U.S.P.Q. (BNA) 94 (3d Cir.1954). The provisions of the Paris Convention and Lanham Act § 44 most pertinent to the present case appear to be the following three benefits conferred on plaintiff:
(1) Plaintiff may obtain a U.S. Trademark Registration of its trademark "Davidoff" for tobacco products, smokers' articles, etc. without alleging use of its trademark in the United States because plaintiff has a Swiss Trademark Registration for its trademark: Lanham Act § 44(c), (e) (15 U.S.C. § 1126(c), (e)); Paris Convention Article 6 quinquies; Callmann § 99.2(e)(1);
(2) Plaintiff's trade name is to be protected without the obligation of any filing or registration: Lanham Act § 44(g) (15 U.S.C. § 1126(g)); Paris Convention Article 8; Callman § 99.2(e)(7); and
*9 (3) Plaintiff is to be protected from unfair competition: Lanham Act § 44(h) (15 U.S.C. § 1126(h)); Paris Convention Article 10bis; Callman § 99.2(b).
In particular, Article 10 bis of the Paris Convention provides:
"(1) The countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition.
(2) Any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.
(3) The following in particular shall be prohibited:
1. all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor;
2. false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor;
3. indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods."
As consequence, defendants' argument that plaintiff is not using its trademark in the United States and that its U.S. Registrations of the trademark were fraudulent appears inconsequential.
V. That defendants, in addition to infringing plaintiff's trademark pursuant to 15 U.S.C. § 1117, have also violated 15 U.S.C. § 1125(a) in that using the name "Davidoff" on generic cigars by defendants implies that the cigars were supplied by the plaintiff, when they were not. This thus imputes a false designation of origin of the cigars.
VI. That defendants actions of deliberate, intentional, willful, and fraudulent infringement entitled plaintiff to award of reasonable attorney's fees pursuant to 15 U.S.C. § 1117. Defendant Hoffman had actual knowledge of the Davidoff cigar name and reputation and had actually visited a Davidoff store in Toronto, Canada prior to appropriating the name for incorporation in the State of Florida, and utilizing the stylized script to advertise and sell cigars. The Lanham Act 15 U.S.C. § 1117 as amended sets forth the monetary remedies available to a successful plaintiff: "The Court in exceptional cases may award reasonable attorney's fees to a prevailing party." This provision was amended in 1975 to close a gap in protection afforded to the trademark owner.
"In suits brought primarily to obtain an injunction, attorneys' fees may be more important than treble damages. Frequently, in a flagrant infringement where the infringement action is brought promptly, the measurable damages are nominal. Section 35, as proposed to be amended, makes clear that a court has discretion as to whether award trebled damages, attorneys' fees, or both, or neither."
H.R.Rep. No. 93-524, 93rd Cong., First Sess., 5-6 (1972). The term "exceptional" was defined as "cases where the acts of infringement can be characterized as `malicious', `fraudulent', `deliberate' or `willful'." Id. It has been consistently held, both in the courts of this circuit and elsewhere, that cases of trademark counterfeiting fall within the "exceptional" category, thus subjecting the defendants to an award of attorneys' fees. Playboy Enterprises, Inc. v. P.K. Sorren Export Co. of Florida, 546 F. Supp. 987 (S.D.Fla.1982); Playboy Enterprises, Inc. v. Baccarat Clothing Co., 692 F.2d 1272 (9th Cir.1982). In the present case, it is submitted that the evidence is sufficient to find defendants herein liable for such attorneys' fees.
THEREFORE, IT IS HEREBY ordered and adjudged, based upon the above findings of fact and applicable law pursuant to Rule 52(a) FRCP that, pursuant to Rule 58(2) FRCP and Rule 65 FRCP the preliminary injunction in favor of the plaintiff issued against both defendants Davidoff International, Inc., a Florida corporation *10 and an individual defendant Stewart S. Hoffman be made permanent as follows:
A. that defendants Davidoff International, Inc. and Stewart S. Hoffman, jointly and severally, and all their successors, assigns, affiliates, agents, servants, employees, and representatives, and all persons, firms, and corporations in active concert with these defendants, or either of them, who receive notice hereof, be and hereby are enjoined and restrained:
(a) from directly or indirectly using the name "Davidoff" or any similar name in connection with any commerce in the United States including, but not limited to, tobacco or smokers' products, whether by use as a business name, trademark, service mark, or any other designation;
(b) from engaging in any other conduct that tends to falsely represent that, or is likely to confuse, mislead and deceive purchasers, defendants' customers or members of the public into believing that, tobacco products of defendant originate from plaintiff or that defendants or defendants' products have been sponsored, approved or licensed by plaintiff or are in some way affiliated or connected with plaintiff or plaintiff's products in any way whatsoever.
B. That plaintiff be repaid its Bond with the Clerk of this Court in the amount of $1,000.
C. Defendants Davidoff International, Inc. and Stewart S. Hoffman are directed to change the corporate name of defendant Davidoff International, Inc. to a name not confusingly similar to Davidoff within thirty (30) days.
D. Plaintiffs shall submit an affidavit of actual attorney's fees and expenses for this Court's review awarding reasonable attorney's fees, costs, and expenses pursuant to 15 U.S.C. § 1117.
E. This Court shall retain continuing jurisdiction over the parties and subject matter for further implementation of this order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576580/ | 346 S.W.2d 645 (1961)
Otto J. WAGNER et ux., Appellants,
v.
LONE STAR GAS COMPANY, Appellee.
No. 7324.
Court of Civil Appeals of Texas, Texarkana.
May 2, 1961.
Rehearing Denied May 30, 1961.
*646 C. A. Mattay, Albert B. Morris, Dallas, for appellants.
David M. Kendall, Jr., Thompson, Knight, Wright & Simmons, Dallas, for appellee.
CHADICK, Chief Justice.
This is a tort action in which an invitee was injured on premises controlled by a gas company. The judgment is affirmed.
Mrs. Irene Wagner, wife of Otto J. Wagner, was Program Chairman for the Ladies Auxiliary of the United Spanish War Veterans, and at about ten o'clock in the morning of March 24, 1958, arranged with the Lone Star Gas Company's representative for her organization to have a luncheon meeting that day in the company's auditorium.
Mrs. Wagner had a degree of familiarity with the premises resulting from visits to the auditorium several times a year over a period of six or seven years preceding the date of the luncheon. These visits had acquainted her with the general condition of the auditorium's floor, according to her testimony, and she had noticed that it was highly polished, but not unusually slick. From about 10:00 A.M. in the morning of the meeting she remained in the auditorium, the kitchen, and other adjacent facilities, decorating tables and making preliminary arrangements for food service and entertainment of the organization's guests, until she was injured at about 1:30 P.M.
Upon entering the auditorium she went to the piano, located in a corner to her left near the stage from her point of entrance, in a place where there was very little traffic, and placed atop the piano some material to be used in the entertainment of guests. She testified that at no time had she noticed anything unusual about the floor, she saw no foreign substance on the floor, and that it looked no different to her in the vicinity of the piano than it did elsewhere, or had on the several other occasions she was present in the auditorium. After the luncheon was completed she went to the piano and picked up the material she had *647 placed there, turned and took two steps, slipped and fell.
With reference to her movements just prior to her fall and knowledge of the floor condition, Mrs. Wagner's counsel propounded the following questions, and she answered as indicated:
"Q. I am talking about now how you started out to walk? Did you start out in a hurry? A. Oh, well
"Q. Or how? A. No, I just took two steps, just normal steps, just like, very cautiously and normal.
"Q. Just normal speed? A. That is right.
"Q. Now state whether or not as you fell on this floor, you felt with your foot its condition with reference to whether or not it was especially slick? A. Yes, it was slick.
* * * * * *
"Q. Now can you compare this portion of the floor where you slipped with any other slick surface you have ever stood or walked on and tell us how it compared? A. Well, it was just as slick as if I was walking on ice.
"Q. I beg your pardon? A. Just as slick as ice.
* * * * * *
"Q. Now, did that spot look especially dangerous or slick? A. No, it looked like any other spot; it did not look dangerous.
"Q. Now, during all of the time you have been going up there, Mrs. Wagner, prior to the fall, did you notice the floor being excessively slick?
A. No. (Then the witness continued as next set out.)
* * * * * *
"A. It was a highly glossed floor, and a beautiful floor, and I knew it was highly polished and all, and going up there many times, I was very careful the way I walked. I didn't think there was any danger of slipping, or anything like that, if I was careful; it didn't look like it would be slick for me to fall, I was always careful."
Otto J. Wagner and wife sued the Lone Star Gas Company for damages resulting from the injuries Mrs. Wagner received when she slipped and fell. Only the pleadings of the parties that joined issue and were supported by proof will be mentioned. As primary negligence the plaintiffs plead the auditorium floor was excessively slick as the result of the use of an improper solvent in cleaning the floor when it was rewaxed twenty-four days before the date of injury. The gas company plead[1] that it was guilty of no act or omission which proximately caused the injury received by Mrs. Wagner. This case must be considered from the standpoint of the duty of the owner of the premises to the invitee.
The question this record presents is whether or not, giving consideration to all of the evidence adduced at the trial, the use of an improper substance in cleaning the auditorium floor, thereby causing it to be excessively slick, would constitute a breach of the duty the gas company as landlord owed Mrs. Wagner, an invitee, in its auditorium. The question must be determined from the evidence, and as the trial judge directed a verdict for the gas company, the evidence must be considered *648 in the aspect most favorable to Mrs. Wagner's case.
The gas company's duty[2] to Mrs. Wagner was to exercise ordinary care to have and keep the auditorium floor in a reasonably safe condition, and to warn Mrs. Wagner of any danger, known or imputable to it that might arise from the use she might rightfully make of it while an invitee in the auditorium unless Mrs. Wagner knew, or knowledge is imputable to her, of the particular condition and she appreciated or should have appreciated its danger.
For the purpose of this case it may be said that Lone Star's liability is dependent upon actual or imputed knowledge that the condition of the auditorium floor was dangerous, and the absence of actual or imputed knowledge of such condition by Mrs. Wagner, though the obligation of each party to know and appreciate the danger is not always the same. As an example, the owner is required to make a reasonable inspection but no such duty burdens the invitee. See case cited in Footnote 2.
To make a submissible case, the burden was on Mrs. Wagner to tender evidence raising an issue that the gas company had knowledge, actual or imputed, of the existence of the excessively slick floor, appreciated its danger, and failed to warn her of such condition, and as an invitee she did not have knowledge, actual or imputed, of the floor's condition, and that she did not, and under the circumstances should not have, appreciated its danger.
On the phase of the issue concerned with the gas company's conduct the evidence raises a fact issue of negligence, perhaps establishes negligence as a matter of law, in the use of an improper cleaner causing excessive floor slickness, and that the danger created was known and appreciated, or should have been known and appreciated by it. Though such issues were raised or found, the gas company's liability is not established because consideration of the evidence on the second phase of the issue makes it appear as a matter of law that the condition of the floor was open and obvious, and Mrs. Wagner observed and knew its condition. Her observation of the floor during the time she spent in the auditorium gave her knowledge of its danger equal to any warning the company might have given. Her decision that she could walk on the floor by being careful imputed to her an appreciation of the danger involved, and shows she voluntarily encountered it. See Robert E. McKee General Contractor, Inc., v. Patterson, supra; Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374; Marshall v. San Jacinto Building, Inc., Tex.Civ.App., 67 S.W.2d 372, w/r; A. C. Burton Co., Inc., v. Stasny et al., Tex.Civ.App., 223 S.W.2d 310; and United Gas Corporation v. Crawford, 141 Tex. 332, 172 S.W.2d 297. It must be held that a submissible fact issue on the whole question of the gas company's negligence was not made by the evidence, nor was negligence proved as a matter of law.
After thorough consideration of all points of error they are overruled, and judgment of the trial court affirmed.
NOTES
[1] Voluntarily encountering the risk (volenti non fit injuria) was not plead as a defense to the allegation of primary negligence mentioned. Such defense was interposed to another allegation of negligence which is not discussed because the plaintiffs failed to produce evidence to support it. However, it has been authoritatively stated in Robert E. McKee General Contractor, Inc., v. Patterson, 153 Tex. 517, 271 S.W.2d 391, that in practice liability of a landowner for injuries suffered by an invitee as the result of open and obvious dangers on the land and the defense of voluntarily encountering a risk so completely overlap as to be almost indistinguishable.
[2] A more generalized statement in language capable of reflecting all of the light cast upon the duty and liability rule by the numerous authoritative cases does not appear to be necessary in reaching a decision on this appeal. For a general statement of the rule, and comparatively recent cases that have been influential in molding present concepts of a landowner's duty and liability for injuries incurred by invitees on his premises, see generally the title "Negligence" 2 Restatement of the Law of Torts, Sec. 342 and 343; 38 Amer.Juris. Sec. 97; 65 C.J.S. Negligence §§ 5, 208, 270; Sinclair Refining Company v. Winder, Tex.Civ. App., 340 S.W.2d 503 w/r; Robert E. McKee General Contractor, Inc., v. Patterson, 153 Tex. 517, 271 S.W.2d 391, and cases cited in headnotes 2, 4, and 5 therein, as published in the Southwestern Reporter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576547/ | 35 So. 3d 463 (2010)
Gracie SMITH, Individually, and on Behalf of the Estate of Brian E. Smith, Plaintiff-Appellee
v.
LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, et al., Defendants-Appellees
Gracie Smith, Individually, and on Behalf of the Estate of Brian E. Smith, Plaintiff-Appellee
v.
Progressive Security Insurance Company and Broubar, Inc., Defendant-Appellant and Defendant-Appellee.
Nos. 45,013-CA, 45,014-CA.
Court of Appeal of Louisiana, Second Circuit.
April 23, 2010.
*465 Nelson, Zentner, Sartor & Snellings, by Fred Williams Sartor, Jr., for Appellant Progressive Security Insurance Company.
Charles Dean Jones, Rosalind D. Jones, for Appellee Gracie Smith, Individually, and on Behalf of the Estate of Brian E. Smith.
Cotton, Bolton, Hoychick & Doughty, L.L.C., by John Hoychick, Jr., for Appellees Louisiana Farm Bureau Casualty Insurance Co., Acadia Crawfish, Inc., Scott Broussard, and Joshua Pruett.
Wiener, Weiss & Madison, by Franklin H. Spruiell, Jr., Edwards, Stefanski & Zaunbrecher, by Scott A. Stefanski, for Appellee Broubar, Inc.
Before STEWART, DREW and LOLLEY, JJ.
DREW, J.
In this tragic auto accident case that resulted in a fatality, Progressive Security Insurance Company appeals a judgment finding that it provided primary insurance coverage to a temporary substitute vehicle and ordering it to pay damages.
We reduce the wrongful death award for loss of support from $160,000.00 to $122,000.00. In all other respects, the judgment is affirmed.
FACTS
On the morning of May 28, 2005, Brian Smith was driving a 2003 Nissan Altima on U.S. Highway 425 in Morehouse Parish. Smith was driving to Arkansas to deliver the car to his mother, Gracie Smith, as a surprise gift. At the same time, a 1998 Dodge Ram pickup truck ("1998 Dodge") being driven by Joshua Pruett was proceeding southbound in the opposite direction on the two-lane highway. Pruett, who had left Crowley, Louisiana, nearly six hours earlier to deliver crawfish to businesses in North Louisiana on behalf of his employer, Broubar, Inc., was heading to his last stop.
The 1998 Dodge was pulling a 1994 Wolverine utility trailer. Unfortunately, the ball on the truck was too small for the trailer hitch and there were no safety chains being used to ensure that the trailer and truck remained attached. Pruett estimated the trailer carried 5,000 pounds of crawfish and ice when he left Crowley, so that weight was probably what kept the trailer attached to the truck, but when the *466 load became lighter as Pruett made his deliveries, the risk of a terrible accident increased. At approximately 8:01 a.m., the trailer disconnected, crossed the centerline, and collided with the driver's side of Brian's vehicle. Brian died from the injuries he sustained in the accident. Pruett was cited for failing to use safety chains to attach the trailer to the truck.
Broubar, Inc., d/b/a Acadia Crawfish, was a crawfish wholesaler owned and operated by Scott Broussard. Pruett was employed by Broubar. Ordinarily, a 2005 Dodge Ram 3500 Quad Cab pickup truck ("2005 Dodge") with a cooler attached to its bed would have made the trip to North Louisiana. However, the 2005 Dodge, which was insured by Progressive, was in the shop for repairs, so Broussard substituted the 1998 Dodge, which was insured by Farm Bureau. Unlike the 2005 Dodge, the 1998 Dodge could not hold a cooler for the crawfish in its bed. Therefore, the trailer was used to hold a cooler.
On June 10, 2005, Gracie Smith, individually and on behalf of her son, filed suit against Acadia Crawfish, Pruett, and Farm Bureau as liability insurer and as Brian Smith's UM insurer. The petition was amended to add Scott Broussard as a defendant.
On November 3, 2005, Gracie Smith, individually and on behalf of her son's estate, filed a separate lawsuit against Progressive Security Insurance Company and Broubar, Inc. The two lawsuits were later consolidated.
Mrs. Smith settled her claims against Farm Bureau to the policy limits of $100,000.00 under the liability coverage and $10,000.00 under the UM coverage. Farm Bureau filed a cross claim and third party demand against Progressive, seeking indemnification for the $110,000.00 that it paid to Mrs. Smith.
The parties stipulated to liability and proceeded to trial. The trial court concluded that the 1998 Dodge and the trailer constituted a temporary substitute vehicle operating as a single unit, and Progressive was bound to provide primary insurance coverage.
The court found that Brian Smith briefly survived the accident, and awarded $250,000.00 in damages on the survival claim. On the wrongful death claim, the court awarded damages of $450,000.00 in compensatory damages, $160,000.00 for loss of support, $5,000.00 for loss of services, and $7,368.30 for funeral expenses. The court ruled in favor of Farm Bureau on its subrogation claim of $110.000.00. Progressive has appealed.
DISCUSSIONINSURANCE COVERAGE
Broubar, Inc., d/b/a Acadia Crawfish, was the named insured on a Commercial Auto Policy issued by Progressive. Joshua Pruett was named as a rated driver on the policy, along with the other drivers who delivered crawfish for Broubar. The relevant policy term began on April 1, 2005. The premium was $26,681.00. The vehicles scheduled on the policy were a 1993 International Refrigerator Truck and two 2005 Dodge Ram 3500 Quad Cab pickup trucks ("2005 Dodges").
The 2005 Dodges were used to deliver crawfish. Broussard purchased these trucks in his name because that was the only way he could get 0% financing on the purchase. The 2005 Dodges remained titled and registered in Broussard's name. However, he considered the 2005 Dodges as owned by Broubar because they were purchased for Broubar's purposes and Broubar paid the notes and insurance on them.
Scott Broussard had an auto liability insurance policy with Farm Bureau with a *467 policy period from April 9, 2005, to April 9, 2006. Although the policy was issued to Broussard personally, it covered vehicles used at Scott Broussard Farm and the premiums were paid from the farm account. The policy premium was $11,663.46. Among the eight vehicles listed on the policy schedule was the 1998 Dodge, which was titled and registered in Broubar's name after it was acquired in January of 2003. A customer had owed money to Broubar, so the truck was taken for partial payment of the debt.
Broussard thought of the 1998 Dodge as owned by him because he used it at his farm. The 1998 Dodge was originally used to deliver crawfish for Broubar, and it had a cooler in its bed. After June of 2003, it was no longer used to deliver crawfish and Broussard's son took it with him to college in Texas until December of 2004.
Broussard explained that for tax reasons, he had not changed the titles on the 1998 and 2005 Dodges to accurately reflect their ownership; also, he considered it a hassle to make the changes.
In 2003, Farm Bureau dropped coverage of the trucks that delivered for Broubar. When Broubar applied for insurance with Progressive in April of 2003, the 1998 Dodge, a horse trailer, and a Chevrolet vehicle were included in the original quote. Broussard subsequently asked that these vehicles be deleted from the quote, so that the Progressive policy initially listed a 1993 International truck and two Ford 2001 pickup trucks on its auto coverage schedule.
Broussard related that the original quote from Progressive included the 1998 Dodge because he wanted a quote including every vehicle that had been listed on the Farm Bureau policy. He eventually had the vehicles used at the farm removed from the quote, so that only the vehicles used by Broubar were scheduled vehicles on the Progressive policy.
Temporary Substitute Vehicle
The coverage of temporary substitute vehicles is now governed by La. R.S. 22:1296, which was renumbered from La. R.S. 22:681 in 2008. At the time of the accident, La. R.S. 22:681 provided:
Every approved insurance company, reciprocal or exchange, writing automobile liability, physical damage, or collision insurance, shall extend to temporary substitute motor vehicles as defined in the applicable insurance policy and rental private passenger automobiles any and all such insurance coverage in effect in the original policy or policies. Where an insured has coverage on multiple vehicles, at least one of which has comprehensive and collision insurance coverage, that comprehensive and collision substitute coverage shall apply to the temporary substitute motor vehicle or rental motor vehicle. Such insurance shall be primary. However, if other automobile insurance coverage is purchased by the insured for the temporary substitute or rental motor vehicle, that coverage shall become primary. The coverage purchased by the insured shall not be considered a collateral source.
Prior to rendering its ruling, the trial court submitted 15 questions to the parties for consideration. The trial court later provided "answers" to these questions that in effect supplemented its written reasons for judgment. Among the court's answers was that the definition of "temporary substitute vehicle" required in a policy by La. R.S. 22:681 needed to be sufficient to make clear the meaning of "temporary substitute vehicle" in such a way that explanation, interpretation, or clarification was not needed. The trial court concluded that the necessary definition was not found in the Progressive policy.
*468 Although "temporary substitute vehicle" was not given its own line item in the general definitions section of its policy, Progressive contends its policy complies with La. R.S. 22:681 in the manner in which it defines "temporary substitute vehicle." Progressive cites the following provisions in its policy:
9. "Your insured auto" or "insured auto" means:
. . .
c. Any non-owned auto while you or an employee of yours is temporarily driving it as a substitute for any other auto described in this definition because of its withdrawal from normal use for a period of not greater than 30 days without notification to us due to breakdown, repair, servicing, loss or destruction. Coverage for PART IIIDAMAGE TO YOUR AUTO does not apply to these temporary substitute autos.
. . .
11. "Non-owned auto" means any auto which is:
a. not owned by or registered to you, your nonresident spouse or a resident of the household in which you reside; [or]
b. not hired, owned by or borrowed from your employees or members of their households[.]
Progressive contends that the 1998 Dodge was registered and titled in Broubar's name, making Broubar its owner. As such, the 1998 Dodge could not have been a "non-owned auto" as defined by the policy.
Progressive further argues that even if the 1998 Dodge was owned by Scott Broussard, it would still not be a "non-owned auto" under the policy because Broussard was an employee of Broubar. Broussard was the owner and operator of Broubar. However, he received a Form W-2 from Broubar in 2004, and wages paid by Broubar to Broussard were reported to the state for each quarter of 2005.
In support of its argument that its policy adequately defines a temporary substitute vehicle as a non-owned auto, Progressive cites State Farm Mut. Auto. Ins. Co. v. U.S. Agencies, L.L.C., XXXX-XXXX (La.App. 1st Cir.3/24/06), 934 So. 2d 745, writ denied, XXXX-XXXX (La.6/16/06), 929 So. 2d 1288, and Reynolds v. U.S. Agencies Cas. Ins. Co., 41,598 (La.App.2d Cir.11/1/06), 942 So. 2d 694. Both cases concerned whether an insurer could avoid the requirements of La. R.S. 22:681 by not defining "temporary substitute vehicle" in its policy.
In State Farm, supra, the insurers disputed how their policies should be ranked. Drivers insured by U.S. Agencies caused auto accidents while driving vehicles borrowed from State Farm insureds. State Farm argued that U.S. Agencies provided primary coverage pursuant to La. R.S. 22:681. U.S. Agencies responded that because it chose not to define "temporary substitute vehicle" in its policies, the statute was not applicable, and the borrowed autos were to be treated under its policies as "non-owned autos," making its coverage excess. The U.S. Agencies policies had defined the term "temporary substitute vehicle" until the definition was removed in 2002. U.S. Agencies believed this action exempted it from the provisions of the statute. The First Circuit disagreed, holding that the statute was mandatory, and that an insurer could not opt out of the statute by not defining "temporary substitute vehicles" in its policy. Finally, the court concluded that U.S. Agencies had complied with the statute by subsuming the definition of "temporary substitute vehicles" within its definition of "non-owned auto," and this coverage was primary.
*469 In Reynolds, supra, this court was faced with the same issue. The tortfeasor, whose truck was insured by U.S. Agencies and unsafe to drive, borrowed a truck that was owned by his grandmother and insured by Allstate. U.S. Agencies again contended that the statute was not applicable because "temporary substitute vehicle" was not defined in its policy, and that its policy provided only excess coverage for "non-owned" vehicles such as the grandmother's truck. This court followed the reasoning of the First Circuit in State Farm, supra, and concluded that U.S. Agencies was bound by the statute to provide primary coverage.
We agree with Farm Bureau's contention that the statement in State Farm, supra, that the definition of "temporary substitute vehicles" was subsumed within its definition of "non-owned auto," was dictum. The court had already noted that the definition of "temporary substitute vehicle" had been removed from the U.S. Agencies policies.
In regard to the interpretation of insurance policies, our supreme court stated in Valentine v. Bonneville Ins. Co., 96-1382, p. 3 (La.3/17/97), 691 So. 2d 665, 668:
An insurance policy is a contract between the parties and should be construed using general rules of interpretation of contracts set forth in the civil code. If the wording of the policy at issue is clear and expresses the intent of the parties, the agreement must be enforced as written. The parties' intent, as reflected by the words of the policy, determines the extent of coverage and such intent is to be determined in accordance with the general, ordinary, plain, and popular meaning of words used in the policy, unless the words have acquired a technical meaning. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve absurd conclusions. If ambiguity still remains after applying other general rules of construction, ambiguous provisions are to be construed against the insurer and in favor of the insured.
(Citations omitted.)
Progressive could have given a clear definition of what constitutes a "temporary substitute vehicle," but instead chose to bootstrap it to the definitions of "non-owned auto" and "insured auto" found in the General Definitions section of the policy.
Interestingly, the definition of "temporary substitute vehicle" that Progressive contends is found within the definitions of "non-owned auto" and "insured auto" is actually more limited than what is defined as an "insured" under the policy's UM-bodily injury provisions:
As used in this endorsement:
(1) "Insured" means:
(a) You or a relative.
(b) Any other person occupying an insured auto or a temporary substitute for an insured auto out of service due to breakdown, repair, servicing, loss, or destruction.
Broussard thought Broubar's use of the 1998 Dodge on the date of the accident was as a "temporary substitute vehicle," and as such it was covered under Progressive's policy. Marian Laughlin, a producer for the Landry-Harris Insurance Agency, testified that she informed Broussard that because Progressive was writing a Symbol 7 (scheduled auto) policy, all vehicles owned by Broubar had to be listed on the policy in order to be covered.
A "temporary" vehicle is one that is used for a limited time, as opposed to a *470 vehicle that is used permanently. Yagel v. Sanders, 36,101 (La.App.2d Cir.7/17/02), 823 So. 2d 448, writ denied, 2002-2211 (La.11/8/02), 828 So. 2d 1121. "Substitute" connotes the replacement of one thing for another. Id.
Broubar generally used the 2005 Dodge to deliver crawfish. It was out of service on May 28, 2005, because it was at the dealership for repairs. Broubar's manager received a call at 4:30 the day prior to the accident that the 2005 Dodge would not be ready to make deliveries. Broussard told the manager to haul the crawfish in a trailer attached to the 1998 Dodge. The 2005 Dodge resumed hauling crawfish after it was repaired. When the 1998 Dodge was used in place of the 2005 Dodge, it served as a "temporary substitute vehicle" as those words are commonly used and understood, and it was extended any and all such insurance coverage in effect in the Progressive policy.
The trial court considered the 1998 Dodge and the trailer to be a single unit. Progressive contends that the trial court erred in ruling that the policy provided coverage for the trailer. Progressive states the trailer was not connected to an "insured auto." Progressive also directs the court to a provision in its policy which stated:
Coverage under this PART I and our duty to defend does not apply to:
. . . . .
22. Bodily injury or property damage if your insured auto or a non-owned auto is attached to a trailer with load capacity in excess of two thousand (2,000) pounds if it is not listed in the Declarations and it:
a. is owned by you or your employee[.]
The trailer was acquired in April of 2001 by Broubar, in whose name it remained registered. It was not listed on any insurance policy. The trailer also had a label stating its weight capacity was 12,000 pounds. Nevertheless, the trial court correctly treated the 1998 Dodge and the trailer as a single unit.
The 2005 Dodge had a cooler that fit in its bed. This cooler could not fit in the bed of the 1998 Dodge. Therefore, in order for the 1998 Dodge to function as a temporary substitute vehicle for the 2005 Dodge, it needed to pull a trailer that could hold a cooler to keep the crawfish refrigerated. Compare Yagel v. Sanders, supra, where a pickup truck was being used in the same capacity as a trailer which was out of service. Moreover, the trailer did not lose its insured status when it accidentally became disconnected from the towing vehicle while in tow. See Gardner v. Allstate Ins. Co., 575 So. 2d 883 (La.App. 2d Cir.1991), writ denied, 578 So. 2d 139 (La.1991).
Accordingly, we find no error in the trial court's conclusion that the 1998 Dodge truck and the trailer together constituted a temporary substitute vehicle operating as a single unit, and that Progressive was bound to provide primary coverage for damages caused by its insured while operating this temporary substitute vehicle.
Progressive as Primary Insurer
Progressive contends in the alternative that the trial court erred in ruling that its coverage was primary to Farm Bureau's coverage. Progressive likens Broubar and Broussard's other business entities to a single business enterprise, making Scott Broussard the insured as contemplated by La. R.S. 22:681, such that Farm Bureau's insurance becomes primary to Progressive's.
In determining whether a corporation is an "alter ego" or part of a "single business entity," the court must look at the *471 substance of the corporation rather than the form. Town of Haynesville, Inc. v. Entergy Corp., 42,019 (La.App.2d Cir.5/2/07), 956 So. 2d 192, writ denied, XXXX-XXXX (La.9/21/07), 964 So. 2d 334.
In Green v. Champion Ins. Co., 577 So. 2d 249 (La.App. 1st Cir.1991), writ denied, 580 So. 2d 668 (La.1991), the court supplied a non-exclusive list of factors to consider that are similar to those used to pierce a corporate veil. These factors are:
Corporations with identity or substantial identity of ownership, that is, ownership of sufficient stock to give actual working control.
Common directors or officers.
Unified administrative control of corporations whose business functions are similar or supplementary.
Directors and officers of one corporation acting independently in the interest of that corporation.
A corporation financing another corporation, and inadequate capitalization ("thin incorporation").
A corporation causing the incorporation of another affiliated corporation.
A corporation paying the salaries and other expenses or losses of another corporation.
A corporation receiving no business other than that given to it by its affiliated corporations.
A corporation using the property of another corporation as its own.
Noncompliance with corporate formalities.
Common employees; or services rendered by the employees of one corporation on behalf of another corporation.
Common offices and centralized accounting.
Undocumented transfers of funds between corporations, and unclear allocation of profits and losses between corporations.
Excessive fragmentation of a single enterprise into separate corporations.
Broubar, Inc., d/b/a Acadia Crawfish, was a wholesale business that purchased, sold, and delivered crawfish. It also did catering. Broubar was owned by Scott Broussard and his wife. Broubar had a full-time secretary at its office, and Broussard's wife, who was secretary-treasurer, supervised the secretary. Broubar had a phone number that was separate from Broussard's personal number. Broubar did not share a business address with Broussard Farm.
Scott Broussard Farm was a sole proprietorship owned by its namesake that farmed crawfish and sold them, mostly to Broubar. The farm also traded crawfish with other farms.
SKB Farms, LLC, also farmed crawfish and sold them. Scott Broussard and his brother, Kevin Broussard, were the only members of SKB in 2005. Scott Broussard made the decisions concerning SKB; Kevin kept the records. When SKB sold crawfish to a wholesaler, it sold them exclusively to Broubar. It traded crawfish with others. SKB had a telephone number that was separate from Broubar's number.
Broussard Farm contracted with SKB to provide "alien" labor. During the farming season, the alien labor would harvest the crawfish at Broussard Farm in the morning and then process the crawfish at Broubar in the afternoon. The entities also borrowed employees from one another if needed. Records were kept when an employee was borrowed. The borrowed labor was not always directly paid for, as sometimes the entities would just make a bookkeeping adjustment for cash flow purposes instead of making a payment.
*472 The entities also borrowed equipment and trucks. Records were kept when equipment was loaned. Nothing was charged if a truck was borrowed. During the crawfish off-season, the coolers were removed from the 2005 Dodges and the trucks were used to transport seasonings for Cajun Shaker, which was a part of Broubar. After Broussard sold part of Cajun Shaker, Broubar began billing Cajun Shaker if the trucks made special trips to deliver seasonings. Broussard or a manager was asked before equipment or a vehicle was borrowed from any entity.
A CPA did separate tax returns for all the entities. The CPA also did separate quarterly reviews and financial statements.
Broubar held informal shareholder meetings in which Broussard and his wife, and his children involved in the corporation, met to discuss Broubar. Minutes were not kept of these meetings.
The record does not support Progressive's theory that Broussard's businesses operated as a single business enterprise. The trial court correctly found that Progressive was the primary liability insurer for all damages sustained in the accident.
DISCUSSIONQUANTUM
The trier of fact has much discretion when assessing damages in cases of offenses, quasi offenses, and quasi contracts. La. C.C. art. 2324.1. Before an appellate court may disturb an award for general damages, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Youn v. Maritime Overseas Corp., 623 So. 2d 1257 (La.1993). The discretion afforded the trier of fact to assess special damages is narrower or more limited than the discretion to assess general damages. Eddy v. Litton, 586 So. 2d 670 (La.App. 2d Cir.1991), writ denied, 590 So. 2d 1203 (La. 1992).
It is only after an articulated analysis of the facts discloses an abuse of discretion that resort to prior awards in similar cases is proper. Dixon v. Tillman, 29,483 (La.App.2d Cir.5/7/97), 694 So. 2d 585, writ denied, 97-1430 (La.9/19/97), 701 So. 2d 174. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact. Manuel v. State Farm Mut. Auto. Co., 30,765 (La.App.2d Cir.8/19/98), 717 So. 2d 277.
Survival Damages
Progressive complains that there was no evidence that Smith survived the accident even for an instant, and thus the award of $250,000.00 in damages on the survival action was excessive and should be reduced.
A survival action, which compensates for the damages suffered by the victim from the time of injury to the moment of his death, differs from the wrongful death action, which compensates the beneficiaries for their own injuries which they suffer from the moment of the victim's death and thereafter. Warren v. Louisiana Medical Mut. Ins. Co., XXXX-XXXX (La.12/2/08), 21 So. 3d 186; Taylor v. Giddens, 618 So. 2d 834 (La.1993). Damages for a survival action may include the decedent's pre-impact fear. See Thomas v. State Farm Ins. Co., 499 So. 2d 562 (La.App. 2d Cir.1986), writs denied, 501 So. 2d 213, 215 (La.1987).
If there is even a scintilla of evidence showing any pain or suffering by a victim prior to his death, damages are warranted in a survival action. King v. *473 Brown Development, Inc., 43,827 (La. App.2d Cir.2/4/09), 4 So. 3d 231, writ denied, XXXX-XXXX (La.4/17/09), 6 So. 3d 796.
After Pruett saw the trailer collide with Brian's car, Pruett pulled his car to the side of the road and caught his breath for a moment. He turned his truck around and drove it a short distance to where Brian's car was located. Pruett exited his truck and ran down into a ditch to Brian's car. He estimated this took no more than three or four minutes. One of Brian's legs was cut off and he was not moving. The only sound he was making was the gurgling of blood, which sounded to Pruett like it was coming from Brian's mouth. Pruett never checked to see if Brian had a pulse because he thought Brian was already dead.
The Morehouse Parish Sheriff's Department responded to a 9-1-1 call that was received at 8:01 a.m. concerning the accident. An ambulance was called at 8:09 and it arrived at 8:16. State Police were notified at 8:12, and State Trooper Mark Dennis arrived at 8:29. Trooper Dennis stated that because of the prevalence of cell phones, the time an accident is called in to 9-1-1 is generally used as the time of the accident.
Trooper Dennis stated he could not determine the time of death. When Trooper Dennis was asked about the Deputy Coroner's determination that the time of death was 8:01, Dennis responded that the Deputy Coroner asked what time he was using for the reported crash, and then used that time for the time of death. Trooper Dennis thought the Deputy Coroner arrived at the scene after him.
Brian, who was 42, died in a horrific manner. The impact from the runaway trailer completely removed his door, the car's "B-pillar," and the left rear passenger door. The death certificate listed severe chest and abdominal trauma and head trauma as the causes of death. Brian was pronounced dead at the scene.
According to the autopsy report, Brian sustained multiple injuries predominantly involving the chest and abdomen. His injuries included partial amputation of the left lower leg, multiple bilateral rib fractures with lacerations of both lungs and the pericardial sac, extensive lacerations of his liver and spleen, and multifocal areas of subarachnoid hemorrhage involving the brain.
Brian was undoubtedly placed in great fear as he maneuvered his vehicle in an attempt to avoid the collision. The narrative from Trooper Dennis states that it appeared that Brian saw the trailer and attempted to move his car to the right shoulder. The Altima came to rest in grass approximately 30 feet from the point of impact.
Pruett heard gurgling sounds coming from Brian when he approached him several minutes after the accident. The record supports a finding that Brian did not die instantly, but briefly survived. Accordingly, the award of $250,000.00 in compensatory damages on the survival action was not an abuse of discretion.
Wrongful Death Damages
Progressive contends in the alternative that the award of wrongful death damages was excessive and should be reduced.
The elements of damages for a wrongful death action are loss of love and affection, loss of services, loss of support, medical expenses and funeral expenses. Clark v. G.B. Cooley Service, 35,675 (La. App.2d Cir.4/5/02), 813 So. 2d 1273.
Awards for lost future income, or support, are intrinsically insusceptible of calculation with mathematical certainty. Sledge v. Continental Cas. Co., 25,770 (La. App.2d Cir.6/24/94), 639 So. 2d 805. Speculation, *474 probabilities, and conjecture cannot form the basis of the loss, which must be shown with reasonable certainty. Id.
Brian was the 11th of 12 children, and the only child to finish a four-year college. He was considered the family's leader and was active in organizing family reunions. His younger brother Randy looked up to him as a father figure. He was a mentor to all the family members, and he encouraged them in their endeavors. His death was and remains devastating to his family. One niece would sometimes even go to his grave to talk to him.
Mrs. Smith was very close to Brian. Brian took her on vacation with him, and he went to church with her. She also went to his fraternity banquets with him.
Mrs. Smith lived in Joiner, Arkansas, which is in the northeastern part of the state. Brian lived in Monroe, Louisiana. Mrs. Smith estimated that Brian drove to Joiner from Monroe at least 10 times a year, and he always came home for Christmas, Easter, and Mother's Day.
Brian helped his mother with her garden each year by tilling the ground and planting and maintaining the garden. His brother Stanley did a lot of upkeep around the house on a regular basis, but Brian paid for the equipment that Stanley used. His sister Beverly also helped to cut the grass and to keep the house clean.
Randy Smith described his mother as being devastated and heartbroken after learning of Brian's death. Randy thought his mother had both good and bad days since Brian was killed.
Mrs. Smith has not sought counseling from a physician, but has sought comfort through prayer, and her faith has helped her persevere. Mrs. Smith looks at Brian's picture and talks to him every day. She did not learn until after he died how much he had helped others.
Randy related that he and his siblings were discussing getting together to buy a car for their mother because her car, a 1991 Ford Tempo, had stopped working, and she lacked the financial means to get a new car. Brian, knowing his siblings' financial conditions, took it upon himself to buy the car, a Nissan Altima, on his own. The cost of the Altima was $18,917.00. The purchase was financed for 60 months, so including the finance charge, the total cost was $22,416.00. There were to be 60 monthly payments of $373.60 each.
Mrs. Smith did not know Brian had purchased the Altima for her. In fact, Brian was driving to Joiner to surprise her with the car when the tragic accident occurred.
Mrs. Smith last saw Brian in person at her home on Mother's Day, 2005. He had worked in her garden all day, and when she came home from church, she saw a check and card he had placed on her ironing board. The last time she spoke with him was when he called her house to speak to his brother after returning to Monroe that night. She received a phone call at 10:30 on the morning of the accident telling her that Brian had been killed. She had to go to the emergency room that night to receive a sedative.
Randy related that his parents had lived in what was basically a shack. In 1998, they moved into a home that Brian had built for them. Brian paid the mortgage note and made sure the home was kept up. On June 5, 2003, a mortgage for $76,000.00 was taken on the house in Joiner. The note was for 30 years, with an interest rate of 6%. Not counting escrow, the monthly note was $455.66. At the time of Smith's death, the note was $555.01.
Mrs. Smith was born on April 18, 1930. Her husband died in 2001. Social Security was her only source of income. Brian was able to financially help his elderly mother *475 because he was unmarried, had no children, and had a good job with Entergy. In the few years before his death, his annual salary ranged from $84,462.00 to $94,401.00. Randy testified that he and a sister in Illinois also gave their mother money, but Brian was her primary support system. Although Mrs. Smith's other children helped her out after Brian died, their level of financial support does not approach what Brian provided to her.
Randy related that Brian would try to meet whatever financial needs his mother had. Brian would give her money for the light bill if she was unable to pay it, and he gave her money for gas, but not on a monthly basis. In terms of regular monthly support, Brian paid the mortgage note and had an automatic monthly withdrawal of $150.00 from his checking account to Mrs. Smith. The automatic withdrawals began in May of 2004. Brian also paid for her medications.
The record reflects that checks in the following amounts were written by Brian either to or on behalf of his mother: (i) $200.00 for gas on February 5, 2003; (ii) $500.00 for her birthday on April 18, 2003; (iii) $500.00 on April 25, 2003; (iv) $300.00 for an appraisal on May 12, 2003; (v) $110.00 to Bugmobile for a yearly inspection on June 30, 2003; (vi) $150.00 on September 22, 2003; (vii) $150.00 on December 1, 2003; (viii) $100.00 for Christmas on December 25, 2003; (ix) $400.00 on February 9, 2004; (x) $120.00 to Bugmobile for a yearly inspection on June 2, 2004; (xi) $20.00 to Bugmobile on June 25, 2004; (xii) $100.00 for a Christmas gift on January 7, 2005; and (xiii) $500.00 for Mother's Day, Birthday, and gravel on May 8, 2005.
Mrs. Smith explained that sometimes Brian gave her money because she needed it, and at other times he gave her money because he felt like doing it. She received money each month from Brian, but the amounts would vary. She recalled that he wrote her a check for $1,000.00 in 2000 just so she would have money.
Mrs. Smith disagreed that except for the automatic withdrawal, payments to her would usually be for a gift marking a special day. She stated that whenever Brian came home, he normally gave her cash, in amounts ranging from $100.00 to $300.00.
In the judgment of possession in Brian's succession, Mrs. Smith was placed in possession of all his property, including his home in Monroe, the Joiner home, and a 2004 Ford F150 truck. She also received a check from the bank for $4,629.74, which was what remained in his checking account. She paid the mortgage on the Monroe home for eight months and then sold it in January of 2006 for a profit of $1,400.00. The furniture was given to family members. She still lives in the Joiner home, which remains burdened by a mortgage. She paid off the balance owed on the 2004 Ford truck and gave it to one of her sons. Her surviving sons bought a car for her.
The trial court awarded $160,000.00 in damages for loss of support. At trial, the court heard testimony from expert economists Dr. W. Patton Culbertson, on behalf of Mrs. Smith, and Dr. Melvin Harju, on behalf of Progressive. Dr. Culbertson testified that he calculated the present, discounted value of the loss of support to Mrs. Smith to be $162,000.00, which is close to the amount awarded by the court.
Dr. Harju's original estimates for loss of support ranged from $91,463.00 to $81,703.00, depending on the discount rate that he used. When making his original calculations, Dr. Harju did not take into *476 account any allowance for a car, and he used a monthly stipend of $150.00.
In reaching his figure of $162,000.00, Dr. Culbertson took into account monthly cash support of $250.00 (which included the $150.00 automatic withdrawal), the mortgage payment, and the payment of the car note. Dr. Culbertson mistakenly believed that the monthly car note was for $680.00 and had a term of 36 months. When it was pointed out that the car payments were spread over 60 months and the monthly car note was $373.00, he recalculated the loss of support to be $122,000.00.
The trial court did not abuse its discretion in accepting Dr. Culbertson's methodology. However, the trial court abused its discretion in not taking into account the adjustment for the lower car note. Accordingly, the award of $160,000.00 for loss of support is excessive, and we reduce this award to $122,000.00. In all other respects, the damage awards for the wrongful death claim are affirmed.
DECREE
With the award for loss of support reduced to $122,000.00, the judgment is AFFIRMED at appellant's costs.
AMENDED, AND, AS AMENDED, AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576577/ | 346 S.W.2d 424 (1961)
Emil KNUTSON, Appellant,
v.
Sheldon RIPSON et al., Appellees.
No. 7040.
Court of Civil Appeals of Texas, Amarillo.
April 24, 1961.
Rehearing Denied May 22, 1961.
Allen & Allen, Perryton, for appellant.
Lemon & Close, Perryton, for appellees.
DENTON, Chief Justice.
This is a suit brought by appellant, Emil Knutson, against appellees, Sheldon Ripson, C. W. Norton and Don House, for the breach of a contract. On June 6, 1959, Knutson and appellees entered into a written contract in which Knutson agreed to sell and appellees agreed to purchase 500 *425 heifers and 700 steers at stipulated prices per pound. Under the terms of the contract the heifers and steers were to be delivered at the option of the purchasers between August 1, 1959 and November 15 of the same year. Upon the execution of the contract, Ripson and his partners deposited with Knutson the sum of $18,000 as "escrow" or "forfeit money" representing $15 per head to be purchased. At the time each group of cattle was delivered, the purchasers were credited with the sum of $15 per head actually delivered and accepted. Each shipment was paid for at the time of delivery at the contract price less the $15 per head credit. This amount was deducted from the $18,000 which was originally deposited with Knutson.
Pursuant to the contract, the 500 heifers were delivered in two groups: the first half were delivered between August 10 and August 15 and the second half were delivered September 2. On September 23, Knutson delivered 232 steers and on November 11 an additional 232 steers were delivered. It is admitted that the appellees refused to accept more than 232 steers on the November 11 delivery. Knutson timely filed this suit against appellees for their failure to accept the additional 201 steers called for in the contract. The latter number sued upon allows the appellees a "five per cent cut" from the total of 700 steers contracted for. There is no controversy relative to the number of heifers purchased and delivered.
Appellees pleaded accord and satisfaction as a defense. Based upon the jury's answers to the special issues, the trial court rendered judgment that appellant Knutson take nothing.
Appellant's first point of error deals with the failure of the trial court to enter a default judgment for appellant. This suit was instituted in the Hansford County District Court on December 17, 1959 in which recovery of $11,293.54 was prayed for. On January 27, 1960 appellant filed his first amended original petition reducing the amount prayed for to $9,950.30, and on January 29, 1960, appellees filed in the Federal District Court in Amarillo their petition for removal to that court. Although the record is not clear, we assume that appellees had not received a copy of the first amended original petition at the time their petition for removal was filed. On February 8 of that year appellees filed a general denial in the State Court, and on February 22 the Federal Court remanded the case to the District Court in Hansford County. It is appellant's contention that appellees' purported answer filed on February 8 was a nullity in that the State Court lost jurisdiction of the case pending action by the Federal Court on the petition for removal. Rule 237-a, Texas Rules of Civil Procedure, provides that:
"When any cause is removed to the Federal Court and is afterwards remanded to the State Court, the plaintiff (appellant) shall file a certified copy of the order of remand with the clerk of the state court and shall forthwith give written notice of such filing to the attorneys of record for all adverse parties. All such adverse parties shall have fifteen days from the receipt of such notice within which to file an answer." (Emphasis added.)
A careful search of the record reveals no such written notice was given to appellees' attorneys. Appellant failed to comply with the plain language of the rule quoted above, and therefore he is not in a position to complain of the failure of appellees to file their answer before the default judgment was requested. The record further shows the appellees filed an amended answer on April 22 which was prior to the trial of the case on its merits. These facts lead us to the conclusion that appellant's first point of error is without merit.
The trial court's charge to the jury contained two special issues. The first issue asked if appellant was ready, willing and able to deliver to appellees the 201 head of steers that remained to be delivered under the contract. The jury answered this issue *426 in the affirmative. Special Issue No. 2 read as follows:
"Do you find from a preponderance of the evidence that the liability, if any, of defendants under the contract in question was not settled and discharged by Emil Knutson by his acceptance of checks delivered to him by defendants on November 11, 1959?"
"Answer: It was not settled and discharged" or "It was settled and discharged."
The jury answered "It was settled and discharged."
By various points of error appellant contends there was no evidence to support the submission of Special Issue No. 2 to the jury; that Issue No. 2 did not properly submit the necessary elements of appellees' defense of accord and satisfaction; and further that such issue submitted a question of law rather than a question of fact. Being convinced appellant's last two points of error must be sustained, we deem it unnecessary to discuss the points dealing with "no evidence" or "insufficient evidence."
In our opinion, appellees pleaded the facts necessary to constitute accord and satisfaction as a defense to appellant's cause of action for breach of a contract. Having properly pleaded this defense and having offered sufficient evidence to support it, they were entitled to a submission of such a defense. Rules 277 and 279, T.R.C.P. However, it was incumbent on the trial court to submit all controverted fact issues made by the pleadings and the evidence. Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651.
Special Issue No. 2 as framed called on the jury to determine the legal effect of Knutson's accepting the checks. It is fundamental that only issues of fact should be submitted to the jury. As framed, the issue was the submission of a question of law. The jury was asked if appellees' "liability * * * under the contract * * * was not settled and discharged" by the appellant's acceptance of the checks. Clearly this issue permitted the jury to determine the legal effect of the contract in question. Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358; Advance Aluminum Castings Corp. v. Schulkins, Tex.Civ. App., 267 S.W.2d 174 (no writ history); Reed v. James, Tex.Civ.App., 91 S.W.2d 946 (no writ history); Kemper v. Police & Firemen's Ins. Ass'n, Tex.Com.App., 48 S.W.2d 254; City of Port Arthur v. Young, Tex.Civ.App., 37 S.W.2d 385 (error refused). It is to be further noted the charge did not contain any definitions or instructions in connection with the special issue under consideration. Concluding that this error requires a reversal of a case, we do not deem it expedient to discuss other points of error brought forward.
For the error pointed out, the judgment of the trial court will be reversed and the cause remanded for a new trial.
Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576581/ | 118 Mich. App. 440 (1982)
325 N.W.2d 785
HARBENSKI
v.
UPPER PENINSULA POWER COMPANY
Docket Nos. 57878, 57882, 61332.
Michigan Court of Appeals.
Decided July 21, 1982.
Hansley, Neiman, Peterson, Beauchamp, Stupak & Bergman, P.C., for Norma J. Harbenski.
Clancy, Hansen, Chilman, Graybill & Greenlee, P.C., for Upper Peninsula Power Company, Upper Peninsula Generating Company, Cleveland-Cliffs Iron Company, and Cliffs Electric Service Company.
Law Offices of Jack Carpenter, for Riley Stoker Corporation.
Weis, Cossi, Geissler & Dean, P.C., for Bechtel Power Corporation.
Before: R.B. BURNS, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.
R.B. BURNS, P.J.
This appeal stems from a wrongful death action where plaintiff's decedent was killed in a construction accident. The accident occurred at the Presque Isle Power Plant while decedent was working as a boilermaker for third-party defendant subcontractor Riley Stoker Corporation. Plaintiff brought a suit against the owners of the plant[1] and against the general contractor, Bechtel Power Corporation. Bechtel Power *444 Corporation, as a third-party plaintiff, sued Riley Stoker Corporation based on the theory of contractual indemnity. The jury found the owners not liable, Bechtel Power 30% negligent, Riley Stoker 55% negligent, and plaintiff's decedent 15% negligent. The total award was for $866,000 against Bechtel Power, after subtracting the percentage of negligence attributable to plaintiff's decedent. Bechtel Power and Riley Stoker appeal.
The obligations set forth in an indemnity clause of the parties' contract were hotly disputed. However, to avoid confusion, this third-party contractual indemnity claim was not submitted to the jury. After the verdict was rendered motions for summary judgment on the claim were presented. Bechtel claimed it was entitled to indemnification from Riley Stoker for the entire amount of the award. The owners claimed that pursuant to the indemnification agreement they were entitled to an award for the costs and attorney fees they incurred in defending the principal action. Both summary judgments were granted and Riley Stoker appeals.
The first issue presented is whether the trial court erroneously excluded evidence that plaintiff was receiving workers' compensation benefits. Riley Stoker, the decedent's employer, argues that it was denied a fair trial because the exclusion of the information contributed to the excessive verdict. The plaintiff maintains that the evidence was properly excluded. In the plaintiff's estimation, the determination of damages would not be fair and adequate if the judge had ruled otherwise.
In Hill v Harbor Steel & Supply Corp, 374 Mich. 194, 214; 132 NW2d 54 (1965), the Court stated:
"Decisions made in this Court subsequent to the trial *445 below control our ruling on this point. The case was tried in April, 1962, before our decisions in McCullough v Ward Trucking Co, 368 Mich. 108, and Leitelt Iron Works v DeVries, 369 Mich. 47. In the course of those two decisions, a majority of the Court as presently constituted ultimately held that evidence concerning receipt of workmen's compensation payments by an injured workman and his dependents should not be admitted in the trial of a negligence case against a third-party defendant."
More recently, the Supreme Court reaffirmed its continued adherence to Hill in Lynch v Sign of the Beefeater, 407 Mich. 866; 283 Mich. 632 (1980).
The trial below was an action for negligence against a third-party defendant. Therefore, we find that Hill and Lynch control the resolution of this issue. The trial judge properly excluded reference to any remuneration plaintiff was entitled to from workers' compensation.
In the period between decedent's death and the commencement of trial, plaintiff remarried. Instead of "Harbenski", her last name became "Saez". The essence of the next issue raised by defendant Bechtel and third-party defendant Riley Stoker is that plaintiff misrepresented her marital status; namely, she tried to conceal the fact that she had remarried.
The position of defendants is obliterated by the conduct of the parties at trial. If the defendants' counselors were disturbed by how plaintiff was addressed at trial the record fails to reveal their displeasure. Counsel for Bechtel at times referred to plaintiff by her previous name, Mrs. Harbenski. However, when plaintiff testified she identified herself by her current name, Norma Saez.
In Wood v Detroit Edison Co, 409 Mich. 279, 287-288; *446 294 NW2d 571 (1980), the Supreme Court held that in a wrongful death action,
"Evidence of the possibility of remarriage is held not admissible for the purpose of mitigating damages * * *.
"In accordance with such reasoning, while we continue to believe that the fact of remarriage is irrelevant to mitigate damages in a wrongful death action, we feel that a protective order which enables a plaintiff to be addressed by a name other than that which she is currently using is not proper. We agree with the following reasoning of the Supreme Court of New Jersey:
"`It would be offensive to the integrity of the judicial process if the plaintiff, after taking an oath to be truthful, were permitted to misrepresent her marital status to the jury. Of course, the defendants may not inquire into the details of the remarriage nor may they offer evidence concerning it. However, the desirable exclusion of evidence relating to the remarriage may not be carried to the point of affirmatively misrepresenting the truth to the jury'. Dubil v Labate, 52 NJ 255, 261-262; 245 A2d 177, 180 (1968)." (Footnote omitted.)
Therefore, even if plaintiff had tried to conceal her true marital status, we would be bound to reject this claim of error.
Defendant takes exception to a comment made by plaintiff's counsel during closing argument. During closing argument plaintiff's counsel told the jury that plaintiff was precluded from suing Riley Stoker directly. He elaborated that the "conspiracy" to attribute all the negligence from plaintiff's accident to Riley Stoker was meritless and instructed the jurors to disregard such claims. The trial court held these remarks constituted "fair comment".
Defendant's position is that the presentation was outrageous and prejudicial and thereby constituted *447 reversible error. Plaintiff counters that the argument was proper since Riley Stoker, during its closing statement, argued that the jury should absolve Bechtel and the owners of responsibility for the accident. This position, plaintiff states, differed from what Riley Stoker asserted in opening argument, where it was urged that the responsibility for plaintiff's injuries was placed with Bechtel, not Riley Stoker. Therefore, the comments made were in rebuttal to the new posture pursued by Riley Stoker during closing argument.
Riley Stoker's counsel, in part, stated in the opening argument:
"So I am not saying that Bechtel or U.P. Generating violated any duty they had to Mr. Harbenski. But if they did * * * if they did, it was their own personal, independent duty that they might have to Mr. Harbenski: * * * You're the judge and you are larger than one mind. If they violated their own personal fault, that contract does not say that Riley has to pay for their own personal fault."
In closing argument Riley Stoker stated:
"They are being criticized because they tried to enforce or help safety and encourage safety and now they find themselves in court * * * for something that is our business Riley Stoker's business. And that's what I meant in my opening statement, if you found that they did anything wrong it was their own responsibility for whatever they did wrong. But don't hold them responsible for what Riley Stoker does * * * if we did something wrong."
When plaintiff's counsel presented his closing remarks he offered the following retort to the statements made by Mr. Carpenter, Riley Stoker's counsel:
*448 "I think, listening to Mr. Carpenter's statement as my final remarks here, that we have really come full circle with Mr. Carpenter. It's almost like a conspiracy. He starts out by saying that Bechtel's at fault, not Riley Stoker. Harbenski is at fault, not Riley Stoker. But now it seems that defendants have more or less ganged up, they say Riley Stoker will take it, `We're the employer,' because the plaintiff can't get one penny if you find Riley Stoker the only one at fault. Ladies and gentlemen, you put the blame where it belongs."
Riley Stoker and Bechtel did not object to plaintiff's comment at trial. Therefore, this issue is not preserved on appeal, unless manifest injustice will result.
Where no attempt is made to extend or introduce a new argument, statements which supplement opening and closing remarks are allowed. See Haynes v Monroe Plumbing & Heating Co, 48 Mich. App. 707; 211 NW2d 88 (1973). Moreover, counsel is allowed to make statements during closing arguments in response to points made by opposing counsel. Haynes, supra; Carbonell v Bluhm, 114 Mich. App. 216; 318 NW2d 659 (1982). Therefore, we find plaintiff's counsel's comments were properly presented to the jury. It was the remarks of third-party defendant Riley Stoker which paved the path for the closing comment made by plaintiff's counsel.
The next issue raised is whether the trial court erroneously prevented the impeachment of plaintiff's witness by extrinsic evidence of a prior inconsistent statement.
It was contested at trial that safety regulations required that the uncovered hole have a barricade around it. The MIOSHA inspector who had investigated the accident testified at trial. Alonzo Sanford, the general foreman at the site of the accident, *449 also testified at trial. The credibility of the MIOSHA inspector was pivotal to an accurate assessment of Bechtel's and Riley Stoker's liability. At one point the trial court disallowed testimony by Sanford that allegedly would have disclosed a prior inconsistent statement made by the MIOSHA inspector, namely, that the inspector had stated to Sanford that Riley Stoker employees could perform the work without a barrier.
Defendant Bechtel argues that the trial court erroneously excluded the disclosure of the inspector's prior inconsistent statement. Plaintiff asserts that defendant's position is untenable, since the inspector was not questioned on the issue now claimed to be an inconsistent statement.
When the inspector testified he was asked a compound question that included an inquiry into a statement he made to Riley Stoker personnel about the absence of the barricade. However, he was never asked whether he had conversed with Sanford with respect to the necessity for a barricade. During the examination of Sanford, defense counsel for Riley Stoker tried to elicit what exactly the inspector had said to Sanford about the necessity for a barricade. The trial court refused to permit the questioning because the testimony was hearsay.
Defendant Bechtel claims that the statement was admissible into evidence as a prior inconsistent statement. However, MRE 613(b) provides:
"Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to *450 admissions of party-opponent as defined in Rule 801(d)(2)."
No foundation was laid. Therefore, MRE 613(b), which permits impeachment by prior inconsistent statements, is inapplicable. See Ghezzi v Holly, 22 Mich. App. 157; 177 NW2d 247 (1970).
Another evidentiary issue is raised on appeal. Apparently, MIOSHA issues a citation when violations of safety procedures are uncovered. During the testimony of the MIOSHA inspector, defendants tried to introduce rebuttal evidence that a citation MIOSHA had issued later was reduced. The trial court disallowed the rebuttal evidence.
A review of the record reveals that the inspector never was questioned regarding any citation he may have issued. Riley Stoker did at one point question the inspector about a "file" the Department of Labor maintained, however, this line of questioning was discontinued. Moreover, counsel made no offer of proof. No error occurred since no foundation was laid for the proffered testimony. Fredericks v General Motors Corp, 411 Mich. 712; 311 NW2d 725 (1981).
Defendants Bechtel and Riley Stoker argue that the assessment of damages against Bechtel should be limited to 30%, the negligence the jury attributed to Bechtel. Instead, plaintiff was permitted to recover from Bechtel 85%[2] of the overall assessed damages.
The 85% amount of recovery was based on the theory of joint and several liability. However, defendants argue that along with the adoption of the pure form of comparative negligence in Michigan, the concept of joint and several liability was *451 abrogated. The issue becomes whether the adoption of comparative negligence abolished joint and several liability and therefore plaintiff's recovery should be limited to the percentage of fault attributed to defendant Bechtel.
This question is not novel. It has confronted this Court several times within the past two years. Consistently, this Court has rejected the position that the adoption of comparative negligence dissolved joint and several liability between concurrent tortfeasors. Johnston v Billot, 109 Mich. App. 578; 311 NW2d 808 (1981). The rationale behind preserving the doctrine of joint and several liability for the negligent common action of joint tortfeasors even when comparative negligence is adopted was set forth in Caldwell v Cleveland-Cliffs Iron Co, 111 Mich. App. 721, 725-726; 315 NW2d 186 (1981), quoting from Weeks v Feltner, 99 Mich. App. 392; 297 NW2d 678 (1980):
"This argument ignores the fact that the comparative negligence doctrine also seeks to assure fair and adequate compensation for injured plaintiffs. Unlike the concept of contributory negligence, it avoids unduly penalizing a plaintiff for his own fault. While some unfairness exists when one defendant is held liable for the fault of his codefendants, this is equally true of cases where the plaintiff is not at fault. The acts of Albert Feltner were foreseeable by the other defendants, and there is nothing inherently inequitable in holding them liable for the resulting injury. The doctrine of comparative negligence does not mandate abandonment of joint and several liability. In fact, a majority of other jurisdictions considering the issue have retained joint and several liability. See Schwartz, Comparative Negligence, § 16.4, p 93 (Supp, 1978)."
Cutter v Massey-Ferguson, Inc, 114 Mich. App. 28; 318 NW2d 554 (1982); Weeks v Feltner, supra.
*452 The next issue on appeal is whether the trial court erred in granting summary judgment to third-party plaintiff Bechtel on the contractual indemnity provision between Bechtel and third-party defendant Riley Stoker, which required Riley Stoker to indemnify Bechtel for Bechtel's own negligence.
Riley Stoker claims that the indemnity provision was unclear and insufficient to require Riley Stoker to indemnify Bechtel for Bechtel's own negligence. The argument is that the terms of the provision do not require Riley Stoker to indemnify Bechtel where the injury was caused in part by Riley Stoker, but only where Bechtel's liability has been caused by Riley Stoker's conduct.
Bechtel counters that the language in the indemnity clause of the contract covers every situation except where Bechtel or the owner were solely negligent or guilty of willful misconduct. It specifically covers the situation where Bechtel and Riley Stoker are concurrently negligent.
The language of the indemnity provision provides:
"15. INDEMNITY AND RELEASE: The contractor shall indemnify, defend and save harmless and release the OWNER and BECHTEL and their officers, employees, representatives and related entities and each of them, from and against any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, attorney's fees, costs, and expenses of whatsoever kind or nature whether arising before or after final acceptance and in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, or claimed to be caused, occasioned or contributed to in whole or in part, by reason of any act, omission, fault or negligence whether active or passive of the Contractor or of anyone acting under its direction * * * The Contractor's aforesaid indemnity, hold-harmless *453 and release agreement shall not be applicable to any liability caused by the sole negligence or willful misconduct of the OWNER, or of BECHTEL."
Before turning to the clause at hand, several well-established rules of construction must be recognized. Generally, contracts of indemnity are interpreted to effectuate the intentions of the parties. Meadows v Depco Equipment Co, 4 Mich. App. 370; 144 NW2d 844 (1966). A provision which guarantees indemnification for the sole negligence of the indemnitee is void as against public policy, MCL 691.991; MSA 26.1146(1). However, a provision which seeks to indemnify a promisee against liability for its own negligence is valid in the case of concurrent negligence by multiple tortfeasors. Hayes v General Motors Corp, 106 Mich. App. 188; 308 NW2d 452 (1981).
Here the contract provision is not void as against public policy. It does not extend coverage to the situation where the injury is due to Bechtel's sole negligence. Thus we turn to whether, as a matter of law, language in the contract reveals an intention by Riley Stoker to indemnify Bechtel for negligent actions.
The provision in this case expressly states that Bechtel shall be indemnified against "any and all suits" which Bechtel "contributed to in whole or in part". In several cases these exact phrases have been interpreted as indicative of the parties' intention that the indemnitees be indemnified for their own negligence. Paquin v Harnischfeger, 113 Mich. App. 43; 317 NW2d 279 (1982); Pritts v J I Case Co, 108 Mich. App. 22; 310 NW2d 261 (1981); Hayes v General Motors Corp, supra.
In the past, such language has been found to be insufficient, as a matter of law, to conclude that the provision was intended to indemnify the indemnitee *454 against its own sole negligence. Peeples v Detroit, 99 Mich. App. 285; 297 NW2d 839 (1980); Fireman's Fund American Ins Cos v General Electric Co, 74 Mich. App. 318; 253 NW2d 748 (1977); Darin & Armstrong v Ben Agree Co, 88 Mich. App. 128; 276 NW2d 869 (1979). However, in those cases the courts did not find a clear intention when looking to the surrounding circumstances.
Here, Riley Stoker failed to adduce any evidence of a conflict in intent in the meaning of the provision's terms. Moreover, the lower court was not directed to any confusing and divergent surrounding circumstances. Riley Stoker cannot rely on the surrounding circumstances doctrine absent a presentation of circumstances which do indeed call the interpretation of otherwise unambiguous language into question. Fireman's Fund American Ins Cos v General Electric Co, supra.
The contention that the intent to indemnify an indemnitee against his own negligence must be expressly stated has been rejected. In Vanden Bosch v Consumers Power Co, 394 Mich. 428; 230 NW2d 271 (1975), the Supreme Court stated:
"Although not `expressly' stated in the agreement, we are persuaded from our reading of that agreement, in light of surrounding circumstances, that the parties intended that Consumers Power be indemnified against liability for its own neglience of the type precipitating this litigation."
We are persuaded that no material issue of the parties' intent to indemnify Bechtel against liability for its own negligence exists. Riley Stoker only points to the language of the contract to support its position. Riley Stoker has failed to demonstrate any surrounding circumstances rendering this language *455 ambiguous. Hayes v General Motors Corp, supra.
Riley Stoker contends that the summary judgment in favor of the owners to collect attorney fees from Riley Stoker was erroneous since the indemnity agreement was too broad to support such an award.
In their motion for summary judgment the owners prayed for costs and attorney fees incurred in the defense of the principal action. Warren v McLouth Steel Corp, 111 Mich. App. 496, 508-509; 314 NW2d 666 (1981), discussed this issue:
"In State Farm v Allen, supra [50 Mich. 71; 212 NW2d 821 (1973)], 78-79, this Court cited approvingly the following quotation from McCormick, Damages, § 55, p 246:
"`For the expense incurred in the present litigation, we have found that our law generally gives the successful party no recompense beyond the taxable costs which ordinarily include only a portion of his expense. This is the case, however wrongful the suit or groundless the defense. On the other hand, where the present defendant has by his wrongful conduct, be it tort or breach of contract, caused the present plaintiff to defend or prosecute previous legal proceedings, the law reverses its restrictive attitude and allows the plaintiff to recover all the expense, including counsel fees, reasonably incurred by him in the prior litigation.' (Emphasis added.)
* * *
"There are, however, limitations to the right to recover incurred expenses, including attorneys' fees. At first blush, State Farm seems to imply that this right hinges upon the technical distinction between `prior' litigation and `present' litigation. However, it is apparent that the real thrust of the holding is that reasonable expenses incurred in the primary litigation created by the wrongful acts of another may be recoverable but the expenses incurred in litigation with the actual wrongful party are not recoverable. The underlying *456 distinction in State Farm is satisfied when it is recognized that McLouth legally is both a defendant and third-party plaintiff in the instant action. The rationale of State Farm should not be ignored, or McLouth penalized, merely because it impleaded Valley into the same action rather than proceeding in a separate subsequent suit. In short, McLouth is entitled to recover its expense in defending against Warren's claim but not entitled to recover any expenses incurred as a third-party plaintiff against the third-party defendant. See Hayes v General Motors Corp, 106 Mich. App. 188, 200-201; 308 NW2d 452 (1981)."
Accord, Hayes v General Motors Corp, supra, 201. Warren remanded the award of attorney fees for apportionment between those incurred in defending the principal and the third-party claim.
The award of the trial court did not apportion the attorney fees. Therefore, pursuant to Warren, Riley Stoker is entitled to a remand for an apportionment of the fees.
The last issue on appeal is whether the allowance of indemnification by Riley Stoker is akin to contribution and therefore violative of the exclusive remedy clause of the Worker's Disability Compensation Act, MCL 418.131; MSA 17.237(131). Riley Stoker was obligated to pay workers' compensation benefits on behalf of the plaintiff. Now, Riley Stoker argues that the exclusive remedy provision of the Worker's Disability Compensation Act precludes indemnification here because it is akin to contribution, which is forbidden by the statute. Defendant Bechtel claims that Riley Stoker's reliance on the Worker's Disability Compensation Act does not bar a third-party plaintiff action by Bechtel against Riley Stoker.
In Darin & Armstrong v Ben Agree Co, supra, this Court stated that an indemnification agreement was akin to contribution. Therefore, any *457 collection under the indemnification agreement was forbidden by the exclusive remedy provision of the Worker's Disability Compensation Act. However, the great weight of authority has repudiated the rationale of Darin. Paquin v Harnischfeger, supra. It is now clear that the exclusive remedy provision of the Worker's Disability Compensation Act is not disturbed when an employer is joined as a third-party defendant on an indemnity theory. Nanasi v General Motors Corp, 56 Mich. App. 652; 224 NW2d 914 (1974); Paquin v Harnischfeger, supra. See, also, Dale v Whiteman, 388 Mich. 698; 202 NW2d 797 (1972).
Affirmed but remanded for an apportionment of costs and attorney fees.
NOTES
[1] The owners involved in this action are Upper Peninsula Power Company, Upper Peninsula Generating Company, Cleveland-Cliffs Iron Company, Cliffs Electric Service Company.
[2] The plaintiff's decedent was found to be 15% negligent and, pursuant to the theory of comparative negligence, plaintiff's recovery was reduced by that amount. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576594/ | 109 Wis. 2d 266 (1982)
325 N.W.2d 872
STAR LINE TRUCKING CORPORATION, Plaintiff-Respondent-Petitioner,
v.
DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS, Defendant-Appellant.[]
No. 80-1645.
Supreme Court of Wisconsin.
Argued September 7, 1982.
Decided November 2, 1982.
*267 For the plaintiff-petitioner there were briefs by William J. Mantyh and Honeck, Mantyh & Arndt, Milwaukee, and oral argument by William J. Mantyh.
For the defendant-appellant there was a brief and oral argument by Peter W. Zeeh, Madison.
Amicus Curiae brief was filed by Jon P. Axelrod, Douglas L. Flygt and DeWitt, Sundby, Huggett & Schumacher, S.C., Madison, for Wisconsin Motor Carriers Association.
Reversing in part, affirming in part 104 Wis. 2d 742, 314 N.W.2d 362 (Ct App).
STEINMETZ, J.
The issues in the case are:
(1) Does the equipment lease clause mandated by Wisconsin Administrative Code sec. PSC 60.03(2)[1] by *268 itself determine the control necessary to defeat the employee exemption under sec. 108.02(3) (a) and (b), Stats.,[2] and therefore create an employer-employee relationship for purposes of unemployment compensation?
(2) Is the commission's decision supported by credible and substantial evidence on the record as a whole?
(3) If the court finds the truck operators were petitioner's employees, was there any error by the Department of Industry, Labor and Human Relations (DILHR) or the Labor and Industry Review Commission (LIRC) in determining the proper amount of unemployment compensation tax to be assessed to the petitioner?
*269 On February 16, 1976, DILHR conducted an audit of Star Line Trucking Corporation's (Star Line) employment records for the period January 1, 1975, through December 31, 1975, pursuant to its authority under sec. 108.21 (1), Stats.[3]
On April 30, 1976, pursuant to sec. 108.21 (2), Stats.,[4] DILHR mailed an audit report to Star Line which informed Star Line that unemployment compensation contributions (taxes), along with late filing penalties and interest, were then due for the second, third and fourth quarters of 1975 in the amount of $4,586.12. Thereafter, on May 17, 1976, Star Line filed a timely request for a hearing in accordance with sec. 108.10(1), Stats.[5]
*270 On June 28, 1976, DILHR conducted an audit of Star Line's employment records for the period January 1, 1975, through March 31, 1976. On August 3, 1976, DILHR mailed an initial determination, adopting and incorporating by reference an audit report which assessed Star Line for delinquent unemployment contributions (taxes), late filing penalties, and interest for all of 1975 and the first quarter of 1976, for a total amount of $7,830.89. On August 25, 1976, Star Line filed a request for a hearing which was untimely because it was not filed within the 20 days prescribed by sec. 108.10(1), Stats. Accordingly, on September 20, 1976, a decision was issued by the appeal tribunal dismissing Star Line's request for a hearing regarding the June 28, 1976, initial determination. Subsequently, Star Line filed a timely petition for review by the Labor and Industry Review Commission under sec. 108.10(2), Stats.[6]
On July 28, 1977, the Labor and Industry Review Commission affirmed the decision of the appeal tribunal which had dismissed Star Line's untimely request for a hearing regarding the initial determination and audit *271 report dated August 3, 1976. It subsequently came to the attention of the commission that no appeal tribunal hearing had ever been held or scheduled in response to Star Line's timely request for a hearing relative to the matters in the audit report issued on April 30, 1976. Accordingly, pursuant to authority granted in sec. 108.09 (6) (d), Stats., the commission ordered on January 9, 1978, that its previous decision of July 28, 1977, be set aside and that testimony be taken before a hearing examiner, acting as a deputy for the commission, with respect to the merits of the case. The commission order of January 9, 1978, was amended on January 25, 1978, to correct a technical error in the language.
A hearing was held on July 10, 1978, before an examiner, acting as a deputy of the Labor and Industry Review Commission. Before any testimony was taken, it was stipulated between DILHR and Star Line, on the record, that the amount of unemployment tax delinquency stated in the initial determination and audit report of August 3, 1976, was correct for the period January 1, 1975, through March 31, 1976, if it was ultimately decided that the contract truck drivers who performed services for Star Line were to be considered employees for purposes of the Unemployment Compensation Act (ch. 108, Stats.).
On December 6, 1978, the Labor and Industry Review Commission issued its decision on the merits of this case, finding that the services of all drivers operating trucks leased to Star Line during the quarters in question, were performed as employees, within the meaning of sec. 108.02 (3), Stats. The LIRC confirmed Star Line's liability for unemployment compensation contributions (taxes), penalties and interest as set forth in the audit report of April 30, 1976, and the stipulation of the parties of July 10, 1978.
*272 Star Line commenced an action for judicial review of the commission decision, in Milwaukee County circuit court, on December 30, 1978, pursuant to secs. 108.10 (4),[7] 108.09 (7),[8] and 102.23 (1), Stats.[9] The Honorable Patrick T. Sheedy, in a memorandum decision issued *273 June 19, 1980, reversed the decision of the Labor and Industry Review Commission and found that the truck drivers in question were not employees within the meaning of sec. 108.02(3). On July 15, 1980, the circuit court entered a judgment in favor of Star Line and against DILHR, reversing the findings, conclusion, decision and order of the Labor and Industry Review Commission and remanded the matter to said commission with directions that its findings, conclusion, decision and order be set aside.
DILHR appealed the circuit court judgment to the court of appeals. The court of appeals, in an unpublished per curiam opinion, reversed the circuit court and found that the owner-operators were clearly employees within the meaning of sec. 108.02(3) (a), Stats.
DILHR is an agency of the executive branch of Wisconsin state government. Among other responsibilities, DILHR is charged by the legislature with responsibility for the administration, implementation and enforcement of the Unemployment Compensation Act, ch. 108, Stats.
Star Line is a Wisconsin business corporation formed in 1961 and engages in the bulk trucking of commodities. It owns no hauling equipment but relies exclusively upon subcontracting its hauling operations to contractor-lessors.
During the period of time in question (January 1, 1975, through March 31, 1976), the relationship between Star Line and its drivers, who own their own trucks, was reduced to a written contract. Contracts made between Star Line and its owner-drivers between January 1, 1975, and December 31, 1975, were denominated as "Equipment Lease Agreement" and were for a term of one year. Such contracts included the following provisions:
"(2) Said above described equipment shall, during the term of this lease agreement, be under the exclusive possession *274 and control of Lessee [Star Line] and Lessee shall assume full responsibility to the public, shippers, Public Service Commission of Wisconsin, Motor Vehicle Department of Wisconsin and other regulatory bodies having jurisdiction over its operations."
"(3) All persons driving the described vehicle while under the possession, control or use of Lessee [Star Line] shall be employees of the Lessee and under control of Lessee."
"(6) Lessor [owner-driver] further agrees that he will personally drive the described equipment, or will furnish a substitute drive [sic] for such purpose such substitute drive [sic] to be subject to approval of Lessee [Star Line] as to fitness: it is understood that said drive [sic] shall be a direct employee of Lessee and under the direction and control of Lessee insofar as to the driving of said vehicle is concerned, and Lessee, as the direct employer of said driver shall be responsible for the actions of said driver to any regulatory bodies controlling operation of the described equipment or any third parties affected by reason thereof: further, Lessee shall pay said driver, whether it be Lessor or substitute driver, directly, payment for said driving to be by separate check at prescribed union scale for said driving, and subject to all driver benefits as designated in contracts in effect with Teamsters Local 200; it is understood between Lessor and Lessee that all said wages or benefits paid to said driver, whether it be Lessor or substitute driver, by Lessee in accordance with this agreement shall be deducted from the compensation due Lessor for the use of the described equipment earned under this lease."
"(12) Either party may terminate this Lease agreement by giving thirty (30) days notice in writing to the other."
The written contracts between Star Line and its owner-drivers after January 1, 1976, were denominated as "Equipment Agreement" and were for a term of three months, with automatic, month-to-month renewal thereafter. The agreement in the record was not executed. These contracts, if any, that were in force between January 1, 1976, and March 31, 1976, contained the following provisions, among others:
*275 "ARTICLE 7. Subject at all times to the other provisions of this Agreement, the equipment aforesaid shall be operated for CARRIER [Star Line] in order to satisfactorily and safely effect the carriage of products, and during the term hereof, shall be furnished and operated, in carrier's business at all times required by the CARRIER, and during said times shall be operated only in connection with transportation performed by the CARRIER under its certificates as a contract or common motor carrier."
"ARTICLE 10. All identification plates required by aforementioned governmental and regulatory bodies shall be displayed on CONTRACTOR'S equipment during the term of this Agreement and upon termination hereof, said plates shall be removed and delivered to the CARRIER [Star Line]. . . ."
"EXCLUSIVE POSSESSION & CONTROL
"As required by Wisconsin Administrative Code Section PSC 60.03 and the Interstant [sic] Commerce Commission, the CARRIER [Star Line] and CONTRACTOR [owner-driver] agree that the motor vehicle equipment described in this `Equipment Agreement' when operated in connection with transportation under the CARRIERS license as a contract or common motor carrier shall be in the exclusive possession, control and use of the CARRIER during the term of this Agreement and the CARRIER hereby assumes full responsibility to the public, the shippers and all regulatory agencies having jurisdiction, for the operation of said motor vehicle equipment during the entire period of the Agreement."
Star Line acknowledged having used the two differently entitled subcontracting agreements referred to, but claims its relationship, understanding and practice with the lessors did not vary in any degree during the entire period.
The 1976 unsigned agreement, besides containing the provision relating to "Exclusive Possession & Control" had the following clauses:
*276 "IV. RELATIONSHIP It is the intention of the parties and acknowledged by the parties that neither the CONTRACTOR nor any of its employees shall be deemed to be agents, servants, or employees of the CARRIER for any purpose whatsoever but the CONTRACTOR is and shall be an independent contractor and is subject to the CARRIER merely as to the results to be accomplished and not as to the means and methods for accomplishing the results."
Under "Terms and Conditions" of the 1976 agreement, the following was stated:
"ARTICLE 1. The CONTRACTOR shall have exclusive responsibility and control to direct the operation of its equipment and its employees in all respects, including but not limited to such matters as establishing work rules, assignment of equipment to drivers, rejection of any loads, operation, lawful routes, points of service or repair of equipment, rest stops, parking and storage when not in use, etc., except that CONTRACTOR shall fully and efficiently perform the results required by this Agreement."
The court of appeals cited Stafford Trucking, Inc. v. ILHR Dept., 102 Wis. 2d 256, 306 N.W.2d 79 (Ct. App. 1981) and stated that in Stafford that court decided that inclusion of Wis. Adm. Code Sec. PSC 60.03 (2), which is required in leases of this nature, established that the lessor "unquestionably has the right and power to direct and control the owner-operators' conduct. It is immaterial whether the right or power to control is in fact exercised as long as the right to exercise such control exists." Id. at 263.
We do not interpret the decision in Stafford as holding that the inclusion of the PSC clause is conclusive on the issue of employer control. In the Stafford case, the lease had additional clauses, besides the PSC clause which denoted control. Stafford reserved "`the right to control the manner, means and details of, and by which the driver . . .' of the leased equipment performs the *277 service, as well as the ends to be accomplished." Id. at 263. Also under the Stafford lease, it was stated that "the drivers further agree that the trucks are `solely and exclusively under the possession, direction, and control' of Stafford." Id. at 263.
Moreover, in Stafford, the court of appeals found that Stafford's practices also evidenced control over the owner-operators. Id. at 263.
This court recognizes that the exception contained in sec. 108.02(3) (b) 1, Stats., requires freedom from control or direction, both under the contract and in fact and that the inclusion of sec. PSC 60.03 (2) alone, arguably constitutes contractual control. However, these types of clauses are intended solely to promote the safe operations of trucks and to ensure continuous financial responsibility so that truck-related losses do not go uncompensated. The clause protects both the highway-traveling public and the segment of the public directly using trucking services. See N.L.R.B. v. Deaton, Inc., 502 F.2d 1221, 1224-25 (5th Cir. 1974), cert. denied 422 U.S. 1047 (1975). The PSC clause was not designed to deny the application of the statutory exception contained in sec. 108.02 (3) (b) 1 and 2 and determine the employer-employee relationship.
In reviewing questions of law:
"[T]his court does defer to a certain extent to the legal construction and application of a statute by the agency charged with enforcement of that statute. We are further guided by the rule of review under which, as to questions of law, we will not reverse a determination made by the enforcing agency where such interpretation is one among several reasonable interpretations that can be made, equally consistent with the purpose of the statute." (Footnotes omitted.) De Leeuw v. ILHR Dept., 71 Wis. 2d 446, 449, 238 N.W.2d 706 (1976).
Since the PSC clause is required solely to promote safety and financial responsibility among carriers, we *278 find that DILHR's interpretation of the clause establishing employer control is not an available one.
It is the motor vehicle that must be under the possession, control and use of the authorized carrier so the carrier is chargeable with the "full responsibility to the public, the shippers,[10] and all regulatory agencies having jurisdiction." There is no mention of responsibility to the operators or suggestion they are to be considered employees of the carrier. The drivers are not within the class receiving the protective benefit of PSC 60.03 (2). The result of the exclusive possession, control and use of the motor vehicle is for the carrier to assume complete responsibility to and for the protected classes, i.e., public, shippers and all regulatory agencies having jurisdiction.
[1]
Accordingly, we hold that the mere inclusion of sec. PSC 60.03 (2) does not alone establish the control and direction criteria necessary to qualify the owner-operators as employees as defined in sec. 108.02 (3) (b), Stats.
In looking at the contractual terms and facts and circumstances of this case, we find other clauses in the 1975 contract that do establish the carrier's control over the owner-operators. Those provisions were referred to in the decision of the LIRC as follows:
"All persons driving the described vehicle while under the possession, control or use of Lessee shall be employees of the Lessee and under control of Lessee." (contract clause 3.)
"Lessor further agrees that he will personally drive the described equipment, or will furnish a substitute drive [sic] for such purpose such substitute drive [sic] *279 to be subject to approval of Lessee as to fitness: it is understood that said drive [sic] shall be a direct employee of Lessee and under the direction and control of Lessee insofar as to the driving of said vehicle is concerned [sic], and Lessee, as the direct employer of said driver shall be responsible for the actions of said driver to any regulatory bodies controlling operation of the described equipment or any third parties affected by reason thereof . . . ." (contract clause 6.)
[2]
These contractual provisions in the 1975 contract were sufficient to make unavailable to lessee (Star Line) the exception contained in sec. 108.02 (3) (b) 1, Stats., since they provided Star Line control or direction over the owner-operator under the contract, and it was not necessary therefore to consider the factual relationship between the lessee and lessor.
Therefore, the Labor and Industry Review Commission's determination that the owner-operators were employees of Star Line for purposes of unemployment compensation contributions by Star Line is affirmed for the period covered by the 1975 contract.
The 1976 contracts have different provisions than the 1975 contracts. Clauses 3 and 6 of the 1975 agreement do not appear in the 1976 contracts. The commission determined the owner-operators were not free of control or direction for performance of services, both under contract and in fact. Since we find no contractual control or direction, we must examine whether there was control or direction in fact.
Sec. 102.23 (6), Stats.,[11] reads as follows:
"(6) If the commission's order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission's *280 order or award and remand the case to the commission if the commission's order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence." (Emphasis added.)
The relevant evidence that was before the commission as to the performance of services in fact evidencing lack of control was:
(1) The drivers were considered "skilled operators" who owned their own truck equipment.
(2) The drivers assumed responsibility for their vehicle maintenance, insurance and trip expenses.
(3) The drivers sometimes refused to haul loads offered by Star Line.
(4) The drivers sometimes engaged helpers to assist them in performing services for Star Line.
(5) Star Line could complain to the drivers and/or terminate the equipment lease agreement. Star Line never exercised this termination right during the period involved.
(6) During the contract period, several contractor-lessors terminated the relationship in response to Star Line's complaints concerning vehicles being unavailable due to their use for other authority holders or traffic and weight violations during performance of the hauling contracts.
(7) The lessors were free to, and did on occasion, reject hauling contracts from Star Line.
(8) The means of performance, namely, which piece of equipment and which driver would be used as well as the starting, completion and elapsed time, the loading, the routes used and number of stops, were within the control and under the supervision of the lessor's drivers.
As opposed to this evidence of lack of control in fact by Star Line over the drivers, DILHR argues the record showed:
*281 (1) Star Line expected the drivers to haul loads for which Star Line had contracted with a customer and would pressure a reluctant driver to accept a load.
Comment: However, pressure applied without a demonstrable result is not exercising control.
(2) Star Line attempted by contract to restrict the drivers from seeking other employment.
Comment: The attempt to convince the drivers to obey the contract cannot be said to be exercising control over them.
(3) Petitioner has the right to terminate the services of a driver at any time, with notice, for any reason, including misconduct.
Comment: However, there is no evidence in the record of any terminations.
(4) Although the drivers owned their trucks, they operated them with Star Line's decal displayed on the door and under ICC authority and PSC permits held by Star Line.
Comment: This was required to identify the hauling authority under which it was being made.[12]
[3]
The evidence which DILHR relied on does not demonstrate that Star Line in fact controlled the drivers as spelled out in the statutory exception. The findings of fact of the commission were not supported by "credible and substantial evidence."
[4]
Star Line states that one of the issues is whether the contribution base used for payroll in the unemployment *282 compensation audit was properly established at 30% of the rental payment to represent the driver services. However, at the initial hearing before the examiner, the parties stipulated the appropriateness of that figure. DILHR's counsel stated the figures were acceptable and not attackable and Star Line's counsel agreed. The liability figures of the audit were agreed to and the only issue was whether the drivers designated as contractors were independent agents and therefore not employees subject to payroll contributions. The figures were not disputed and therefore no challenging evidence was presented which requires this court to review. Nor does this record require the resubmission of the case to the commission for further determination since there was no reservation of this issue in the record.
By the Court. The decision of the court of appeals is affirmed in part and reversed in part.
BEILFUSS, C.J., took no part.
SHIRLEY S. ABRAHAMSON, J. (concurring in part and dissenting in part).
I concur with the majority's holding that because the 1975 contract expressly grants Star Line control or direction over the performance of services of the owner-driver, the owner-driver is not excluded as an employee under sec. 108.02 (3) (b)1, Stats. 1979-80. Unlike the majority, I would hold that the 1976 contract which provides that Star Line has "exclusive possession, control and use" of the motor vehicle equipment expressly grants Star Line control or direction over the performance of services of the owner-driver and that the owner-driver is not excluded as an employee under sec. 108.02 (3) (b) 1, Stats. 1979-80.
Sec. 108.02(3) (a), Stats. 1979-80, provides that any individual who is performing services for an employing unit is an employee except as provided in subsection (b). The majority apparently concludes that the owner-driver *283 is performing services for an employing unit under sec. 108.02(3) (a) and that the issue in the case is whether the owner-driver falls within sec. 108.02(3) (b).
I agree with the majority, supra at 277, that sec. 108.02 (3) (b)1, Stats. 1979-80, requires Star Line to show by satisfactory proof, Sears, Roebuck Co. v. DILHR, 90 Wis. 2d 736, 743, 280 N.W.2d 240 (1979), that pursuant to both the terms of the 1976 contract and in fact[1] that *284 the owner-driver has been and will continue to be free from Star Line's control or direction over the performance of his or her services.[2] While I agree with the majority's statement of the applicable principle of law, I think the principle requires affirmance, rather than reversal, of the decision of the court of appeals.
The majority errs in holding that the terms of the 1976 contract do not provide for "control or direction" by Star Line over the performance of the owner-drivers' services. The 1976 contract grants Star Line "exclusive possession, control and use" of the motor vehicle equipment. The contract reads as follows:
Exclusive Possession Control
"As required by Wisconsin Administrative Code Section PSC 60.03 and the Interstant [sic] Commerce Commission, the CARRIER [Star Line] and CONTRACTOR [owner-driver] agree that the motor vehicle equipment *285 described in this `Equipment Agreement' when operated in connection with transportation under the CARRIERS license as a contract or common motor carrier shall be in the exclusive possession, control and use of the CARRIER during the term of this Agreement and the CARRIER hereby assumes full responsibility to the public, the shippers and all regulatory agencies having jurisdiction, for the operation of said motor vehicle equipment during the entire period of the Agreement."
The majority concludes that this provision of the contract, which is mandated by PSC[3] and ICC[4] regulations, *286 does not give Star Line power to control or direct the performance of the services of the owner-driver. The majority reasons that the contractual provision does not mean what it says, that is, that the PSC and the ICC regulations do not intend Star Line to have exclusive control over the motor vehicle. The majority then shifts its position and seems to say that although the contract gives Star Line control, control over the motor vehicle does not mean control over the owner-driver.
The majority appears to nullify the contract's grant to Star Line of exclusive possession, control and use of the motor vehicle by interpreting the intent behind the mandated provision as an intent to impose financial responsibility, that is, to impose liability, on Star Line for truck-related losses. The unstated assumption in the majority's interpretation is that because the administrative agency's reason for requiring the clause is to impose financial responsibility, the clause does not require or permit Star Line to have actual control over the operation of the motor vehicle. The majority explains the contract as follows:
"[These] types of clauses are intended solely to promote the safe operations of trucks and to ensure continuous financial responsibility so that truck-related losses do not go uncompensated. The clause protects both the highway-traveling public and the segment of the public directly using trucking services. See N.L.R.B. v. Deaton, Inc., 502 F.2d 1221, 1224-25 (5th Cir. 1974), cert. den., *287 422 U.S. 1047 (1975). . . . Since the PSC clause is required solely to promote safety and financial responsibility among carriers, we find that DILHR's interpretation of the clause establishing employer control is not an available one. . . . The result of the exclusive possession, control and use of the motor vehicle is for the carrier to assume complete responsibility to and for the protected classes, i.e., public, shippers and all regulatory agencies having jurisdiction." Supra at 277, 278.
Neither the PSC rule, nor the ICC rule, nor the Deaton case (upon which the majority relies) supports the majority's interpretation of the mandated contractual provision, and neither the majority, nor the parties, nor I have found any authority for the majority's view.
The PSC and ICC regulations clearly show that the regulations concern more than allocation of financial responsibility. The regulations also mandate control. The regulations require contracts like the one in issue in the instant case to cover two points: first, the contract must provide that Star Line has exclusive possession, use and control of the motor vehicles, and second, the contract must provide that Star Line is financially responsible to the highway users and the shippers. In Deaton the court recognized that the regulations have at least two interrelated objectives: to promote safe operations of the trucks and to ensure that truck-related losses will not go uncompensated. The first objective, safety, is fostered by both clauses that the regulations require to be in the contract. Star Line is required to have control over the motor vehicles to enable it to ensure safe operations. In addition, Star Line is given the incentive to exercise control over the motor vehicles to ensure safe operations by being financially responsible, under the regulations, for truck-related losses incurred by the highway users and the shippers. The second objective, financial responsibility, is fostered by the regulations making Star Line financially responsible for truck-related losses. The Deaton *288 court concluded, contrary to what the majority implies, that the ICC regulations have the effect of requiring carriers (such as Star Line) to possess and exercise considerable control over all trucks operated under the certificate. 502 F.2d at 1227.[5]
In its final analysis, the majority appears to concede that the contract does give Star Line control, but intimates that Star Line's control under the mandated contractual provision is over the motor vehicle, not over the owner-driver. Supra at 278. The Deaton court, taking a common sense approach, makes short shrift of this kind of reasoning, saying, "Control over trucks involves control over drivers." Id. at 1227.
Sec. 108.02(3) (b) 1 clearly states that if the owner-driver is to be excluded from the classification of employee, the owner-drivers must, under the contract, be free from Star Line's control over the performance of *289 their services. Absent proof by Star Line that the word "control" in sec. 108.02 (3) (b) 1 is not to be interpreted the same as the word "control" in the PSC-ICC regulations,[6] and absent any proof by Star Line that the mandated contractual provision provides for control of the owner-driver by the federal and state governments[7] rather than by Star Line, the commission, looking at the 1976 contract, could only conclude that under sec. 108.02(3) (b) 1 the contract authorizes Star Line to exercise control over the performance of the services of the owner-driver. Had the legislature intended to preclude the commission from considering mandated contractual provisions as evidence of control under the contract, it would have so stated. Since Star Line has not shown that owner-drivers are, under the contract, free from Star Line's control over the performance of their services, the commission's conclusion that the owner-driver is an "employee" within the meaning of sec. 108.02(3) (a) should be affirmed.
[5]
The following memorandum was filed on January 3, 1983.
PER CURIAM (on motion for reconsideration).
On its motion for reconsideration, DILHR requests that the case be remanded to the LIRC to make further factual findings. Specifically, DILHR notes that sec. 108.02 (3) (b), Stats., requires that two conditions be met for the exemption to apply. The commission had found that the owner-operators were not free from Star Line's *289a direction or control under sec. 108.02 (3) (b)1. Since that finding was made, the commission made no findings on the independently established business test under sec. 108.02 (3) (b) 2. This court reversed the commission's finding that the owner-operators' services were not free from Star Line's direction or control. DILHR contends that a remand to the commission is necessary to determine whether the owner-operators' services were performed in an independently established business. For an individual to be customarily engaged in an independently established business, it must be such a business as the person has a proprietary interest in, an interest which he alone controls and is able to give away. Sears, Roebuck & Co. v. ILHR Department, 90 Wis. 2d 736, 751, 280 N.W.2d 240 (1979). Based on a review of the entire record, since the owner-operators owned their equipment, hired other drivers to perform hauling contracts for Star Line, and were free to select hauling contracts, we find that the independently established business test has been satisfied. Accordingly, we find that both conditions in sec. 108.02(3) (b) have been met and that the owner-operators are not employees under the act.
The motion for reconsideration is denied without costs.
BEILFUSS, C.J., took no part.
SHIRLEY S. ABRAHAMSON, J. (dissenting on motion for reconsideration).
I dissent from the majority's holding on reconsideration that the owner-operators are engaged in an independently established business, sec. 108.02 (3) (b) 2, Stats. 1979-80. This court has said that the test set forth in sec. 108.02(3) (b)2 presents a factual question for DILHR and that on review the court will look for credible and substantial evidence in the record to support the Department's findings as to whether the employees in question are engaged in an independently established business. Sears, Roebuck & Co. v. *289b ILHR Department, 90 Wis. 2d 736, 744, 280 N.W.2d 240 (1979); Transport Oil, Inc. v. Cummings, 54 Wis. 2d 256, 267, 195 N.W.2d 649 (1972).
In this case DILHR has made no such findings. Star Line does not appear to have presented evidence specifically related to this issue nor to have addressed this issue at the proceedings before DILHR, the circuit court, the court of appeals, or this court. Nor did Star Line address the issue at oral argument before this court. DILHR first raised the issue in its motion for reconsideration, in response to the majority's holding.
I dissent because I conclude that this court is acting as a fact-finder and as such has exceeded its appellate jurisdiction. I would remand the matter to DILHR.
NOTES
[] Motion for reconsideration denied, without costs, on January 3, 1983. BEILFUSS, C.J., took no part.
[1] PSC 60.03 (2), Wisconsin Administrative Code, provides:
"PSC 60.03 Lease of motor vehicle. A lease for the use of a motor vehicle, except interchanged vehicles subject to Wis. Adm. Code section PSC 60.04 hereof, must comply with each of the following requirements:
". . .
"(2) Shall provide for the exclusive possession, control, and use of the motor vehicle involved by the authorized carrier and the complete assumption by such authorized carrier of full responsibility to the public, the shippers, and all regulatory agencies having jurisdiction, during the entire period of the lease, except that a lease for the use of vehicles by authorized interstate or intrastate carriers of household goods as defined by the interstate commerce commission and the public service commission of Wisconsin, respectively, and while being used to transport such household goods exclusively, are required to comply with this subsection only while such vehicle is being operated by them. This exception shall apply as long as a similar exception is in effect by the interstate commerce commission or unless otherwise ordered by the public service commission of Wisconsin."
[2] Sec. 108.02(3) (a) and (b), Stats., provides:
"(3) EMPLOYE. (a) `Employe' means any individual who is or has been performing services for an employing unit, in an employment, whether or not the individual is paid directly by such employing unit; except as provided in par. (b) or (e).
"(b) Paragraph (a) shall not apply to an individual performing services for an employing unit if the employing unit satisfies the department as to both the following conditions:
"1. That such individual has been and will continue to be free from the employing unit's control or direction over the performance of his service both under his contract and in fact; and
"2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged."
[3] Sec. 108.21 (1), Stats., provides:
"108.21 Record and audit of payrolls. (1) Every employer of one or more persons in Wisconsin shall keep such a true and accurate employment record for each individual employed by him, including full name, address and social security number, as will permit determination of the weekly wages earned by each such individual from him, and shall furnish to the department upon demand a sworn statement of the same. Such record and any other records which may show any wages paid by the employer shall be opened to inspection by any authorized department representative at any reasonable time."
[4] Sec. 108.21 (2), Stats., provides:
"(2) The findings of any such authorized representative of the department, based on examination of the records of any such employer and embodied in an audit report mailed to the employer, shall constitute a determination within the meaning of s. 108.10 and said section shall apply accordingly."
[5] Sec. 108.10(1), Stats., provides:
"108.10 Settlement of issues other than benefit claims. In connection with any issue arising under this chapter as to any liability, of an employer of one or more persons in Wisconsin, for which no review is provided under s. 108.09 and with respect to which no penalty is provided in s. 108.24, the following procedure shall apply:
"(1) A deputy designated by the department for the purpose shall investigate the existence and extent of any such liability, and may issue an initial determination accordingly; provided, however, that such a deputy may set aside or amend any such determination at any time on the basis of subsequent information or to correct a clerical mistake. A copy of each determination shall be mailed to the last known address of the employer affected thereby. The employer may request a hearing as to any matter therein, by filing such request with the deputy within 20 days after such mailing and in accordance with such procedure as the department may by rule prescribe."
[6] Sec. 108.10(2), Stats., provides:
"(2) Any hearing duly requested shall be held before an appeal tribunal established as provided by s. 108.09(4), and s. 108.09(3) and (5) shall be applicable to the proceedings before such tribunal. Within 20 days after the appeal tribunal's decision is mailed to the employer's last-known address, the employer may petition the commission for review thereof pursuant to general department rules. On review, the commission may affirm, reverse, change, or set aside the decision of the appeal tribunal on the basis of evidence previously submitted in such case, or set aside the decision and remand the case to the department for further proceedings."
[7] Sec. 108.10(4), Stats., provides:
"(4) The employer may commence action for the judicial review of a commission decision hereunder, provided said employer, after exhausting the remedies provided hereunder, has commenced such action within 30 days after such decision was mailed to his last known address. The scope of judicial review, and the manner thereof insofar as applicable, shall be the same as that provided in s. 108.09(7)."
[8] Sec. 108.09(7), Stats., provides:
"(7) JUDICIAL REVIEW. (a) Either party may commence judicial action for the review of a decision of the commission under this chapter after exhausting the remedies provided under this section if the party has commenced such judicial action in accordance with s. 102.23 within 30 days after a decision of the commission is mailed to a party's last-known address.
"(b) Any judicial review under this chapter shall be confined to questions of law, and the provisions of ch. 102 with respect to judicial review of orders and awards shall likewise apply to any decision of the commission reviewed under this section. In any such judicial action, the commission may appear by any licensed attorney who is a salaried employe of the commission and has been designated by it for this purpose, or at the commission's request by the department of justice.
"(c) If, as a result of judicial review of a commission decision denying an employe's eligibility for benefits, it is finally determined that benefits are payable, they shall be calculated as of the date of the commission's decision."
[9] Sec. 102.23(1), Stats., provides in part:
"102.23 Judicial review. (1) . . . . Within 30 days from the date of an order or award made by the commission either originally or following the filing of a petition for review with the department under s. 102.18 any party aggrieved thereby may by service as provided in par. (2) commence, in circuit court, an action against the commission for the review of the order or award, in which action the adverse party shall also be made a defendant. . . ."
[10] The term "shipper" is not defined in the PSC code. It is commonly understood to mean the owner or person for whose account the carriage of goods is undertaken. Norman G. Jensen, Inc. v. Federal Maritime Commission, 497 F.2d 1053, 1056 (8th Cir. 1974). Webster's Third New International Dictionary (1967) defines "shipper" as one that sends goods by any form of conveyance.
[11] Sec. 102.23(6), Stats., was created by ch. 195, Laws of 1977.
[12] Sec. 194.09, Stats., provides:
"194.09 Marking carrier vehicles. Each motor vehicle for which a common carrier permit, a contract carrier permit or a private carrier permit is issued, shall be plainly marked in such manner as the department may prescribe, so as to identify such motor vehicle as being operated under such a permit."
[1] Star Line argues on appeal that the parties' actual relationship, not their written contract, is the test of "control or direction" and is therefore determinative of the parties' status under the unemployment compensation act. The majority has not adopted Star Line's position.
Star Line also argues that this court should follow the decisions of the federal courts and other state courts which hold that owner-drivers and not employees. In Moorman Mfg. Co. v. Industrial Commission, 241 Wis. 200, 201, 5 N.W.2d 743 (1942), this court rejected the argument that we should look to other jurisdictions' interpretations of unemployment compensation acts to interpret Wisconsin's unemployment compensation act. This court said that Wisconsin's, not other states', legislative policy should determine obligations under the Wisconsin act. The policy of the Wisconsin unemployment compensation act is to aid the unemployed worker who is tied to the labor market and unable to find work and to limit his economic loss and his loss of purchasing power in society. See, Milwaukee Transformer Co., Inc. v. Industrial Commission, 22 Wis. 2d 502, 511, 126 N.W.2d 6, 12 (1964); Moorman Manufacturing Co. v. Industrial Commission, 241 Wis. 200, 204-05, 5 N.W.2d 743, 745 (1942); sec. 108.01 (1), Stats. 1979-80. Regardless of how other states construe their act, the Wisconsin unemployment compensation act should be construed liberally to protect unemployed persons. See Note, Statutory Construction Unemployment Compensation Act Derogation Rule, 1941 Wis. L. Rev. 269, 271.
Alternatively Star Line argues that this court should apply the common-law rules of agency which distinguish independent contractors from employees (servants) to determine whether an individual is free from control under sec. 108.02(3) (b)1. Although the words "control" and "direction" are not defined in sec. 108.02 (3) (b)1, or in Chapter 108 or in our cases, our court appears to have rejected the argument that Star Line advances here. In Moorman Mfg. Co. v. Industrial Commission, 241 Wis. 200, 203, 5 N.W.2d 743 (1942), we said that even though the individual was a common-law independent contractor, this characterization "does not necessarily bar him from being an employee under the act. His status under the act must be determined from the act itself in view of the purpose of the act as declared therein. We consider that so construing the act Elliott was an employee."
In Sears, Roebuck & Co. v. DILHR, 90 Wis. 2d 736, 750, 280 N.W.2d 240 (1979), the question was raised whether the statutory control test of sec. 108.02 (3) (b)1 is or is not a restatement of the common law test applicable to determine who is an independent contractor. The court in Sears acknowledged the question but did not answer it. The majority, although it reviews the evidence and decides that control in fact does not exist in this case, fails to define what it means by control.
[2] Although the statute appears to say that the commission determines whether the individual is free from control by looking not only at the time of the cause of action (the year 1976 in this case) but also at the past and the future dealings of the parties, neither the majority nor the parties address this question.
[3] Sec. PSC 60.03, Wis. Adm. Code, reads in part:
"PSC 60.03 Lease of motor vehicle. A lease for the use of a motor vehicle, except interchanged vehicles subject to Wis. Adm. Code section PSC 60.04 hereof, must comply with each of the following requirements:
"(1) Shall be in writing and signed by the parties thereto, or their regular employees or agents duly authorized to act for them in the execution of contracts, leases, or other arrangements. Shall show the year, make and identification, motor or serial number of the motor vehicle as shown on the registration card issued for such vehicle.
"(2) Shall provide for the exclusive possession, control, and use of the motor vehicle involved by the authorized carrier and the complete assumption by such authorized carrier of full responsibility to the public, the shippers, and all regulatory agencies having jurisdiction."
Sec. PSC 60.06, Wis. Adm. Code, reads as follows:
"PSC 60.06 Agreement meeting ICC rules. Any lease or interchange agreement meeting the requirements of interstate commerce commission rules in cases involving interstate commerce, will be deemed sufficient to meet the requirements of Wis. Adm. Code subsections PSC 60.03(1), (2), and (3), and PSC 60.04(1) and (2) of these rules, notwithstanding any provision herein to the contrary."
[4] 49 CFR sec. 1057.4(a) (4) (1977) provides:
"(a) Contract requirements. The contract, lease, or other arrangement for the use of such equipment:
". . .
"(4) Exclusive possession and responsibilities. Shall provide for the exclusive possession, control, and use of the equipment and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement. . . ."
49 CFR sec. 1057.12(d) (1981) provides:
"Exclusive possession and responsibilities
"(1) The lease shall provide that the authorized carrier shall have exclusive possession, control, and use of the equipment for the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease."
[5] The Deaton court's full discussion on this point is as follows:
"In interstate truck line cases an additional wrinkle on the control test has evolved. The Interstate Commerce Commission and the Department of Transportation closely regulate truck lines. The leading purposes of the regulations are to promote safe operation of trucks and to ensure continuous financial responsibility so that truck-related losses will not go uncompensated. The regulations, designed to protect both the highway-travelling public and the segment of the public directly using trucking services, have the effect of requiring the holder of a certificate of public convenience and necessity to possess and exercise considerable control over all trucks operated under the certificate without regard to whether the holder owns the trucks. Control over trucks involves control over drivers. We agree with the Board that it is unnecessary to decide whether ICC-mandated controls alone would be sufficient to establish the employee status of nonowner drivers of leased trucks. In the present case the Board took into account the substantial nexus of control required by federal regulations and also found that the facts established the existence of `additional controls' voluntarily reserved by Deaton. Thus the Board found that the total controls were sufficient to make out employee status." NLRB v. Deaton, Inc., supra, 502 F.2d at 1226-27.
[6] See note 1 supra for a discussion of the definition of the word "control."
[7] Star Line does not argue, as others have, that the mandated contractual provision may be just another way of stating that the owner-driver must obey the laws, not Star Line's orders, and that whatever control is exercised is not Star Line's but that of the government. Cf. Local 777 v. NLRB, 603 F.2d 862, 875 (D.C. Cir. 1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576622/ | 35 So. 3d 426 (2010)
STATE in the Interest of H.M.D. and J.J.W.
No. 09-0508.
Court of Appeal of Louisiana, Third Circuit.
April 7, 2010.
*428 Nick Pizzolatto, Jr., Louisiana Department of Social Services, Office of Community Services, Lake Charles, LA, for Plaintiff/Appellee, Louisiana Department of Social Services.
Robert J. Lounsberry, Sr., Attorney at Law, Jennings, LA, for Defendant/Appellant, J.D.
Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
PETERS, J.
This matter is before us on remand from the supreme court. When we previously reviewed it, J.D.[1] had appealed a judgment terminating her parental rights to her two minor children, J.J.W. (born January 24, 2005) and H.M.D. (born November 30, 2005).[2] We reversed the judgment and remanded the matter to the trial court for further proceedings. State in the Interest of H.M.D. and J.J.W., 09-508 (La.App. 3 Cir. 10/7/09), 20 So. 3d 564. Relying on the five-day service requirement of La.Ch.Code art. 1021, we found the trial court erred in denying J.D.'s motion for continuance when domiciliary service of notice of the hearing occurred only two days prior to the adjudication hearing.
The supreme court granted a supervisory writ filed by the State of Louisiana through the Department of Social Services, Office of Community Services (referred to hereafter as "the state" or "OCS"), set aside our reversal and remand, and remanded the matter to this court for consideration of the remaining assignments of error. State in the Interest of H.M.D. and J.J.W., 09-2373 (La.1/8/10), 26 So. 3d 129. The supreme court found that La.Ch.Code art. 1021 applies only to the initial answer hearing in a juvenile proceeding, and that the trial court did not abuse its discretion in denying the continuance. Pursuant to the supreme court's instruction, we now address the remaining assignments of error: (1) that the trial court erred in concluding that J.D. had not substantially complied with the requirements of her case management plan, and (2) that the trial court erred in concluding that there was no reasonable expectation of future significant improvement.
DISCUSSION OF THE RECORD
The record establishes that OCS first became involved with J.D. and her children on April 12, 2006,[3] and that trial on the termination issue occurred on February 12, 2009. At trial, the state introduced two exhibits[4] and called four witnesses to testify. Although her attorney participated *429 in the termination hearing, J.D. did not attend the hearing.[5] Her attorney did, however, introduce three exhibits.[6] Upon completion of the evidence, the trial court rendered judgment terminating J.D.'s parental rights.
Despite OCS's mid-April 2006 involvement, the judicial system did not become involved until July 20, 2006, when OCS sought and received an instanter oral order from the trial court authorizing OCS to take the two children into custody. The affidavit filed in support of the July 20 order was signed by Kristi Gott, identified only as "an employee" of OCS's Jefferson Davis Parish office. In her affidavit, Ms. Gott asserted that on July 20, the OCS office had received "a report of dependency and lack of adequate shelter" concerning the two children. The trial court set a continued custody hearing for July 25, 2006.
J.D. appeared at the July 25, 2006 hearing, accompanied by her court-appointed counsel. Without admitting to any specific allegation, she admitted that her children were in need of care and consented to OCS's continued custody. Based on this assertion, the trial court confirmed its July 20 oral order and continued custody of the children in the state pending further orders of the court.
The next step in the process occurred on August 18, 2006, when J.D. and representatives of OCS met and entered into a case management plan. The plan restated the original reasons for removal and stated that J.D. desired to be reunited with her children and that OCS was seeking relative placement while "working with [J.D.] in order for her [sic] be able to regain custody of her children." In another section of the case management plan, OCS identified as its goal "Reunification."
On September 7, 2006, the state filed a petition to have the children adjudicated in need of care. The trial court set the matter for hearing on September 14, 2006. On that date, J.D. appeared with her attorney and entered an admission that her children were in need of care, again without admitting to any specific allegations. Based on this admission, the trial court adjudicated the children in need of care pursuant to La.Ch.Code art. 606 and approved the August 18 case management plan.
The next meeting to review the case management plan occurred on January 4, 2007. However, the record before us does not contain a copy of the case management plan generated from this meeting. Instead, it contains a written summary of OCS's position with regard to future actions. The summary is dated January 17, 2007, and was not prepared by OCS officials, but by the state's attorney. That report suggests that J.D. "was jumping from shelter to shelter" after the initial order and had resided, not in Jefferson Davis Parish, but in Lafayette Parish, under the supervision of the Lafayette Office of OCS, between July 2006 and October 2006.[7] According to the report, in *430 October 2006, J.D. contacted Jessica Frey, her OCS worker in Jefferson Davis Parish, to inform the worker that she was living back in the parish. Based on these assertions, OCS recommended that the children remain in its custody and supervision.
The trial court held a review hearing on January 18, 2007. The minutes of that hearing reflect that J.D. and her attorney were present and voiced no objections to the recommendations of the January 17 report or the request for continued custody. The trial court then ordered that OCS maintain custody of the children, advised J.D. of her obligation to complete all the requirements of the case management plan, and approved the case plan dated January 17, 2007. The trial court also ordered that the next review hearing be held July 19, 2007.
On July 6, 2007, OCS and J.D. met for another administrative review of the case management plan. With regard to J.D.'s progress, the report generated from this meeting states that:
[J.D.] has successfully secured a home for herself with utilities connected and has furnished it. She has kept the agency informed about any changes in her contact information. [J.D.] completed a psychological evaluation on January 25, 2007 as requested. She also participated in a Parenting Wiseley program consisting of three class periods. [J.D.] has attended most of the visits with her children but she has missed some also.
[J.D.] does not bring the children gifts for holidays or birthdays. [J.D.] does not provide adequate supervision to her children during visitation at all times.
The report further provides that J.D. still wanted her children returned to her, that no relatives had been located for placement, and that "[t]he children were moved into an adoptive placement on 5/3/07 due to [J.D.'s] lack of progress in the allotted time." (Emphasis added.) In its overall assessment, which appears to conflict with the afore-stated progress summary, the report provides:
The agency has been attempting to work with [J.D.] for the last 11 months. She has not made significant progress in the allotted time. The agency has placed the children with an adoptive resource. The children are now establishing a strong and healthy bond with their foster parents. The children are thriving.
The agency continues to work with [J.D.] on the completion of her case plan. The agency enrolled [J.D.] in a Parenting Wisely program and a Life Skills program; however, [J.D.] refused to attend the Life Skills program. The agency monitors [J.D.'s] progress in securing a safe home for her children removing the risks that prompted the children's removal.
The trial court held a review hearing on July 19, 2007, as scheduled. J.D. did not attend this hearing although her counsel was present. This hearing generated an order maintaining custody with OCS, approving the July 6 case management plan, and finding that inadequate progress had been made toward reunification. However, the judgment further rejected the move toward adoption and specifically ordered that the plan for permanent placement of the children remain reunification with their mother.
Less than one week later, OCS held its own staff meeting, wherein it appears to have made the decision to ignore the judgment of the trial court. The result of that staffing meeting held July 23, 2007, was OCS's unilateral decision to pursue termination *431 of J.D.'s parental rights.[8] Through an August 21, 2007 letter, OCS finally notified the trial court of this decision. OCS attached to the letter a report dated the same day, wherein it stated its reasons to be as follows.[9]
The agency feels that [J.D.] has not made significant progress toward her case plan. For many months she did not stay in contact with her worker and failed to visit her children. [J.D.] does not know her children's dates of birth. Half of the time [J.D.] does not know what month it is. During visitation with her children she does not provide adequate supervision to her children at all times. [J.D.] has a hard time handling the children for the entire two-hour visit. The children scream and cry for most of the visits. The agency feels that it would not be in the best interests of the children to continue to work toward return. The agency is changing the goal to adoption.
(Emphasis added.)
On September 6, 2007, the matter was again before the trial court for consideration of the state's change of position. Noting that J.D. had not been served with notice of the hearing,[10] the trial court continued the matter until October 4, 2007. J.D. appeared on October 4, as did her attorney. Without comment from any party, the trial court ordered the August 12 report filed into the record and provided the parties with a new case management plan establishing termination of parental rights as the new objective.
It took four additional months for the state to file its petition to terminate J.D.'s parental rights. This occurred on January 7, 2008. However, despite this delay, the proceedings moved forward in the fall of 2007 as if the termination proceeding had already been filed.[11] When filed, the petition to terminate J.D.'s parental rights based OCS's request for relief on the following assertions:
1. There has been no significant or timely parental compliance with the case plans for services approved by the court as necessary for the safe return of the children;
2. The children have been in the State's custody for over one year. They need a stable and permanent home and cannot wait any longer for their mother to rehabilitate;
3. She disappeared from August 24, 2006 until December 6, 2006 and then again disappeared from December 20, 2006 until January 17, 2007;
4. She has failed to timely attend court ordered parenting classes. She chose instead to attend a parenting class not authorized by the AGENCY. She just recently registered for an approved parenting class, however, the class is a several month course and she registered over a year after her children came into custody.
*432 5. She was ordered to attend a psychological evaluation and to submit to any treatment or attend any courses that the evaluator felt was necessary to facilitate the goal of reunification.
On January 25, 2007 she presented for a psychological evaluation with Dr. Ed Bergeron, Ph D, MP. He recommended mental health services, intense individual therapy, anger management and parenting skills training, and also recommended that reunification could not be attempted until the mother complied with all of the recommendations and showed a pattern of stability and improvement. He suggested drug therapy as well.
The mother failed to submit herself for any of the recommended treatment until just recently. After continually refusing to submit to the life skills program, she is now attempting to comply.
6. The mother recently tested positive for Marijuana, so the agency is now faced with this new problem presented by the mother's actions.
Additionally, the mother recently became very belligerent with a State employee supplying transportation to her.
7. The mother has not supported her children since they came into custody. Therefore, she has abandoned her children pursuant to Ch. C. Art. 1015(4).
8. The mother has made about % of the visits offered to her. That is not significant contact as contemplated by Ch. C. Art. 1015(4) and therefore she has abandoned her children.
The matter obviously did not go to trial on January 24, 2008. Instead, that hearing was used as an answer hearing for the January 7 filing. J.D. appeared at the hearing and denied all of the allegations. The trial court then set trial of the termination issue for March 13, 2008. Additionally, because OCS and J.D. had participated in another case management plan meeting on January 8, 2008, the trial court adopted the recommendation of OCS arising from that meeting that custody remain in the state pending the outcome of the termination proceedings. The state had provided J.D. and the trial court with a summary of the meeting through correspondence dated January 8, 2008. In that report, OCS stated its position with regard to J.D. as follows:
The agency feels that [J.D.] continues to pose a high risk to her children. [J.D.] has not competed her case plan. However, [J. D] has completed anger management classes and is currently enrolled and attending the Life Skills Program. The agency is awaiting a report regarding her participation and progress. The agency was able to complete two random drug screens on [J.D.] and both were positive for THC. When [J.D.] was questioned she denied drug usage and said that the results were wrong. The case plan will be amended to include completion of a substance abuse program. Since the last court hearing a situation arose where [J.D.] had become verbally abusive to an OCS staff member during transportation. [J.D.] continues to take no initiative for herself; she rarely knows her children's dates of birth or what day it is. [J.D.] rarely brings food or gifts for the children. [J.D.] recently contacted Senator Donald Cravins regarding her situation and that she was being treated unfairly. Senator Cravins's office contacted agency and an appointment was set up between all parties involved. [J.D.] failed to show up for the appointment.
The matter did not go to trial on March 13, 2008. By written motion filed March *433 11, 2008, J.D. sought and obtained a continuance of the trial date until May 8, 2008. On May 6, 2008, OCS sought and received a continuance of that trial date based on its assertion that it could not serve its subpoenas in time to assure witness attendance at the trial. The trial court refixed the trial for July 24, 2008. By a written motion filed July 24, 2008, J.D. received a continuance based on the fact that the psychological report prepared by the state's expert had never been made available to her attorney. The trial court refixed the matter for October 9, 2008. The October 9, 2008 trial was also continued, this time on the motion of the state. The minutes of that day stated that the state sought the continuance and the other parties concurred in the grant, although it is unclear why the state sought the continuance. The minutes reflect that the effect of the continuance was the trial court's order that the case plan be amended as follows:
Court ordered OCS provide assistance in obtaining therapy, psychiatric medical treatment, and medication for the mother in St. Martin Parish within 7 days; the OCS office will provide transportation for the initial signup, but the mother is responsible for all transportation after that time; the mother must show willingness to comply with the treatment recommendations; a preliminary report containing services provided and progress must be presented to counsel within 30 days; after such time a reassessment be conducted on the mother by Ed Bergeron. Court advised Jessica Frey with the Office of Community Services that the revised case plan needs to be completed with one week. Court further ordered the mother receive an evaluation within 7 days and the amended case plan be presented to her at the end of that time.
Trial on the termination of parental rights was rescheduled for December 3, 2008.
On October 30, 2008, the trial court upset the December 3, 2008 trial date and reset the matter for January 29, 2009. Nothing in the record explains the need for the refixing or which party requested the change. Additionally, the notice of refixing was forwarded only to the attorneys of record and Ms. Frey with OCS. This date lasted only a short time as well. On November 24, 2008, OCS requested a continuance of that date. The trial court granted the request and reset the matter for February 12, 2009. Serving instructions on this motion included service by mail on J.D.'s counsel and personal service on J.D. at a St. Martinville, Louisiana address. However, the notice in the record provides only for service on the attorneys of record and Ms. Frey.
The matter finally went to trial on February 12, 2009, and resulted in a judgment terminating J.D.'s parental rights. The four witnesses called by the state were Kimberly James, J.D.'s OCS case worker since December of 2007; Summer Oyster, the children's OCS caseworker since December 1, 2008; Jessica Frey, another OCS caseworker who had worked with J.D. and the children off and on from July of 2006 until July 2008; and M. W., the children's father. As previously stated, J.D. was not present at the trial, but was represented by her court-appointed counsel.
According to Ms. James, J.D. had completed the drug assessment requirements imposed on her by OCS and did not require any drug-related services; J.D. had maintained an apartment for over two years prior to trial; J.D. was disabled and living on a $446.00 monthly disability check; and since Ms. James took over the supervision of the case, someone from OCS had been responsible for transporting J.D. *434 to the family-team conferences; and, at the time of the trial, J.D. was attending a 16-week nurturing parenting course with Extra Mile. In fact, Ms. James testified that J.D. had complied with all of her case management plan except the requirement for mental health services. She did acknowledge, however, that on one occasion J.D. refused to perform a random drug screen, and, on one other occasion in 2007, she tested positive for marijuana; that she had missed many visits with her children (although recently she had attended all of her visits); and that she was often not at home when Ms. James came to visit.
Ms. Oyster testified that she had been the children's OCS caseworker for only three months. During that time, Ms. Oyster attended all of J.D.'s visits with her children and observed some of J.D.'s parenting classes. According to Ms. Oyster, the children are doing very well in their foster placement, but they have some behavioral problems both before and after visiting with J.D.
Ms. Frey was J.D.'s initial OCS caseworker. In fact, she had actually worked with J.D. as a family services representative providing help to J.D. before the July 20, 2006 instanter order. However, after the children came into the state's custody, Ms. Frey's primary obligation was that of caseworker to the father, although she worked a total of six months as J.D.'s caseworker. Ms. Frey testified that one of the conditions of J.D.'s case plan was to complete a psychological evaluation, which she did by submitting to an evaluation by Dr. Ed Bergeron, a Lafayette, Louisiana medical psychologist. According to Ms. Frey, Dr. Bergeron recommended mentalhealth services that included intense individual therapy, anger management, and parenting skill training. Ms. Frey testified that while she had the cases J.D. never accepted the mental-health services offered to her and did not participate in intense individual therapy. However, Ms. Frey testified that in making this comment she was relying, not on personal knowledge, but on information in the record provided by J.D.'s case worker.
Dr. Bergeron's written report is in the record. According to this report, he first saw J.D. on January 25, 2007, when he found her to "be markedly unstable on a psychological level" and concluded that she was suffering from "depression and a severe personality disorder." Based on this evaluation, he concluded that at that time she was incapable of caring for her children and, therefore, should not be awarded their custody.
Pursuant to the October 9, 2008 trial court order, Dr. Bergeron evaluated J.D. a second time on December 3, 2008. The purpose of that evaluation was to determine what improvement, if any, she had made since his last evaluation. He concluded, after that evaluation, that she was still "extremely psychologically unstable." In fact, he observed that, by her approach to taking the tests administered, she intentionally invalided the tests results of personality and parenting style "out of sheer defiance." He concluded that "she was engaging in passive-aggressive behavior," a behavior "typical of an individual who suffers from Borderline Personality Disorder." He again recommended that the children not be returned to her, as "there has been no improvement since her last evaluation." Dr. Bergeron did not testify at the termination hearing.
In its reasons for judgment, the trial court found that more than one year had elapsed since the children had been removed from J.D.'s custody; that J.D. had failed to comply with the terms of the case management plan imposed upon her; and that, despite early intervention, there is no reasonable expectation of significant improvement *435 in the near future. In reaching this conclusion, the trial court placed much emphasis on J.D.'s underlying mental condition as diagnosed by Dr. Bergeron.
The assignments of error that this court did not previously address are J.D.'s assertions that the trial court erred in concluding that she had not substantially complied with the requirements of her case management plan and that the trial court erred in concluding that there was no reasonable expectation of future significant improvement.
OPINION
In State in the Interest of J.A., 99-2905, pp. 7-8 (La.1/12/00), 752 So. 2d 806, 810-11, the supreme court stated:
In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981), and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship, State in Interest of Delcuze, 407 So. 2d 707 (La.1981). However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. Lehman v. Lycoming County Children's Serv.'s Agency, 458 U.S. 502, 102 S. Ct. 3231, 73 L. Ed. 2d 928 (1982); see also State in the Interest of S.M., 98-0922 (La.10/20/98), 719 So. 2d 445, 452. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. See, e.g., State in the Interest of S.M., 719 So.2d at 452; State in the Interest of A.E., 448 So. 2d 183, 186 (La.App. 4 Cir.1984); State in the Interest of Driscoll, 410 So. 2d 255, 258 (La.App. 4 Cir.1982).
In balancing the interests of the parent versus the child, the state's burden in a termination proceeding is first to establish by clear and convincing evidence one of the statutory grounds for involuntary termination of a parent's rights and then to establish by clear and convincing evidence that termination of parental rights is in the child's best interest. Id. The trier of fact does not reach the best interest issue unless and until the state establishes a ground for termination. State in the Interest of M.R. v. S.F.H., 09-889 (La.App. 3 Cir. 12/9/09), 25 So. 3d 1021, writ denied, 09-2812 (La.1/14/10), 24 So. 3d 878. Additionally, we review the trial court's findings of fact under a manifest error/clearly wrong standard. Id.
The eight reasons listed in the state's petition for termination of J.D.'s parental rights can all be categorized into one ground under La.Ch.Code art. 1015:
Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering *436 the child's age and his need for a safe, stable, and permanent home.
La.Ch.Code art. 1015(5).
While the allegations of the state's petition are very specific, the evidence presented failed to address some of the eight assertions and conflicted with others. Still, the state did establish by uncontradicted evidence that J.D. failed to comply with various aspects of the case management plan in that she did not meet the requirement for mental health services; on one occasion she tested positive for marijuana, and on one occasion she refused a random drug test; she missed many scheduled visits with the children; she failed to complete a psychological evaluation until very late in the sequence of events; and she intentionally invalidated the tests performed by Dr. Bergeron. Given the evidence presented, we cannot say that the trial court committed manifest error in concluding that the state proved by clear and convincing evidence that J.D. failed to substantially comply with the overall case plan for services as originally filed, amended, and approved by the trial court.
Proof of the second prong of the inquiry under La.Ch.Code art. 1015(5) whether the state established by clear and convincing evidence that there is no reasonable expectation of significant improvement in J.D.'s condition or conduct in the near future, considering the children's age and their need for a safe, stable, and permanent homeis less clear based on the direct evidence presented.
Sadly, the state's direct evidence failed to address this point at all. The three witnesses who testified concerning the relationship between OCS and J.D. restricted their testimony to past history, and Dr. Bergeron's reports failed to directly address this issue.
In his report, Dr. Bergeron did conclude that when he interviewed J.D. on January 25, 2007, "she was not ready to be reunified with her children because she was deemed to be markedly unstable on a psychological level." (Emphasis added.) It was in the follow-up interview of December 3, 2008, that Dr. Bergeron concluded that J.D. intentionally tried to invalidate the test results. The summary of his findings is as follows:
Based on information derived from the current evaluation, this psychologist cannot recommend reunification as there has been no improvement since her last evaluation. Based on her presentation and on the manner in which she responded to formal psychological assessment, treatment motivation is deemed poor.
While it would have been extremely helpful to this court for the state to have asked the direct question concerning reasonable expectation of significant future progress, we do not find that this failure alone warrants reversal.[12] In the matter before us, considering the entire history of J.D.'s actions and inactions from the time her children were removed until trial; the fact that J.J.W. is five years old and H.M.D. is almost five, and that both are now school age; that the children have lived in a stable environment for almost *437 four years; and Dr. Bergeron's testing results and conclusion concerning J.D.'s treatment motivation, the trial court's conclusion with regard to the "reasonable expectation" issue is not manifestly erroneous.
Having concluded that the trial court was not clearly wrong in determining that a ground for termination exists, we turn to the "best interest" issue. As the supreme court noted in State in the Interest of J.A., 752 So.2d at 811:
The State's parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. LA. CHILD. CODE art. 1001. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens. The potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration. State in the Interest of A.E., 448 So.2d [183] at 185 [La.App. 4 Cir.1984].
Balancing J.D.'s rights against those of her children and considering the fundamental purpose, focus, and primary concern of termination proceedings as explained by the supreme court, we conclude that the trial court did not commit manifest error in concluding that the best interests of the children require termination of their mother's parental rights.
DISPOSITION
For the foregoing reasons, we affirm the trial court judgment in all respects. We assess all costs of these proceedings to J.D.
AFFIRMED.
NOTES
[1] The initials of the children and their parents are used to protect the identity of the minor children. Uniform RulesCourts of Appeal, Rules 5-1, 5-2.
[2] The children's mother and father were never married. The father, M.W., was also named as a defendant in the termination proceedings, but consented to his parental rights being terminated and has not appealed that determination. Thus, we address only the termination of J.D.'s parental rights.
[3] OCS's first involvement was to investigate an April 5, 2006 report that J.D. was giving H.M.D. homogenized milk and that H.M.D. had not been to the doctor or received any immunizations.
[4] The two exhibits were the entire record of these proceedings as well as the H.M.D.'s medical records, which indicated the child's treatment for allergies and asthma.
[5] Her attorney's explanation for J.D.'s failure to appear was that she did not have personal notice of the hearing despite the domiciliary service two days before the hearing.
[6] The attorney introduced a letter from the City of St. Martinville, Louisiana, indicating that J.D. had maintained an apartment in that city since January of 2007; a certificate reflecting that J.D. had completed an anger management class with Extra Mile Region IV, Inc., on September 25, 2007; and a certificate reflecting that she had completed a healthy parenting program with CDJ Rehabilitation Services, L.L.C., on May 6, 2008.
[7] This assertion is in conflict with the fact that J.D. appeared at the August 18 meeting and appeared in open court on September 14, 2006.
[8] The record contains no evidence that J.D. participated, or was even invited to participate, in this meeting.
[9] It is obvious that these reasons were present when OCS made its recommendations to the trial court at the July 19, 2007 hearing. Furthermore, OCS did not reference the trial court's judgment of July 19 ordering OCS to continue pursuing reunification.
[10] All counsel were present, as was Jessica Frey with OCS.
[11] The record contains a notice filed October 23, 2007, that the trial date for the termination proceedings had been continued from January 17, 2008, to January 24, 2008.
[12] While we do not conclude that the state's failure to directly address this issue in this case is fatal to its request for termination of J.D.'s parental rights, we do not wish to suggest that this issue is not of critical importance in all termination cases. Our holding is limited to the fact situation before us. We also find disturbing OCS's unilateral decision to ignore the trial court's order of July 19, 2007, to place the move toward adoption on hold and continue the reunification goal. Still, this is a matter for the trial court to address and does not address the final outcome of this litigation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/598425/ | 983 F.2d 1066
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Donald GINNETTI, Plaintiff-Appellant,v.Louis W. SULLIVAN, M.D., Secretary of Health and HumanServices, Defendant-Appellee.
No. 92-3198.
United States Court of Appeals, Sixth Circuit.
Dec. 22, 1992.
Before BOYCE F. MARTIN, JR. and MILBURN, Circuit Judges, and WELLFORD, Senior Circuit Judge.
PER CURIAM.
1
Donald Ginnetti applied for disability insurance benefits, pursuant to Title II of the Social Security Act, 42 U.S.C. § 401, et seq., on two separate occasions relevant to this appeal. Ginnetti received benefits for kidney disease under his first application, filed in June 1976, until the Social Security Administration notified him in March 1983 that his eligibility had terminated in 1978. Ginnetti then filed another application, based on heart disease. The Administration granted this application, but deducted amounts from his payments to recoup overpayments made to Ginnetti between 1978 and 1983. Ginnetti appeals the district court's order affirming the decision of the Secretary of Health and Human Services to recoup the overpayments made to Ginnetti.
2
Donald Ginnetti, the claimant, is a 54-year-old man with a high school education. Ginnetti first became disabled in March 1976 due to kidney disease, and he filed his first application for disability insurance benefits in June 1976. After receiving a kidney transplant, Ginnetti returned to work as a self-employed real estate agent in January 1978. He worked through 1978 and sporadically in 1979. During this time, Ginnetti continued to receive disability benefits, even though he had returned to substantial gainful activity. In March 1983, Ginnetti received notice from the Social Security Administration that his eligibility for benefits under this application had expired in December 1978. The Administration based this determination on its finding that Ginnetti had surpassed the nine-month trial work period allowed under 20 C.F.R. § 404.1592, by continuing to work through October 1978. Therefore, his eligibility for benefits expired on December 31, 1978, after a three-month grace period. The Administration also notified Ginnetti that he had received a substantial overpayment between 1978 and 1983. Ginnetti appealed these findings, and an administrative law judge determined that Ginnetti was at fault in receiving the overpayments. Moreover, the district court ultimately affirmed the finding of fault.
3
In the meantime, Ginnetti filed a new disability application on July 13, 1983 based on heart disease. The Administration granted the application, but it reduced Ginnetti's monthly payments to recoup the overpayments that he had received between 1978 and 1983. Ginnetti appealed the reduction of his benefits, arguing that the Secretary should waive recoupment of benefits in this case. The district court found that the Social Security Act, 42 U.S.C. § 404(b), prohibits recoupment of overpayments only when the claimant is "without fault" in receiving an overpayment and when recoupment would defeat the purpose of the Act or be against equity and good conscience. Relying on the previous determination that Ginnetti was at fault, the district court found that Ginnetti's case did not warrant waiver of recoupment. For the following reasons, we affirm the district court's decision.
4
The "doctrine of collateral estoppel, or issue preclusion, dictates that once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Leaman v. Ohio Dept. of Mental Retardation, 825 F.2d 946, 964 (6th Cir.1987), cert. denied, 487 U.S. 1204 (Merritt, J., dissenting on other grounds) (citations omitted). Therefore, "[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose." Olchowik v. Sheet Metal Workers Int'l Ass'n, 875 F.2d 555, 557 (6th Cir.1989) (quoting United States v. Utah Constr. Co., 384 U.S. 394 (1966)). The classic test for determining whether the doctrine of issue preclusion applies involves analysis of three factors: (1) whether the issue is identical to that actually decided by another decisionmaker; (2) whether the issue was necessary to the earlier judgment; and (3) whether the party against whom preclusion would operate had a full and fair opportunity to litigate the issue. Id.
5
The facts and procedural history of this case meet the classic test for issue preclusion on the issue of whether Ginnetti was "without fault" in receiving overpayments of benefits. A previous decisionmaker, a United States Magistrate Judge, affirmed the decision of an administrative law judge that Ginnetti was at fault in accepting overpayments. The district court also affirmed this determination, and Ginnetti did not appeal this issue further. The determination of fault was necessary to the judgment in the previous case because Ginnetti had contested the Secretary's notice that he was liable for overpayment. Finally, Ginnetti had a full and fair opportunity to litigate the issue of fault at the administrative, magistrate, and district court levels. At each level, the adjudicating body found Ginnetti at fault and therefore, liable for restitution of the overpayment. Ginnetti did not appeal the determination of fault to this court; therefore, the doctrine of issue preclusion prevents this court from reconsidering the issue.
6
Moreover, even if this court were to evaluate the issue of Ginnetti's fault in accepting overpayments of benefits, we would determine that substantial evidence supports the finding of fault. See Watson v. Sullivan, 940 F.2d 168 (6th Cir.1991). The determination of whether the claimant is without fault is the threshold inquiry in the decision of whether waiver of recoupment is appropriate. Id. at 171. See also 42 U.S.C. § 404(b). A claimant is at fault in receiving overpayments when the incorrect payment results from one of the following: (1) failure to furnish information which the individual knew or should have known was material; (2) an incorrect statement by the individual which he knew of should have known was incorrect; or (3) failure to return a payment which the individual knew of could have been expected to know was incorrect. 20 C.F.R. § 416.552.
7
Substantial evidence supports the Secretary's determination that Ginnetti was at fault in receiving overpayments of disability benefits. Ginnetti failed to notify the Social Security Administration that he had returned to substantial gainful activity. Moreover, Ginnetti submitted a statement to the Administration in which he falsely claimed that he had not worked since he first began receiving benefits in 1976. Accordingly, waiver of recoupment by the Secretary is inappropriate because Ginnetti was at fault in receiving overpayments.
8
The judgment of the district court is hereby affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1576935/ | 35 So. 3d 35 (2010)
MARQUEZ
v.
JIMENEZ.
No. 3D10-682.
District Court of Appeal of Florida, Third District.
April 21, 2010.
Decision Without Published Opinion Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2238112/ | 579 N.E.2d 1312 (1991)
Ronald J. McBride and Vicki L. McBride, et. al., Appellants-Petitioners,
v.
BOARD OF ZONING APPEALS of the Evansville-Vanderburgh Area Plan Commission, et. al., Appellees-Respondents.
No. 82A01-9012-CV-508.
Court of Appeals of Indiana, First District.
October 16, 1991.
*1313 Leslie C. Shively, Noffsinger, Price, Bradley & Shively, Evansville, for appellants-petitioners.
Cedric Hustace, Bowers, Harrison, Kent & Miller, Evansville, for Board of Zoning Appeals of Evansville-Vanderburgh County.
Gerald H. Evans, Donald R. Wright, Wright, Evans & Daly, Evansville, for Browning-Ferris Industries of Indiana, Inc.
William B. Combs, Evansville, for Estate of Ervin F. Lipper, by Jeffrey L. Meyer, Personal Representative and Individually.
RATLIFF, Chief Judge.
STATEMENT OF THE CASE
Ronald J. McBride and Vicki L. McBride, et. al. ("McBride") appeal a trial court judgment affirming the determination of the Board of Zoning Appeals of Evansville-Vanderburgh Area Plan Commission ("BZA"), which granted a special use classification for the expansion of a sanitary landfill facility owned by Browning-Ferris Industries of Indiana, Inc. ("Browning"). The expansion would be located on property owned by the Estate of Ervin F. Lipper ("Lipper"), who is represented in this appeal by the personal representative, Jeffrey L. Meyer ("Meyer"). We affirm.
ISSUES
We restate the issues on appeal as:
1. Did McBride waive any alleged procedural errors in the Hearing by not objecting to alleged irregularities at the Hearing?
2. Did the BZA properly adopt findings of fact supporting its decision at the Hearing?
3. Did McBride fail to show any alleged improper contact between Browning and BZA members prior to the Hearing?
FACTS[1]
Browning and Meyer (hereinafter collectively referred to as "Browning") filed an application with the BZA on February 19, 1990, for a special use classification for a sanitary landfill, solid waste landfill and accessory uses on property owned by Lipper's estate, which was zoned for agricultural uses. Browning already operated a sanitary landfill on land adjacent to the area in dispute. Browning's operations are closely regulated by state agencies, including the Indiana Department of Environmental Management ("IDEM") and the Indiana Department of Natural Resources ("IDNR"). The special use classification at issue here is only the first hurdle that Browning must cross in expanding its operation. Its proposal must also be approved by various state agencies, including IDEM and IDNR, before waste disposal in the expansion area may begin.
On or about March 28, 1990, Browning sent an informational packet regarding the proposed landfill expansion to the Area Plan Commission of Evansville-Vanderburgh County ("Area Plan Commission"). The Area Plan Commission provides administrative support to the BZA.
Sometime between the Area Plan Commission's receipt of Browning's informational packet and the public hearing on the special use permit on April 5, 1990 ("Hearing"), *1314 the Area Plan Commission sent packets of information regarding the proposed landfill expansion to BZA members. These packets included information from Browning, a staff field report, a letter from a soil conservation officer, a letter from Valley Watch, a letter from West Side Improvement Association, and a document concerning new legislation.
Attorney Edward Johnson ("Johnson") represented McBride before the BZA regarding the special use application. The Hearing was a special meeting at which the only item on the agenda was the application for special use classification at issue in this review. Prior to the Hearing, Johnson went to the BZA offices on approximately three separate occasions to review Browning's application and other relevant documents. In these visits, Johnson did not see any rules or regulations regarding the procedures to be utilized for the conduct of a public hearing; he was not given, in printed form, any rules or regulations regarding the conduct of such a hearing. However, Johnson also admits that he never requested any such information.
Prior to the Hearing, Marian Hite ("Hite"), Chairman of the BZA, contacted Johnson and informed him that each side would be limited to thirty (30) minutes at the Hearing for the presentation of evidence. Johnson at that time requested additional time to present his evidence, but Hite denied his request.
On the evening of April 5, 1990, Johnson again spoke with Hite and asked for additional time to present evidence for McBride. Hite denied his request. As the Hearing commenced, Hite announced that each side would be limited to thirty (30) minutes for the presentation of evidence, and gave other general instructions regarding the conduct of the Hearing. The record is unclear regarding how the time limit for this particular hearing was set; normally, each side in a hearing of this nature is allowed ten (10) minutes to present evidence. Hite also outlined the criteria that would have to be met for Browning's application to succeed. At the Hearing, each side was initially allowed its thirty (30) minutes to present evidence. Thereafter, BZA members asked for additional information to clarify certain aspects of the presentations. Much of the additional information was gleaned from Browning's representatives. Other special interest groups and governmental agencies also made presentations. Petitions were submitted containing approximately 3,700 signatures of persons who opposed Browning's application.
At the Hearing's conclusion, the BZA voted by a 4-2 margin to grant Browning's application, subject to seventeen (17) conditions. No findings of fact were adopted at that meeting. Johnson did not object to either the length of time allotted for his presentation or the lack of factual findings adopted at the Hearing.
On May 4, 1990, McBride filed a petition for writ of certiorari and judicial review challenging the granting of the special use classification. Among the errors cited by McBride were the BZA's failure to make specific findings of fact in support of its decision,[2] BZA's failure to adopt and promulgate rules of procedure for the conduct of the Hearing,[3] and improper communications with BZA members prior to the Hearing.[4]
On June 28, 1990, BZA filed a transmittal of record of proceedings and attached draft findings of fact from the Hearing. On July 19, 1990, BZA adopted the findings of fact in support of its decision at the Hearing. Section 153.132 of the Code of Ordinances of Vanderburgh County requires that notice of a public hearing regarding a special use application be given to all abutting property owners and by legal advertisement twelve (12) days in advance of the hearing. The only notice given regarding the July 19, 1990 meeting was the pleadings of the pending court action served on Johnson. On July 20, 1990, the findings of *1315 fact were transmitted to the trial court as a supplemental record.
On or about August 8, 1990, the BZA filed an affidavit of the Executive Director of the Area Plan Commission. Attached to the affidavit were rules of procedure for BZA public hearings that were adopted in September of 1981. A pleading submitted by BZA with the affidavit admits that the written procedural rules were not made known to or relied on by any of the Hearing's participants. BZA stated that the rules were submitted to apprise the court of their existence.
On September 25, 1990, the trial court conducted a hearing on McBride's petition for writ of certiorari for review of the BZA's decision. On November 14, 1990, the trial court issued its judgment, including findings of fact and conclusions of law, affirming the BZA's decision granting Browning's application for special use classification. This appeal ensued.
Other relevant facts will be stated in our discussion of the issues.
DISCUSSION AND DECISION
In examining a decision of a county board of zoning appeals to determine whether it was incorrect as a matter of law, a trial court does not conduct a trial de novo and does not substitute its decision for that of the board; our review of a trial court's ruling on review of such a decision is governed by the same considerations. Whitesell v. Kosciusko County Board of Zoning Appeals (1990), Ind. App., 558 N.E.2d 889, 890. Unless the BZA's decision was illegal, it must be upheld; in essence, an abuse of discretion standard applies. Id. We cannot reweigh evidence or substitute our discretion for that of the BZA. City of Bloomington v. Delta Treatment Center (1990), Ind. App., 560 N.E.2d 556, 558. We are governed by the presumption that an agency's decision is correct in view of its expertise. Id. at 557. Thus, McBride labors under a heavy burden in urging us to overturn the BZA's decision.
Issue One
McBride first asserts that the trial court erred in finding that McBride waived errors regarding the Hearing's procedure. We find that McBride failed to preserve any alleged errors.
Objections or questions which have not been raised in the proceedings before the administrative agency will not be considered by this court on review of the agency's order. Dorozinski v. Review Board (1951), 121 Ind. App. 367, 369, 98 N.E.2d 911, 911. Therefore, McBride has waived any procedural errors by failing to preserve the issues before the BZA. However, even if McBride had preserved any alleged errors, his claim would still fail. See Board of Zoning Appeals of New Albany v. Koehler (1963), 244 Ind. 504, 513, 194 N.E.2d 49, 54 (where a person seeks to challenge the constitutionality of a zoning ordinance as applied to his property, the issue must first be presented to the board of zoning appeals); see also Children's Home v. Area Planning Commission of Franklin County (1985), Ind. App., 486 N.E.2d 1048, 1052 (issues not raised in writ of certiorari to appeal zoning board decision cannot be first raised in court of appeals).
Because a zoning board is a body usually composed of persons without legal training, courts are reluctant to impose rigid technical requirements upon their procedure as long as they are orderly, impartial, judicious, and fundamentally fair. Boffo v. Boone County Board of Zoning Appeals (1981), Ind. App., 421 N.E.2d 1119, 1129. Thus, unless the procedures used by the BZA upon which the Hearing's ultimate outcome was based were somehow not orderly, impartial, judicious or fundamentally fair, they will not be held to be contrary to law. Id. We cannot say that BZA's procedures fail to meet this standard. In 1981, BZA adopted rules of procedure as required by I.C. § 36-7-4-916(a)(4).[5] Although *1316 these rules were not disseminated prior to or at the Hearing, such is not required by statute.[6] Additionally, Hite informed the Hearing's participants of the procedures the BZA would employ for consideration of Browning's application prior to the Hearing. McBride concedes that both sides were given the same amount of time for their initial presentations, but makes much of the disparity in time needed to answer the BZA's questions following the presentations. However, BZA members were entitled and indeed obligated to clarify any issues that remained unclear prior to voting on the application. The fact that most of the inquiries were directed to Browning does not indicate that the Hearing was somehow not orderly, impartial, judicious, or fundamentally unfair. McBride shows no error.
Issue Two
Next, McBride asserts that BZA's decision must be reversed because BZA failed to make findings of fact forming the basis of its decision at the Hearing until July 19, 1990, over three months after the Hearing. We disagree.
For reasons that exist independently of statute, boards of zoning appeals are required to set out findings of fact which support their determinations to make possible an adequate judicial review of administrative decisions. Bridge v. Board of Zoning Appeals (1979), 180 Ind. App. 149, 152, 387 N.E.2d 99, 101. Moreover, our statutes require that the BZA make written findings of fact. I.C. § 36-7-4-915.[7] However, the adoption of administrative findings is not required to be made at the same meeting at which the evidence is heard. Habig v. Harker (1983), Ind. App., 447 N.E.2d 1114, 1117. It is true that the BZA adopted its findings of fact several months after the Hearing; however, under our deferential standard of review, we cannot say that this fact alone warrants reversal.[8]
McBride urges us to follow this court's reasoning in Metropolitan Board of Zoning Appeals v. Froe Corp. (1965), 137 Ind. App. 403, 209 N.E.2d 36. However, our reading of Froe shows that the facts of the two cases are clearly distinguishable. In Froe, we found the BZA's procedure deficient because the findings of fact and decision were made by only two of the four members who conducted the evidentiary hearing regarding the application. Id. at 410-411, 209 N.E.2d at 40. In McBride's case, however, the decision was rendered by the BZA members who heard the evidence on the same date on which the evidence was heard; only the findings of fact were later added to the record. Thus, McBride's reliance on Froe is misplaced, and BZA's adoption of the findings of fact was proper.
Issue Three
Finally, McBride alleges that Browning improperly communicated with BZA members prior to the Hearing in violation of I.C. § 36-7-4-920(g). We find that no improper contact occurred.
I.C. § 36-7-4-920(g) states in full:
"A person may not communicate with any member of the board before the *1317 hearing with intent to influence the member's action on a matter pending before the board. Not less than five (5) days before the hearing, however, the staff (as defined in the zoning ordinance), if any, may file with the board a written statement setting forth any facts or opinions relating to the matter."
Browning did not submit the information directly to BZA members but to the Area Plan Commission, which then transmitted the information to BZA members as part of a large packet of information.[9] A series of cases beginning with Board of Zoning Appeals v. Standard Life Insurance Co. (1969), 145 Ind. App. 363, 251 N.E.2d 60, trans. denied, is persuasive. In Standard, we held that a metropolitan planning department executive director's statement regarding a variance application could be considered by the zoning board although it was not subject to cross examination and was "largely in the nature of opinion." Id. at 370, 251 N.E.2d at 63-64. This court reasoned that since the opposing party in the variance proceeding had access to the statement prior to the hearing and though such statements are not entitled to as much weight or credit as direct testimony or authenticated documentary evidence, such statements are nevertheless not inadmissible. Id.
Similarly, the documents to which McBride objects were submitted in a packet of materials to BZA members by the Area Plan Commission and the "evidence" therein was not subject to cross examination. As in Standard, McBride had access to the information in dispute, and could have asked to supplement the informational packet with additional information it supplied, but chose not to do so. Moreover, we note that the information to which McBride objects was not submitted to BZA members in isolation or highlighted in any manner; indeed, other groups' statements and opinions, including those of the mayor of Evansville, the Metropolitan Chamber of Commerce, the West Side Improvement Association, Valley Watch, Inc., and numerous petitions in opposition to the proposed application, were submitted along with Browning's information. The Area Plan Commission staff, when distributing the information to the BZA members, included a note questioning several of Browning's statements in its materials submitted. Thus, we find that no improper contact occurred, and that Browning's submitted information was not given undue emphasis or favor when the Area Plan Commission submitted the informational packets to BZA members. See also Speedway Board of Zoning Appeals v. Popcheff (1979), 179 Ind. App. 399, 385 N.E.2d 1179 (boards of zoning appeals may consider recommendations by the Metropolitan Development Commission); Speedway Board of Zoning Appeals v. Standard Concrete Materials, Inc. (1971), 150 Ind. App. 363, 276 N.E.2d 589 (staff recommendations may be considered by boards of zoning appeals).
Affirmed.
BAKER and MILLER, JJ., concur.
NOTES
[1] We note that our consideration of the issues has been hampered by the parties' failure to present concise statements of the facts relevant to our review. See Ind. Appellate Rule 8.3(A)(5).
[2] IND. CODE § 36-7-4-915.
[3] IND. CODE § 36-7-4-916.
[4] IND. CODE § 36-7-4-920.
[5] I.C. § 36-7-4-916(a)(4) provides:
"Sec. 916. (a) The board of zoning appeals shall adopt rules, which may not conflict with the zoning ordinance, concerning:
(4) the conduct of hearings... ."
[6] McBride makes much of the BZA's failure to provide McBride with any information or guidelines regarding the Hearing's procedure. However, we note that McBride's counsel examined documents pertaining to the Hearing on several occasions and did not request to view any such guidelines. Record at 505. McBride cannot challenge the rules' lack of availability when McBride never requested to examine the rules.
[7] I.C. § 36-7-4-915 read in full:
"Board of zoning appeals; minutes and records Sec. 915. The board of zoning appeals shall keep minutes of its proceedings and record the vote on all actions taken. All minutes and records shall be filed in the office of the board and are public records. The board shall in all cases heard by it make written findings of fact."
[8] Furthermore, McBride failed to object to the BZA's failure to make its findings of fact until July, although it had notice of the July meeting at which such findings would be voted upon through service of a filing to supplement the record of the proceedings on June 28, 1990. McBride cannot now protest the delay in adopting findings, despite McBride's reliance on the "10-day rule" contained in the BZA's procedural rules. See Issue One.
[9] If Browning had submitted its information directly to BZA members, as McBride seems to allege in the briefs, a more troublesome issue would arise. However, because Browning submitted the information to the Area Plan Commission, which in turn disseminated it to BZA members, we leave this question for another day. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577239/ | 790 S.W.2d 351 (1990)
Dorothy Jean MILLER-EL, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 05-86-00955-CR, 05-86-00956-CR.
Court of Appeals of Texas, Dallas.
April 19, 1990.
Rehearing Denied May 21, 1990.
*353 John Hagler, Dallas, for appellant.
Constance M. Maher, Fort Worth, for appellee.
Before WHITHAM, THOMAS and KINKEADE[1], JJ.
OPINION ON REMAND
KINKEADE, Justice.
Dorothy Jean Miller-El, an African-American, appeals her conviction for the offenses of murder and attempted capital murder. The jury assessed punishment in each cause at confinement for life in the Texas Department of Corrections, and the trial court ordered that the sentences run consecutively. On appeal, Miller-El contended in her third point of error that the trial court erred in overruling her objection to the prosecutor's use of the State's peremptory strikes to exclude African-Americans from the jury. This Court did not decide that issue because we reversed Miller-El's conviction on other grounds. The Court of Criminal Appeals reversed our judgment and ordered that we decide Miller-El's third point of error. 782 S.W.2d 892. Because we find that the prosecutor exercised the State's peremptory challenges on the basis of race, we reverse the trial court's judgment and remand these causes to the trial court for further proceedings.
FACTS
The record shows that the original venire consisted of fifty members, including seven alternate jurors. The attorneys did not subject the alternate jurors to extensive questioning during voir dire examination because the attorneys did not anticipate that they would need those jurors, and, in fact, did not need them. Of the forty-three venire members subjected to extensive voir dire examination, seven were African-Americans. On the motion of appellant, Dorothy Jean Miller-El, the trial court excused two African-American venire members for cause, one because she could not consider probation, and the other because several members of her family had been victims of violent crime and she did not feel that she could be impartial. The impaneled jury consisted of six females (five white and one Hispanic) and six males (five white and one Hispanic). Miller-El timely objected to the jury selection, contending that the prosecutor used five of the State's ten peremptory strikes to exclude the remaining five African-American venire members, and requested the trial court to order the State to justify the strikes. The trial court noted that the jury panel had no African-American jurors and requested the prosecutor to justify his use of the State's peremptory *354 strikes to exclude the five African-American venire members. The prosecutor stated his reasons and the trial court ruled that the State did not exclude the venire members on the basis of race.
THE PRIMA FACIE SHOWING OF PURPOSEFUL DISCRIMINATION
The Equal Protection Clause forbids a prosecutor from challenging potential jurors on the basis of their race or on the assumption that jurors who belong to a particular racial group cannot impartially consider the State's case against a member of their own race. In order to establish a prima facie case of purposeful discrimination in selection of the jury panel, a defendant must show that (1) he belongs to a cognizable racial group, (2) the prosecutor exercised peremptory challenges to remove members of defendant's race, and (3) the facts and circumstances raise an inference that the prosecutor used the practice to exclude venire members because of their race. Batson v. Kentucky, 476 U.S. 79, 96, 106 S. Ct. 1712, 1722-23, 90 L. Ed. 2d 69 (1986). The defendant can rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who have a mind to discriminate. Once a defendant makes a prima facie showing of purposeful discrimination in selection of the jury panel, the burden shifts to the State to come forward with a neutral explanation for challenging particular jurors. Batson, 476 U.S. at 96-97, 106 S.Ct. at 1722-23.
The trial court implicitly found that Miller-El made a prima facie showing of purposeful discrimination because the trial judge required the prosecutor to explain why he exercised his peremptory strikes to exclude African-American venire members. We find that the record supports that finding because the prosecutor used five of the State's ten peremptory strikes to exclude five of seven potential African-American jurors, raising an inference of discrimination. We turn to a review of the trial court's determination that the State did not exercise its peremptory strikes for the purpose of excluding venire members of Miller-El's race. See Tompkins v. State, 774 S.W.2d 195, 201 (Tex.Crim.App.1987).
THE STATE'S BURDEN
After a defendant establishes a prima facie case of purposeful discrimination, a presumption exists that the State struck the African-American venire members on the basis of race. The State then has the burden to articulate a clear, specific, legitimate and racially neutral reason for exercising the strike. However, this showing need not rise to the level of a challenge for cause. Keeton v. State, 749 S.W.2d 861, 867-68 (Tex.Crim.App.1988) (Keeton II). Evidence that the State can use to overcome the presumption of discrimination includes a showing that (1) the State challenged jurors other than the African-American jurors with the same or similar characteristics as the African-American jurors, and (2) the State did not use a "pattern" of strikes to challenge African-American jurors. Keeton II, 749 S.W.2d at 868. The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. Rather, the State must demonstrate that it used permissible racially neutral selection criteria and procedures to select the jurors. Keeton II, 749 S.W.2d at 868.
After Miller-El objected to the State's jury selection, the trial court requested that the State explain its challenges of the five African-American venire members. The prosecutor stated as follows:
THE COURT: I think the first [excluded African-American juror] would be number fourteen, Mr. Boykin ...
[THE PROSECUTOR]: Mr. Boykin is not on the jury for the simple reason that he has a beard and I don't like men on juries that have beards. I've been burned by them repeatedly. I probably won't have another man on a jury that has a beard.
THE COURT: Who is the next one ...
[DEFENSE COUNSEL]: Ms. Alexander.
[THE PROSECUTOR]: She is not on the jury because she appears to have three illegitimate children. She's unemployed. *355 The only job she has ever had was as a grill cook at Tony Roma's and that's why I struck her. That same reason would be true of a couple more of these.
. . . .
THE COURT: Number twenty-two is the next black, Ms. McCoy ...
[THE PROSECUTOR]: Well, number twenty-two is just like number fifteen up here. She has an illegitimate child at home and that's why I struck her. I think there is one more just like that. There is not anybody on the jury panel that I'm aware of that has any illegitimacyon the jury that have any illegitimate children. At least it is not obvious on the documents they filled out.
. . . .
THE COURT: Ms. Shofner is next.
[THE PROSECUTOR]: Ms. Shofner, also has what appears to be an illegitimate child at home. She's single and there is not any indication she is married or divorced. She is the lady, I believe, that the voir dire record will show who says that prior to this job at the Balch Spring [sic] Nursing Home, she had two more but she really couldn't remember where they were or what she was doing when she worked for those places. I quite frankly wasn't impressed with her.
[DEFENSE COUNSEL]: Juror number forty-three.
[THE PROSECUTOR]: That's the young widow who is apparently recently widowed. She says that she has an eight-month old child at home and another child who is two or three. She just got either laid off or fired or the company went out of business after seven and a half years and she's only been on the new job for two and a half months. I struck her really because of the young child at home, widowed, and the two and a half months. I think the voir dire record will note that we agreed to excuse several people because of business hardships. There was one lady in particular that
[DEFENSE COUNSEL]: This woman did not ask for an excuse. She wanted to serve on this jury and he struck her because she is black. Five out of ten strikes were black people and the basis for those are illegitimate children. Now, here's one who has legitimate children, but he's telling the Court that he struck her because she had children at home. I'm sorry, Judge. There are other people on this panel that have children at home and they weren't struck, but those people are white.
[THE PROSECUTOR]: Those are the State's reasons. I'm sure [the defense counsel] is not pleased with them, but there is nothing I can do about it.
[DEFENSE COUNSEL]: Let me point out to the Court, please, Your Honor, that there are other people on this jury panelif you will give me an opportunity to go through itwho are women who are at home and who have children that were not struck by the State and I would submit to the Court that none of these are based on any of the reasons that the State has given to you. There are people on this jurymen with facial hair.
[THE PROSECUTOR]: We would love for [the defense counsel] to show us one young lady on the jury panel who is widowed and has a child at home. She can't do it because there are none.
THE COURT: Did the [State] exercise any strikes on a racial basis ... ?
[THE PROSECUTOR]: The State did not make any strikes on a racial basis.
[DEFENSE COUNSEL]: Your Honor, may I ask since this is an evidentiary questionare you telling the Court and the Court of Appeals that one-half of your possible potential strikes were black and it's just coincidence?
[THE PROSECUTOR]: That's right.
THE COURT: Anything else, [defense counsel]?
[DEFENSE COUNSEL]: That's all.
THE COURT: Of course, the voir dire was taken, so in reference to what [the prosecutor] saidI didn't frankly make as detailed notes as he may have or you did, [defense counsel]. I'm going to deny your objection, if it is styled as an objection. I'm going to find that the strikes were not exercised on a racial basis as I *356 understand the Batson case and it's fairly new territory.
After the trial court denied Miller-El's objection and at the defense counsel's request, the court included the juror information list in the record.
REVIEW OF THE TRIAL COURT'S FINDING
1. The Standard of Review
An appellate court must consider the evidence in the light most favorable to the trial judge's rulings and determine whether sufficient evidence supports those rulings. If the record supports the trial court's findings, we will not disturb them on appeal. Keeton II, 749 S.W.2d at 868. We must also keep in mind that the defendant has the burden to persuade the trial judge by a preponderance of the evidence that the allegations of purposeful discrimination are true in fact. Tompkins, 774 S.W.2d at 202.
Trial judges experienced in supervising voir dire examinations should be able to determine if the circumstances concerning the prosecutor's use of peremptory challenges create a prima facie case of discrimination against African-American jurors. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. By largely judging the credibility of the prosecutor, the content of the explanation and all the other surrounding facts and circumstances, the trial judge must make a finding of fact concerning purposeful discrimination to which a reviewing court should give great deference. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21; Keeton v. State, 724 S.W.2d 58, 65 (Tex. Crim.App.1987) (Keeton I). The trial judge must examine each of the prosecutor's reasons for striking a potential African-American juror within the circumstances of the particular case to determine whether the State gave a "neutral explanation" for a strike as a pretext for a racially motivated peremptory challenge. Keeton II, 749 S.W.2d at 868. In making this determination, the trial judge must ascertain whether the prosecutor articulated a "clear and reasonably specific" explanation of "legitimate reasons" for striking each African-American venire member. Batson, 476 U.S. at 97-98 n. 20, 106 S.Ct. at 1724 n. 20. The trial judge cannot merely accept the specific reasons given by the prosecutor at face value, but must consider whether the prosecutor contrived the racially neutral explanations to avoid admitting acts of group discrimination. The trial judge must make such an evaluation because an attorney, although not intentionally discriminating, may try to find reasons other than race to challenge an African-American juror when race may be his primary factor. Keeton II, 749 S.W.2d at 868.
Conversely, once the prosecutor gives a racially neutral explanation that can legally support a judgment in the State's favor, he presents a fact issue that the trial judge can resolve only by assessing the weight and credibility of the evidence. Tompkins, 774 S.W.2d at 202. The defendant bears the ultimate burden of proving that the prosecutor exercised the State's peremptory strikes in a discriminatory fashion. See Tompkins, 774 S.W.2d at 202; Branch v. State, 774 S.W.2d 781, 782-83 (Tex.App.El Paso 1989, no pet.). We must determine whether sufficient evidence exists to support the trial judge's finding that the prosecutor did not discriminate.
2. Facts Shown at the Batson Hearing
The record shows that after Miller-El struck two African-American venire members for cause, the prosecutor used five of the State's ten peremptory challenges to strike the remaining five African-American venire members. The prosecutor's use of the State's peremptory strikes constituted a "pattern" of strikes used to exclude the remaining African-American venire members from the jury panel. When asked by the defense counsel if this result was "just coincidence," the prosecutor responded, "[t]hat's right." We must now determine whether the prosecutor gave specific, racially neutral reasons for striking the African-American jurors, and, if so, whether he contrived those reasons *357 to avoid admitting acts of discrimination.
The prosecutor struck jurors Alexander and Shofner at least in part because they had illegitimate children. The prosecutor stated that he struck juror McCoy for the sole reason that she had illegitimate children, and that he struck juror Clay, a widow with two young children, because she had been employed less than three months. He stated that he excused her, and agreed to excuse several other jurors, because of business hardship. The juror information list shows that four of the female venire members who served on the jury panel had children, and three of those jurors also held jobs. The list also shows that juror Reina, who served on the jury panel, had held her job only two weeks. The record shows that the trial court excused three venire members for hardship and refused to excuse a fourth, juror Spitler, who so requested. Juror Clay did not request to be excused for any reason.
Evidence of disparate treatment of a juror, such as when the State does not strike persons with the same or similar characteristics as the challenged juror, weighs heavily against the legitimacy of a racially neutral explanation given by the State. A prosecutor's racially neutral explanation for striking an African-American juror may be evidence of a sham or pretext if the stated reason bears no relation to the facts of the case. Keeton II, 749 S.W.2d at 868. The prosecutor struck three of the four female African American venire members, at least in part, because they had illegitimate children. Although the fourth female African-American venire member, juror Clay, apparently had legitimate children, the prosecutor stated that he struck her because service on the jury would have imposed a business hardship on her. He based his conclusion on the facts that juror Clay had held her job less than three months and had young children at home. However, he did not ask her if jury service would cause her hardship, and she did not ask to be excused. The trial court excused three venire members who so requested. The jury panel consisted of four females with children, and three of those jurors held jobs. One such juror, Reina, had held her job only two weeks. Another such juror, Spitler, requested to be excused for business hardship and the trial court refused. The prosecutor's stated reason for striking juror Clay bore no relation to the facts of the case, and he did not strike other jurors with the same or similar characteristics. Insufficient evidence exists in the record to support the trial court's finding that the State did not strike juror Clay on the basis of her race. We hold that Miller-El met her burden to prove by a preponderance of the evidence that the State's use of business hardship as a reason to strike juror Clay constituted a sham or pretext, and that the prosecutor struck her because of her race. See Keeton II, 749 S.W.2d at 868.
The exclusion of even one member of Miller-El's race from the jury panel for a racial reason invalidates the entire jury selection process and requires reversal. See Batson, 476 U.S. at 100, 106 S.Ct. at 1725; Keeton II, 749 S.W.2d at 871 n. 1 (Teague, J., concurring). We reverse the trial court's judgment and remand these causes to the trial court for further proceedings.
NOTES
[1] The Honorable Ed Kinkeade, Justice, succeeded the Honorable John L. McCraw, Justice, a member of the original panel, upon Justice McCraw's resignation effective December 19, 1986. Justice Kinkeade has reviewed the briefs and the record before the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577237/ | 35 So. 3d 1084 (2010)
STATE of Louisiana
v.
Charles L. HOLCOMBE.
No. 2009 KA 1309.
Court of Appeal of Louisiana, First Circuit.
February 12, 2010.
Walter P. Reed, District Attorney, Covington, LA, Kathryn W. Landry, Attorney for the State, Baton Rouge, LA, for Appellee, State of Louisiana.
Frank Sloan, Mandeville, LA, for Appellant Charles L. Holcombe, Jr.
Before DOWNING, GAIDRY and McCLENDON, JJ.
*1085 DOWNING, J.
The defendant, Charles L. Holcombe, was charged by bill of information with one count of armed robbery, a violation of La. R.S. 14:64(A), and entered a plea of not guilty.[1] Following a jury trial, he was found guilty as charged. Thereafter, the State filed a habitual offender bill of information against him, alleging that he was a second-felony habitual offender.[2] He was initially sentenced to fifty-five years at hard labor without the benefit of parole, probation, or suspension of sentence. Following a habitual offender hearing, he was adjudicated a second-felony habitual offender, the previously-imposed sentence was vacated, and he was sentenced to seventy-five years at hard labor without benefit of parole, probation, or suspension of sentence. Holcombe now appeals, contending that his conviction must be reversed because the State violated his spousal privilege. For the following reasons, we affirm the conviction, the habitual offender adjudication, and the sentence.
FACTS
Madisonville Mayor Peter Gitz, the victim, owned and operated Badeaux's Drive-In, a restaurant in Madisonville. After the restaurant closed at 10:00 p.m., he routinely went into his office, a shed behind the restaurant, totaled the receipts, and prepared the bank deposit. On June 21, 2006, at approximately 10:30 p.m., as the victim was exiting the shed with approximately $2300, he was attacked from behind. He did not see his attacker's face, but he did note that the attacker was a white male, approximately 5'6" or 5'7", with "big" arms and legs, and short hair.[3] The attacker struck Mayor Gitz with a blunt object, possibly a pipe, between twelve and fifteen times. After Mayor Gitz fell to the ground, the attacker took a wallet from his pocket and fled. Mayor Gitz was seventy-one years old at the time of the attack; he suffered a cracked jaw, numerous lacerations to his head which had to be stapled closed, and the loss of his bottom teeth, which were knocked out during the attack.
Sylvia C. Leyva lived in the house next to Badeaux's, adjacent to the parking area behind the restaurant. On the afternoon of the offense, while she was working in her yard, she saw a husky male with short hair looking over her fence and into the back of Badeaux's. The man saw Ms. Leyva looking at him, and quickly walked away. At approximately 10:45 that evening, Ms. Leyva went out onto her porch after hearing moaning coming from behind Badeaux's. She saw someone coming from the direction of Badeaux's. As the person passed in front of her house, she turned on her porch light. The person looked at her before continuing on and she noticed that he had his left arm under his shirt, and was holding something. Mrs. Leyva identified the defendant in a photographic line-up and in court as the person she had seen looking into the back of Badeaux's before the attack, and as the person who passed by her house after the attack.
Video surveillance from Riverside Bar and Grill, across the street from Badeaux's, showed an old, grey or silver Volvo passing by Badeaux's three times at approximately the time of the offense. *1086 Madisonville Police Officer David Smith recognized the vehicle as belonging to Rhonda Achee.
The defendant and his wife, Lyndsey Gaspard, had moved in with Achee because they could no longer afford to pay for power or water to their home. Following the attack, the defendant and Achee drove to Covington in Achee's car. The vehicle was subsequently stopped for a traffic violation where it was discovered that there was blood in the front of the vehicle.
Gaspard had worked at Badeaux's approximately one month prior to the attack, and the defendant had waited for her in and around the restaurant while she worked. On at least one occasion during that time, Melissa Bone, the restaurant manager, found the defendant behind the restaurant and told him he was not supposed to be there.
At trial, Gaspard testified that she was married to the defendant between March 22, 2006 and about October of 2008. According to Gaspard, approximately two days before the offense, the defendant and Achee had discussed "getting" or "robbing" Mayor Gitz. Gaspard indicated that on the day of the offense, at about 11:30 a.m., the defendant drove to Badeaux's, walked around the back, and then came back to the car.
In a June 23, 2006 audiotaped statement, the defendant indicated that Achee had driven him to Badeaux's on the night in question, dropped him off, and then driven around the block while he hid behind the shed. The defendant confessed to striking Mayor Gitz with "a stick or something" and grabbing his wallet. He indicated that Achee picked him up after the attack and they drove towards Covington. The defendant indicated that there was approximately $1500 cash in the wallet. He claimed he burned the clothes he was wearing during the attack, and threw the stick he had used to hit the victim out of the window as he and Achee drove out of town.
VIOLATION OF SPOUSAL PRIVILEGE
In his sole assignment of error, the defendant argues that the trial court erred in denying the motion for mistrial based on the State's comment on the defendant's claim of privilege.
The claim of privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by the judge or counsel. No inferences may be drawn there from. La.Code Evid. art. 503(A)(1). With jury cases, the proceedings shall be conducted, to the extent practicable, so as to facilitate the making of the claims of privilege without the knowledge of the jury. La.Code Evid. art. 503(A)(2). Each spouse has a privilege during and after the marriage to refuse to disclose, and to prevent the other spouse from disclosing, confidential communications with the other spouse while they were husband and wife. La.Code Evid. art. 504(B). A communication is "confidential" if it is made privately and is not intended for further disclosure unless such disclosure is itself privileged. La.Code Evid. art. 504(A). The word "private" is defined as secluded from the sight, presence, or intrusion of others. Websters II New College Dictionary 880 (1995). Thus, communications between spouses in the presence of others are not private, and therefore, not privileged.
A prosecutor's remark toward a defendant's assertion of his privilege with respect to private interspousal conversations is governed by La.Code Crim. P. art. 771 (mistrial appropriate only if an admonition to the jury to disregard the remark or comment is insufficient to assure the *1087 defendant a fair trial) rather than Article 770(3) (mistrial required unless the defendant requests only an admonition to the jury to disregard the remark or comment). State v. Bennett, 357 So. 2d 1136, 1141 (La. 1978).
Prior to trial, the defendant invoked his spousal confidential communications privilege.
The State asserted the following during its opening statement:
Lindsey Gaspard was, luckily for her, not part of this armed robbery because earlier in the afternoon on June 21st, her parents got what is called a physician's emergency commitment. And Lindsey Gaspard was actually in St. Tammany Parish Hospital when this happened.
But she went and told the sheriffs office everything that had happened, everything that had been done. Now, Lindsey, the rules of evidence don't allow Lindsey to discuss anything that her husband, Charles Holcombe[,] told her when it was just the two of them alone. But any time a third person was present, she can tell you what was said.
Following opening statements, the court recessed the matter for the day. The next day, the defense moved for a mistrial, arguing that the State's reference to "the rules of evidence" preventing disclosure of communications between the defendant and Gaspard violated La.Code Evid. art. 503, and the defendant could no longer obtain a fair trial. The State claimed it had not violated Article 503 because it had made no mention of the spousal privilege. The court denied the motion for mistrial, but held that the defendant was entitled to an instruction that no inference may be drawn on his invocation of the privilege; the defense refused the instruction.
We disapprove of the challenged comments by the State which, even if they did not technically violate the letter of Article 503, certainly violated its spirit. However, we do not find that the improper comments created such prejudice against the defendant to warrant the granting of a mistrial. The State's reference to the defendant's assertion of a privilege was vague and did not place the substance of any privileged communication between the defendant and his wife before the jury. Further, the State had a strong case against the defendant. Non-privileged testimony from Gaspard indicated that, in her presence, the defendant and Achee planned to rob the victim; Mrs. Leyva saw the defendant leaving the scene of the offense, while hiding something under his shirt; and the defendant confessed to the crime. Moreover, the defendant refused the trial court's offer of an instruction to the jury that no inference was to be drawn from his invocation of the spousal confidential communications privilege. Accordingly, the trial court did not abuse its discretion in denying the motion for mistrial.
DECREE
For the reasons mentioned above, we affirm the conviction, habitual offender adjudication and sentence.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.
McCLENDON, J., agrees with the result reached by the majority.
NOTES
[1] Rhonda L. Achee was also charged by the same bill of information with the same offense. (R. 82). Following a jury trial, she was found not guilty. (R. 48).
[2] The predicate offense was set forth as the defendant's May 3, 1999 guilty plea, under Twenty-second Judicial District Court Docket # 285943, to second degree battery, a violation of La. R.S. 14:34.1. (R. 125).
[3] The defendant is 5'6" tall. (R. 525-26, 639-40). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455007/ | 480 S.W.2d 558 (1972)
SECURITY INSURANCE CO. OF HARTFORD, Appellant,
v.
William Maurice OWEN et al., Appellees.
No. 5-5794.
Supreme Court of Arkansas.
May 29, 1972.
Bridges, Young & Matthews & Davis, Pine Bluff, for appellant.
Jones & Matthews, Pine Bluff, for appellees.
BYRD, Justice.
Appellant Security Insurance Company of Hartford had issued to W. H. Marks an automobile liability insurance policy with limits of $50,000 for each person and also a Farmer's Comprehensive Personal Liability policy with limits of $25,000 for each person. As a result of an injury received by William Maurice Owen on August 7, 1965, when he was 16 years of age, a judgment was entered against Marks in favor of appellees William Maurice Owen and his father, Maurice Owen, in the total amount of $34,250. Appellant paid the policy limits under its Farmer's Comprehensive Personal Liability but denied coverage under the automobile liability policy because of the following exclusion:
"This policy does not apply:
......
(d) under coverage A to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any Workmen's *559 compensation law, or (2) other employment by the insured."
The jury found the issues in favor of appellees and a judgment in the total amount of $14,091 including penalty and attorney's fees was entered. For reversal appellant contends that Instructions 6 and 8 were erroneous and that the court erred in refusing its requested Instructions 9 and 11.
The record shows that young Owen's grandfather and Mr. Marks were good friends. As such they used the same duck club and on occasions young Owen was permitted to hunt at the duck club. On the day in question Mr. Marks was using his pickup truck to pull a tractor and "bush hog" to the duck club. This required a person to ride on the farm tractor to guide and brake the tractor when appropriate to prevent the tractor from colliding with the truck. When the regular tractor driver did not show up, Mr. Marks asked young Owen to ride on the farm tractor. While enroute to the duck club an accident occurred which resulted in the judgment against Marks.
At the trial young Owen testified that Mr. Marks had never paid him any compensation or told him that he would be working for him. Admittedly he admired his grandfather's friend and of course followed any directions that Mr. Marks gave him.
Mr. Marks testified that he did not pay young Owen by check during the entire year 1965, and did not make any income tax deduction for anything paid. He may have paid him something out of his pocket but he sometimes worked without pay. He had intended to pay the boy on the day in question but had not told the boy so. The boy did not ask for payhe got to go hunting down there.
Appellant introduced some signed statements by both young Owen and Mr. Marks to the effect that young Owen was to be paid $7.50 for his day's work. While the statements are rather cogent evidence, there is other evidence in the record that insinuates that perhaps appellant's adjuster had suggested to the parties that Mr. Marks had no coverage unless young Owen could be classified as an employee under the Farmer's Comprehensive Liability Policy.
Instruction No. 6 given by the court provided:
"Contracts of insurance should receive reasonable construction so as to effectuate the purposes for which they are made."
Instruction No. 7 provided:
"If the terms used in an insurance policy are clear, they are to be taken and understood in their plain, ordinary and popular sense."
Instruction No. 8 provided:
"If the language used in an insurance policy is not clear, and reasonable doubt exists as to the construction of the policy, it should be interpreted against the insurance company which has drawn the agreement."
Appellant's requested Instruction No. 9 provided:
"The automobile liability policy issued to W. H. Marks by defendant (or its predecessor) which was in effect on August 7, 1965, specifically provides that there is no liability coverage for bodily injury to any employee of the insured, W. H. Marks, arising out of and in the course of employment by the insured. Therefore, if you find from a preponderance of the evidence that at the time of the August 7, 1965, accident, William Maurice Owen was an employee of W. H. Marks, whether part-time, temporary, casual or otherwise, then you are told to return a verdict in favor of defendant."
*560 Upon the refusal to give the above Instruction, appellant offered a modification thereof which the court gave as follows:
"The automobile liability policy issued to W. H. Marks by defendant (or its predecessor) which was in effect on August 7, 1965, specifically provides that there is no liability coverage for bodily injury to any employee of the insured, W. H. Marks, arising out of and in the course of employment by the insured. Therefore, if you find from a preponderance of the evidence that at the time of the August 7, 1965, accident William Maurice Owen was an employee of W. H. Marks, then you are told to return a verdict in favor of the defendant."
Appellants requested Instruction No. 11 provided:
"The term `employment' means a relationship existing between one person called an employer and another person called an employee. An employee is one who performs services for the employer, under an express or implied agreement, and who is subject to the employer's supervision, direction and control as to the manner of performing the services."
The trial court refused appellant's requested No. 11. Appellant then suggested the following modification:
"The term `employment' means a relationship existing between one person called an employer and another person called an employee. An employee is one who performs services for the employer, under an express agreement for compensation, or in anticipation that he will be compensated for his services, and who is subject to the employer's supervision, direction and control as to the manner of performing the services."
The court agreed to give the modified Instruction No. 12 on condition that Instructions No. 6 and 8, supra, which had been tentatively declined, be also given.
The trial court properly refused appellant's requested Instructions No. 9 and 11. Exclusions such as the one here involved are generally recognized and construed as excluding that coverage which is usually available through workmen's compensation insurance. In fact appellant in this instance recognized that construction of the exclusion by stating to the trial court:
"Judge, the whole purpose of this exclusion is not to cover under liability coverage people who are eligible to be covered under workmen's compensation and if Mr. Marks had workmen's compensation for his employees this boy would be covered as an employee just as sure as I am sitting here . . .."
The term "employee" under our Workmen's Compensation Law, Ark.Stat.Ann. § 81-1302(b) is defined as follows:
"`Employee' means any person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession or occupation of his employer."
Having admitted that the exclusion of "bodily injury to ... any employee of the insured arising out of and in the course of ... employment by the insured," had reference to persons eligible to coverage under the Workmen's Compensation Law, the trial court in construing the policy language most strongly against the insurer and in favor of the insured, properly modified appellant's requested Instructions No. 9 and 11.
Appellant in insisting that it was entitled to have the jury told that the term employee included "part-time, temporary, casual or otherwise," relies upon our case of Walker v. Countryside Casualty Co., 239 Ark. 1085, 396 S.W.2d 824 (1965). In that case only two questions were involvedi. e., (1) Whether the insurance policy excluded coverage to employees when the employees were not covered by workmen's *561 compensation, and (2) whether Walker was an employee of Koch as a matter of fact. We there held that lack of workmen's compensation coverage did not affect the exclusion and that there was substantial evidence to support the circuit court's finding that Walker was an employee within the exclusion. Of course in that case there was no doubt that Walker's employment, if he were an employee, was in the course of Koch's trade or business. Here, however, there is an issue of fact as to whether young Owen was acting in the course of Mr. Marks' business as a farmer when going to clean up a duck hunting club.
Finally appellant contends that the definition in AMI § 701 required the court to give its requested Instruction No. 11. A review of the comments under § 701, supra, demonstrates that the draftsmen of the AMI were dealing with that vicarious liability imposed upon a master for the conduct of a servant in a tort action. This is a contract actionthe draftsmen did not undertake to define the term in the context used in the "exclusion" here involved. The authorities require courts to strictly interpret exclusions to insurance coverage and to resolve all reasonable doubts in favor of the insured who had no part in preparation of the contract, First Pyramid Life Ins. Co. v. Thornton, 250 Ark. 727, 467 S.W.2d 381 (1971).
While the language in Instruction No. 6 may have been harmless if it stood alone, we have concluded that the trial court erred in giving it and Instruction No. 8. The true rule seems to be that the construction and legal effect of a contract are to be determined by the court as a question of law except in those instances where the meaning of the language depends on disputed extrinsic evidence. See Couch on Insurance 2d § 78:90 and 17A C.J.S. Contracts § 616. It therefore follows that on the record here it was the duty of the court to construe the language of the insurance contract most strongly against appellant and not the duty of the jury. The duty of the jury is to find the facts in accordance with the instructions.
Appellees suggest that appellant has waived its right to complain of Instructions 6 and 8 because of its insistence on Instruction No. 12. Since Instruction No. 12 is apparently a correct statement of the law, we are unable to find a waiver through invited error.
Reversed and remanded.
HARRIS, C. J., dissents.
FOGLEMAN, J., dissents in part.
FOGLEMAN, Justice (dissenting and concurring in part).
I feel that appellant was entitled to its instruction No. 9 as offered. It was entitled to have the jury informed that there was no requirement that young Owen be a regular employee in order to make the exclusion applicable. In Walker v. Countryside Casualty Co., 239 Ark. 1085, 396 S.W.2d 824, we said:
It is pointed out that at the time of the injury, neither Koch nor Walker had discussed payment for the assistance that Walker would render in greasing the truck. As an alternative contention, it is asserted that, at most, Walker was only a casual employee, and that the term "employee," as used in automobile exclusionary clauses, should apply only to regular employees as distinguished from casual or incidental employees. We cannot agree with these assertions, and it appears that the weight of authority is against appellants' contentions. The policy provides that there is no coverage for bodily injury to any employee (arising out of employment by the insured). * * *
A succinct discussion of the meaning of employment is found in Pennsylvania Casualty Company v. Elkins, 70 F. Supp. 155 (E.D.Ky.). There, the employment *562 of the injured person, Nave, was certainly incidental, for Nave was regularly employed elsewhere but on the occasion in question, agreed to accompany Elkins on a trip to Tennessee for the purpose of delivering a load of cattle. While on the return trip, the truck, driven by Elkins, overturned, and Nave was killed. Elkins' automobile liability insurance policy contained the provision that coverage was excluded for "bodily injury to or death of any employee of the insured while engaged in the employment, other than domestic, of the insured." The party contending that coverage was afforded argued:
"That at the time of the accident which resulted in his death Ernest Nave was not an `employee' of William Elkins, the insured, in any sense of the word but, having other regular employment, he was merely a casual, incidental and temporary helper, voluntarily rendering a particular service as an accommodation to Elkins;
"That the phrase `any employee,' as used in the exclusion provision of the policy is ambiguous and that it is susceptible of being interpreted in a restrictive sense importing regularity and continuity of service for wages or salary rather than in the broader sense including every type of the relationship of employee and hence, under the familiar rule that where a provision of an insurance policy is open to two or more interpretations the one most favorable to the insured must be adopted, the exclusion clause of the policy here in question should be interpreted to have no application to Ernest Nave whose employment, if such relation existed at all, was only casual and temporary."
The court, in rejecting this argument, stated:
"The exclusion clause in the policy in question is obviously designed to exclude from coverage every type of employer's liability, other than that arising from `domestic employment,' regardless of whether the employment be regular and continuous or incidental and temporary. The words used make the broad indiscriminate exclusion sufficiently clear. To hold otherwise would be to make a new contract for the parties entirely different from that which they made for themselves."
I agree that there was error in giving instruction No. 8. We said in Walker v. Countryside Casualty Co., supra, that the following exclusion of coverage was not ambiguous:
"Bodily injury to any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen's compensation law, or (2) other employment by the insured."
I find no reason for any rule of construction to be applied either by the court or jury in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918324/ | 101 B.R. 822 (1989)
In re Myron SNYDER, Debtor.
Peter BAKIS, Sidney Bornstein, Richard Gilman, Philip Pearl and Newbury Prime Realty Corp., Plaintiffs,
v.
Myron SNYDER, Defendant.
Bankruptcy No. 84-01470-L, Adv. No. 85-0001.
United States Bankruptcy Court, D. Massachusetts.
June 8, 1989.
*823 Richard D. Gilman, Malden, Mass., for plaintiffs.
Myron Snyder, Brookline, Mass., pro se.
MEMORANDUM
JAMES N. GABRIEL, Chief Judge.
I. INTRODUCTION
The above captioned adversary proceeding was filed on January 2, 1985. The original complaint seeks a determination that certain debts owed by Myron Snyder ("Snyder" or the "Debtor") to the plaintiffs are nondischargeable pursuant to sections 523(a)(2)(A) and 523(a)(4) of the Bankruptcy Code. The complaint is predicated upon a complicated series of events, including the 1978 bankruptcy of the Paul G. Roberts Realty Trust; a bankruptcy court authorized sale of that estate's interest in real estate on Newbury Street in Boston; questionable activities related to the bankruptcy proceedings involving the Debtor and his wife, who were trustees of the Paul G. Roberts Realty Trust; and a state court lawsuit commenced by the law firm of Widett and Widett against, among others, the Debtor, his wife and the plaintiffs in this proceeding.
The complaint filed in this adversary proceeding was amended to add additional defendants and inter alia to obtain relief under section 727(a) of the Bankruptcy Code.[1] In July of 1986, the bankruptcy court per Judge Lavien, acting on the plaintiffs' motion for summary judgment, denied the Debtor his discharge pursuant to 11 U.S.C. § 727(a)(4)(A) and (B). The judgment was appealed first to the district court and then to the United States Court of Appeals for the First Circuit. The court of appeals reversed the district court, which had affirmed the bankruptcy court's entry of summary judgment in favor of the plaintiffs. On March 22, 1988, the district court remanded the matter to the bankruptcy court for further proceedings.
Approximately one year later, following Judge Lavien's decision to recuse himself from handling this adversary proceeding, and the issuance of numerous procedural orders by this Court, the issues in this case finally were narrowed and simplified. On March 8, 1989, the Court conducted an evidentiary hearing solely on the issue of whether certain debts owed by Myron Snyder to the plaintiffs are nondischargeble.
At the trial, two witnesses testified, the Debtor and Sidney Bornstein, and numerous *824 exhibits were introduced into evidence, including a decision rendered on November 3, 1982 by Judge Randall of the Suffolk Superior Court, a decision rendered on August 15, 1984 by the Massachusetts Supreme Judicial Court, and a decision rendered on remand from the Supreme Judicial Court by Judge Randall on August 26, 1985. These decisions are important in view of their bearing on the issues in the case and the entry of an order by the bankruptcy court per the late Chief Judge Lawless on December 18, 1984 in response to a Motion for Relief from Stay and for Abstention Pursuant to 28 U.S.C. § 1334 filed by one of the plaintiffs in the Superior Court proceeding. That order provides in relevant part:
ORDERED that this Court shall abstain from hearing and determining any and all matters related to Case No. 57964 which is being heard by Judge William J. Randall of the Suffolk Superior Court, whether filed by Widett & Widett, et al., or any other counsel, and relief is immediately granted herein to allow any party related to said cause of action the right to proceed with motions, hearings, and any other Court proceedings before Judge Randall for the purpose of reducing any and all disputes therein to judgment.
It was Judge Lawless' clear intention to permit Judge Randall to enter judgments on the disputed matters pending before him. However, it is equally clear that Judge Lawless could not have made any decision with respect to the nondischargeability of any judgments obtained by the plaintiffs against the Debtor in the state court proceeding. Because this Court has been provided with Judge Randall's detailed findings and because there is a sufficient record from the hearings in the state court and in the bankruptcy court itself upon which the Court can make an independent assessment of whether the judgments obtained by the plaintiffs in the state court are or are not dischargeable in this bankruptcy proceeding, the Court may properly conclude this protracted proceeding by making the following findings and rulings.
It is important to stress at this juncture, however, that both the plaintiffs and the Debtor in this proceeding have sought the admission into evidence of Judge Randall's decisions. Accordingly, the Court will rely, at least in part, upon the facts found by Judge Randall in an initial proceeding that consumed 11 days of trial and involved the testimony of 18 witnesses and the introduction of 94 exhibits, and a subsequent proceeding that consumed four days of trial and involved the testimony of four witnesses and the admission into evidence of 27 exhibits. As will become clear, the debts that the plaintiffs now allege are nondischargeable were determined by Judge Randall to be due and owing by the Debtor after an exhaustive examination of the facts and the law. Although the original complaint does not enumerate them, the plaintiffs seek to have the following debts declared to be nondischargeable:
1. A judgment in favor of Sidney Bornstein in the amount of $60,100;
2. A judgment in favor of Sidney Bornstein in the amount of $2,300;
3. A judgment in favor of Philip Pearl in the amount of $600;
4. A judgment in favor of Peter Bakis in the amount of $1,800;
5. A judgment in favor of Newbury Prime Realty Corporation in the amount of $13,398.45, representing the fees and expenses of Attorney Richard Gilman;
6. A judgment in favor of Newbury Prime Realty Corporation in the amount of $232.71 plus interest from July 2, 1981, representing interest on a check found by Judge Randall to have been converted by the Debtor.
In view of the emphasis all parties have placed upon the state court proceedings, the Court does not view the plaintiff's failure to enumerate these debts as prejudicial to the Debtor in any way.
II. STATE COURT PROCEEDINGS
A. Judge Randall's Decision of November 3, 1982
1. Background
The state court proceeding was commenced by the law firm of Widett & Widett, *825 which had been promised a third mortgage on the Debtor's residence located at 156 Dead Road, Brookline, Massachusetts, as security for the Debtor's substantial obligations to the firm. The firm sued the Debtor; the Debtor's wife, Inez Tedesco Snyder; the Debtor's son, Robert G. Snyder; G. Ropate Corp., a corporation organized by the Debtor to engage in the meat brokerage business; Newbury Prime Realty Corporation ("Newbury Prime"), a corporation organized for the purpose of operating property on Newbury Street purchased at a bankruptcy sale of assets of the Paul G. Roberts Realty Trust; and four individuals who are or were directors of Newbury Prime, namely Sidney Bornstein ("Bornstein"), Gerald Bornstein, Philip Pearl ("Pearl") and Peter Bakis ("Bakis"). The law firm sought two forms of relief: (i) a judgment against the Debtor in the amount of the principal and interest owed it on a promissory note, and (ii) a declaration that a third mortgage to Harbor National Bank on property owned by the Debtor and his wife (property that secured the debt of G. Ropate Corp. and the guarantees of the Debtor and his wife of that debt) was null and void. Newbury Prime, Sidney and Gerald Bornstein, Pearl and Bakis filed an answer in which they asserted that the Widett firm's complaint failed to set forth a cause of action against them. They also asserted cross claims against Myron and Inez Snyder.
As summarized by Judge Randall, Sidney Bornstein alleged:
1) that Myron Snyder and Inez T. Snyder by fraud and deception prevailed upon him to assign for Newbury Prime the mortgage from Myron and Inez T. Snyder to Harbor that the Snyders had had assigned to Newbury Prime without giving him a full and complete understanding of the assignment and that as a result he became involved in this action in which he has had to expend much time and money; 2) that Myron Snyder was a director of Newbury Prime and as such owed a fiduciary duty to the officers, stockholders, and directors of Newbury Prime and that he breached this duty in the matter of the assignment of the mortgage as set forth above; . . . [and] . . . 3) that Myron Snyder received the sum of $60,100 from Sidney Bornstein and has refused to repay the same to thesaid [sic] Sidney. . . .
Widett & Widett v. Snyder, No. 5764, slip op. at 2-3 (Suffolk Superior Court November 3, 1982) (hereinafter "Decision of November 3, 1982").
Gerald Bornstein, Pearl and Bakis made similar allegations. Again, according to Judge Randall, they asserted:
1) that defendants [sic] Snyder without the knowledge or assent of Bornstein, Pearl and Backis [sic] devised a plan to prevent junior lien holders [Widett & Widett] from advancing to a higher priority in and to certain real estate of Snyders by assigning a mortgage through Newbury Prime wherein the said Bornstein et al were involved in another action; 2) that these three Defendants were directors with Myron in Newbury Prime and that Myron breached his fiduciary duty to them in the matter of the assignment of the mortgage to Robert G. Snyder and as a result has emeshed them in this lawsuit; . . . [and] . . . 4) that Myron, through Inez and personally as a director of Newbury, transferred by mortgage assignment certain assets from the corporation to his son for the purpose of deterring creditors and in so doing has involved these three Defendants as parties in this law suit.
Decision of November 3, 1982 at 3. Finally, Newbury Prime, according to Judge Randall, asserted a cross-claim against the Debtor for:
1) breach of his fiduciary duties in the assignment of the [Harbor] mortgage into and through Newbury Prime to Robert G. Snyder without warning Newbury Prime of what he was doing whereby Newbury Prime has been involved in expensive litigation; . . . [and] . . . 2) for conversion of a City of Boston check to his use.
Decision of November 3, 1982 at 4. Parenthetically, Sidney and Gerald Bornstein, as well as Pearl, Bakis and Newbury Prime, also alleged that the activities of Myron *826 and Inez in connection with the assignment of the mortgage covering their Brookline home to Newbury Prime and its subsequent assignment by the corporation constituted unfair and deceptive practices in violation of M.G.L. ch. 93A.
2. Judge Randall's Findings of Fact
a. Breach of Fiduciary Duty
Myron and Inez T. Snyder, Trustees of the Paul G. Roberts Realty Trust, filed a voluntary petition for bankruptcy in 1979.[2] In the fall of 1980, the bankruptcy court ordered the liquidation of the bankruptcy estate which included real property located at 331A-333, 332, 334, 336 and 338 Newbury Street, Boston. An auction sale was advertised.
Bakis learned of the sale and informed Sidney Bornstein, who, like Snyder, was in the meat business. Sidney Bornstein and Bakis attended the auction sale where they met Myron Snyder. Snyder invited them to his home to discuss the value of the Newbury Street property and how it might be acquired. Inez was present at the meeting which took place at the Snyders' home.
During the meeting, Snyder informed Bornstein and Bakis that the bankruptcy court could be persuaded to set aside the auction sale if a higher offer could be produced. According to Judge Randall, an agreement was reached pursuant to which Sidney Bornstein, Gerald Bornstein, Pearl and Bakis would each put up $200,000 to purchase the property. Snyder, in turn, was to attempt to reduce the amounts the Paul G. Roberts Realty Trust would have to pay its creditors. If Snyder could reduce the claims to an amount less than $800,000, he was to get the difference between the reduced amount and $800,000. Inez Snyder was to receive a ten percent interest in a corporation the group would form to take title to the property.
Judge Randall frankly admitted perplexity at how Inez Snyder managed to "insert herself into the picture" and become one of the bidders, as she and Myron were trustees of the Paul G. Roberts Realty Trust, a perplexity this Court shares. Nevertheless, Inez was the successful bidder with a bid of $860,100.
Prior to the submission of the winning bid, however, Snyder approached Sidney Bornstein to advise him that in his opinion an additional $60,100 should be added to the bid. Snyder promised Bornstein that he would reimburse him for the extra $60,100. Milton Kafka, an attorney who represented Inez and perhaps Myron, then drafted an agreement with respect to the $860,100 bid.
Pursuant to the terms of the agreement, Newbury Prime Realty Corporation, which was formed on November 1, 1980 and whose charter was issued on November 5, 1980, was to consummate the purchase and sale of the property. The two Bornsteins, Pearl and Bakis each were to be 22.5% stockholders. Inez, as has been indicated, was to be a 10% stockholder. Additionally, the two Bornsteins, Pearl, Bakis and Myron Snyder were to be named corporate directors. Inez was to give the corporation a note for $60,100 to be secured by the pledge of her capital stock.
The closing of the sale of the Newbury Street property commenced on November 5, 1980 at the law offices of Hale & Dorr. Judge Randall characterized it as a "confusing affair" because of its length (two days) and the number of lawyers present. At the closing, Snyder was successful in settling claims against the bankruptcy estate and, accordingly, was paid $23,618. Additionally, Harbor National Bank assigned its mortgage to Newbury Prime. Harbor National Bank had acquired a third mortgage on the Snyders' Dean Road residence in Brookline (in addition to its mortgage on the Newbury Street property) on July 6, 1977. The mortgage was to secure a note from G. Ropate Corp. in the amount of $240,000, as well as the guarantees of the Snyders as trustees of the Paul G. Roberts Realty Trust. At the closing, *827 Newbury Prime assigned the Dean Road mortgage, which it had just received, to Robert G. Snyder. The Harbor National Bank mortgage covering the Newbury Street property was discharged. Sidney Bornstein and Gerald Bornstein signed the assignment instrument as president and treasurer of Newbury Prime respectively, and the assignment was acknowledged and duly recorded. As Judge Randall found:
The Bornsteins did execute this assignment at this very confusing passing, it being among other papers given them to sign. They had no recollection of making an assignment to Robert G. Snyder and received no consideration, therefore, at that time. There was no corporate meeting or directors' meeting of Newbury Prime and no vote of the corporation accepting the assignment of the Harbor mortgage to it, or the assignment out of the Corporation. No information as to this transaction was given to the directors or stockholders of Newbury Prime either by the director Myron Snyder or its stockholder Inez T. Snyder. No consideration of $1.00 or other consideration was paid to Newbury Prime by Inez T. Snyder or anybody else for the assignment on November 5, 1980.
Decision of November 3, 1982 at 18-19.
b. Interest on the Converted Check
Judge Randall found that Myron Snyder had been collecting rent for the Newbury Street properties once owned by the Paul G. Roberts Realty Trust. Snyder continued to perform this function for Newbury Prime. According to Judge Randall,
[i]n May 1981 a final quarterly rental payment was due. There was some mix-up as to an address, but on or about June 5, 1981, Myron Snyder received a check of $64,203.24 from the city (Exhibit 74) payable to "Myron Snyder and Inez T. Snyder Trustees of Paul G. Roberts Realty Trust for Newbury Prime". He and Inez T. Snyder then endorsed this check and deposited it into an account in the name of Inez Snyder, 33 Newbury Street, Boston, Massachusetts at the Home Town Co-operative Bank (Exhibit 86). Although asked about the check by Sidney Bornstein, Myron Snyder never told him that he and his wife had it in their possession. When Bornstein discovered this and threatened litigation, the $64,203.24 was then returned on July 2, 1981 but without the interest it had earned while deposited to Inez Snyder's account. Snyder's explanation that the holdup in his collection of this check had to do with non-payment of taxes to the City of Boston is not accepted by the Court.
Decision of November 3, 1982 at 20.
c. The $60,100 debt
In view of the fact that the Supreme Judicial Court modified Judge Randall's amended judgment by striking the paragraph in which Judge Randall determined that Myron Snyder was personally liable to Sidney Bornstein for $60,100 plus interest from November 5, 1980, and remanded the case for further consideration of Bornstein's claim for $60,100, the Court will consider this issue with reference to Judge Randall's decision on remand.
3. Judge Randall's Rulings of Law
a. Breach of Fiduciary Duty
Judge Randall unequivocally found that Myron Snyder owed a fiduciary duty to Newbury Prime and its directors,[3] and that Snyder breached that duty by failing to divulge the true facts about the mortgage on the Dean Road property. Judge Randall determined that Myron "acted in bad faith," that he and Inez "unscrupulously used Newbury Prime for their own pecuniary purposes," and that "the assignment was passed through Newbury Prime on a deceptive scheme devised by the Snyders to extricate it from their creditors." Decision of November 3, 1982 at 30-31. As a result of Snyder's bad faith, Judge Randall determined *828 that Snyder was liable for the damages caused to Newbury Prime and its directors due to their becoming enmeshed in litigation in the following amounts:
Bakis $ 1,800.00
Pearl $ 600.00
Sidney Bornstein $ 2,300.00
Newbury Prime $13,398.45
b. Interest on the Converted Check
Based upon his conclusion that Newbury Prime was entitled to the rent check in the amount of $64,203.24, Judge Randall found that the interest earned on that sum while it was on deposit (i.e., $232.71), which interest was retained by the Snyders, obviously belonged to Newbury Prime.
B. The August 15, 1984 Decision of the Supreme Judicial Court
1. Background
As noted by Judge Wilkins of the Supreme Judicial Court, Myron and Inez Snyder raised four issues on appeal from Judge Randall's judgment. Two of those issues relate to the claims made by the plaintiffs in this bankruptcy proceeding. In particular, the Snyders challenged Judge Randall's rulings with respect to (i) Myron's liability to Newbury Prime for attorney's fees and to Bornstein and his fellow directors for their lost time in defense of the litigation commenced by Widett & Widett; and (ii) Myron's liability to Sidney Bornstein for $60,100 plus interest.
2. Holding
The Supreme Judicial Court devoted a sizeable portion of its opinion to an analysis of the Harbor National Bank mortgage. The court reiterated Judge Randall's findings with respect to the assignment of that mortgage by the Bank to Newbury Prime followed by Newbury Prime's assignment of the note, guarantee and mortgage on the Dean Road property to Robert G. Snyder, acting as a straw for Inez. The court noted that "[t]he Harbor bank would undoubtedly have discharged the G. Ropate debt to it, instead of assigning it, if the Snyders had wished." Widett & Widett v. Snyder, 392 Mass. 778, 783, 467 N.E.2d 1312 (1984) (hereinafter "Decision of August 15, 1984"). Thus, the court concluded that "[t]he only apparent purpose was to maintain the mortgage to the law firm in a position subordinate to the third mortgage. The judge was correct in rejecting such an unfair result and in concluding that the third mortgage was null and void." Decision of August 15, 1984 at 9-10. The Supreme Judicial Court then went on to affirm Judge Randall's conclusion that in failing to disclose the circumstances and purpose of this transaction, Myron violated his fiduciary duty to the corporation. The court stated:
We agree that the use of Newbury Prime as a mechanism to transfer the Snyders' guarantee and mortgage to the Harbor bank to Robert G. Snyder was a violation of Myron's fiduciary duty as a director of Newbury Prime. See American Discount Corp. v. Kaitz, 348 Mass. 706, 711 [206 N.E.2d 156] (1965); Seder v. Gibbs, 333 Mass. 445, 452-453 [131 N.E.2d 376] (1956); Winchell v. Plywood Corp., 324 Mass. 171, 177 [85 N.E.2d 313] (1949). The transfers were solely for the Snyders' benefit and were of no benefit to Newbury Prime. Because of the Snyders' use of this device, Newbury Prime became involved in this litigation when the law firm reasonably named Newbury Prime and its directors as defendants in its challenge to the validity of the third mortgage. This involvement of Newbury Prime was a foreseeable consequence of Myron's involvement of it in the assignments. See Restatement (Second) of Torts § 874 (1979).
* * * * * *
The justification for Myron's liability is his bad faith breach of his duty of loyalty to the corporation in failing adequately to disclose his personal interest in the assignments, which were of no benefit to Newbury Prime, and in using the corporation for his family's personal benefit. Myron was properly held liable for the expenses of the litigation as it related to the continuing validity of the mortgage of the Brookline property.
Decision of August 15, 1984 at 10-11.
In a footnote, the court observed that Widett & Widett named Newbury Prime *829 and the Bornstein group as defendants because they might have claimed the G. Ropate note and the Snyders' mortgage and guarantee as assets of Newbury Prime. Since no such claim was made, the court questioned the allocation of the attorney's fees to the breach of fiduciary duty issue as opposed to Sidney Bornstein's personal claim against Myron. Decision of August 15, 1984 at 11 n. 6. However, Myron Snyder never capitalized on this observation.
With respect to Judge Randall's determination that Snyder owed Bornstein $60,100, the Supreme Judicial Court succinctly observed that "the evidence does not warrant the judge's finding that Sidney paid $60,100 to Myron." Decision of August 15, 1984 at 12. Accordingly, the court remanded the case to Judge Randall for a consideration of Bornstein's claim.
C. Judge Randall's Decision of August 26, 1985
As Judge Randall noted in his decision, "the sole question to be decided herein is whether or not Sidney Bornstein was owed $60,100 by Myron Snyder." Widett & Widett v. Snyder, No. 57964, slip op. at 1 (Suffolk Superior Court August 26, 1985) (hereinafter "Decision of August 26, 1985"). On that issue, Judge Randall found Snyder induced Bornstein to advance an additional $60,100 to assure the acceptance of the bid for the Newbury Street property. Snyder in fact agreed in writing to pay Bornstein the $60,100 personally. According to Judge Randall, "[o]n this representation, Bornstein did advance the additional $60,100 directly to Snyder who used some of this money to compromise certain claims against the Bankruptcy estate." Decision of August 26, 1985 at 4.
Judge Randall found that the agreement drafted by Attorney Kafka just prior to the November 5, 1980 closing, pursuant to which inter alia Newbury Prime was established, stock was allocated, and Inez was to pay $60,100 within six months to the new corporation, was a device whereby Snyder's $60,100 debt to Bornstein was transferred to Newbury Prime. Moreover, according to Judge Randall, after the closing Snyder orally promised to reimburse Bornstein as soon as he received monies from the bankruptcy trustee. Although Myron did receive monies from the bankruptcy trustee, he never paid Bornstein. Judge Randall expressly ruled that Snyder was estopped from denying his debt to Bornstein and that there was never a novation of Snyder's debt.
III. THE BANKRUPTCY COURT PROCEEDINGS
On March 8, 1989, the Court conducted an evidentiary hearing, at which time Myron Snyder and Sidney Bornstein testified and numerous exhibits were introduced into evidence, including exhibits that were part of the record from the Superior Court proceedings. The testimony of Snyder and Bornstein flushed out a few details but did not materially contradict the extensive findings made by Judge Randall in his two decisions. Accordingly, the Court hereby adopts Judge Randall's findings of fact.
Snyder insisted that he did not personally receive the $60,100 from Bornstein. He stated the bankruptcy estate of Paul G. Roberts Realty Trust received the money a distinction without a difference. However, Snyder admitted that he told Bornstein that he would see to it that the additional $60,100 advanced by Bornstein to secure a winning bid would be returned to him. Snyder also admitted that the Bornstein group and Newbury Prime were sued as a result of the Harbor National Bank mortgage assignment machinations.
With respect to the Debtor's promise to pay Bornstein, a letter dated October 15, 1980 from Snyder to Bornstein was admitted into evidence. This letter provides in relevant part:
This letter will confirm, with respect to our agreement of which a copy is attached, that I will reimburse you for the cost to you (if any) in excess of $800,000 (rather than $860,100 as written in the attached agreement) with respect to our purchase of the property at 332-338 Newbury Street. To the extent that I fail to do so, within six months from the date of passing, I understand that Inez *830 T. Snyder will forfeit her 10 percent interest in the property.[4]
Counsel to Bornstein emphasized two additional points in his presentation to the Court: (i) the Debtor's solvency in December 1980, and (ii) the purported inability of Bornstein to vote his 22.5% interest in Newbury Prime so as to effectuate repayment of the $60,100 by Newbury Prime.
With respect to the Debtor's solvency around the time the Debtor promised to repay Bornstein (October/November 1980), counsel to Bornstein relied upon a decision by Judge Lavien dated September 30, 1986. In that opinion, Judge Lavien found that in December 1980, the Debtor's assets totaled $610,000 and his liabilities totaled $367,500. The Debtor admitted that the debt to the Harbor National Bank was not included in the balance sheet formulated by Judge Lavien, and counsel to Bornstein pointed out that the amounts of the liabilities found by Judge Lavien were conservative estimates of the actual obligations owed by the Debtor. More importantly, the Debtor admitted that he could not repay Bornstein except through monies received from the bankruptcy estate of the Paul G. Roberts Realty Trust or from a bank loan.
With respect to Bornstein recovering his money from Newbury Prime, Bornstein testified that all matters involving the corporation required a 70% vote of the shares; that he believed he could not vote his 22.5% interest; that he believed Inez Snyder would vote against any proposed repayment; and, accordingly, that he could not recover his monies from the corporation.
Bornstein also indicated that he approached Snyder about repaying him but Snyder refused, presenting him with the option of buying the stock held in Inez' name for $250,000 instead.
IV. DISCUSSION
A. Collateral Estoppel
In Kwiat v. Doucette, 81 B.R. 184 (D.Mass.1987), the district court thoroughly analyzed the case law involving the use of collateral estoppel in bankruptcy proceedings. It adopted the following standards:
(1) The issue sought to be precluded must be the same as that in a prior action;
(2) The issue must have been actually litigated;
(3) The issue must have been determined by a valid and final judgment; and
(4) The determination must have been essential to the judgment.
81 B.R. at 187 (quoting In re D'Annolfo, 54 B.R. 887, 889 (Bankr.D.Mass.1985).
The Court has excerpted segments from the prior state court proceedings and has emphasized the completeness of the findings made by Judge Randall because, in weighing the standards outlined above, the Court is convinced that Myron Snyder is collaterally estopped from relitigating the following issues:
1) his fiduciary relationship to Newbury Prime and it directors under state common law;
2) his breach of that fiduciary duty to Newbury Prime and its directors as a result of the Harbor National Bank mortgage assignments;
3) damage to Newbury Prime and its directors resulting from breach of fiduciary duty; and
4) his debt to Sidney Bornstein in the amount of $60,100.
Despite this conclusion, the Court is also sanguine that the testimony and the exhibits introduced in the adversary proceeding, particularly the October 15, 1980 letter from Snyder to Bornstein, the articles of organization of Newbury Prime that indicate Snyder's status as a director, the deed from Stephen M. Brody, bankruptcy trustee of the Paul G. Roberts Realty Trust to Newbury Prime dated November 5, 1980, and the various assignments of the Harbor National Bank mortgage, amply support the above conclusions. Thus, the issue that remains is whether the debts determined to be due and owing are in fact nondischargeable under the Bankruptcy Code.
*831 B. Sections 523(a)(2)(A) and 523(a)(4) of the Bankruptcy Code
These sections of the Code provide in relevant part:
(a) A discharge under section 727, 1141, 1228(a), 1228(b) of this title does not discharge an individual debtor from any debt
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtors or an insider's financial condition; . . .
(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny;
11 U.S.C. §§ 523(a)(2)(A) and 523(a)(4).
The district court in Kwiat v. Doucette, 81 B.R. 184 (D.Mass.1987), discussed the burdens of proof under section 523(a)(2)(A) and 523(a)(4), stating "case law is legion that claims for nondischargeability under § 523(a)(2) and for claims of actual fraud or embezzlement under § 523(a)(4) must be proved by clear and convincing evidence." 81 B.R. at 189. However, the district court questioned the propriety of applying the elevated standard to defalcations by fiduciaries since a defalcation may not involve fraud at all, and may simply be the result of negligence or innocent default. Id. at 188; see Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 512 (2d Cir.1937). Nevertheless, this Court will apply the clear and convincing standard.
1. Liability under 11 U.S.C. § 523(a)(4)
It is unquestionable that Snyder breached a fiduciary duty to Newbury Prime and its directors, as that duty is defined by state common law, and that the Debtor as the author of the breach owes the plaintiffs the amounts previously indicated.
In Kwiat v. Doucette, 81 B.R. 184 (D.Mass.1987), the court summarized the state of the law with respect to who is a fiduciary. It stated:
Federal bankruptcy law controls who is a fiduciary for purposes of § 523(a)(4). To be a fiduciary for dischargeability purposes, the debtor must be a trustee either under an express or "technical" trust. Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S. Ct. 151, 153, 79 L. Ed. 393 (1934); 3 Collier on Bankruptcy ¶ 523.14 (1987) (see cases cited therein). The trust relationship must exist prior to the act creating the debt. Davis, 293 U.S. at 333-34, 55 S. Ct. at 153-54. State law is relevant in determining whether a trust relationship exists. State statutes may create a particular relationship by expressly imposing fiduciary obligations on a party. In re Johnson, 691 F.2d 249, 251-52 (6th Cir. 1982); In re Romero, 535 F.2d 618 (10th Cir.1976); In re Janikowski, 60 B.R 784 (Bankr.N.D.Ill.1986).
Kwiat, 81 B.R. at 188. In Massachusetts, the Supreme Judicial Court has articulated the standard of duty for corporate directors:
The directors of an ordinary business corporation have been called trustees and their relation to the corporation is at least fiduciary. They are bound to act with absolute fidelity and must place their duties to the corporation above every other financial or business obligation. They must act, also, with reasonable intelligence, although they cannot be held responsible for mere errors of judgment or want of prudence. They cannot be permitted to serve two masters whose interests are antagonistic. They are liable if, through their bad faith, financial loss to the corporation results. . . .
Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 410-11, 8 N.E.2d 895 (1937) and case cited therein. See also Durfee v. Durfee & Canning, Inc., 323 Mass. 187, 196, 80 N.E.2d 522 (1948). ("It is settled that the directors of a corporation stand in a fiduciary relationship toward the corporation and that out of that relationship arises a duty of reasonably protecting the interests of the corporation.")
In Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 328 N.E.2d 505 (1975), the Supreme Judicial *832 Court noted the fundamental resemblance of close corporations to partnerships because of "the trust and confidence which are essential to this scale and manner of enterprise and the inherent danger to minority interests." 367 Mass. at 592-93, 328 N.E.2d 505. Accordingly, it held that stockholders, whether majority or minority stockholders, "owe one another substantially the same fiduciary duty in the operation of the enterprise that partners owe one another." Id. at 593, 328 N.E.2d 505. The court contrasted this "strict good faith standard" with "the less stringent standard of fiduciary duty to which directors and stockholders of all corporations must adhere." Id. at 593-94, 328 N.E.2d 505.[5]
Despite this explicit statement of Massachusetts law, federal courts have found that the traditional common law meaning of the term fiduciary is far too broad for bankruptcy purposes. In re Angelle, 610 F.2d 1335, 1338-39 (5th Cir.1980); In re Kelley, 84 B.R. 225, 229 (Bankr M.D. Fla.1988); In re Gans, 75 B.R. 474, 489 (Bankr.S.D.N.Y.1987). Thus, state law, though relevant, is not determinative of the issue of whether Snyder as a director of Newbury Prime is a fiduciary for purposes of section 523(a)(4).
In In re Decker, 36 B.R. 452 (D.N.D. 1983), the district court held that "the fiduciary relationship required under 11 U.S.C. § 523(a)(4) includes the fiduciary relationship between a corporate officer or director and the corporation." Id. at 458. In that case, the debtor was the president, director, shareholder and principal manager of the plaintiff corporation and was given substantial authority by express or implied consent to operate the corporation. In a series of transactions involving the corporation, the debtor personally benefitted. The court determined that "he, in his fiduciary capacity, had the duty to disclose the personal transactions to the other directors and get their approval before proceeding." 36 B.R. at 456.
In reaching its decision the court relied upon cases decided under the Bankruptcy Act, which contained a provision expressly excepting from discharge debts created by fraud, embezzlement, misappropriation, or defalcation by a debtor while acting as an officer or in any fiduciary capacity. The term officer was construed to include officers of private, as well as public corporations. Murphy & Robinson Investment Co. v. Cross, 666 F.2d 873 (5th Cir.1982). Although section 523(a)(4) of the Bankruptcy Code contains no reference to an "officer", that omission, according to Collier, is without significance "because an officer who misappropriates funds of a corporation is acting in a fiduciary capacity, and despite the deletion of the word `officer,' the debt would be nondischargeable." 3 Collier on Bankruptcy ¶ 3523.14 at 523-92 n. 1 (15th ed.1989); see also In re Decker, 36 B.R. at 456.
The district court in the Decker case observed:
Decker cites Davis v. Aetna Acceptance Co., 293 U.S. 328, 333, 55 S. Ct. 151, 153, 79 L. Ed. 393 (1934) for his contention that the fiduciary relationship required under 11 U.S.C. § 523(a)(4) is limited to those fiduciary relationships arising from express and technical trusts. Davis is not controlling here. The Supreme Court in Davis was interpreting section 17 of the former Bankruptcy Act, which excepted from discharge liabilities created by fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity. 293 U.S. at 333, 55 S.Ct. at 153. Thus, when the Court interpreted the meaning of the term "fiduciary capacity" to require a technical or express trust, rather than a trust implied from a contract, the court did not mean to say that an officer of a corporation was not a fiduciary. In fact, the Supreme Court denied certiorari in a case that applied section 17 of the former Bankruptcy Act to debts of a corporate director or officer acting in violation of *833 his fiduciary obligations. In re Hammond, 98 F.2d 703 (2d Cir.), cert. denied, 305 U.S. 646, 59 S. Ct. 149, 83 L. Ed. 418 (1938).
Id. at 457-58. See also John P. Maguire & Co. v. Herzog, 421 F.2d 419 (5th Cir.1970) (managing officer's use of corporate office to obtain a personal benefit at the expense of corporate creditors caused creditors claims to be nondischargeable under section 17(a)(4) of the Act); In re Bernard, 87 F.2d 705 (2d Cir.1937) (officer's liabilities created by a known breach of duty to the corporation are not dischargeable); In re Overmyer, 52 B.R. 111, 118 (Bankr.S.D.N. Y.1985) ("The liability of corporate officers and directors to the corporation is not dischargeable when bottomed on fiduciary fraud."); In re Cowley, 35 B.R. 526 (Bankr. D.Kan.1983) (in an action under section 523(a)(4) a corporate officer is a fiduciary of the corporation); In re Fussell, 15 B.R. 1016 (D.Va.1981) (improper application of corporate funds by corporate officer for his personal benefit was a defalcation); 1 Norton, Bankruptcy Law and Practice § 27.50 (1981 & Supp.1989) (officers of corporations are fiduciaries to stockholders and the corporation with respect to funds controlled by them). The court in Decker relied on the decision in Pepper v. Litton, 308 U.S. 295, 60 S. Ct. 238, 84 L. Ed. 281 (1939), in which the Supreme Court considered the power of the bankruptcy court to disallow or to subordinate claims in the exercise of its broad equitable powers. The Supreme Court observed:
A director is a fiduciary. Twin-Lick Oil Co. v. Marbury, 91 U.S. 587, 588 [23 L. Ed. 328 (1875)]. So is a dominant or controlling stockholder or group of stockholders. Southern Pacific Co. v. Bogert, 250 U.S. 483, 492 [39 S. Ct. 533, 537, 63 L. Ed. 1099 (1919)]. Their powers are powers in trust. See Jackson v. Ludeling, 21 Wall. 616, 624 [88 U.S. 616, 22 L. Ed. 492 (1874)]. Their dealings with the corporation are subjected to rigorous scrutiny and where any of their contracts or engagements with the corporation is challenged the burden is on the director or stockholder not only to prove the good faith of the transaction but also to show its inherent fairness from the viewpoint of the corporation and those interested therein. Geddes v. Anaconda Copper Mining Co., 254 U.S. 590, 599 [41 S. Ct. 209, 212, 65 L. Ed. 425 (1921)].
308 U.S. at 306, 60 S. Ct. at 245.
The Decker court also relied upon In re Hammond, 98 F.2d 703 (2nd Cir.), cert. denied, 305 U.S. 646, 59 S. Ct. 149, 83 L. Ed. 418 (1938). The Court is impressed by the fact that the Court of Appeals for the Second Circuit in Hammond was aware of and indeed cited the Davis case in its opinion. Moreover, the facts in the Hammond case are instructive.
In Hammond, the Debtor sought to restrain a judgment creditor, Acoustic Products, from taking any further steps to collect its judgment. The judgment in question was rendered in a suit in equity to compel the debtor and other defendants to account for profits alleged to have been made in violation of their duties as directors of Acoustic. The directors of Acoustic had accepted an offer to participate in the purchase of stock. When the time came to purchase the stock, Acoustic lacked the funds necessary to do so. However, the directors, the debtor among them, made the required payments and took the stock in their own names. Eventually, the directors made large profits from the sale of their shares. The court that rendered the judgment in favor of Acoustic imposed liability on the debtor and the other directors on the theory that a fiduciary cannot profit from a violation of his duty to his cestui or violate the rigid rule of undivided loyalty to the corporation.
The Court of Appeals for the Second Circuit, in finding the judgment nondischargeable, stated:
The liability upon which the judgment is based is obviously one created while Hammond was acting as an officer or in a fiduciary capacity. The president of a private corporation has been held to be an "officer" or a fiduciary within the meaning of the clause under discussion. It can scarcely be doubted, and is not, we understand, disputed, that a director falls within the same category. Whether *834 Hammond's liability was created by "fraud" within the meaning of the fourth subdivision of section 17 is a question much disputed by the parties; but this also need not be decided because in any event it was created by his "misappropriation" while acting as an officer or in a fiduciary capacity. As the interlocutory decree adjudged, the conduct of Hammond and his associates was an "unlawful taking and disposition" of Acoustic's property and property rights. Whether the property so taken be deemed the corporate contract, or the stock covered by the contract, or the proceeds of the sale of such stock; it was a res held in trust for the corporation by a person who was already a fiduciary; for the fiduciary to claim it as his own was a "misppropriation" within the ordinary meaning of that word.
98 F.2d at 705 (citations omitted).
In a recent case, In re Twitchell, 91 B.R. 961, 965 (D. Utah 1988) the United States District Court for the District of Utah criticized several of the foregoing cases, noting "[t]hese cases construe the term fiduciary capacity very broadly, requiring only that a fiduciary relationship exist between an officer and his corporation." The court, referring to Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S. Ct. 151, 79 L. Ed. 393 (1934), went on to state that "such a broad construction runs contrary to the stated judicial construction of `fiduciary capacity' by the Supreme Court." In re Twitchell, 91 B.R. at 965. See also In re Stone, 91 B.R. 589 (D. Utah 1988). Accordingly, the court reversed the bankruptcy court's determination that a debt owed by the president and treasurer of a credit union for inter alia failure to apply proceeds from the sale of his home to satisfy a loan obligation was nondischargeable. The district court ruled there was insufficient evidence from which to find an express trust and the creditor was unable to identify an express legislative intent to create a trust in the Utah code. 91 B.R. at 966.
This Court agrees with the court in Twitchell to a limited extent. It seems clear that some courts seem to be overlooking or distinguishing the requirement of an express or technical trust set forth in a line of Supreme Court cases, beginning with Chapman v. Forsyth, 43 U.S. 202, 11 L. Ed. 236 (1844), in which the court held that a factor entrusted with selling goods for another was not a fiduciary. Nevertheless, the court in Twitchell did not mention, let alone distinguish, the Supreme Court's ruling in Pepper v. Litton, 308 U.S. 295, 60 S. Ct. 238, 84 L. Ed. 281 (1939), and made no attempt to harmonize Davis with the line of cases that include In re Hammond, 98 F.2d 703 (2d Cir.), cert denied, 305 U.S. 646, 59 S. Ct. 149, 83 L. Ed. 418 (1938).
The problem raised by the cases is not obviated by holding Snyder to the fiduciary standards imposed on partners something the Court could do in view of the fact that Newbury Prime is a close corporation, see Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. at 593, 328 N.E.2d 505, since the conclusion of a number of federal courts is that partners are not fiduciaries for purposes of section 523(a)(4). In re Kelley, 84 B.R. 225 (Bankr.M.D.Fla.1988); In re Napoli, 82 B.R. 378 (E.D.Pa.1988); see generally 3 Collier on Bankruptcy, ¶ 523.14[1][c] at XXX-XX-XX (15th ed. 1989). However, one court has taken exception to the emphasis on express or technical trusts with respect to partnerships, stating:
Such a narrow interpretation of this Section would eliminate relationships which traditionally have been recognized to be fiduciary even though they are not created by an express or technical trust. For instance, it cannot be gainsaid that the relationship between an attorney and a client is not fiduciary in nature; neither is a relationship between corporate officers and stockholders of a corporation. Clearly, Congress did not intend to exclude debts arising from breach of the duty arising out of such relationships from the reach of § 523(a)(4).
In re Cramer, 93 B.R. 764, 767-68 (Bankr. M.D.Fla.1988). Based upon that rational and Florida common law, the court concluded that partners owe a fiduciary duty to one another which is within the contemplation of section 523(a)(4), a position at odds *835 with decisions rendered by other Florida bankruptcy judges. See In re Ryan, 90 B.R. 554 (Bankr.S.D.Fla.1988); In re Kelley, 84 B.R. 225 (Bankr.M.D.Fla.1988); In re Elliott, 66 B.R. 466 (Bankr.S.D.Fla. 1986). See also In re Ragsdale, 780 F.2d 794 (9th Cir.1986) (California law).
Thus, the Court is confronted with with an interesting conundrum. If the Court utilizes the elevated partnership standard applicable to officers and directors of close corporations, Snyder's debts, at least according to one line of cases, are dischargeable. However, if the Court follows the majority rulings and utilizes the standards normally applicable to corporate officers and directors, Snyder's debts to his fellow directors and to Newbury Prime are nondischargeable.
Although the Court is not convinced that Massachusetts law makes corporate officers and directors, trustees of express or technical trusts per se (since to do so would seem to eliminate the obvious distinctions between corporations and trusts), the Court believes that their fiduciary duty to the corporation and other directors precedes the creation of any debt. Moreover, the Court is inclined to harmonize the line of cases that invariably mention In re Bernard, 87 F.2d 705 (2d Cir.1937), and In re Hammond, 98 F.2d 703 (2nd Cir.), cert. denied, 305 U.S. 646, 59 S. Ct. 149, 83 L. Ed. 418 (1938), with the requirement of Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S. Ct. 151, 79 L. Ed. 393 (1934), that section 17(4) of the Bankruptcy Act, 11 U.S.C. § 35, only applies to technical trusts. Thus, the Court agrees with the court In re Decker, 36 B.R. 452, 457-58 (Bankr.D.N.D.1983) and finds the operative language in Davis for corporate directors to be, not the requirement of a technical trust, but the requirement that section 17(4) only applies "`to a debt created by a person who was already a fiduciary when the debt was created.'" 293 U.S. at 333, 55 S.Ct. at 154. In reaching this decision the Court is influenced by the rule of Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S. Ct. 755, 88 L. Ed. 2d 859 (1986), "that bankruptcy statutes will not be deemed to have changed pre-Code law unless there is some indication that Congress thought that it was effecting such a change." United States v. Ron Pair Enterprises, Inc., ___ U.S. ___, 109 S. Ct. 1026, 1036, 103 L. Ed. 2d 290 (1989). See also Kelly v. Robinson, 479 U.S. 36, 50-51, 107 S. Ct. 353, 361-62, 93 L. Ed. 2d 216 (1986). Since there is no indication of a congressional intent to change pre-Code law, the Court is convinced that Decker rather than Twitchell sets forth the better view. Additionally, the fact that the Supreme Court denied certiorari in Hammond is not without significance. Thus, to summarize, the Court finds that the fiduciary duties of corporate directors under Massachusetts law satisfy the requirements of section 523(a)(4) of the Bankruptcy Code. Snyder breached that fiduciary duty to Newbury Prime and its directors. His actions in having the Harbor National mortgage assigned by Newbury Prime to his son was a misappropriation. At the time the mortgage was assigned to Robert G. Snyder it was at least arguably a corporate asset. Snyder's actions thus constituted an unlawful taking and disposition of Newbury Prime's property for his personal benefit and that of his family. The same can be said for Snyder's actions with respect to the rent check from the City of Boston. Thus, Snyder is liable for the damages arising from the breach of his fiduciary duty to Newbury Prime and its directors, and those damages are nondischargeable debts for purposes of section 523(a)(4).
2. Liability under 11 U.S.C. § 523(a)(2)(A)
To prevail under section 523(a)(2)(A) clear and convincing evidence must establish that Snyder obtained $60,100 from Bornstein by means of false representations, false pretenses or actual fraud. In this instance, the Debtor unequivocally promised to repay Bornstein on two occasions. Bornstein, however, must be able to show by inference or otherwise that at the time the Debtor made the initial promise he knew it was false, and that he had no intention of repaying Bornstein. Bornstein also must establish that the false representations involve moral turpitude or intentional *836 wrong and that he relied on Snyder's promise. See In re Jackson, 89 B.R. 308 (Bankr.D.Mass.1988); In re Turner, 23 B.R. 681 (Bankr.D.Mass.1982).
Bornstein clearly has established that he relied on Snyder's promises. However, the question of the Debtor's intent which "must almost always be inferred from the totality of circumstances," In re Roberts, 82 B.R. 179, 184 (Bankr.D.Mass.1987), is more problematical. There is no question that at the times Snyder promised to repay Bornstein (i.e., on October 15, 1980 and after the closing on November 6, 1980) his financial condition was perilous. Moreover, there is no question that Snyder is a sophisticated businessman capable of showing ingenuity and brashness in the conduct of his business. Nevertheless, Snyder anticipated obtaining funds from the trustee of the bankrupt Paul G. Roberts Realty Trust at the time he first asked Bornstein for the money. In fact, Judge Randall found, and the Debtor admitted in this Court, that he or Inez did receive approximately $59,000 from the Trustee sometime after the closing. Thus, the Court would have to find that the Debtor had no intention of making those funds available to Bornstein at the time he received the advance from him. The timing is critical, since any subsequent decision by the Debtor not to repay Bornstein from funds received from the bankruptcy estate, while relevant to his moral character, is not relevant to a determination of nondischargeability pursuant to section 523(a)(2)(A).
For this Court to make a determination that the $60,100 debt is nondischargeable, the Court would have to be convinced by clear and convincing evidence that at the time the Debtor approached Bornstein about raising the bid for the Newbury Street properties, he anticipated receiving directly or through Inez money from the estate that he intended to retain, or that he had already devised a ruse whereby he could convert his personal obligation to a corporate one. It seems clear to the Court that if Snyder did conceive of such a scheme the conception of it did not occur until around the time of the November 5, 1980 closing, after Bornstein had advanced the money to him. Thus, the Court finds that Bornstein has failed to carry his burden of proof on the issue of the dischargeability of the debt. Accordingly, Snyder's debt to Bornstein is dischargeable. The decision is a difficult one because the Court recognizes the egregiousness of the Debtor's conduct in manipulating both the bankruptcy sale of the assets of the Paul G Roberts Realty Trust and the Harbor National Bank mortgage assignments.
V. CONCLUSION
In view of the foregoing, the Court hereby enters judgment in favor of Myron Snyder and against Sidney Bornstein with respect to the $60,100 debt. The Court enters judgment against Myron Snyder and in favor of Sidney Bornstein in the amount of $2,300; in favor of Philip Pearl in the amount of $600; in favor of Peter Bakis in the amount of $1,800; and in favor of Newbury Prime in the amount of $13,781.16.
NOTES
[1] Although the original complaint seeks denial of the Debtor's right to a discharge, it contains no reference to section 727(a). The original and the amended complaints are not models of clarity, as both complaints fail to organize the relief requested in specifically enumerated counts.
[2] The Court takes judicial notice of bankruptcy court records that indicate that the petition under Chapter XI of the Bankruptcy Act was actually filed on June 30, 1978. However, the Debtor was adjudicated on October 12, 1979, and a bankruptcy trustee was appointed shortly thereafter.
[3] Judge Randall cited the following cases to establish that a director owes a fiduciary duty to his corporation. Seder v. Gibbs, 333 Mass. 445, 453, 131 N.E.2d 376 (1956); Durfee v. Durfee & Canning Inc., 323 Mass. 187, 196, 80 N.E.2d 522 (1948); and Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 411, 8 N.E.2d 895 (1937).
[4] The Court notes that no copy of an agreement was attached to the exhibit.
[5] The Supreme Judicial Court tempered its decision in Donahue in Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842, 353 N.E.2d 657 (1976). In that case, it recognized that the controlling group of stockholders may have a legitimate business purpose defense in an action alleging breach of strict good faith duty. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918360/ | 101 B.R. 114 (1989)
In re KROH BROTHERS DEVELOPMENT COMPANY, et al, Debtors.
The KROH OPERATING LIMITED PARTNERSHIP, Plaintiff,
v.
BARNETT BANK OF SOUTHWEST FLORIDA, et al, Defendants.
Bankruptcy No. 87-00640-1-11, Adv. No. 88-0771-1-11.
United States Bankruptcy Court, W.D. Missouri.
May 30, 1989.
Jonathan Margolies and Charles Fowler, McDowell, Rice & Smith, Kansas City, Mo., for plaintiff.
Benjamin F. Mann, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for defendants.
ORDER
KAREN M. SEE, Bankruptcy Judge.
After careful review, the Court hereby adopts and enters the attached proposed *115 Findings of Fact, Conclusions of Law and Judgment submitted by Barnett Bank of Tampa, the prevailing party at trial. The proposed Findings of Fact, Conclusions of Law and Judgment are based on oral Findings and Conclusions made on the record at the conclusion of trial.
IT IS SO ORDERED.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
This adversary action came before the Court on plaintiffs' complaint to avoid certain transfers, involving certificates of deposit (C.D.s) issued by defendant Barnett Bank of Tampa, N.A. ("BBT") to the debtor, Kroh Brothers Development Company ("KBDC"). Plaintiffs' complaint sought recovery not only from BBT but also from Barnett Bank of Southwest Florida ("BBSW") with respect to a transaction involving C.D. proceeds in the amount of $39,993.51. Prior to trial, plaintiffs effected a settlement regarding this one transaction, dismissing all claims as against BBSW and dismissing all claims arising out of this one transaction as against BBT. Thus, the claims tried before the Court involved only BBT as a defendant.
The plaintiffs herein are the debtor-in-possession, KBDC, and the debtor's designated § 1123(b) representative, The Kroh Operating Limited Partnership. Both KBDC and its designated representative will be referred to herein collectively as "KBDC."
Trial was held on May 17, 1989, at which time the parties stipulated to certain basic facts, both testimonial and documentary evidence was adduced, and argument made by counsel. Based on the foregoing, the Court makes the following findings and conclusions.
Findings of Fact
BBT and BBSW are separate, independent banks which are owned by the same holding company, Barnett Banks, Inc. In the early 1980s, KBDC established and maintained an ongoing banking relationship with both banks. In the summer of 1986, KBDC had a $1 million line of credit with BBT and another $1 million line of credit with BBSW. As a result of discussions among the two banks and KBDC, it was decided that KBDC would consolidate its two $1 million lines of credit into a single $2 million line of credit with BBSW.
The last in a series of renewals on BBT's $1 million line of credit was a promissory note dated June 13, 1986 with a stated maturity date of September 15, 1986. On or shortly after September 15, BBT billed KBDC for the interest which was due on this note for the period from June 13 to September 15. On October 15, 1986, pursuant to the agreement to consolidate the two $1 million lines of credit, BBSW wired $1,000,000 to BBT and BBT assigned its June 13, 1986 note to BBSW "without recourse." BBT then billed KBDC for the interest due for the period from September 15 to October 15. Representatives of BBT, BBSW and KBDC all understood and agreed that BBT had assigned its right to collect the $1,000,000 principal amount plus any future interest that might accrue to BBSW but specifically retained its right to collect payment for the interest which had accrued but was unpaid at the time of assignment.
On November 21, 1986, KBDC borrowed $285,000 from BBT and executed a note, security agreement and assignment, evidencing the loan and KBDC's pledge of its $300,000 C.D., which had been issued on November 5, 1986. This loan was a single term loan, with principal and interest payable in a lump sum upon the stated due date of February 19, 1987.
In addition to the $300,000 C.D., which had been originally issued in 1984 and rolled over at each maturity date, BBT held in its possession a $55,000 C.D., which was originally issued on November 15, 1985 and was automatically renewed thereafter. Both C.D.s were clearly legended as "nonnegotiable." Both C.D.s also contained on their face two boxes: one described as "personal and non-transferable"; and the other described as "non-personal or transferable." In both instances, the latter box was checked.
*116 BBT continued to periodically bill KBDC for interest for the period from June 13 to October 15, which totalled $28,849.31, and BBT's senior vice-president, Bruce Savage, had several telephone conversations with KBDC representatives during the fall and winter of 1986 in which he was assured that payment of this obligation would be forthcoming. On January 9, 1987, Mr. Savage wrote to KBDC, reminding it of the delinquent status of this interest obligation and requesting prompt payment of its so that it would not be necessary to use C.D. funds to satisfy this obligation.
In this same January 9 letter, Mr. Savage stated that, unless he was advised otherwise, he assumed KBDC intended to pay off its $285,000 debt by application of the C.D. proceeds upon its maturity on February 19, 1987. BBT received no response from KBDC and, on February 19, 1987, it setoff the $285,000 loan plus accrued interest thereon in the amount of $4,405.40 against the $300,000 C.D. and setoff the $28,849.31 interest obligation against the balance of the $300,000 C.D. and a portion of the $55,000 C.D., leaving a balance of $39,993.51. As previously noted, this $39,993.51 has been separately resolved by the parties and was not in issue at trial.
BBT advised KBDC of its setoff by letter dated February 25, 1987. At both the time of the setoff (February 19) and its advice of same to KBDC (February 25), BBT was not aware that KBDC had filed its bankruptcy petition on February 13, 1987.
Discussion and Conclusions of Law
Plaintiff KBDC contends that BBT did not have the right to make the setoffs on February 19, 1987 because: (1) BBT was stayed by operation of 11 U.S.C. § 362 from exercising its rights of setoff; (2) the $28,849.31 interest obligation was not a valid debt owed by KBDC to BBT and thus could not serve as the basis of a setoff; and (3) the $285,000 was not matured on the date of bankruptcy. KBDC also contends that BBT did not have a valid, perfected security interest in the C.D.s and, therefore, cannot justify its application of the C.D. proceeds as liquidation of a security interest in collateral. Accordingly, KBDC seeks recovery of the C.D. funds under §§ 362, 542, 544, 549 and 550 of the Bankruptcy Code. BBT rejects KBDC's contentions and asserts that, as of the date of bankruptcy, it had both rights of setoff and an enforceable security interest in the C.D.s. The Court will address each of KBDC's principal contentions.
1. Setoff
a. The Interest Obligation
KBDC argues that BBT's assignment of its Line of Credit note to BBSW necessarily constituted, as a matter of law, the assignment of all rights and interests therein including any accrued but unpaid interest. However, the pertinent authorities indicate that:
The question of what rights and remedies pass with a given assignment depends on the intent of the parties.
Pacific Coast Agricultural Export Ass'n v. Sunkist Growers, Inc., 526 F.2d 1196, 1208 (9th Cir.1975), cert. denied, 425 U.S. 959, 96 S. Ct. 1741, 48 L. Ed. 2d 204 (1976); Accord: ACLI International Commodity Services, Inc. v. Banque Populaire Suisse, 609 F. Supp. 434, 444 (S.D.N.Y.1984); Northwest Oil & Refining Co. v. Honolulu Oil Corp., 195 F. Supp. 281, 286 (D.Mont. 1961).
The evidence adduced at trial clearly shows the parties' intent. They intended that the line of credit note, to the extent of $1,000,000, be assigned to BBSW; this is evidenced not only by BBT's internal memorandum and Mr. Savage's testimony, but also by the fact that BBSW paid only $1,000,000 to BBT, representing the unpaid principal only, not $1,028,849.31, representing both principal and interest. They intended that BBT retain the right to collect the $28,849.31; BBT billed and made written demand on KBDC for that amount and BBSW has not made any claim against KBDC for any interest prior to October 15, 1986.
KBDC also argues that BBT's retention of the claim is an impermissible splitting of a cause of action under Uniform Commercial Code ("UCC") Section 3-202. *117 This section expressly allows such "splitting" of a claim. When something less than the whole amount of the indebtedness represented by a note is assigned, it destroys the note's negotiability but does operate as a valid partial assignment. See e.g., All American Finance Co. v. Pugh Shows, Inc., 30 Ohio St. 3d 130, 507 N.E.2d 1134, 3 U.C.C. Rep. Serv. 2d (West) 1421 (1987); West v. Baker, 109 Ariz. 415, 510 P.2d 731 (en banc 1973).
Accordingly, the Court concludes that BBT retained its right to collect the accrued interest for the period from June 13, 1986 to October 15, 1986 in the amount of $28,849.31. This obligation was clearly due and owing as of the date of bankruptcy and BBT had a valid right of setoff as of that date.
b. The $285,000 Loan Obligation
There is no dispute that KBDC owed BBT $285,000 plus accrued interest as of the date of bankruptcy. KBDC contends, however, that because the stated maturity date of the note was six days after the date of bankruptcy, BBT did not have a right of setoff with respect to this unmatured debt on the date of bankruptcy. KBDC's contention is not supported by the language of § 553 of the Bankruptcy Code or its legislative history, and it is directly contrary to the great weight of judicial and treatise authority.
Section 553(a) clearly allows setoff of "a claim of such creditor against the debtor that arose before the commencement of the case." A "claim" is defined in § 101(4) of the Bankruptcy Code to include "liquidated, unliquidated, fixed, contingent, matured, unmatured . . . debts." The $285,000 note obligation was incurred on November 21, 1986; obviously, it arose before the commencement of the case. Thus, regardless of its lack of maturity, the $285,000 note was clearly within the definition of debts which could be setoff under § 553(a). The legislative history on § 553 indicates that "bankruptcy operates as the acceleration of the principal amount of all claims against the debtor." H.R.Rep. No. 595, 95th Cong. 1st Sess. 353 (1977), U.S. Code Cong. & Admin.News 1978, 5787, 6309. Thus, debts which would otherwise be unmatured become matured upon the filing of the bankruptcy petition.
KBDC argues that such an interpretation gives no effect to the strong-arm clause of § 544 which gives the trustee or debtor in possession the powers of a hypothetical lien creditor on the date of bankruptcy. However, if KBDC's contention is given effect, it renders § 553(a) meaningless. The Court must strive to interpret §§ 544 and 553 in such a way as to give both provisions some effect. Certainly, allowing setoffs of debts which are unmatured as of the date of bankruptcy does not emasculate § 544(a) and it does give effect to § 553(a). Moreover, § 553(a) expressly states that the right of setoff is qualified only by §§ 362 and 363; it omits any reference to § 544.
Most significantly, this Court, quoting from the leading bankruptcy commentator, has specifically held that a bank may setoff against a customer's account a debt evidenced by a promissory note which was not yet due on the date of bankruptcy.
It is patent law on the issue of setoff, however, that `the right of setoff may be asserted in the bankruptcy case even though at the time the petition is filed one of the debts involved is absolutely owing but not presently due, or where a definite liability has accrued but is as yet unliquidated. Nor is it necessary that the debt sought to be setoff be due when the case is commenced.' 4 Collier on Bankruptcy para. 553.10(2), pp. 553-50 (1982). In this case, in which there can be no question about the existence of the debt, and the fact that it was `absolutely owing,' albeit as yet unmatured, the bank's right of setoff must be regarded as manifestly present.
Matter of Isis Foods, Inc., 24 B.R. 75, 76 (Bkcy.W.D.Mo.1982) (emphasis in original).
The rationale of Judge Stewart's ruling in Isis Foods has been adopted by numerous courts, including circuit courts, district courts and bankruptcy courts. See Braniff Airways, Inc. v. Exxon Co., U.S.A., 814 F.2d 1030, 1036 (5th Cir.1987) (allowing setoff when "[t]he debt was absolutely owed; *118 it just was not due until a calculation of the amount of fuel that was used was made."); In re Greseth, 78 B.R. 936, 942 (D.Minn. 1987) (following Matthieson, infra); In re Parrish, 75 B.R. 14, 16 (N.D.Tex.1987) (following Matthieson, infra); Matter of Matthieson, 63 B.R. 56, 59 (D.Minn.1986) (quoting the above-quoted portion of the Isis Foods opinion); Matter of Lundell Farms, 86 B.R. 582, 585-87 (Bkcy.W.D.Wis.1988); In re Brooks Farms, 70 B.R. 368, 372 (Bkcy.E.D.Wis.1987); In re Elsinore Shore Associates, 67 B.R. 926, 936-46 (Bkcy.D.N. J.1986) (allowing a bank to setoff debtor's funds on deposit against the debtor's contingent and unliquidated obligation to reimburse the bank on open letters of credit); In re Whitman, 38 B.R. 395, 397 (Bkcy.D. N.D.1984); Matter of Fred Sanders Co., 33 B.R. 310, 312 (Bkcy.E.D.Mich.1983); In re Wilson, 29 B.R. 54, 57 (Bkcy.W.D.Ark. 1982).
KBDC contends that this Court's ruling in In re Amco Products, Inc., 17 B.R. 758 (Bkcy.W.D.Mo.1982), rev'd, 50 B.R. 723 (W.D.Mo.1983), is contrary to the Isis Foods holding. Although Judge Barker did discuss the issue of setoff against an unmatured debt, his decision denying setoff was based on the fact that the obligation did not arise, let alone mature, until after the date of bankruptcy:
In the case at bar, the events that would entitle the Bank to dip into the reserve account occurred after the date of the Order of Relief in the case . . .
17 B.R. 758, 765. Thus, Amco Products is distinguishable on this ground, alone. Furthermore, even if state law were determinative on the right of setoff as KBDC contends that Amco Products requires, Florida law clearly allows setoff prior to maturity if the note, as it does in this case, so provides. See Aetna Casualty & Surety Co. v. Atlantic National Bank of West Palm Beach, 430 F.2d 574, 577 (5th Cir. 1970).
More importantly, to the extent there is any inconsistency between the Isis Foods and Amco Products holdings, this Court, in a recent opinion by Judge Koger where he reviewed both decisions, concluded that the holding in Isis Foods that an unmatured but absolutely owed note debt could be setoff against a bank deposit was correct and held that the creditor could setoff funds it owed the debtor against the debtor's promissory note which had a stated maturity date of six years (as opposed to six days as in this case) after bankruptcy was filed. See In re Lott, 79 B.R. 869, 871-73 (Bkcy.W.D.Mo.1987).
The Court concludes here that the rationale of Judge Stewart in Isis Foods is controlling in this situation, and BBT is entitled to setoff the C.D.s against the $285,000 loan obligation which was absolutely due but six days shy of its stated maturity date when KBDC filed for bankruptcy.
c. Automatic Stay
Having concluded that BBT had the right of setoff on the date of bankruptcy with respect to both the $28,849.31 interest obligation and the $285,000 loan, the Court turns the question of whether BBT's failure to obtain relief from the automatic stay before exercising such rights of setoff should operate now to invalidate such setoff rights. Undoubtedly, BBT's setoff on February 19, 1987 constituted a technical violation of the automatic stay which took effect upon the filing of KBDC's bankruptcy petition six days earlier. However, the Court finds that such violation was an innocent one, done without knowledge that the bankruptcy had been filed and not done willfully or intentionally. BBT promptly advised KBDC of its setoff and there is not the slightest indication that KBDC was harmed in any way by such setoff.
In such circumstances, it makes little difference whether the Court declares the initial exercise invalid and then allows the creditor to re-exercise his right of setoff or the Court simply allows the initial setoff to stand notwithstanding the technical violation of the stay. Regardless whether a creditor has sought relief from the automatic stay, it is entitled to assert as an affirmative defense to a trustee's avoidance or turn over action its right of setoff. See In re The Charter Co., 86 B.R. 280, 282-83 (Bkcy.M.D.Fla.1988).
*119 In summary, the Court concludes that, as of the date of bankruptcy, BBT had a valid right of setoff with respect to both the interest obligation and the $285,000 loan, and BBT's exercise of that right of setoff against the C.D.s, although in technical violation of the automatic stay, is hereby recognized and accepted by the Court as a valid affirmative defense to KBDC's claim for recovery of the C.D. funds.
2. Security Interest
As noted above, the Court believes that this case can be fully resolved solely on the setoff issue. BBT was entitled to setoff the C.D.s and all of KBDC's claims fail. However, in the alternative, even if BBT did not have valid rights of setoff on the date of bankruptcy with respect to the C.D.'s, the Court concludes, based on the following, that BBT had a valid, perfected security interest in the C.D.s securing the payment of both the $28,849.31 interest debt and the $285,000 loan and it had the right to liquidate the C.D.s and apply the funds in satisfaction of the secured indebtedness.
KBDC argues that BBT failed to sufficiently prove a written security agreement and thus failed to establish a security interest in the C.D.s. The focus of KBDC's argument is on the fact that BBT's microfilm copy of the executed security agreement was not fully legible and, thus, BBT did not sufficiently prove up its existence. Florida law expressly allows banks to maintain records on microfilm and such microfilm records are to be given the same force and effect as originals. § 658.72 Florida Statutes, 1987. Although not all of the fine print was legible on the microfilm, Mr. Savage clearly testified that the form of agreement used was the same as the blank form provided for comparison purposes and he was able to make out all of the unique terms which were filled in on the form, including the execution by KBDC. Moreover, even if the separate security agreement did not exist, both the June 13, 1986 and November 21, 1986 promissory note specifically grant BBT a security interest in all funds of KBDC on deposit with BBT as security for the repayment of the obligations of the respective notes. In short, BBT established a valid security interest in the C.D.s.
KBDC's main attack on BBT's security interest is its claim that the C.D.s were "generable intangibles" under the UCC and perfection of a security interest in general intangibles can only be accomplished by a UCC filing. It is undisputed that there was no UCC filing in this case. BBT contends that the C.D.s are "instruments" within the meaning of UCC § 9-105 and its security interest was perfected by BBT's possession of the C.D.s. It is equally undisputed that the C.D.s were in BBT's possession at all pertinent times. Consequently, the question as to whether BBT's security interest in the C.D.s was perfected turns on whether the C.D.s are instruments under the UCC. The UCC provisions and case law authority relied on by BBT indicate that a certificate of deposit, even if non-negotiable, is an instrument. See UCC §§ 9-105(1)(i) and 3-104(3); Smith v. Mark Twain National Bank, 805 F.2d 278 (8th Cir.1986); Citicorp USA, Inc. v. Southeast Bank, N.A., 718 F.2d 1030 (11th Cir.1983); Republican Valley Bank v. Security State Bank, 229 Neb. 339, 426 N.W.2d 529, 6 U.C.C. Rep. Serv. 2d (West) 895 (1988); General Electric Co. v. M & C Mfg., Inc., 283 Ark. 110, 671 S.W.2d 189, 38 U.C.C. Rep. Serv. (West) 1764 (1984); First National Bank in Grand Prairie v. Lone Star Life, Inc., 524 S.W.2d 525 (Tex.App.1975).
Most importantly, the Florida Supreme Court has specifically held that a non-negotiable certificate of deposit is an instrument, albeit a non-negotiable instrument, within the meaning of § 679.105(1)(i) Florida Statutes (Florida's enactment of UCC § 9-105(1)(i)). See Citizens National Bank of Orlando v. Bornstein, 374 So. 2d 6, 27 U.C.C. Rep. Serv. (West) 242 (Fla.1979) (at the time of this decision, the definition of instrument was codified as § 679.105(1)(g)). KBDC argues that the Bornstein holding applies only if the C.D. is "transferable" and contends that the C.D.s in issue are non-transferable.
*120 The Court, although noting that at least one authority, General Electric Co. v. M & C Mfg. Inc., supra, has held that a non-negotiable and non-transferable C.D. is an instrument under § 9-105, need not decide whether a non-transferable C.D. is an instrument. In this case, the Court concludes that the C.D. is transferable, at least to some extent, and such limited transferability is sufficient to be an instrument. See Bornstein, supra; In re Coral Petroleum, Inc., 50 B.R. 830, 837-38 (Bkcy.S.D. Tex.1985) (holding that a note with severe limitations on its transferability was still an "instrument."
KBDC's claim that these C.D.s are not transferable is premised on a strictly grammatical construction of the phrase "nonpersonal or transferable" so that it cannot be read to mean either one or the other or both. KBDC's expert witness' interpretation of this phrase to mean that a corporation can never have a transferable C.D., even if it is linguistically and grammatically correct, makes no common or business sense. The Court readily admits that the "transferable non-transferable" language used on the C.D.'s is confusing, especially in light of the provisions of the Federal Reserve System's Regulation D referred to by KBDC's counsel. However, the evidence appears clear on the point that all parties concerned understood and treated these C.D.s as if they are transferable under some circumstances. Certainly, the caption on the reverse side of the C.D., which begins: "Notice to Assignee", compels the conclusion that the C.D. was intended to be assignable or transferable by delivery. This is the fundamental criterion under UCC § 9-105(1)(i) for determination of whether a particular document is an instrument.
Accordingly, the Court concludes that the C.D.s are "instruments" within the meaning of UCC § 9-105(1)(i) and, thus, BBT properly perfected its security interest in these instruments by taking and maintaining possession of them.
Therefore, assuming for purposes of this argument only that BBT did not have valid rights of setoff as against the C.D.s, the Court concludes that BBT held valid, perfected security interests in the C.D.s as security for repayment of both the $28,849.31 interest obligation and the $285,000 loan obligation. BBT was entitled to apply the proceeds of these C.D.s, upon maturity, in satisfaction of the secured debt and such application is a valid defense to all of KBDC's claims for recovery of the C.D. funds.
Judgment
Based on the foregoing, it is hereby ordered that:
1. Plaintiffs' claims asserted against defendant Barnett Bank of Tampa, N.A., arising out of or relating to certificate of deposit proceeds in the amount of $39,993.51 transferred to Barnett Bank of Southwest Florida, are dismissed, with prejudice, pursuant to the stipulation of the parties filed at the commencement of trial; and
2. Judgment is granted for defendant Barnett Bank of Tampa, N.A. on the remaining claims asserted against it in Counts I, II, III, IV, and V of plaintiffs' complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576582/ | 35 So. 3d 1127 (2010)
Clara STAMPS and Demon Stamps, Individually and On Behalf of Their Minor Children, Demon Stamps, Jr. and Damonte Stamps
v.
CANAL INDEMNITY INSURANCE, Auto Source of the South, L.L.C. and William G. D'Aubin.
No. 2009 CW 1961.
Court of Appeal of Louisiana, First Circuit.
March 1, 2010.
*1128 Rene S. Paysse, Jr., Genevieve K. Jacques, New Orleans, LA, for Relators Canal Indemnity Company and Auto Source of the South, L.L.C.
Craig D. Gremillion, Baton Rouge, LA, for Respondent State Farm Mutual Automobile Insurance Company.
Before PARRO, KUHN, and McDONALD, JJ.
PER CURIAM.
At issue in this writ application is whether the trial court erred in denying a peremptory exception raising the objection of prescription as to a cross-claim that was not filed until almost ten months after the cross-claimant was added as a party defendant and served with the suit.
FACTS
This litigation arises out of an automobile accident that occurred on November 10, 2003, when a vehicle driven by William D'Aubin and owned by his employer, Auto Source of the South, L.L.C. ("Auto Source"), rear-ended a vehicle operated by Clara Stamps that was stopped at a red light on Airline Highway in Baton Rouge. As a result of the accident, it was alleged that Stamps sustained injuries, including but not limited to a torn rotator cuff requiring surgical repair. Accordingly, on October 1, 2004, Clara Stamps and her husband, individually and on behalf of their minor children (hereinafter collectively referred to as "plaintiffs"), filed suit against D'Aubin and Auto Source, together with Auto Source's liability insurer, Canal Indemnity Company ("Canal"). Thereafter, on or about November 9, 2007, the plaintiffs filed a supplemental and amending petition for damages other than property damage, naming State Farm Mutual Automobile Insurance Company ("State Farm") as a defendant in its capacity as their insurer.[1] State Farm was served on December 12, 2007, and answered the suit on January 29, 2008.[2] Later, on October 10, 2008, State Farm filed a cross-claim against Auto Source and Canal to assert subrogation rights based on its previous payment of $8,480.00 to the plaintiffs under the collision coverage provisions of their policy for the total loss of their vehicle. In response to the cross-claim, Canal and Auto Source filed a peremptory exception of prescription, arguing that State Farm's claim was prescribed, referencing La.Code Civ. P. art. 1067. State Farm opposed the exception, arguing that it is a subrogee of the plaintiffs and that since the main cause of action was timely filed, it served to interrupt prescription as to State Farm's subrogated claim.
The trial court considered the exception of prescription at a hearing on May 11, 2009, at which time it overruled the exception in open court and indicated that it would sign a judgment upon submission. *1129 Thereafter, a written judgment was signed on May 20, 2009, with notice being sent to the parties on May 22, 2009.
Prior to that hearing, the plaintiffs agreed to settle their claims on the main demand, and an order was signed on March 12, 2009, dismissing the plaintiffs' claims against Auto Source, Canal, and D'Aubin, with prejudice. Thus, the sole remaining claims against Auto Source and Canal stem from State Farm's cross-claim. This writ application on behalf of Auto Source and Canal (hereinafter collectively referred to as "relators") raises the question of whether that cross-claim was timely filed.
TIMELINESS OF THE WRIT APPLICATION
Before considering the merits of the issues raised in the writ application as to the relators' exception of prescription, we note that a question has been raised as to the timeliness of the writ application itself. Accordingly, we will address that issue first.
Writ applications are governed by Rule 4 of the Uniform Rules for Louisiana Courts of Appeal. Specifically, Rule 4-3 sets forth the delay for applying for writs, as follows:
The judge who has been given notice of intention as provided by Rule 4-2 shall immediately set a reasonable return date within which the application shall be filed in the appellate court. The return date in civil cases shall not exceed 30 days from the date of notice, as provided in La. C.C.P. art. 1914....
Upon proper showing, the trial court or the appellate court may extend the time for filing the application upon the filing of a motion for extension of return date by the applicant, filed within the original or an extended return date period. An application not filed in the appellate court within the time so fixed or extended shall not be considered, in the absence of a showing that the delay in filing was not due to the applicant's fault. The application for writs shall contain documentation of the return date and any extensions thereof; any application that does not contain this documentation may not be considered by the appellate court.
In interpreting the foregoing rule, the courts have held that a writ application will be deemed timely if the notice of intent and request for return date are filed within 30 days after the ruling at issue and the writ is filed by the return date set by the trial court, even if the return date is more than 30 days after the ruling at issue. Barnard v. Barnard, 96-0859 (La.6/24/96), 675 So. 2d 734.
Previously, on August 14, 2009, the relators filed a writ with this court, seeking review of the May 20, 2009 judgment overruling their exception of prescription. Upon receipt of the original writ, we noted that the notice of intent to seek supervisory writs was not filed until June 23, 2008, beyond the 30-day period for seeking supervisory review provided by Rule 4-3. Since the writ appeared untimely and there was no mention or evidence of any prior fax filing of the notice of intent, this court refused consideration of the application, explaining that the notice of intent was filed more than 30 days from the date of the hearing, more than 30 days from the date the judgment was signed, and more than 30 days from the date the notice of judgment was mailed to the parties. Stamps v. Canal Indem. Ins., XXXX-XXXX (La.App. 1 Cir. 9/28/09) (unpublished writ action). In the action, we did not afford the relators a specified period of time for filing a new writ application but rather noted that supplementation of the writ or *1130 an application for rehearing would not be considered.
Subsequent to our writ action in 2009CW1497, however, the relators took writs to the Louisiana Supreme Court on October 28, 2009, therein apparently arguing that the notice of intent was actually fax filed on June 17, 2009, within 30 days of both the signing and notice of the judgment at issue. In the interim, on October 27, 2009, the relators filed the instant application with this court, attaching a fax-file receipt evidencing that the notice of intent was faxed to the district court clerk's office on Thursday, June 17, 2009, which would be timely pursuant to Rule 4-3 if the facsimile filing was proper.
Louisiana Revised Statute 13:850, which provides for facsimile filing in civil cases, states in pertinent part:
A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.
Having reviewed the attachments to the instant writ, we note that it is now clear that the notice of intent was submitted to the district court clerk's office via facsimile on Wednesday, June 17, 2009, and a hard copy was filed on Tuesday, June 23, 2009. Since the hard copy was filed within five days (exclusive of legal holidays) of the facsimile transmission, the notice of intent was timely under La. R.S. 13:850. Moreover, in compliance with Rule 4-3, the notice of intent was filed within thirty days of the notice of judgment, and the relators filed the original writ application within the extended return date set by the district court. As such, although we declined to consider the relators' original writ application, we now believe that this matter is appropriate for consideration based on the additional information provided in the instant writ. Thus, we will proceed to address the merits of the relators' exception of prescription.
LAW AND ARGUMENT
Generally speaking, delictual actions are subject to a liberative prescription of one year pursuant to La. Civ.Code art. 3492. However, La.Code Civ. P. art. 1067 creates a limited exception for incidental demands. The article provides that "Fain incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand."
Applying the foregoing law to this case, the relators point out that State Farm paid $8,480.00 to the plaintiffs on November 23, 2003. When the plaintiffs filed suit on October 1, 2004, the relators aver that State Farm's claim for subrogation was not prescribed, thereby satisfying the first prong of La.Code Civ. P. art. 1067. However, the relators submit that State Farm did not file its cross-claim until October 10, 2008, four years after service of the original suit. Moreover, the cross-claim was not filed within ninety days of service of *1131 the supplemental and amending petition on December 12, 2007. Thus, the relators submit that the cross-claim is clearly prescribed under La.Code Civ. P. art. 1067.
In support of the argument that State Farm's cross-claim is barred by prescription, the relators cite Baldi v. Mid-Am. Indem. Co., 526 So. 2d 281 (La.App. 3rd Cir.), writ denied, 531 So. 2d 276 (La.1988). In Baldi, the plaintiff brought an action against Mid-American Indemnity Company, the liability insurer of her husband, as a result of a two-car accident that occurred when she was traveling as a guest passenger in her husband's auto. On February 25, 1986, Mid-American answered the suit and filed a third party demand against the driver of the other vehicle, Kevin Lewing, and the liability insurer of his employer, Royal Insurance Company. The third party demand filed by Mid-American was followed by a cross-claim filed by Royal on October 6, 1986. The third party demand filed by Mid-American prayed for indemnity or contribution from Lewing and Royal for all sums which Mid-American might be required to pay the plaintiff, while the cross-claim filed by Royal sought indemnity or contribution from Mid-American. Additionally, Royal sought to recover from Mid-American a total of $11,555.20, which was paid to the plaintiff and her husband for damages to their vehicle involved in the accident. In response to Royal's cross-claim, Mid-American filed exceptions of no cause of action and prescription. The exceptions were sustained by the trial court in two separate judgments, and Royal and Lewing appealed.
On appeal, the Louisiana Third Circuit Court of Appeal stated that the only issue presented for consideration was whether or not the trial court erred in sustaining the exception of prescription filed by Mid-American, which resulted in the dismissal of Royal's cross-claim seeking recovery of property damage paid by Royal to the plaintiff and her husband. Baldi, 526 So.2d at 283. At the outset, the appellate court noted that upon paying for property damage, Royal was subrogated to all rights and claims of the plaintiff and her husband for property damage to their vehicle. Id. The appellate court pointed out that the accident in question took place in July 1985, and no claim for property damage was made against Mid-American until Royal filed its cross-claim in October 1986. Id. Thus, the court noted that the cross-claim for property damage was prescribed unless it was somehow preserved by La. Code Civ. P. art. 1067. Id. In looking to Article 1067, the court held that the provisions of the article were clearly applicable to the facts of that case. Id. The cross-claim filed by Royal was clearly an incidental demand, as contemplated by the article. Id. Furthermore, the plaintiff's original suit was filed within one year of the accident and, therefore, Royal's subrogation claim for property damage was not barred at the time the main demand was filed. However, the court went on to find that the applicability of Article 1067 did not operate to preserve Royal's claim for property damage. Id. The record indicated that Royal was served with Mid-American's third-party demand in February 1986, but did not file its cross-claim until October 1986. Id. Thus, at the time the cross-claim was filed, the court concluded that the ninety-day grace period provided by Article 1067 had expired and, therefore, Royal's cross-claim was prescribed. Id.
Applying the rationale of Baldi to this case, the relators argue that the trial court's decision to overrule the exception of prescription was erroneous. The relators reiterate that the incidental demand in this case involves a separate cause of action and was filed four years after the plaintiffs filed suit against Canal and eleven months after State Farm was added as *1132 a party defendant. Given the facts, the relators submit that the plaintiffs' suit for personal injuries did not interrupt prescription as to State Farm's claim for property damage.
In opposition to the writ application, State Farm vehemently denies that La. Code Civ. P. art. 1067 is controlling herein. State Farm argues that the purpose of Article 1067 is to provide an exception to prescription for a claim that would otherwise have been prescribed, but is filed within ninety days from the date of service of the main demand. State Farm argues that it is a partial subrogee of the plaintiffs. Since suit by the plaintiffs interrupted prescription on the main cause of action and that suit was still pending (although later settled and dismissed) at the time State Farm filed its cross-claim, it argues that the main demand interrupted prescription as to its subrogated claim. Thus, State Farm submits that La.Code Civ. P. art. 1067 is not applicable.
In support of its argument that its cross-claim is not prescribed, State Farm cites Louviere v. Shell Oil Co., 440 So. 2d 93 (La.1983), which it contends is factually analogous to the instant case. In Louviere, the United States Fifth Circuit Court of Appeals certified a question of state law to the Louisiana Supreme Court concerning the effect of the interruption of prescription by the filing of a suit. The specific issue was whether a timely petition by an employer's workers' compensation insurer, seeking recovery for compensation benefits paid to an injured employee against a tortfeasor who caused the injury to the employee, interrupted prescription, thereby permitting the employee to file an action for his own damages after the anniversary date of the accident. Noting that the federal appellate court's question was based on the assumption that the filing of suit by the compensation insurer interrupted prescription on claims by the injured employee, the Louisiana Supreme Court stated that the reason for the interruption must be considered in determining the effect of the interruption. Louviere, 440 So.2d at 95. In considering that issue, the supreme court reasoned that the filing of suit by one party to recover his damages usually does not affect the running of prescription against other parties who sustained separate damages in the same accident. Id. However, the court went on to explain that a timely petition by a workers' compensation insurer, seeking recovery of compensation benefits paid to an injured employee against a tortfeasor who caused the injury to the employee, interrupts prescription, thereby permitting the employee to file an action for his own damages after the anniversary date of the accident. Id. The rationale underlying that decision is that there is only one principal cause of action, and the compensation insurer is asserting part of the employee's cause of action, because the insurer has paid part of the employee's damages and is entitled to recover to the extent of those payments as partial subrogee. Id. In reaching that conclusion, the court explained that a cause of action consists of the material facts which form the basis of the right claimed by the party bringing the action. Id. In that instance, the court noted that the claims of both the employee and the compensation insurer were based on the cause of action consisting of the material facts which were the basis of the employee's right to recover damages, and suit by either the employee or the employer's compensation insurer interrupted prescription for both as to that single cause of action.[3]Id. Once prescription *1133 was interrupted, the court held that it was continuously interrupted as to both claims during the pendency of the insurer's suit. Louviere, 440 So.2d at 98.
Under the rationale of Louviere, State Farm submits that, through payment, it has become partially subrogated to the plaintiffs' property damage claims. Moreover, State Farm suggests that the same facts that gave rise to the claims made in the suit by the plaintiffs also gave rise to the property damages claimed by State Farm. As such, it submits that the plaintiffs' suit for damages against Canal interrupted prescription on its own subrogation claim. In other words, State Farm avers that the plaintiffs had the right to amend their petition by leave of court at any time during the pendency of the main demand. Accordingly, since it is standing in the shoes of the plaintiffs as subrogee, State Farm argues that it likewise had the right to assert its claim for property damages against Canal at any time while the main demand was still pending.
In considering the respective arguments of the parties, we find that Louviere is distinguishable, because that case involved two separate lawsuits regarding only one principal cause of action by the employer's workers' compensation insurer and the injured employee and did not involve any incidental demands. Louviere did not involve application of La.Code Civ. P. art. 1067. This case, by contrast, involves claims for personal injury damages brought against a tortfeasor and his liability insurer, together with the plaintiffs' insurer, and involves a cross-claim by the plaintiffs' insurer for property damage, thereby implicating two separate causes of action. Thus, notwithstanding State Farm's arguments to the contrary, we find that La.Code Civ. P. art. 1067 clearly applies herein.[4]
Turning then to the language of La. Code Civ. P. art. 1067, the article provides that an incidental demand is not barred by prescription or peremption if it was not *1134 barred at the time the "main demand" was filed and is filed within ninety days of the date of service of the "main demand," or in the case of a third party defendant, within ninety days from service of process of the third party demand. In interpreting that article, the Louisiana Supreme Court has held that the term "main demand," as used in Article 1067, is not confined to the demand in the original petition, but also encompasses the claim as amended or supplemented once the petition has been validly amended. See Moore v. Gencorp, Inc., 93-0814 (La.3/22/94), 633 So. 2d 1268.
Applying the provisions of La.Code Civ. P. art. 1067 to the facts of this case, it is clear that State Farm's subrogation claim based on sums paid to the plaintiffs for property damage in November 2003 was not barred at the time the plaintiffs originally filed suit in October 2004. The original suit was filed within one year of the accident. Thus, the first prong of La.Code Civ. P. art. 1067 is satisfied.
The second prong of the article, however, is more problematic. The statute affords litigants a period of ninety days from service of the main demand, including any supplemental and amending petitions, to file an incidental demand. The plaintiffs filed the supplemental and amending petition naming State Farm as a party defendant on November 9, 2007, and State Farm was served on December 12, 2007. Thereafter, State Farm did not file its cross-claim against Auto Source and Canal until October 10, 2008, almost ten months after it was served with the suit. As was the case in Baldi, the ninety-day grace period provided by Article 1067 had expired at the time State Farm filed its incidental demand. State Farm's cross-claim is, therefore, prescribed.
For the reasons assigned, we reverse the judgment of the trial court rendered in open court on May 11, 2009, and signed May 20, 2009, and render judgment sustaining the relators' peremptory exception of prescription.
WRIT GRANTED. JUDGMENT REVERSED AND RENDERED.
NOTES
[1] The amended petition alleges that D'Aubin, Auto Source, Canal, and State Farm are "jointly, severally, individually and in solido indebted unto the plaintiff for all amounts reasonable under the premises."
[2] In its answer, State Farm denied that D'Aubin and/or Auto Source was underinsured and claimed a credit to the extent of the policy limits of any and all underlying policies of automobile liability insurance available to any defendant or to any responsible party. Further, State Farm claimed the full amount of any sums it paid or could potentially pay in the future to the plaintiffs under its own policy as a credit and set-off.
[3] The holding in Louviere that all prescriptions affecting a given cause of action are interrupted when a proper party judicially asserts the cause of action was based in part on La. R.S. 9:5801. At the time of the accident in that case, La. R.S. 9:5801 provided that "[a]ll prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants ... by the commencement of a civil action in a court of competent jurisdiction and in the proper venue." In a footnote, the Louviere court noted La. R.S. 9:5801, as originally enacted, was repealed in 1982, but the substance of the statute was included in La. Civ.Code art. 3462, which provides that "[prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue."
[4] In addressing the merits of the prescription issue, we note that the plaintiffs' original petition, which was timely filed within one year of the accident at issue, interrupted prescription as to State Farm. Moreover, although La. Civ.Code art. 3463 provides that "[i]nterruption is considered never to have occurred if the plaintiff ... voluntarily dismisses the action at any time either before the defendant has made any appearance or thereafter," this court and at least one other appellate court have rejected the characterization that a plaintiff alone voluntarily dismisses an action by virtue of settlement, since both parties resolve it by transaction or compromise. See Pierce v. Foster Wheeler Constructors, Inc., 04-0333 (La.App. 1 Cir. 2/16/05), 906 So. 2d 605, 610, writ denied, 05-0567 (La.4/29/05), 901 So. 2d 1071; see also Boyd v. Farmers Ins. Exchange, 42,701 (La.App. 2 Cir. 12/5/07), 973 So. 2d 154. Thus, it appears that the dismissal of D'Aubin, Auto Source, and Canal did not nullify the alleged interruption of prescription as to State Farm under La. Civ.Code art. 3463. Moreover, State Farm has not challenged the timeliness or the validity of the claims against it, and this court cannot raise prescription on its own motion. See La.Code Civ. P. art. 927(B). Accordingly, the only issue before this court is whether the remaining cross-claim by State Farm against Auto Source and Canal for sums paid under the collision coverage provision of the plaintiffs' liability policy is prescribed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576591/ | 35 So. 3d 458 (2010)
Lena W. GREGORY and Carl Gregory, Plaintiff-Appellant
v.
BROOKSHIRE GROCERY COMPANY d/b/a Brookshire Food Stores, Defendant-Appellee.
No. 45,070-CA.
Court of Appeal of Louisiana, Second Circuit.
April 21, 2010.
Lavalle B. Solomon, APLC, for Appellants.
Nelson, Zentner, Sartor & Snellings, L.L.C., by David H. Nelson, for Appellee.
Before WILLIAMS, GASKINS and DREW, JJ.
DREW, J.
Plaintiffs, Lena W. Gregory and her husband, Carl Gregory, sought damages for injuries sustained when Mrs. Gregory slipped and fell in the Brookshire Grocery Company store in Farmerville, Louisiana, on October 21, 2003. On September 15, 2008, the trial court signed a judgment rejecting plaintiffs' claims and dismissing the action with prejudice. Plaintiffs appealed, *459 contending the trial court erred in failing to find that the store had constructive knowledge of the dangerous condition which resulted in her fall.
Since the trial, both plaintiffs died. After their appeal was lodged in this court, their children were substituted as parties plaintiff; for purposes of this opinion, however, we will continue to refer to the plaintiffs as Mrs. Gregory or the Gregorys.
The judgment of the trial court is affirmed in all respects.
REASONS FOR JUDGMENT
Following the bench trial on May 8, 2008, the trial court issued Reasons for Judgment on July 23, 2008, and stated:
Shortly before Mrs. Gregory entered Brookshire, a young girl had thrown up in a number of areas in the store.
Vomit was along the front main aisle including the front of aisle 13 and on an aisle adjacent and parallel to aisle 13.
Employees were cleaning the regurgitation in the locations where they observed it.
On entering the store, Mrs. Gregory saw vomit in several places and carefully made her way past those areas.
She stopped her buggy near the rear of aisle 13 and walked along aisle 13 toward the front of the store while cautiously looking at the floor.
She suddenly slipped and fell on a small clear substance about the size of a baseball. Mrs. Gregory fell as the store employees were finishing cleaning up vomit in other areas of the store.
What the substance was or how long it had been on the floor was unknown. In addition, it is unknown whether the substance was related to the vomit in various locations in the store.
Approximately 15 minutes elapsed from when the employees became aware of the child vomiting, until Mrs. Gregory fell.
The applicable law is La. R.S. 9:2800.6 entitled "Burden of Proof in Claims Against Merchants." As amended by 1996 La. Acts, 1st Ex. Session, No. 8, it provides:
A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the claimant has proven that the condition existed for such a period of time that *460 it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) "Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.
The trial court relied upon Williams v. Wal-Mart Stores, Inc., 29,940 (La.App.2d Cir.10/29/97), 702 So. 2d 8, 10-11, which was decided under the 1991 version of the statute in effect at the time of Williams's fall:
In Welch v. Winn-Dixie Louisiana, Inc., the Louisiana Supreme Court held that a plaintiff seeking recovery under La. R.S. 9:2800.6 had the burden of proving that she slipped and fell due to a condition on the defendant's premises which presented an unreasonable risk of harm that was reasonably foreseeable, that defendant either created the condition or had actual or constructive notice of the condition prior to the occurrence and that the defendant failed to exercise reasonable care. Welch v. Winn-Dixie Louisiana, Inc., 94-2331 (La.5/22/95), 655 So. 2d 309; Tanner v. Brookshire Grocery Co., 29,276 (La.App.2d Cir.4/2/97), 691 So. 2d 871. The Welch court stated that a lack of reasonable care may be inferred from a merchant's failure to have in place a uniform, mandatory, non-discretionary clean-up and safety procedure. The court further stated that the length of time a foreign substance is on the floor diminishes in relevance if the defendant merchant has no mechanism in place to discover such a hazard. Welch, supra.
In the recent case of White v. Wal-Mart Stores, Inc., however, the Louisiana Supreme Court expressly overruled Welch. White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So. 2d 1081, rehearing denied. In White, the court found the Welch case improperly shifted the burden to the defendant to prove lack of constructive notice by allowing a plaintiff to carry her burden of proving constructive notice by showing the absence of written inspection procedures, written documentation of inspections and lack of a consistent inspection policy. White, supra. Such burden-shifting, the court concluded, is contrary to the clear meaning of La. R.S. 9:2800.6. White, supra.
White states that, in addition to all other elements of the cause of action, a plaintiff seeking recovery under La. R.S. 9:2800.6 must prove each of the enumerated requirements of Section (B) of the statute. Thus, Sections (B)(1), (B)(2) and (B)(3) are all mandatory. White, supra.
Section (B)(2) of the statute requires that a plaintiff prove that the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. La. R.S. 9:2800.6; White, supra. As defined by Section (C)(1) of the statute, "constructive notice" means that the condition existed for such a period of *461 time that it would have been discovered if the merchant had exercised reasonable care. La. R.S. 9:2800.6; White, supra.
As newly pronounced in White, to prove constructive notice, a plaintiff must make a positive showing of the existence of the damage-causing condition for some time period prior to the fall. White, supra.
As stated by the White court:
A claimant who simply shows that the condition existed without an additional showing that the condition existed for some time before the fall has not carried the burden of proving constructive notice as mandated by the statute. Though the time period need not be specific in minutes or hours, constructive notice requires that the claimant prove the condition existed for some time period prior to the fall. White, supra.
While a plaintiff must show that the damage-causing condition existed for "some time period" before the fall, no "bright line time period" is required. White, supra.
The trial court concluded that Mrs. Gregory failed to prove by a preponderance of the evidence that Brookshire "created or had actual or constructive knowledge of the substance that plaintiff slipped on prior thereto." The statute requires that plaintiff show that the substance had been on the floor for such a period of time that the merchant would have discovered its existence through the exercise of ordinary care. Mrs. Gregory presented no positive evidence that the substance had been on the floor for any period of time prior to her fall. It was unknown what the substance was, whether it was related to the vomit, or how long it had been on the floor. Since a necessary element of plaintiffs' case was not established, their claim was denied.
DISCUSSION
The Louisiana Legislature has created in La. R.S. 9:2800.6 a heavy burden of proof for plaintiffs who slip and fall in merchants' premises. Failure by a plaintiff to prove any of the three required elements in La. R.S. 9:2800.6(B) is fatal to the plaintiff's case. Rowell v. Hollywood Casino Shreveport, 43,306 (La.App.2d Cir.9/24/08), 996 So. 2d 476.
The Gregorys complained on appeal that the trial court erred because no testimony established formal safety precautions were routinely taken by the store. Plaintiffs argued that Brookshire failed to exercise reasonable care because there was no written or verbal cleanup policy and there was no testimony about procedures taken that day to check the aisles for substances. In determining reasonable care, the absence of a written or verbal uniform cleanup policy is insufficient alone to prove failure of the exercise of reasonable care. La. R.S. 9:2800.6(B)(3).
Plaintiffs cite Brown v. Brookshire's Grocery Co., 38,216 (La.App.2d Cir.3/12/06), 868 So. 2d 297, in which Brookshire's was found negligent because an employee was aware of the spill and took measures, but the employee guarding the spill did not see or warn a customer who approached, slipped and fell in the spill. That matter is factually distinguishable. Brookshire had actual knowledge of the spill in which Brown fell. The employee was standing by the spill when Brown approached from behind, stepped into the spill and fell. On the other hand, Mrs. Gregory slipped and fell in a spill, the existence of which was unknown to the Brookshire staff and to Mrs. Gregory. Additionally, the small area of clear substance leading to Mrs. Gregory's fall was some distance down the aisle toward the *462 rear of the store while the vomitus being guarded by the Brookshire employee was in the large front aisle traversing the front of the store.
The Gregorys complained that Brookshire was aware of a known danger (vomit in several areas) and took no steps to warn patrons of the hazard. However, Mrs. Gregory testified she saw the large soiled area on the floor and took care to go around that and to walk very carefully thereafter. Mrs. Gregory knew of the problem and made efforts to protect herself.
Brookshire employees testified a small, unaccompanied child entered the store, apparently ill and trying to get to the bathroom at the rear of the store. She threw up in front of aisle 13 and along the aisle between the pharmacy and the back of the store and again down the hall leading to the restrooms. This was observed by several store employees, who immediately began cleaning up the vomit. Some minutes later, Mrs. Gregory fell toward the back of the store on aisle 13 when she stepped into a small area of clear liquid substance. Whether or not the unidentified child had been on aisle 13 where the accident occurred was not established.
The law requires that a plaintiff establish that the substance had been on the floor for a period of time. Both Mrs. Gregory and the longtime Brookshire employee, Linda Powell, testified they had no knowledge about how long the clear substance had been on the floor toward the rear of aisle 13. It was unknown what the substance was, whether it was related to the vomit, how it got on the floor, or how long it had been there.
Powell testified she returned from lunch to see vomit on the floor and learned that a child had thrown up. Powell stationed another employee to guard the large area of vomit in front of aisle 13 and immediately called over the loudspeaker for emergency assistance, a bucket and mop along with cleanup help. When she returned to the soiled area and no one had come to clean (undoubtedly because they were already occupied cleaning up vomit near the pharmacy and the hall to the restrooms), Powell went to get paper towels and other cleaning supplies from the office at the rear. When she returned, Mrs. Gregory had fallen toward the rear of aisle 13. As she assisted the plaintiff, Powell noticed a small clear substance on the floor but did not know what it was, how it got there, or how long it had been there. At trial, Powell marked areas of vomit which were away from the area of Mrs. Gregory's fall. Additionally, her description of the child's regurgitation was different from clear substance described by Powell at Mrs. Gregory's accident site.
Kathy Barnes, who worked in the Brookshire Pharmacy area, testified about the areas where the child was ill and the immediate efforts of several employees to clean the multiple areas where the vomit was located. Barnes testified that any employee who sees a problem is charged with the duty to clean it. Further, the assistant store manager had the overall responsibility to monitor the floor periodically.
As demonstrated by the actions of all the employees in immediately addressing the multiple soiled areas created by the sick child, Brookshire had an effective system for cleaning spills. Lacking a Petri dish in which to collect a sample for analysis and access to timed video surveillance of the spot on which she fell, the Gregorys testified truthfully (along with the Brookshire employees) that they did not know what the substance was, how it got there, or how long it had been there. The Gregorys were unable to establish, even roughly, *463 how long the substance had been on the floor. Accordingly, the trial court correctly found that Mrs. Gregory did not meet her burden of proof.
DECREE
For the foregoing reasons, at plaintiffs' costs, the judgment is AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576586/ | 35 So. 3d 215 (2010)
Vera M. RAINEY
v.
ENTERGY GULF STATES, INC., and Mike Case.
No. 2009-C-572.
Supreme Court of Louisiana.
March 16, 2010.
Rehearing Denied May 7, 2010.
*217 Beall & Thies, LLC, William Walter Thies, Russell W. Beall, and Leonard Cardenas, III, Baton Rouge, for Applicant.
Flanagan Partners, LLP, Stephen Matthew Pesce, Brandon C. Briscoe, Thomas More Flanagan, Harold Jude Flanagan, New Orleans, Sean Patrick Brady, and Entergy Services, Inc., John Allen Braymer, Cory Rabin Cahn, for Respondent.
KNOLL, Justice.[*]
This writ concerns whether the affirmative defense of statutory employer tort immunity can be urged when the written contract providing for this relationship was not hand-signed by the principal, but was hand-signed only by the contractor.
Plaintiff, Vera Rainey, an employee of the contractor, ABB C-E Services, Inc. (ABB) was injured in the course of her employment at the business of the principal, Entergy Gulf States, Inc. (Entergy) at its Willow Glen power plant. She filed a tort suit against Entergy, which was eventually met with the affirmative defense of statutory employer tort immunity. After a complex and tortuous procedural history, a bench trial was held wherein the trial court denied Entergy's affirmative defense. The Court of Appeal sitting en banc with one judge recused, reversed the trial court in a 6-5 decision. We granted plaintiff's[1] writ primarily to address the *218 contract issue.[2] The plaintiff also urges the composition of the en banc court was constitutionally flawed, which we will address preliminarily to the contract issue. For reasons set forth below, we find the en banc court majority was constitutionally composed, and finding no error in the Court of Appeal's determination that a lawful and enforceable contract existed between Entergy and ABB, we affirm.
FACTS AND PROCEDURAL HISTORY
In January 1999, ABB began a construction project for Entergy at Entergy's Willow Glen power plant in St. Gabriel, Louisiana. This work was performed pursuant to a General Operations Agreement for Contracted Services (Agreement) that was executed between these two entities in 1992. On February 15, 1999, Vera Rainey, a journeyman boilermaker working for ABB at Willow Glen, fell down a stairway on the jobsite and was injured. Rainey filed a tort suit for damages against Entergy, alleging Entergy was at fault for, inter alia, using a substandard staircase and failing to provide adequate lighting in the work area.
This complex and lengthy procedural battle commenced when Entergy did not assert the statutory employer defense in its answer to Rainey's petition for damages. Approximately ten and a half months later, two days prior to the scheduled trial date of August 31, 2000, Entergy filed a motion for leave of court to file a supplemental and amending answer to allege the statutory employer defense. The basis for Entergy's assertion of the statutory employer defense was an addendum to the Agreement, which stated, in pertinent part, "[t]he parties mutually agree that it is their intention to recognize Entergy Corporation . . . as the statutory employers [sic] of the Contractor's [ABB] employees . . . in accordance with Louisiana Revised Statute 23:1061 while Contractor's employees are providing work hereunder." The trial court denied the motion.
Due to plaintiff's illness, the trial date was continued until December 6, 2000. After a bench-trial, the trial court awarded damages to Rainey. On appeal, finding the trial court abused its discretion by denying Entergy's motion to amend to assert the statutory employer defense, the judgment was reversed and the case remanded to the trial court for a trial on the merits of the statutory employer issue only. Rainey v. Entergy Gulf States, Inc., 01-2414 (La. Ct.App. 1 Cir. 11/8/02), 840 So. 2d 586.
The trial of the statutory employer defense was held on August 1, 2005. At issue was whether an addendum to the Agreement validly provided in writing a statutory employer relationship between Entergy and ABB. This initial Agreement was executed in 1992. In 1997, the Louisiana Legislature amended La. Rev.Stat. 23:1061 to require a written contract between the principal and the contractor recognizing the principal as a statutory employer in order for a statutory employer relationship to exist between the principal and the contractor's employees. The statute provided, in relevant part:
Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist *219 between the principal and the contractor's employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee's immediate employer or his statutory employer, which recognizes the principal as a statutory employer. . . .
La. Rev.Stat. 23:1061 A(3).
Entergy sent a letter to ABB dated February 27, 1998, specifically referencing the Agreement and proposing an amendment to the Agreement to comply with the then recently amended La. Rev.Stat. 23:1061 requiring a written contract to recognize the principal as the statutory employer of the contractor's employees. This letter stated, in pertinent part:
The following proposed amendment to the above-referenced agreement includes our intention to continue the statutory employment relationship in accordance with the new law. We believe that the following amendment is for the mutual benefit of both Entergy and ABB [Contractor's name], [sic] Thus, we are requesting that you execute this letter in order to amend Agreement Number FHA00166, dated 08-Dec-92 to include the following language:
The parties mutually agree that it is their intention to recognize Entergy Corporation and any of its affiliated and associated companies that are parties to the above-referenced agreement as the statutory employers of the Contractor's employees, whether direct employees or statutory employees of the Contractor, in accordance with Louisiana Revised Statute 23:1061 while Contractor's employees are providing Work hereunder.
The parties recognize that this amendment is not intended to change the relationship between the parties and that it has always been the intent of the parties that Entergy Corporation and any of its affiliated associated companies that are parties to the above-referenced agreement would be entitled to raise the "statutory employer" defense, where applicable, to personal injury suits by an employee of the Contractor for injuries suffered while performing work under the above-referenced Agreement.
The letter concludes by requesting a fully executed copy be returned to Entergy no later than March 20, 1998. After the complimentary close of "very truly yours" appears the typewritten name of Bobbie S. Babin. Underneath that along the left margin appears "Agreed Upon by Contractor" with the signature of R.I. Beckman whose title is V.P. [of] Construction and the date of March 10, 1998.
At trial of the statutory employer issue, plaintiff vehemently opposed the validity of the addendum, questioning the circumstances of Entergy producing the addendum two days before the original scheduled trial date of August 31, 2000. Notwithstanding this argument, plaintiff did not allege fraud or bad faith. Testimony and evidence introduced at the trial of the statutory employer issue showed in response to plaintiff's first set of interrogatories and request for production of documents, Entergy responded it had not specifically alleged it was plaintiff's statutory employer and was unaware of any facts which would support an immunity defense, but with the caveat that if such facts became available it would amend its pleadings and supplement its response. Subsequently, on August 29, 2000, Entergy supplemented its answers to plaintiff's interrogatories with the addendum to the Agreement.
Entergy's in-house counsel, John Braymer, testified when he received Rainey's suit, he sent a demand letter to ABB for *220 defense and indemnity. A copy of his letter to ABB dated June 25, 1999 was admitted into evidence. ABB responded they would assume the defense and indemnity of Entergy and that Richard Duplantier of Galloway, Johnson, Thompkins and Burr had been retained to represent Entergy. Braymer further testified although Duplantier was responding to discovery propounded by Rainey's counsel, Duplantier failed to keep Entergy informed, through Braymer, regarding the status of the statutory employer defense or the discovery responses submitted with regard to a potential statutory employer defense. Admitted into evidence was a letter from Braymer to Duplantier dated May 3, 2000, wherein Braymer requested information regarding efforts to develop defenses, including statutory employer immunity. Duplantier's June 19, 2000 letter in response, although addressing potential defenses and possible third party fault, did not make reference to statutory employer defense.
Braymer sent a letter to Duplantier and his associate, John E.W. Baay, II, asking if they were anticipating filing a motion for summary judgment claiming Rainey was the statutory employee of Entergy and, if not, their reasons for not doing so. Messrs. Duplantier and Baay replied on July 27, 2000, stating they were not planning on such a motion because, based on their review of the Agreement between Entergy and ABB, such a motion would be denied. Braymer testified upon receiving this letter on August 1, 2000, he was "shocked" and immediately contacted the appropriate Entergy employees to ascertain whether the Statutory Employer Addendum existed and, if so, for it to be produced.
Braymer testified Michael G. Pennison located an indication in Entergy's contract database that Entergy had received the statutory employer Addendum back from ABB.[3] Cara Carpenter, an Entergy employee assigned to locate the Addendum, responded to Braymer on August 24, 2000, that she could not find any such Addendum. Braymer testified that in response to this communication, he responded with an e-mail questioning whether it had been misplaced or misfiled. He testified there are thousands of contracts in that area of the company and there was a possibility it had been misplaced or misfiled. On August 25, 2000, Carpenter sent an e-mail to Braymer that she was faxing the Addendum to him. Carpenter's affidavit was attached to Entergy's motion to file a supplemental and amending answer. In this affidavit, Carpenter swears she was unaware of the existence of a second folder containing the Addendum until August 25, 2000, when she discovered the folder. In Carpenter's deposition testimony she stated the Addendum was located in this second folder. She found the folder on top of a "working" desk outside of Brian Lawson's office, about three cubicles down the aisle from the filing cabinet where the ABB contracts were supposed to be kept.
In rendering its judgment denying Entergy's statutory employer defense, the trial court declared it did "not dispute the fact that there existed a purported written addendum to the original" Agreement, "even though there is some question as to the circumstances in which the addendum to the original contract was found." Notwithstanding, the court found the addendum was not in the proper form as statutorily required because "[u]nder Louisiana jurisprudence, a `written contract' *221 must be signed by both parties in order to be perfected."
Entergy's appeal was considered by the Court of Appeal sitting en banc. Eleven of the twelve judges of the First Circuit Court of Appeal participated as Judge Hughes was recused. According to the court's per curiam opinion, four of the judges would have reversed the trial court, finding the trial court erred in concluding Entergy was not Rainey's statutory employer; three of the judges would have affirmed the trial court's judgment on the basis Entergy failed to establish the existence of a timely-executed, written addendum (or, alternatively, remand for the trial court to determine whether such an addendum was timely executed before Rainey's accident); one judge would have remanded for the trial court to make a full and reasoned determination as to whether the addendum was executed prior to the accident; and three judges would have dismissed the appeal, finding the Court of Appeal did not have jurisdiction.[4]Rainey v. Entergy Gulf States, Inc., 06-816, pp. 6-7 (La. Ct.App. 1 Cir. 8/15/08), 993 So. 2d 735, 739. Relying upon Parfait v. Transocean Offshore, Inc., 07-1915 (La.3/14/08), 980 So. 2d 634, 636, and 639, the court held the effect of it not having an executable majority made the trial court's decision stand.
Simultaneous with that decision, the en banc court denied a motion by plaintiff to dismiss the appeal. Writs were taken to this court from both of these decisions. We denied plaintiff's writ from the appellate court's decision denying the motion to dismiss Entergy's appeal. Rainey v. Entergy Gulf States, Inc., 08-2209 (La.12/12/08), 996 So. 2d 1118. Because we denied that writ, we granted Entergy's writ and remanded the matter to the Court of Appeal for the judges who found the appellate court did not have jurisdiction to reach the merits upon remand, and for the Court of Appeal to reach an executable majority judgment. Rainey v. Entergy Gulf States, Inc., 08-2233, p. 2 (La.12/12/08), 996 So. 2d 1058, 1059.
On remand, in a 6-5 decision, the appellate court held the trial court erred in concluding Entergy was not Rainey's statutory employer at the time of her fall at Entergy's Willow Glen facility. Rainey v. Entergy Gulf States, Inc., 06-816, p. 1 (La. Ct.App. 1 Cir. 2/13/09), 6 So. 3d 877, 879. The per curiam declared a majority of the judges either agreed or concurred with Judge Kuhn's concurring opinion in Rainey, 06-816, 993 So.2d at 741. Rainey, 06-816 at p. 1, 6 So.3d at 879.
Adopting Judge Kuhn's reasoning, the majority found La. Rev.Stat. 23:1061 A(3), which must be strictly construed, requires a "written contract . . . which recognizes the principal as a statutory employer", but does not require both parties to affix a handwritten signature to the agreement. Rainey, 06-816 at p. 6, 993 So.2d at 745. The appellate court relied upon Fleming v. JE Merit Constructors, Inc., 07-926, p. 11 (La. Ct.App. 1 Cir. 3/29/08), 985 So. 2d 141, 147, which held in the absence of a statute prescribing the method of affixing a signature, it may be written by hand, printed, stamped, typewritten, engraved, or provided by various other means. The court held the addendum valid because it was *222 signed by both ABB and Bobbie Babin. Rainey, 06-816 at p. 7, 993 So.2d at 745.
The appellate court further found the addendum valid based on ABB's signature alone. Noting other statutes expressly require both a writing and a signature, the court reasoned if the legislature had intended a writing and a signature by both parties, it would have expressly so provided. Rainey, 06-816 at p. 7, 993 So.2d at 745-746. Moreover, the Court of Appeal found Entergy was not required to sign the addendum, which was prepared under Entergy's direction and reflected Entergy's clear intent to be bound once ABB assented to it.
The appellate court addressed plaintiff's argument that even if the addendum met the requirements of La. Rev.Stat. 23:1061 A(3), the lack of credibility and reliability could not be overlooked. Plaintiff questioned Entergy's finding of the addendum two days before trial. Plaintiff also argued no evidence was presented to show the exact date ABB signed the addendum, as Beckman, who signed for ABB, testified in his deposition he was not the person who dated it. Further, Entergy's tracking software was unable to show when it received the addendum from ABB.
The majority rejected these arguments. It was undisputed Beckman signed the addendum. Although he testified he did not personally date the addendum, he testified an ABB representative would have dated the addendum no more than one day prior to his signing it, in accordance with ABB's standard operational procedure. Although the addendum was found shortly before trial and Entergy's tracking software could not indicate when the addendum was received, this did not affect the validity of the document. There were no facts indicating Entergy and ABB colluded to produce a forged document. Based upon a de novo review of the evidence, the majority concluded it was insufficient to warrant a finding the addendum was confected as a result of fraud. Rainey, 06-816 at p. 11, 993 So.2d at 748.
For assigned reasons joined by two other judges, Judge Whipple dissented. Although she agreed with the majority the trial court legally erred in concluding the written contract contemplated by La. Rev. Stat. 23:1061 A(3) must be signed by both parties, she was unable to find on the record Entergy satisfied its burden of proving the existence of an authentic timely executed written addendum. Rainey, 06-816 at pp. 3-4, 6 So.3d at 881 (Whipple, J., dissenting). The dissent would have affirmed the trial court's judgment or, alternatively, remanded for a determination of whether the statutory employer relationship existed between Entergy and ABB's employees, given the credibility issues. Id., 06-816 at p. 6, 6 So.3d at 882.[5]
LAW AND ANALYSIS
Constitutional Appellate Court Majority
Preliminarily, we address plaintiff's argument attacking the appellate court's judgment as constitutionally invalid. Plaintiff contends for the Court of Appeal sitting en banc to modify or reverse a district court judgment, there must be a majority of the full complement of the elected court, not just those sitting. The First Circuit Court of Appeal consists of twelve elected judges. In an order dated July 2, 2008, the court clarified the July 18, 2008 docket was the court's en banc consideration of the case. Judge Hughes had previously recused himself in this matter, thus eleven judges considered and decided *223 this case. In a split six to five decision, the Court of Appeal reversed in part and vacated in part the trial court's judgment. Plaintiff maintains six judges do not compose the constitutionally required majority of the full complement of the First Circuit Court of Appeal necessary to reverse or modify the district court judgment.
In support of the argument, plaintiff relies upon Dauzat v. Allstate Ins. Co., 257 La. 349, 242 So. 2d 539 (1970), specifically its conclusion "when the Court of Appeal sits En banc, a judgment must be rendered by a majority of the full complement or membership of the Courtnot a majority of those sitting En banc." Id. at 546.
In opposition, Entergy contends plaintiff's reliance on Dauzat is misplaced. In Dauzat, decided under the Louisiana Constitution of 1921, the court addressed a practice in the Third Circuit Court of Appeal meant to break ties when the then six-member court deadlocked while sitting en bancthe elimination of one of the six judges by lot or chance. Dauzat, 242 So.2d at 547 (Barham, J., concurring). Justice Barham explained La. Const. art. VII, Sections 23 and 26 (1921), when read in pari materia, forced the conclusion that the chance method of breaking tie votes in the Court of Appeal was unconstitutional. Id. at 548. The relevant constitutional articles provided, in pertinent part:
* * *
Courts of appeal having more than three judges shall sit in rotating panels composed of three judges selected in conformity with the rules adopted by the court, two of whom constitute a quorum. However, in exceptional cases or when deemed necessary or expedient by the judges thereof, a court of appeal may sit en banc.
* * *
La. Const, art. VII, § 23 (1921).
No judgment shall be rendered by any of the courts of appeal unless a majority of the judges sitting in the case have read the record and have concurred in the judgment. If for any reason they cannot concur, or if one or more of the judges are absent, recused, or unable to serve, they, or the remaining judges, may appoint district judges, or lawyers having the qualifications of judges of courts of appeal, to sit in the case.
La. Const, art. VII, § 26 (1921).
Entergy contends the Dauzat case created a constitutional fiction that regardless of the number of absences, if a Court of Appeal sat in a grouping of more than three, it necessarily sat en banc, because the 1921 Constitution did not allow any composition other than three or en banc.
Entergy argues Dauzat is inapplicable in light of the 1974 constitution. Article V, Section 8 of the 1974 Louisiana Constitution, unlike its predecessor, does not refer to the Court of Appeal sitting en banc, but states the appellate courts shall sit in "panels of at least three judges". In a case decided after the adoption of the 1974 Constitution, ten judges of the First Circuit Court of Appeal, which was composed of twelve judges, participated in the decision, with six judges concurring in the judgment. McLaughlin v. Fireman's Fund Ins. Co., 582 So. 2d 203 (La. Ct.App. 1 Cir.1991), writ denied, 586 So. 2d 536 (La.1991). That court held because the law did not require it to sit en banc, six judges constituted a majority because Art. V, section 8(A) and (B) of the 1974 Constitution requires the decree be rendered by a majority of those sitting.
We begin our analysis with the relevant constitutional article, La. Const, art. V, § 8 (1974), which provides, in pertinent part:
*224 (A) Circuits; Panels. The state shall be divided into at least four circuits, with one court of appeal in each. Each court shall sit in panels of at least three judges selected according to rules adopted by the court.
(B) Judgments. A majority of the judges sitting in a case must concur to render judgment. However, in civil matters only, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment.
Under this constitutional article, in deciding whether a majority is determined by the number of appellate judges participating in the decision, or by the full complement of the elected court regardless of the number actually participating in an en banc decision, we keep certain principles in mind. The starting point in the interpretation of constitutional provisions is the language of the constitution itself. Board of Directors of the Indus. Dev. Bd. of the City of Gonzales v. All Taxpayers, Prop. Owners, Citizens of the City of Gonzales, 05-2298, pp. 14-15 (La.9/6/06), 938 So. 2d 11, 20; Ocean Energy, Inc. v. Plaquemines Parish Gov't, 04-0066, pp. 6-7 (La.7/6/04), 880 So. 2d 1, 7. When a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect. City of Gonzales, 05-2298 at p. 15, 938 So.2d at 20; Ocean Energy, 04-0066 at p. 7, 880 So.2d at 7. Unequivocal constitutional provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. Id.
The constitutional language at issue requires "[a] majority of the judges sitting in a case must concur to render judgment." The clear and unambiguous language requires only a majority of the judges sitting in a case to render a judgment. To ascertain the ordinary, usual, and commonly understood meaning of a word not otherwise defined in the constitution, we look first to a legal dictionary, given that "sitting" is a term of art in the judicial context. See, Caddo-Shreveport Sales and Use Tax Comm'n v. Office of Motor Vehicles through Dep't of Public Safety and Corrections, 97-2233, p. 7, (La.4/14/98), 710 So. 2d 776, 780. With reference to a judge, sit[ting] is defined "to hold court or perform official functions". BLACK'S LAW DICTIONARY 1513 (9th ed.2009). Thus, the logical and clear interpretation of the phrase in La. Const, art. V, § 8(B) (1974) is a majority of the judges holding court or performing official (judicial) functions must concur to render a judgment. A recused judge has no power or authority to act in a case. State v. Wilson, 362 So. 2d 536, 538 (La.1978); State v. Price, 274 So. 2d 194, 197 (La.1973). To include a recused judge, who is not "sitting" in the case and who has no power to act in the case in the mathematical determination of what constitutes "a majority of the judges sitting in [the] case" would do violence to the plain and unambiguous meaning of the constitutional language.
Moreover, there is no mention of appellate courts sitting en banc in Article V, Section 8. The constitution mandates the appellate courts "shall sit in panels of at least three judges" and further mandates in civil cases, where one judge dissents in a three judge panel from the modification or reversal of the district court judgment, the case "shall be reargued before a panel of at least five judges . . . and a majority must concur to render judgment." There is nothing in the language of La. Const, art. V, § 8 (1974) to reasonably support a finding when the court of appeal sits en banc with a member recused, the number *225 of judges constituting a majority is determined by the full complement of the court, rather than the number of judges sitting in the case.
Although Dauzat held when sitting en banc, the vote of a majority of the judges on the court rather than a majority of those sitting was necessary to render a decision, there is a significant distinction between Dauzat and the case sub judice. Under the 1921 Constitution, the Court of Appeal could sit in only two compositions: in panels of three or en banc. The present constitution no longer restricts the appellate courts to compositions of three judge panels or en banc. The appellate courts are mandated to sit in "panels of at least three judges," thus permitting the appellate courts to sit in compositions of any number as long as at least three are sitting. Therefore, we find Dauzat is not binding; it interpreted constitutional provisions that have been significantly changed.
The only other jurisprudence from our court addressing the constitutional language at issue here is Pattan v. Fields, 95-2338, 95-2341, 95-2342 (La.9/25/95), 661 So. 2d 142 (per curiam). That election case concerned a candidate qualification challenge in which only nine of the thirteen members of the First Circuit Court of Appeal participated, with three judges not participating and one judge unaccounted for. Because it was statutorily required under the Election Code for the appellate court to sit en banc, we find that decision is limited to that particular statute, especially as the per curiam contains no analysis or examination of the language in La. Const, art. V, § 8(B) (1974).
We find the appellate court decision was constitutionally valid and now turn to plaintiff's argument as to whether the trial court correctly found the addendum was not a valid contract because it was not hand-signed by Entergy, the primary reason invoking our discretion to grant this writ.
Signature Issue
Our task is to determine whether the addendum to the Agreement was valid and effective where Entergy is represented by a typed name of one of its employees. First we will address whether a cursive or handwritten signature by Entergy's representative was required in order for the addendum to be valid and effective.
Written acts are of two kinds, authentic acts and acts under private signature. 5 SAUL LITVINOFF, LOUISIANA CIVIL LAW TREATISETHE LAW OF OBLIGATIONS § 12.11 (2d ed.2001). The addendum at issue clearly falls within the latter category. An act under private signature is one executed by the parties themselves without intervention of a public officer such as a notary public. LITVINOFF, § 12.26. "An act under private signature need not be written by the parties, but must be signed by them." La. Civ.Code art. 1837. The signature of the parties is the only element the law requires to give evidentiary weight to an act privately executed by the parties. LITVINOFF, § 12.28. However, and of great significance to the matter before this Court, "where a private act, rather than an authentic one, is concerned, a party's signature need not be handwritten, and a printed or electronically reproduced facsimile thereof may suffice, as is the case with contracts made in large numbers by one of the parties and executed in printed forms." LITVINOFF, § 12.28.
Furthermore, where a statute requires a signature, a printed or typed "signature" is sufficient provided the signature was authorized and intended to constitute the signature. Reno v. Travelers Home and Marine Ins. Co., 02-2637, p. 4 (La. Ct.App. 1 Cir. 11/7/03), 867 So. 2d 751, 754 *226 (citing Commerce Loan Co., Inc. v. Howard, 82 So. 2d 487, 488 (La.App.Orl.1955), writ denied, (La.1955)); Fleming v. JE Merit Constructors, Inc., 07-926, p. 11 (La. Ct.App. 1 Cir. 3/29/08), 985 So. 2d 141, 147. In the absence of a statute prescribing the method of affixing a signature, it may be written by hand, printed, stamped, typewritten, engraved, or by various other means. Reno, 02-2637 at p. 4, 867 So.2d at 754; Fleming, 07-926 at p. 11, 985 So.2d at 147.
In Reno, the plaintiffs contended their rejection of underinsured motorist (UM) insurance coverage was invalid, because Mrs. Reno had printed both her and her husband's names on the waiver/rejection of UM coverage form, although the statute at that time required any rejection be signed by the insured or his legal representative.[6] Affirming the summary judgment, the appellate court rejected the plaintiffs' argument that their printed names were inadequate to bind them on the form. The court relied upon the following premises: A signature consists of both the act of writing one's name and of the intention of authenticating the instrument. Reno, 02-2637 at p. 5, 867 So.2d at 754 (emphasis by the court) (citing Action Finance Corp. v. Nichols, 180 So. 2d 81, 83 (La. Ct.App. 2 Cir.1965)). Although a signature is printed by hand rather than written in cursive, this does not indicate a lack of genuineness. Reno, (citing Boykin v. DeSoto Parish Police Jury, 359 So. 2d 239, 241 (La. Ct.App. 2 Cir.1978), writ denied, 360 So. 2d 199 (La.1978)). It is merely a question of identity and a representation of a person's willingness to be bound. Reno, (citing Williamson v. Guice, 613 So. 2d 797, 799 (La. Ct.App. 4 Cir.1993), writ denied, 617 So. 2d 937 (La.1993); Smith v. Travelers Ins. Co., 560 So. 2d 472, 474 (La. Ct.App. 1 Cir.1990), writ denied, 564 So. 2d 325 (La.1990)).
Additionally, Fleming is on point with the case sub judice. In Fleming, Dow Chemical Company, the entity claiming tort immunity as a statutory employer, had sent HBT, Inc., the contractor and injured employee's immediate employer, a letter on Dow's letterhead referencing the contract and including amending language to provide for statutory employee status as required by the recently amended Revised Statute 23:1061. That letter closed with:
The Dow Chemical Company
Louisiana Operations
Daniel Bellard
Purchasing Department
The injured employee claimed the statutory employer letter was not a contract as contemplated by La. Rev.Stat. 23:1061 A(3) because it was not signed by a representative of Dow. The court rejected this argument, holding a printed or typed signature was sufficient provided it is authorized and intended to constitute the signature. Fleming, 07-926 at p. 11, 985 So.2d at 147. Because the court found the typed name was sufficient to constitute a signature where no one disputed Mr. Bellard had authority to sign the letter and it was abundantly clear the closing of the letter was intended to constitute a signature, Fleming, 07-926 at p. 11, 985 So.2d at 147, the court found it unnecessary to rule on whether the written document contemplated by La. Rev.Stat. 23:1061 A(3) requires the parties' signatures to be effective. Id., at n. 5. However, the record before this Court does not contain any evidence Bobbie Babin had authority to sign the letter on Entergy's behalf. Although we find the typewritten "signature" of Bobbie Babin on the addendum clearly offered by Entergy *227 is sufficient if it was authorized and intended to constitute a signature, we now turn to a determination of whether the addendum is valid and effective based only upon the signature of ABB's representative. If the addendum is valid and effective with only ABB's signature, we need not remand this matter for a factual determination of whether Bobbie Babin had authority to sign on Entergy's behalf and whether it was intended the typewritten name constituted a signature.
The addendum contains a signature of R.I. Beckman, "V.P. Construction" for ABB immediately underneath the phrase "Agreed Upon by Contractor". Ronald Beckman's deposition was admitted into evidence at the trial of the statutory employer issue. Mr. Beckman testified he signed the addendum, he was authorized to bind ABB at the time he signed the addendum, and he intended to bind ABB to the addendum. When certain circumstances are present, a writing under private signature that contains a bilateral contract signed by only one of the parties may constitute written proof of that contract. LITVINOFF, § 12.29; 7 PLAINOL ET RIPERT, Traité Practique de droit Civil Francais 895 (2d ed.1954). It has long been held by our courts that a party who prepares the contract and presents it to the other party for their signature may not later claim he is not bound by the contract because his signature is lacking. Auto-Lec Stores, Inc. v. Ouachita Valley Camp, No. 10, W.O.W., 185 La. 876, 883, 171 So. 62, 64 (1936); Finishers Drywall, Inc. v. B & G Realty, Inc., 516 So. 2d 420, 422 (La. Ct.App. 1 Cir.1987) (Defendant's argument there was a lack of evidence both parties agreed to the addendum because the addendum only bore plaintiff's signature was rejected because defendant prepared the addendum and sent it with a signature space only for the plaintiff.); Dyer v. Varnell, 121 So. 2d 598, 599 (La. Ct.App. 2 Cir.1960). One who proposes the contract is bound if the offer is made in terms, whether by words, actions, silence or inaction, which evince a design to give the other party the right of concluding by assent and the other party timely assents. Knecht v. Bd. of Trustees for State Colleges and Universities and Northwestern State Univ., 591 So. 2d 690, 694 (La.1991). With regard to a bilateral act signed by only one party, Professor Litvinoff explains:
. . . [T]here is no clearer evidence of the existence of an obligation than its performance, either on its active side through the exercise of a right, or on its passive side through the fulfillment of the corresponding duty. If a party who did thusly perform were allowed to negate that he did so in accordance with a contract that prescribes that performance, on grounds that he did not sign the pertinent writing, then form would prevail over substance at the expense of fairness, and technicalities would excuse bad faith.
The conclusion here discussed is consistent with the French doctrine of commencement de preuve par écrit commencement of proof in writingaccording to which a party who does not sign a writing under private signature is nevertheless held to its terms if he has in any manner intellectually appropriated those terms.
LITVINOFF, § 12.29
Considering Louisiana's jurisprudence and the scholarly authoritative writings of Professor Litvinoff, it cannot be held the addendum, which was prepared by Entergy and offered by Entergy to ABB for ABB's acceptance, is invalid and without effect for lack of Entergy's signature.
Moreover, the Court of Appeal correctly held Big `A' Sand & Gravel Co., Inc. v. *228 Bay Sand and Gravel Co., Inc., 282 So. 2d 837 (La. Ct.App. 1 Cir. 1973) and Fredericks v. Fasnacht, 30 La. Ann. 117 (1878) did not apply to this case; the trial court erred in relying upon that jurisprudence to find the addendum must be signed by both parties to be perfected. As noted by the Court of Appeal, the rule a binding contract does not exist until the written agreement is confected and signed by both parties generally applies to the preparation and execution of a written agreement subsequent to the contracting parties' oral negotiations. Rainey, 06-816 at p. 7, 993 So.2d at 746. In Big `A' Sand & Gravel Co., the record reflected negotiations between the parties evidenced "it was intended that any agreements reached by them would be incorporated in written contracts to be signed by all parties." Big `A' Sand & Gravel Co., 282 So.2d at 841. The court found overwhelming evidence the defendants had no intention of being bound until mutually satisfactory agreements were struck, reduced to writing and signed by all parties. Id. at 842. That court found support in and quoted from Breaux Bros. Constr. Co. v. Associated Contractors, Inc., 226 La. 720, 77 So. 2d 17, 20 (1954):
Since the parties in the instant case intended from the beginning to reduce their negotiations to a written contract, neither the plaintiff nor the defendant was bound until the contract was reduced to writing and signed by them. . . . [T]his case falls within the second class of cases discussed in Fredericks v. Fasnacht, supra, and therefore in this case the final consent of the parties was suspended until such time as the contract should be reduced to writing and signed by all the parties. (Emphasis supplied).
Notable in Fredericks, and what the trial court in the case presently before us failed to realize, is the distinction made between contracts prepared after negotiations between the parties, where neither intends to be bound until there is a written contract, and verbal contracts which do not need to be reduced to writing. The Fredericks court wrote:
. . . It is elementary in our law, that where the negotiations contemplate and provide that there shall be a contract in writing, neither party is bound until the writing is perfected and signed. The distinction is manifest between those cases in which there is a complete verbal contract, which the law does not require to be reduced to writing, and a subsequent agreement that it shall be reduced to writing, and those in which, as in this case, it is a part of the bargain that the contract shall be reduced to writing. In (the) first class of cases, the original verbal contract is in no manner impaired by the failure to carry out the subsequent agreement to put it in writing. In the second class of cases, the final consent is suspended; the contract is inchoate, incomplete, and it can not be enforced until it is signed by all the parties.
Fredericks, 30 La. Ann. at 118 (emphasis supplied).
Although the court was distinguishing between a written contract prepared subsequent to negotiations and verbal contracts, the rule that the written contract is not binding until the written contract is perfected and signed generally applies where the written contract is prepared subsequent to negotiations between the parties contemplating a written agreement. Consent is an elemental and essential component of any contract; requiring signatures in situations where a written contract is prepared after negotiations between the parties contemplating such would ensure the parties consented to the terms. Moreover, the court in Dyer v. Varnell, 121 *229 So.2d 598, 599 (La. Ct.App. 2 Cir.1960), determined the progeny of Fredericks was inapplicable where the party that prepared the written contract of lease and presented it to the lessee, who signed it, claimed it was not executed because it lacked his signature. The party that prepared the contract and proposed its terms is bound even if his signature is missing.
There is nothing in our Civil Code or civilian tradition requiring a signature by the party who prepared and offered the bilateral contract, where such contract was not prepared after negotiations between the parties with the intent to execute a written contract in order for that contract to be valid and effective. For the above and foregoing reasons, we find the addendum is valid and effective based solely upon the signature of ABB's representative, who testified he was authorized and intended to bind ABB at the time he signed the addendum.
As an additional argument, Rainey urges the addendum lacked credibility so it should be given no evidentiary weight. Plaintiff correctly notes the entire remanded trial almost exclusively addressed the circumstances under which the letter/addendum was found and their attack upon the weight or credibility of the letter/addendum. Plaintiff contends the trial court did not find the addendum to be credible, because in its reasons for judgment the trial court wrote it "did not dispute the fact that there existed a purported written addendum . . . even though there is some question as to the circumstances in which the addendum to the original contract was found." (emphasis plaintiff's)
Contrary to plaintiff's argument, we find the single sentence in the trial court's written reasons for judgment is insufficient to support a finding the trial court made a credibility determination with regard to the addendum. We find the trial court could have referred to the "purported" addendum because it found the addendum to be legally insufficient. The sentence in the reasons for judgment is subject to interpretation and is not a clear and unequivocal expression by the trial court that it made a factual finding. It is clear from the trial court's reasons that its judgment denying the statutory employer tort immunity defense was based upon its finding the addendum did not meet the statutory requirement of a written contract because it was not signed by Entergy. We agree with the Court of Appeal's treatment of this issue.
In concluding the addendum was not confected fraudulently, the Court of Appeal found although Beckman testified he did not personally date the addendum, he also testified, in accordance with standard operational procedure, an ABB representative would have dated the addendum no more than one day prior to his signing it. Although the appellate court did not mention it, we further note Beckman testified he did not sign papers that are misleading on dates.
The appellate court further found it to be of no moment that Beckman may not have signed the addendum on the date written on the document. It found the transmittal letter attached to the deposition showed ABB had tendered the addendum to Entergy on March 10, 1998. Leaving aside the plaintiff's evidentiary objections to the admissibility of this proffered letter, we find Beckman's uncontradicted deposition testimony was sufficient to show he signed the document on or about March 10, 1998, almost a year before the subject accident. According to Beckman's testimony, he did not sign papers that were misleading on dates by more than one day. Thus, even if he actually signed the document on March 11, 1998, the written contract addendum was *230 in existence at the time of the subject accident.
Finally, the Court of Appeal found, despite the inability of Entergy's tracking software to indicate when the addendum was received and the addendum was located shortly before trial, these factual circumstances did not affect the validity of the document itself. There were no facts indicating that Entergy and ABB colluded to produce a forged document. Rainey, 06-816 at p. 11, 993 So.2d at 748. We further observe only three witnesses testified at the trial, and the bulk of the testimony was by John Braymer, Entergy's in-house counsel, who began the search for the addendum when he realized hired counsel was not presenting a statutory employer immunity defense. Braymer's testimony was uncontradicted; there was nothing in the record to discredit Braymer's testimony. We find no error in the appellate court's review.
CONCLUSION
In conclusion, we find the appellate court did not err in reversing the trial court judgment, which denied Entergy's affirmative defense of statutory employer tort immunity. The typewritten signature of Entergy's representative on the addendum was sufficient if it was authorized and intended to constitute a signature. Moreover, the addendum was valid and effective based only upon the signature of ABB's representative, as Entergy was the party who prepared and presented the contract addendum to ABB. Thus, it is not necessary to remand this matter for a factual determination of whether Entergy's representative intended the typewritten signature to constitute his signature. Additionally, we find no error in the appellate court's review concluding the evidence was insufficient to find the addendum was confected fraudulently. The addendum was signed by ABB on or no more than one day later than March 10, 1998; plaintiff failed to prove otherwise. Finally, we reject plaintiff's argument that our state constitution required a majority of the full complement of the appellate court to concur to render judgment when less than the full complement of the Court of Appeal is sitting en banc. The plain and unambiguous language of La. Const, art. V, § 8 requires only a majority of the judges sitting to concur to render a judgment. The en banc composition in this case consisted of eleven judges as one judge was recused. Thus, six judges concurring in the judgment composed a constitutional majority.
DECREE
For the foregoing reasons, we affirm the judgment of the Court of Appeal. AFFIRMED.
NOTES
[*] Kimball, C.J., participated in oral argument but did not participate in the deliberation of this opinion. Retired Judge Thomas C. Wicker, Jr., assigned as Justice ad hoc, sitting for Justice John L. Weimer, recused. Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tempore, participating in the decision.
[1] At the time of the trial of the statutory employer defense issue, Vera Rainey was deceased. Her children, Jo Ann Mays and James McCallister, were substituted as parties in this action. Rainey v. Entergy Gulf States, Inc., 01-2414 (La. Ct.App. 1 Cir. 6/25/04), 885 So. 2d 1193. Additionally, Leonard Cardenas, III, Esq., who was retained by and represented Rainey in connection with this suit, was allowed to intervene in the proceeding to protect any interests and rights he may have and to assert a privilege for any attorney's fees and costs. Thus, any reference to plaintiff in the portion of this opinion concerning the trial of the statutory employer issue necessarily refers to these parties. For sake of clarity, we will refer to these parties as "plaintiff" throughout this opinion.
[2] Rainey v. Entergy Gulf States, Inc., 09-572 (La.6/19/09), 10 So. 3d 747.
[3] Plaintiff's counsel disputed that characterization of Pennison's deposition testimony; portions of that deposition were admitted as Plaintiff's Exhibit 10.
[4] As we observed in Rainey v. Entergy Gulf States, Inc., 08-2233, p. 1, n. 2 (La.12/12/08), 996 So. 2d 1058, 1059, although three judges dissented from the order denying the motion to dismiss the appeal for lack of jurisdiction, Judge Pettigrew concurred in the per curiam stating although he found the court had no jurisdiction to reach the merits of the appeal, the majority found otherwise. Thus he felt compelled to address the merits and found no legal or manifest error on the part of the trial court.
[5] For the sake of completeness, we note Judge Pettigrew dissented, finding no legal or manifest error on the part of the trial court. Judge Welch dissented without assigning reasons.
[6] La. Rev.Stat. 22:1406(D)(1)(a)(ii) (West 1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576651/ | 346 S.W.2d 922 (1961)
PARKER AND PARKER CONSTRUCTION COMPANY, Inc., Appellant,
v.
Frank MORRIS, Appellee.
No. 5471.
Court of Civil Appeals of Texas, El Paso.
March 22, 1961.
Rehearing Denied May 24, 1961.
*923 Turpin, Kerr, Smith & Dyer, Max N. Osborn, William L. Kerr, Midland, for appellant.
Warren Burnett, Odessa, for appellee.
LANGDON, Chief Justice.
This is an appeal from a judgment awarding appellee the sum of $5,020 for property damage as a result of some unknown third party driving appellant's tractor against appellee's house.
Trial was had to a jury. The case was submitted on eight special issues, which the jury found as follows: (1), that appellant was not negligent in leaving its tractor unattended; (3), but that appellant's failure to equip its tractor with means which would prevent its being started and operated by a person not an employee of appellant was negligence; (4), that such negligence was a proximate cause of the collision in question; (5), damages to residence, $4,500; (6), damages to personal property, $520; (7), that the act of some third party in driving appellant's tractor into appellee's home was not the sole proximate cause of the collision; and, (8), that the collision in question was not the result of an unavoidable accident.
Appellant's appeal is predicated upon ten points of error.
Points 1, 2 and 3 are based on the contention that the trial court erred in failing to grant appellant's motion for instructed verdict and motion for judgment non obstante veredicto(1), because the evidence failed to show that appellant or its agent drove the tractor into appellee's house; (2), because the act of some unknown third party in driving the tractor into appellee's house was a new and independent, and new and intervening act of negligence for which appellant is not responsible; and, (3), because the act of appellant in leaving its tractor unattended without a locking device could not be a proximate cause of the accident, since appellant could not reasonably anticipate that some unauthorized person would take its tractor and operate it in a negligent manner.
The material undisputed facts are, briefly, as follows:
Appellant, at the time in question, was engaged in building streets, curbs and gutters in a new residential addition in Odessa. At about noon on Friday, before the happening of the accident, appellant's tractor driver parked the tractor in question on a vacant lot, behind the curb, approximately one and one-half blocks from appellee's house. The tractor was stopped on rocky ground, with the switch cut off and the vehicle in gear. It was parked in such a manner that it could not roll to the house where the accident occurred, and the only way the accident could have occurred was for someone to have driven the tractor to the place of the accident.
In the early morning hours of Monday, July 28, 1958, at approximately 3:30 A.M., *924 some unknown third person drove appellant's tractor into the side of appellee's house. Appellee testified that he had no idea who drove the tractor into his house, but recalled hearing a car, using noisy pipes or muffler, drive away from the front of his house shortly after the accident.
It is undisputed that whoever drove the tractor at the time of the accident was not an employee of appellant, and that it was not driven with the consent of the appellant.
The tractor in question was equipped with a button on the dash which could be pulled out to operate the ignition system, in order that the tractor might be started. The tractor was of standard make, and equipped just as the manufacturer had sold it.
There was testimony from numerous witnesses familiar with tractors of the type involved in this accident, and with other tractors, and they testified that the "push-pull button" type of ignition was standard equipment on most tractorsthat very few were equipped with lock and key switches, and that it was the custom and practice among contractors to operate their tractors just as the manufacturer sold them; that even where tractors were sold with keys and ignition locks, it was customary to leave the keys in the locks at night. Others testified that it would be easy to wire around any locking device.
So far as we have been able to determine, the case before us is one of first impression in Texas. No Texas cases have been found involving the question of the liability of the owner of a motor vehicle to third parties for damages caused by one who stole the vehicle. The question presented here is not without precedent in other jurisdictions, however.
The majority rule is that the owner of a motor vehicle is not liable to third parties injured as a result of the negligent operation of his vehicle by a thief or other person not authorized to drive it. Jackson v. Mills-Fox Baking Co., 221 Mich. 64, 190 N.W. 740; Corinti v. Wittkopp, 355 Mich. 170, 93 N.W.2d 906.
In accord with the above are holdings by the Supreme Courts of Massachusetts, New Jersey, Minnesota, California, Mississippi, and the intermediate courts of numerous other states.
Most of the cases cited involved a situation where the owner of the motor vehicle violated a state statute or city ordinance requiring one, upon parking his automobile, to lock the vehicle and remove the keys from the switch.
Appellee does not contend that appellant violated any state law or city ordinance by failing to equip the tractor in question with ignition switch and key, or by failing otherwise to lock or secure the vehicle in such manner that it could not be operated by unauthorized persons.
The majority rule, even where the defendant owner of a vehicle is shown to have left his car unattended, with the key in the ignition in violation of a state statute, is that the owner is not liable to third persons for damages caused by a thief or other person not authorized to drive it. The reasons generally assigned by the courts for supporting the majority rule in such cases are: (1), that the violation of the statute is not a proximate cause of the injury; and, (2), that the intervention of the thief breaks the causal connection between the original wrong and the injury. 6 Baylor Law Review 392, 397 (and cases cited).
In Kiste v. Red Cab, Inc., 1952, 122 Ind.App. 587, 106 N.E.2d 395, 398, the court, after reviewing cases from many jurisdictions, stated:
"In the absence of statutes or ordinances, it has been uniformly held that the owners of automobiles who left their cars standing unattended with keys in their ignition switches were not liable for subsequent injuries occasioned by the negligent operation of the car by thieves, the reason generally given *925 being that the negligent operation of the thief was the proximate intervening efficient cause of the injury."
While the vehicle involved in the case at hand was a tractor, and not an automobile, we think such circumstance, alone, is insufficient to justify this court in holding, contrary to the great weight of authority, that the owner of a motor vehicle (in this case, a tractor) is liable to third parties for damages caused by the negligent operation of such vehicle by the one who stole it.
It is unquestionably true that a large and powerful machine, such as a tractor, by reason of its great size and weight, is likely to inflict great damage in the event it is taken by a thief and operated in a negligent manner. While the average automobile is lighter and smaller and presumably less powerful than a tractor, they are nevertheless capable of being operated at much higher speeds and, consequently, are capable of doing just as much damage as a tractor, in most circumstances. In addition, we think it far less likely that a tractor would be stolen, or that it would be used by an unauthorized person, then would be the case where the thief's choice lay between two vehiclesan unattended unlocked tractor on the one hand, and an unattended, unlocked automobile on the other.
The holding in a recent Texas case (Hanson v. Green, Tex.Civ.App., 339 S.W.2d 381, 382, writ refused), affirmed a trial court in granting defendant's motion for instructed verdict where it was shown that defendant, Roy Green, was the owner of a 1955 Chevrolet, which was in good mechanical condition. On the date in question defendant's daughter, Nancy, was just under 15 years of age, and had no driver's license, but had been driving "close to a year" just prior thereto. Nancy asked for and received permission from her father to drive the car to a friend's house for a social visit. Defendant, at no time prior to the date in question, had knowledge that his daughter would permit anyone else to drive the car, and had he known that his daughter would permit anyone else to drive, he would not have let her have the car. Nancy permitted one of her friends, another minor who also had no driver's license, to drive the car; and, while it was being driven by such minor, defendant's car collided with another car owned and occupied by plaintiff.
At the close of the evidence, defendant's motion for instructed verdict was granted, and, in affirming the trial court's judgment, the Court of Civil Appeals held that defendant at no time consented that the minor (Gerald Lee Hunt) should operate his automobile and did not, in any way, ratify or adopt Nancy's action in permitting such minor to drive his car. The court pointed out that foreseeability and causation are two necessary elements of proximate cause, and held that the negligence, if any, of defendant in entrusting his car to his daughter, Nancy, an unlicensed driver, was not a proximate cause of appellant's injuries and damages (citing numerous cases).
We sustain appellant's Points 1, 2 and 3. The points discussed are sufficient to dispose of appellant's fourth point, which is also sustained.
Appellant's remaining points are largely based on evidentiary matters, none of which, standing alone, would require the reversal of this case, and they and each of them are accordingly overruled.
We hold that the owner of a vehicle is not liable to third parties injured as a result of negligent operation of his vehicle by a thief or other person not authorized to drive the vehicle, and that the negligence, if any, of appellant in failing to equip his tractor with a switch and key, or other device, and to remove the key or otherwise render the vehicle inoperable when left unattended, was not a proximate cause of appellee's damage.
The accident was caused by an independent, intervening causenamely, the operation of the vehicle by an unknown third *926 party, and this was the proximate cause of the accident. Jackson v. Mills-Fox Baking Co. (supra).
The judgment of the trial court is reversed, and judgment is here rendered for appellant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576656/ | 346 S.W.2d 138 (1961)
Wallace Junior McPEAK, Appellant,
v.
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
No. 15825.
Court of Civil Appeals of Texas, Dallas.
April 28, 1961.
*139 Pete White, Ivan Irwin and Fowler Roberts, Dallas, for appellant.
Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for appellee.
WILLIAMS, Justice.
Wallace Junior McPeak, as plaintiff, filed his petition in the County Court at Law No. 2 of Dallas County, against Texas Department of Public Safety, as defendant, in which he appealed from an administrative finding of the Justice Court, Precinct 4, of Dallas County, finding him to be an habitual violator of the traffic laws and suspending his driving privileges.
Relying upon Article 6687b, Vernon's Ann.Texas Civ.St., and alleging that he was not an habitual violator of such laws, McPeak prayed that said order suspending his driver's license be set aside. After answering, defendant, Texas Department of Public Safety, filed its motion for summary judgment, and upon hearing thereof, the trial court entered its order sustaining such motion. From that judgment this appeal has been perfected.
The motion for summary judgment of the Texas Department of Public Safety, appellee herein, alleged that McPeak had been convicted on four separate occasions within a 12 months period of time of moving traffic violations. Attached to such motion and made a part thereof are six "notices of conviction" certified from the Corporation Court of the City of Dallas and which state that McPeak had been convicted of speeding, three times; illegal turn, one time; driving on wrong side of street, one time; and "traffic light", one time. These convictions are shown to have been within a twelve months period of time.
In his first and second points of error, appellant assails these "notices of conviction", contending that they do not constitute evidence, or substantial evidence, of conviction of traffic violations. These points are overruled. Similar question was presented and considered by the Court in Whittington v. Department of Public Safety, State of Texas, Tex.Civ.App., 342 S.W.2d 374 (writ ref. n.r.e.). Such notices of conviction of traffic violations are public records or documents which are required to be maintained under the authority of Sections 21 and 25 of Article 6687b, V.A.T. C.S., and Section 152, Article 6701d, V.A.T. C.S., and have been held to be admissible into evidence as such public documents under *140 provision of Article 3731a, V.A.T.C.S. Tatum v. Texas Department of Public Safety, Tex.Civ.App., 241 S.W.2d 167 (writ ref.); Texas Department of Public Safety v. Jackson, Tex.Civ.App., 272 S.W.2d 577, (no writ hist.); and Rice v. State of Texas, 163 Tex. Crim. 367, 292 S.W.2d 114.
Appellant raises the question of whether the "notices of conviction" constitute "substantial evidence". We do not deem it necessary to pass upon the question of whether the "substantial evidence" rule applies to the original administrative hearing in the Justice Court. This is an appeal to the County Court at Law and in testing the sufficiency of the motion for summary judgment we do so under the usual rules applicable to such motions. It is our opinion that the notices of convictions constitute proper evidence in support of the motion for summary judgment, and that summary judgment proceeding is proper in such a case. Whittington v. Department of Public Safety, State of Texas (supra).
Therefore, the appellant's third point, complaining that the trial court held that the "substantial evidence" rule is applicable in this case is overruled. Moreover, we do not find that the trial court made such finding.
By his fourth point, appellant complains of the action of the trial court in holding that appellant's responses to appellee's request for admissions of fact were evasive and therefore deemed admitted as a matter of law. By appropriate request for admissions under Rule 169, Texas Rules of Civil Procedure, appellee requested appellant to admit or deny that he had been arrested on six different dates, for specified offenses, and had been convicted on six different dates. Each incident was contained in a separate request. Appellant answered, and in each instance said that he had "no recollection of having been arrested on a particular date for the specified offense" and "couldn't therefore either admit or deny that he was so arrested" and further stated that "he had not sufficient information either to admit or deny that he was legally convicted for any of the offenses listed on any of the dates specified." Upon the hearing of the motion for summary judgment the court found that the responses of appellant were wholly evasive and that as a matter of law, said request for admissions were deemed admitted.
Rule 169, T.R.C.P., relating to admission of facts is specific in its provisions that each of the matters of which an admission is requested shall be deemed admitted unless the party to whom the request is directed shall file a sworn statement, either denying specifically the matters of which an admission is requested, or setting forth in detail the reason why he cannot truthfully either admit or deny those matters. (Emphasis supplied.)
Thus a party may not evade the rule by merely saying that he does not have sufficient information to either admit or deny the matters requested when he, by resorting to means available to him, can secure the facts inquired about. This provision of Rule 169 is not a frivolous one, nor one that should be treated lightly and thereby overcome the salutatory purpose of the rule.
In answer to request Nos. 7 and 8, appellant admitted that during the year 1954 his driving privileges were suspended on the ground that he was an habitual violator of the traffic laws. Thus it is evident that appellant could, by the exercise of ordinary diligence, have inspected the records of the Corporation Court of Dallas, Texas, or made other inquiry which would have revealed his conviction on the offenses inquired about. In his answer to the motion for summary judgment he does say that, after answering the request for admission of facts, his attorney did make inquiry of the Clerk of the Corporation Court of Dallas, Texas, concerning such convictions, and that such Clerk told his attorney certain things about the convictions.
Justice Collings, of the Eastland Court of Civil Appeals, in Montgomery v. Gibbens, *141 245 S.W.2d 311, 315, clearly enunicated the proper construction to be placed on this Section of Rule 169:
"* * * appellant should have been in position to ascertain the facts by reasonable inquiry. The purpose of the rule was to avoid the necessity of proving facts which are not controverted and particularly which as these are peculiarly within the knowledge of a party litigant of whom admissions are requested. Appellant was required to affirm or deny the requested admissions or to `set forth in detail the reasons' for not so doing. Such reasons themselves may not be fickle but must be based upon reason. To refuse to admit or deny the above requests for the stated reason that he did `not know of his own knowledge anything about the collision' was an evasion of rather than a reply to such request * * *. The court did not err in deeming admitted such requests for admission."
The facts revealed by this record indicate clearly that appellant made no effort to ascertain the facts requested to be admitted, nor did he give any reasons for not doing so, and therefore his answers are clearly evasive. The trial court did not err in holding such requests to be admitted. Appellant's fourth point is overruled.
By his fifth, and last point, appellant alleges error for the trial court to hold that appellant had failed to state a cause of action in that said appellant had failed to show why the said order of suspension could be set aside. The trial court, in his judgment sustaining the motion for summary judgment, recited, inter alia, that "Wallace Junior McPeak had wholly failed to state a cause of action in that said plaintiff failed to show why the order of suspension of the plaintiff's driving privileges appealed from herein could be set aside * * *." In his original petition, on appeal from the Justice Court to the County Court at Law, appellant recited the action of the Justice Court and then alleged that "petitioner hereby denies that he is an habitual traffic violator and in the manner provided requests this Court to abate and hold in abeyance the order of the Texas Department of Public Safety heretofore entered * * *." Appellee filed its special exception to this allegation contending that the same is insufficient to show why appellant was not an habitual violator. The recitation contained in the judgment is the only evidence of action taken by the trial court on this exception. It is our opinion that the action of the trial court on the pleadings is immaterial to the issues of this appeal. This is an appeal from the action of the trial court in sustaining motion for summary judgment The decision of the court was founded on the verified motion for summary judgment, together with its attachments, and the verified answer of appellant to such motion Based upon these affidavits, as provided in Rule 166-A, the trial court rendered his decision. The sworn motion of appellee, together with attachments, was sufficient to show the nonexistence of issues of fact. Appellant's answering affidavit was insufficient to refute the allegation of nonexistence of issuable facts. In the first place, appellant in his answer did not deny the prior convictions but attempted to evade, relying upon evasive answers to request for admission of facts. With these requests being deemed to have been admitted, as we have previously held, nothing remains in the appellant's affidavit save and except his statement to the effect that his attorney had been told by the Clerk of the Corporation Court, subsequent to the answers of request for admission of facts, that in truth and in fact only one conviction appeared on the records of the Corporation Court. This is clearly hearsay and does not come within the plain and explicit provisions of Rule 166-A, T.R.C.P., subd. (e). Sparkman et ux. v. McWhirter, Tex.Civ.App., 263 S.W.2d 832, (Writ Ref.)
All of appellant's points are therefore overruled, and, since the affidavits considered *142 by the trial court present no issue of fact, the action of the trial court in sustaining the motion for summary judgment was correct.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576693/ | 612 F. Supp. 856 (1985)
Bill M. SLEICHTER, Plaintiff,
v.
MONSANTO COMPANY, Defendant.
No. 83-2338C(C).
United States District Court, E.D. Missouri.
June 24, 1985.
As Amended July 8, 1985.
*857 Sheldon Weinhas, St. Louis, Mo., for plaintiff.
Richard Sher, Richard Pautler, St. Louis, Mo., Arthur L. Smith, Washington, D.C., for defendant.
FINDINGS OF FACT & CONCLUSIONS OF LAW
MEREDITH, District Judge.
Prior to trial the parties made the following stipulations:
1. The plaintiff, Bill M. Sleichter, is a former employee of the defendant, Monsanto Company. The plaintiff was employed by the defendant continuously from March, 1957 to July 1, 1982, when the plaintiff retired.
2. Defendant is a Delaware corporation with its principal place of business in St. Louis County, Missouri. Monsanto Company is a publicly held, multi-national corporation involved in various facets of the chemical industry.
3. Plaintiff has resided in Crystal River, Florida since his retirement.
4. In 1981, plaintiff became eligible for voluntary retirement from Monsanto under a Monsanto retirement program known as Combo-80. Under the Combo-80 program, employees at least 55 years old, whose age and number of years of service equal or exceed 80, may elect to retire and receive certain pension benefits.
5. Since retiring on July 1, 1982, plaintiff has received Combo-80 retirement benefits, but has not received SIR benefits.
6. At no time during 1982 was the plaintiff employed in either Central Engineering Department ("CED") or Enviro-Chem.
7. On June 15, 1982, Monsanto Company announced the adoption of what was referred to as the Monsanto Company Special Incentive for Retirement Program for Central Engineering Department and Enviro-Chem.
8. Defendant had produced through discovery each of the 114 exhibits listed by plaintiff in his pretrial materials filed March 15, 1985 and plaintiff may introduce each such exhibit, excluding exhibits 4, 5, 30 and 76, without the need for authentication or identification. Defendant, however, reserved all other objections to such exhibits.
9. Plaintiff waived all objections to defendant's exhibits except that he retained the right to object on the grounds of relevancy and materiality.
10. Parties further stipulated that should this court determine that plaintiff is entitled to receive benefits under Monsanto's SIR program, the amount of such benefits would be $48,793.68.
*858 After consideration of the pleadings, the testimony, depositions, and exhibits introduced at trial, the credibility of the witnesses, the parties' supplemental briefs, and the applicable law, the court makes the following findings of fact and conclusions of law. Any finding of fact equally applicable as a conclusion of law is adopted as such, and conversely, any conclusion of law equally applicable as a finding of fact is adopted as such.
Findings of Fact
1. Prior to July 1, 1982, plaintiff was an employee of Monsanto Company, serving as manager, Raw Materials Supply in the Facilities and Materials Division of the company. On July 1, 1982, the plaintiff, at age 57, retired.
2. Plaintiff retired under the Combo-80 program, part of a qualified pension plan subject to the provisions of ERISA. Monsanto Company was a plan sponsor and also acted as administrator of the Plan, as those terms are used in section 3(16) of ERISA.
3. Plaintiff's employment contract nominally required 90 days advance notice of retirement. Plaintiff submitted his notice, but was told by Monsanto personnel officials that he could withdraw his retirement notice or change retirement dates at any time, up until July 1, 1982.
4. In the spring of 1982, Monsanto officials conclude that as a result of depressed economic conditions in the chemical industry, it may have more salaried employees than it needed. Consequently, the company began to consider ways of reorganizing and reducing its work force.
5. In June, 1982, Monsanto adopted an early retirement incentive program for the employees of two divisions, CED and Enviro-Chem. Plaintiff was not employed in either division.
6. On June 15, 1982, this new early retirement incentive program for the two divisions was announced. The announcement further stated:
We have been studying the possible extension of similar programs to salaried employees in other units. Over the next few months, we will continue to consider future business conditions and staffing requirements of Monsanto Company and its various units.
7. Prior to June 15, 1982, after hearing several rumors, plaintiff made numerous inquiries concerning the possibility that such early retirement benefits may later become available to him. Plaintiff learned no definite information, but was told he could postpone his retirement.
8. Following the June 15 announcement plaintiff continued to make inquiries concerning new program possibilities, and was told that the only information available was that contained in the June 15 announcement.
9. Prior to July 1, 1982, Monsanto had considered adopting a special company-wide special retirement program, but at that time the company perceived significant impediments to such action (accounting treatment, cost, the "evergreen effect", and retaining key personnel).
10. On August 16, 1982, Herschel Sellers, Monsanto attorney and secretary of the Employee Benefits Plan Committee, sent a memorandum to Clarence Sweets, company director of personnel, suggesting three possible alternatives for the structure of a program which the company believed would avoid the "evergreen effect" and would allow Monsanto to amortize all or a portion of the plan's cost over thirty years rather than requiring Monsanto to expense the entire amount in 1982.
11. The structure of the corporate-wide early retirement plan was different than the CED and Enviro-Chem program adopted in June, before plaintiff's retirement.
12. On August 18, 1982, Sweets and other personnel recommended to the Executive Management Committee that Alternative "C" be adopted by the company. On August 23, 1982, the Executive Committee decided to recommend the adoption and on *859 September 8 of that same year, the Employee Benefits Plans Committee approved the adoption. On September 10, 1982, the Executive Committee of the Board of Directors adopted the Special Incentive Retirement Plan, known as "SIR".
13. The program, including a non-qualified plan coupled with an amendment to the existing pension plan, was to be funded from the corporate treasury. There was no use of funds earmarked for any other pension plan and specifically no reduction of any other retirement benefits available to any employees of the company as a result of the adoption of this plan.
14. The June 15 Monsanto announcement concerning the possible adoption of a corporate-wide plan was entirely accurate and not misleading.
15. At all times prior to July 1, 1982, defendant disclosed sufficient information to the plaintiff. Any further disclosure at that time may have been misleading, because of the precarious nature of the future of any corporate-wide early retirement plan.
Conclusions of Law
1. This claim is pursuant to the provisions of the Employee Retirement Income Security Act of 1974 (ERISA).
2. This court has jurisdiction pursuant to section 502 of ERISA, 29 U.S.C. § 1132.
3. There is no evidence that there were any misrepresentations made to the plaintiff by the defendant.
4. It is clear under ERISA that Monsanto, like any other employer, may act in a dual role as plan sponsor and as administrator of an employee benefit plan. 29 U.S.C. § 1108(c)(3).
5. The court finds nothing in ERISA requiring disclosure to the plaintiff in advance of actual implementation of the plan. A plan administrator's duties with respect to providing information to plan participants are set out in 29 U.S.C. §§ 1102, 1104, and 1105 of ERISA. Nothing in these sections requires advance disclosure to employees of deliberations on the possible adoption of new benefits. See also Lehner v. Crane Co., 448 F. Supp. 1127, 1130-31 (E.D.Pa.1978); Molumby v. Shapleigh Hardware Co., 395 S.W.2d 221, 227 (Mo.Ct.App.1965).
6. The common law of fiduciary duties is incorporated into ERISA. Even under the common law, the duty of a trustee or fiduciary to provide information to a beneficiary is limited.
7. This court finds that on July 1, 1982, no plan or formulation for an early retirement plan existed at Monsanto. Such a plan as was later adopted was still in the formative stages with no certainty of implementation. Any further disclosure would have been a disservice to Monsanto employees.
8. Plaintiff has failed to prove that Monsanto misled him with respect to the status of deliberations concerning the adoption of the retirement plan, or that Monsanto had a duty to make disclosures to him concerning the status of those deliberations.
9. Accordingly, plaintiff is not entitled to the relief prayed for and judgment will be entered for the defendant, with costs taxed against the plaintiff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576695/ | 346 S.W.2d 663 (1961)
E. J. BURKE, Sr., Appellant,
v.
MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellee.
No. 13749.
Court of Civil Appeals of Texas, San Antonio.
May 10, 1961.
*664 Oliver & Oliver, San Antonio, Elmore H. Borchers, Laredo, for appellant.
Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, for appellee.
MURRAY, Chief Justice.
This is a plea of privilege case. Appellee, Merrill Lynch, Pierce, Fenner & Smith, Inc., filed suit on an open account in the District Court of Bexar County against appellant, E. J. Burke, Sr., who filed his plea of privilege to be sued in Webb County, the alleged county of his residence. Appellee controverted the plea of privilege, contending that appellant was a resident of Bexar County. After hearing the evidence, the trial court held that appellant was a resident of Bexar County and overruled the plea of privilege, from which judgment E. J. Burke, Sr., has prosecuted this appeal.
Appellant's first contention is that there is no evidence to support the judgment overruling his plea of privilege. There is evidence tending to show that while appellant may have his domicile in Webb County, he also has a residence in Bexar County for venue purposes. There can be no doubt that a person for venue purposes may have a dual residence. Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136; Central Texas Electric Co-operative v. Stehling, Tex.Civ.App., 282 S.W.2d 729.
There were no findings of fact by the trial court, and none were requested. Under such circumstances the judgment must be upheld if there is any evidence of probative force to support it on any theory of the case. Gunstream v. Oil Well Remedial Service, Tex.Civ.App., 233 S.W.2d 897; 4 McDonald, Texas Civil Practice, § 16.10.
Appellant testified that he moved to Laredo, Webb County, Texas, about a year ago and has lived there since, claiming it as his domicile. His business now is general manager of the Sands Motor Hotel in Laredo, where he has an apartment which he occupies as his home. The Sands Hotel has about 102 units. Most of his mail comes to Laredo, but some of it goes to 1100 Goliad Road, San Antonio, Texas. He owns the property at 1100 Goliad Road, but contends that is not his office, but is that of his son. His nephew, William P. Hailey, is employed by him as a lawyer, and has rendered his property for him in Bexar County. He did not tell his lawyer to claim a homestead exemption for him in the year 1960, in San Antonio, and his lawyer did so without discussing the matter with him. He is a member of the Laredo Chamber of Commerce and buys his poll tax in Webb County. He was married to his present wife in February, 1959. She lives at 402 Cave Lane, San Antonio. He does not live with her and he does not live at 402 Cave Lane. His wife has visited him two or three times in Laredo, trying to settle their differences, but this could not be done. They are living apart but there is no divorce suit pending at this time.
*665 William P. Hailey testified that he was appellant's attorney and rendered his property for him in Bexar County and claimed a homestead exemption for him. He did not exactly have authority to do this for appellant, but he thought he had such authority up until the time this suit was filed. Hailey had been rendering appellant's property for him six years, and during these years he had been claiming a homestead exemption, and appellant had never complained to him about his doing so. He had rendered some five hundred separate pieces of property for appellant in Bexar County each year. Appellant owns a house and lot in San Antonio, where his mother and sister live, and that is the property claimed as a homestead. Hailey was asked the following question, and gave the following answer:
"Q. Now then, is it a fair appraisal of your testimony, Mr. Hailey, to say that in your opinion Mr. Burke maintained a residence in Webb County, Texas, at the Sands Motel, and also in Bexar County, Texas, where he claimed his homestead? A. As a matter of my personal knowledge, up to this morning, apparently that is right; yes. I would say he did have a residence here and a residence there when I signed this on the 30th of April.
"Mr. Ladon: Thank you very much."
There was some evidence which supported the implied finding of the trial court to the effect that appellant maintained a dual residence for venue purposes in Webb County and in Bexar County.
Appellant contends that if there was some evidence of the fact that he maintained a residence in Bexar County, then the implied finding of the trial court to this effect was so against the preponderance of the evidence that it shows a manifest injustice has been done. We do not agree. The implied finding was supported by the evidence as above set out, and was not against the preponderance of the evidence. The testimony of appellant and his attorney, Hailey, was not necessarily binding on the trial court, even though in some instances it was not contradicted.
The judgment overruling appellant's plea of privilege is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576705/ | 35 So. 3d 915 (2010)
David H. TEDESCHI and Anneliese, Tedeschi, Petitioners,
v.
SURF SIDE TOWER CONDOMINIUM ASSOCIATION, INC., and Charles P. Schropp, Respondents.
No. 2D09-4804.
District Court of Appeal of Florida, Second District.
March 24, 2010.
*916 Christopher Jason Sanders, Largo, for Petitioners.
Richard A. Zacur of Zacur, Graham & Costis, P.A., St. Petersburg, for Respondent Surf Side Tower Condominium Association, Inc.
Charles P. Schropp of Schropp Law Firm, P.A., Tampa, on behalf of Charles P. Schropp.
WHATLEY, Judge.
David and Anneliese Tedeschi filed this petition for writ of certiorari seeking review of a nonfinal order requiring them to join all of the unit owners of a condominium association as indispensable parties to their declaratory action. This cause of action began when the Tedeschis filed suit against Surf Side Tower Condominium Association ("Surf Side"), asking the circuit court to determine their right to parking space number eighty-two in their condominium's parking lot and also asking the court for compensation for the time period during which Surf Side used the parking space as a guest space.[1] We conclude that the circuit court's order requiring the Tedeschis to bring the suit against all of the condominium owners departs from the essential requirements of the law and results in material injury for the remainder of the proceedings for which there is no adequate remedy on appeal, and we therefore grant their petition. See Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla.1987) (holding that certiorari review of nonfinal orders is limited to orders that depart from the essential requirements of the law and result in material injury for the remainder of the proceedings for which there is no adequate remedy on appeal).
Essential Requirements of the Law
In their complaint, the Tedeschis allege that when they purchased their condominium in 1979, they were assigned parking space number eighty-two. In 1984, the Tedeschis purchased another parking space in the condominium's covered garage, and in 1993, they received a letter from Surf Side informing them that parking space number eighty-two would be converted to a guest space. Pursuant to a request by the Tedeschis, the president of Surf Side's board of directors reassigned the parking space to the Tedeschis in October *917 2005. However, at a subsequent board meeting, Surf Side decided that the assignment of the parking space back to the Tedeschis had been improper and on October 1, 2006, it once again designated the space as a guest parking space.
Surf Side and Schropp filed a motion for judgment on the pleadings, arguing that the Tedeschis were required to join all of the condominium unit owners in the suit because the unit owners were indispensable parties. The circuit court agreed and entered an order dismissing the Tedeschis' complaint with leave to amend to add the indispensable parties. We conclude that this order departs from the essential requirements of the law.
In Graves v. Ciega Verde Condominium Ass'n, 703 So. 2d 1109, 1111 (Fla. 2d DCA 1997), the appellant sued all the unit owners of a condominium as a defendant class with the association as the class representative. The complaint sought to foreclose a mechanic's lien against the unit owners and also sought to recover damages for breach of contract against the association. Id. at 1110. This court held that the circuit court erred in finding that the appellant was required to serve all of the individual members of the class. Id. at 1111. This court noted that "an association can sue and be sued, and that by its very nature is appropriately sued as a class when the issues involve the common elements of the condominium property or common issues to each unit owner." Id. at 1112.
Similarly, in Trintec Construction, Inc. v. Countryside Village Condominium Ass'n, 992 So. 2d 277, 277-78 (Fla. 3d DCA 2008), the appellant filed a lien foreclosure complaint and lis pendens against a condominium association in a dispute pertaining to roof repairs it performed on the condominiums. The circuit court dismissed the complaint without prejudice based on its finding that the individual condominium owners were indispensable parties to the lien foreclosure action. Id. at 278. The Third District noted that, pursuant to Florida Rule of Civil Procedure 1.221, the association could bring an action against the appellant as a sole plaintiff on behalf of affected condominium owners. Id. at 280. Rule 1.221 provides that a condominium association can bring a cause of action
in its name on behalf of all association members concerning matters of common interest to the members, including, but not limited to: (1) the common property, area, or elements; (2) the roof or structural components of a building, or other improvements (in the case of homeowners' associations, being specifically limited to those improvements for which the association is responsible); (3) mechanical, electrical, or plumbing elements serving a property or an improvement or building (in the case of homeowners' associations, being specifically limited to those elements for which the association is responsible); (4) representations of the developer pertaining to any existing or proposed commonly used facility;.... If an association has the authority to maintain a class action under this rule, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action under this rule. Nothing herein limits any statutory or common law right of any individual homeowner or unit owner, or class of such owners, to bring any action that may otherwise be available. An action under this rule shall not be subject to the requirements of rule 1.220.
In Trintec Construction, Inc., the Third District exercised its certiorari jurisdiction and held that the appellant could proceed *918 against the association as the representative of all condominium owners and that it was not required to join the individual unit owners as indispensable parties. Id. at 282. The court reasoned that "[j]ust as the Association was empowered to contract for the roof work for the benefit of the unit owners, then, it seems that the Association is the logical entity to manage and defend the lawsuit relating to that work." Id. at 280. The court also noted that the unit owners had the right to intervene in the lawsuit. Id.
The Fourth District has also addressed this issue in Four Jay's Construction, Inc. v. Marina at Bluffs Condominium Ass'n, 846 So. 2d 555, 556 (Fla. 4th DCA 2003), wherein the appellant filed suit against a condominium association alleging that the association breached a construction contract, pursuant to which the appellant had installed balcony additions to all of the condominium buildings. As the court did in Trintec Construction, Inc., the Fourth District relied on rule 1.221 in holding that the association could be sued as the representative of condominium unit owners in the action to resolve a controversy of common interest to all unitsthe structural improvements to common elements. Id. at 557; see also Cooley v. Pheasant Run at Rosemont Condo. Ass'n, 781 So. 2d 1182, 1183-84 (Fla. 5th DCA 2001) (holding that, where appellant sued condominium association for injury occurring on common elements, the unit owners had "the right, but not the obligation, to intervene and defend" and that their participation was not up to the plaintiff, even though they were bound by any judgment in the plaintiff's favor).
We note that, pursuant to rule 1.221, Surf Side could bring a cause of action against the Tedeschis in its name on behalf of all association members concerning matters of common interest to the members, including the common property, area, or elements, which would include the parking space. Further, there has been no allegation that the outside parking space at issue has been paid for or assigned to another condominium owner, and therefore, the relief sought affects the common property of the association and not the property rights of another individual. Therefore, the Tedeschis may sue Surf Side as the representative of all condominium unit owners. As noted by the Tedeschis, the other unit owners have the right, but not the obligation, to intervene in the lawsuit.
In their motion and on appeal, Surf Side and Schropp rely on a Fourth District case that at first glance appears similar to the present one. In Stevens v. Tarpon Bay Moorings Homeowners Ass'n, 15 So. 3d 753, 754 (Fla. 4th DCA 2009), two townhome owners sued their homeowners association, asking the court to issue an injunction directing that the two owners had a right to space on a community dock. In Stevens, the Fourth District held that the two owners should have joined all of the other townhome owners as parties. Id. It reasoned that the other owners were indispensable parties because, if the two owners were granted relief, such would affect the interest of all the other owners. Id. The Fourth District held as follows:
Here, the trial court ordered the Association to assign 10 feet of canal dock space to each plaintiff. All of that dock space had already been given to other owners, who paid construction costs for their interest, or as guest space open to all owners in the Community. Thus, in order to assign the 10-feet spaces to plaintiffs, the Association was required to take space paid for and given exclusively to other owners and award it to plaintiffs. Obviously, this cannot be carried *919 out without affecting the interests of these other owners in the community.
Id. at 754-55.
The court in Stevens cited to Sheoah Highlands, Inc. v. Daugherty, 837 So. 2d 579, 580 (Fla. 5th DCA 2003), in which the owner of a condominium unit brought suit against the condominium association, alleging that the association allowed five owners to build screened enclosures on the condominium's common property. The circuit court entered an order requiring the association to remove two of the screened enclosures. Id.
In Sheoah Highlands, Inc., the Fifth District reversed the circuit court's order because the order affected the property rights of condominium owners who were not parties to the litigation. Id. at 583. The court held that a circuit court "is without jurisdiction to issue an injunction which would interfere with the rights of those who are not parties to the action." Id. We note that in both Sheoah Highlands, Inc. and Stevens, the orders affected the property of individual condominium owners. In Sheoah Highlands, Inc., the order required the association to remove screened enclosures, which were the property of their individual owners. Similarly, in Stevens, the circuit court order required the association to take dock space, which had been paid for and given to other townhome owners, and award it to the appellants.
As noted by the Tedeschis, those cases involving the interest of an association, as compared to a property owner's individual and unique property interest as in Sheoah Highlands, Inc. and Stevens, have held that a plaintiff may bring suit against the association and is not required to include all individual members of the association. Here, the order affects a parking space which is the common property of Surf Side, and therefore, the Tedeschis could bring their suit against Surf Side as the representative of all the condominium unit owners. The circuit court departed from the essential requirements of the law by requiring the Tedeschis to include the more than eighty other members of the condominium association in their lawsuit over a parking space.
Material Injury for the Remainder of the Proceedings
The Tedeschis contend that they will suffer material injury for the remainder of the proceedings for which there is no adequate remedy on appeal, because the circuit court order requires them to file the lawsuit against over eighty additional parties. In Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649-50 (Fla. 2d DCA 1995), this court noted that where the issues to be resolved address procedures designed to avoid litigation, those issues can be reviewed by certiorari. For example, "an order dispensing with a statutorily mandated presuit procedure, which is a condition precedent to a legal proceeding," is reviewable by certiorari "because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance." Id. at 649. In Parkway Bank, this court further noted that limited certiorari review was permitted to consider cases involving "the statutory procedures for amending a complaint to allege punitive damages because those safeguards cannot be remedied postjudgment." Id.
In Trintec Construction, Inc., 992 So.2d at 280, the court concluded that "the cost and delay inherent in identifying, pleading against, and serving a multitude of owners (and then substituting a new owner for a predecessor during the pendency of the case as units are sold or otherwise transferred) would be substantial." See also Mantis v. Hinckley, 547 So. 2d 292, 293 (Fla. 4th DCA 1989) (concluding *920 that circuit court erred in denying motion to dismiss where mortgagee failed to join a dissolution receiver as an indispensable party, and therefore, the petitioners established the circuit court departed from the essential requirements of law and there was a lack of an adequate remedy on appeal). But cf. Fresh Del Monte Produce, N.V. v. Chiquita Int'l, Ltd., 664 So. 2d 263, 264 (Fla. 3d DCA 1995) ("[W]e decline to grant certiorari on the order denying petitioner's motion to dismiss for failure to join an indispensable party and the order denying motion for abatement or stay of proceedings."). Here, the circuit court's order improperly requires the Tedeschis to file their complaint against over eighty additional defendants, which would cause a material injury for the remainder of the proceedings for which there is no adequate remedy on appeal. Trintec Constr., Inc., 992 So.2d at 280.
Accordingly, we grant the Tedeschis' petition for writ of certiorari and quash the order of the circuit court.
VILLANTI and WALLACE, JJ., Concur.
NOTES
[1] Charles P. Schropp, as owner of a condominium at Surf Side, was permitted to intervene in the suit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576712/ | 325 N.W.2d 164 (1982)
212 Neb. 728
ST. MARY'S CHURCH OF SCHUYLER, a Nebraska nonprofit corporation, and St. Anthony's Church of Columbus, a Nebraska nonprofit corporation, Appellants,
v.
William E. TOMEK et al., Appellees.
No. 82-230.
Supreme Court of Nebraska.
October 22, 1982.
*165 Douglas R. Milbourn of Tessendorf, Milbourn, Fehringer & Bothe, P.C., Columbus, for appellants.
William J. Mueller of Sodoro, Daly & Sodoro, Omaha, for appellees.
Heard before KRIVOSHA, C.J., HASTINGS, and CAPORALE, JJ., RIST, District Judge, and COLWELL, District Judge, Retired.
PER CURIAM.
Plaintiffs-appellants, St. Mary's Church of Schuyler and St. Anthony's Church of Columbus, seek reversal of the trial court's orders which sustained the demurrers of defendants-appellees, William E. Tomek, John G. Tomek, and Tomek and Tomek, to plaintiffs' amended petition, dismissed same upon plaintiffs' election to stand thereon, and denied plaintiffs' motion for new trial. We affirm.
The operating petition alleges defendants negligently prepared the last will and testament of the decedent, Emil L. Kavan, by failing to accurately express decedent's wishes, as the proximate result of which plaintiffs have been damaged. It is alleged that the decedent instructed defendants to so prepare his will as to distribute the residue of his estate to plaintiffs, share and share alike. The petition also alleges the conclusion that plaintiffs were beneficiaries of the attorney-client relationship entered into between defendants and decedent. Defendants demurred on the grounds the amended petition failed to state a cause of action and that it contained a misjoinder of causes of action, arguing that both tort and contract causes were combined as one.
The will in question included the following provision: "After the payment of all taxes, expenses of administration and proper charges allowed against my estate that have been paid I direct that the rest residue and remainder of the money in my bank account be paid equally among Saint Mary's Church, Schuyler, Nebraska and Saint Anthony's Church, Columbus, Nebraska." Because of a dispute among plaintiffs and decedent's heirs as to the meaning of this language, an action to construe the will was brought in the county court. That court ruled the clause to be ambiguous, found it to not be a general residuary clause, and ordered that the residuary estate (approximately $410,000) pass to the heirs. On appeal, the District Court reversed the judgment of the county court, ruled the language created a residuary clause, and ordered the residuary estate be paid to plaintiffs in equal shares. Thereafter, the heirs threatened an appeal to this court. Thereupon, plaintiffs negotiated a settlement for the sum of $60,000. They now seek to recover that sum, together with attorney fees and expenses incurred and yet to be incurred.
We have recently held that a lawyer owes a duty to his client to use reasonable care and skill in the discharge of his duties, but ordinarily this duty does not extend to third parties. Ames Bank v. Hahn, 205 Neb. 353, 287 N.W.2d 687 (1980). We conclude that rule is applicable to the facts of this case.
In view of the foregoing determination we need not consider defendants' argument that the amended petition contains a misjoinder of causes.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576713/ | 346 S.W.2d 917 (1961)
AETNA CASUALTY AND SURETY COMPANY, Appellant,
v.
Hubert FINNEY, Appellee.
No. 7303.
Court of Civil Appeals of Texas, Texarkana.
May 16, 1961.
Rehearing Denied June 6, 1961.
Allen Clark, Lee A. Clark, Greenville, for appellant.
Woodrow H. Edwards, Mt. Vernon, G. C. Harris, Greenville, Howard S. Smith, Sulpher Springs, for appellee.
DAVIS, Justice.
This is a Workmen's Compensation case. It was tried before a jury, resulting in a finding that the appellee was totally and permanently disabled. Judgment for appellee for total and permanent disability. Appellant has perfected its appeal, and brings forward 9 points of error.
By its first three points, appellant complains of the error of the trial court in refusing to give certain special issues to the jury relative to specific injuries to the left leg and to the left arm. In reviewing the transcript, the issues were in fact given as issues 12, 13 and 14. The issues were answered adversely to the appellant. The points are without merit and are overruled.
By its point 4 appellant takes the position that the appellee's pleadings have nothing, as a matter of law, to authorize proof for total and permanent disability. The pleadings are sufficient. Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280; Maston v. Texas Employers' Insurance Ass'n Tex., 331 S.W.2d 907. The point is overruled.
By its 5th, 6th and 7th points, appellant contends that there is no evidence that the injuries received by the appellee extended to or affected other portions of the body, and they were confined solely to the left leg and left arm below the elbow, and the findings of the jury of total and permanent incapacity is against the overwhelming weight and preponderance of the evidence.
*918 Appellee testified about diesel oil leaking onto his clothes; about the weather being cold; that he went to the fire to warm until he could use his truck; that he caught fire; the fire enveloped his entire body; the entire back side of his left leg was injured, including the muscles; he cannot straighten his knee or stand on the leg very long at a time; both hands were injured; the motion of left wrist was limited and the fingers on the left hand were stiffened; his nerves were torn up and he is still quite nervous; he suffered injuries to his back and sciatic nerve while in the service, but had recovered so that he could do the usual task of a workman; that the back injury was aggravated by the burns, particularly the sciatic nerve going from the back through the left leg has been aggravated by the burns, to a point that he cannot stand or walk very much; and he was totally disabled. This testimony was corroborated by three lay witnesses.
Dr. E. M. D'Charles, an orthopedic specialist, testified upon the trial of the case of having examined the appellee and that he had a loss of motion and grip in his left hand due to burns; his left leg received second and third degree burns with loss of skin and muscles causing contracture of leg, resulting in patient walking on toes; heel unable to touch ground; unable to extend left leg; burns caused the contracture of left leg which in turn caused sciatic nerve to be so painful as to be disabling; that none of the injuries were confined to the specific areas, and all exerted a disabling effect on him which rendered the plaintiff totally and permanently disabled from doing manual work.
The doctor who testified for the appellant, in effect, admitted that the injuries affected the man's physical condition generally by causing a contracture of his hip and resulting pain in the back. The entire statement of fact has been examined, and we find the evidence wholly sufficient to support the jury's verdict of total and permanent disability. American General Insurance Company v. Florez, Tex.Civ.App., 327 S.W.2d 643, n. w. h.; Superior Ins. Co. v. Kling, Tex.Civ.App., 321 S.W.2d 151, affirmed, Tex., 327 S.W.2d 422; Argonaut Underwriters Insurance Co. v. Byerly, Tex. Civ.App., 329 S.W.2d 937, wr. ref., n. r. e. The points are overruled.
Appellant's 8th point is without merit and is overruled.
By its point 9, appellant complains of the error of the trial court in excluding from consideration by the jury the extent of the appellee's disabilities as determined by the Veteran's Administration, and that the appellee was receiving compensation from the U. S. Government. It contends the evidence was pertinent on the question of the ability of the plaintiff to perform work, and was admissible to impeach his claim that he was totally incapacitated.
Upon the trial of the case the appellee filed a motion, omitting the heading and signature, which reads as follows:
"Comes Now Plaintiff in the above entitled and numbered cause and prior to the commencement of the questioning of the venire but after both parties have announced ready for trial and moves the court as follows:
"1.
"That the attorney for the defendant be instructed not to refer directly or indirectly to the fact that plaintiff Finney at the time of the injuries complained of had and now has, a percentage of disability rating by the Veterans' Administration for service connection disability because:
"(1) Income from a collateral source is not admissible to show extent of plaintiff's disability;
"(2) That such testimony would be double hearsay since it would have to be based upon a report or decision of a board based on hearsay medical testimony before the board and there is *919 no opportunity for cross-examination of either the medical testimony relied on by the board or the board.
"Wherefore, plaintiff prays judgment of the court."
No objection to the motion is shown of record, although the appellant did except to the sustaining of the same. Upon the trial of the case, it did not offer any evidence from the Veterans' Administration as to the percentage of disability rating that they had given the appellee. It did put the appellee upon the stand and question him about his disability rating, and the amount of compensation he was drawing. He did not offer this evidence before the jury. In the case of Alamo Express, Inc. v. Wafer, Tex.Civ.App., 333 S.W.2d 651, n. w. h., the plaintiff made the same motion in limine as was made in this case. The trial court granted the motion. The defendant offered the evidence by bill of exceptions. The defendant did not offer the evidence for a special or limited purpose, and actually did not except to the trial court refusing to admit it. On defendant's motion for new trial in the Wafer case the ground of error shows that the trial court had erred in not admitting the evidence. The court held that the appellant had waived its rights on appeal to claim an error on the part of the trial court in excluding the evidence, since the matter was not properly presented as a question in the motion for new trial. The ground relied on, as in this case, was that the trial court committed error in excluding the evidence.
The disability rating of a veteran by the Veterans' Administration is hearsay. Therefore, it would be up to appellant to show why such disability evidence would be admissible. In I Tex.Law of Evidence 19, Sec. 21, the annotator says:
"Where there is any doubt as to the relevancy of the evidence offering counsel must specify the purpose for which is it offered or other facts necessary to render it admissible. This is essential for an intelligent objection by opposing counsel and ruling by the trial judge. If he states a purpose for which it is inadmissible, he cannot complain of the ruling of the trial judge in excluding the evidence even though there was some other purpose for which it could have been received."
The point is overruled.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576990/ | 346 S.W.2d 830 (1961)
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Relator,
v.
Honorable Harold CRAIK, District Judge, et al., Respondents.
No. A-7803.
Supreme Court of Texas.
May 24, 1961.
*831 Stone, Agerton, Parker & Snakard, Fort Worth, John G. Street, Jr., Fort Worth, with above firm, for relator.
Herrick & McEntire, George Busch, Fort Worth, with above firm. W. James Kronzer of Hill, Brown, Kronzer & Abraham, Houston, for respondents.
CALVERT, Chief Justice.
Respondents' motion for rehearing is granted. The opinions delivered on February 15, 1961, are withdrawn, and the following is substituted as the opinion of the court.
This is an original proceeding in this court in which Indemnity Insurance Company of North America, relator, seeks a writ of mandamus to compel Honorable Harold Craik, Judge of the District Court of the 153rd Judicial District, Tarrant County, to set aside his order of mistrial and to enter judgment on the verdict of the jury in Cause No. 10,475-C, Fred A. Mize vs. Indemnity Insurance Company of North America.
The case in which the order of mistrial was entered is a workmen's compensation case. The parties stipulated that the average weekly wages of the plaintiff, Mize, before his injury was $86.80. In answer to special issue No. 9 the jury found that the plaintiff had sustained a partial disability as a result of his injury, but in answer to special issue No. 13 found that the plaintiff's average weekly wage earning capacity during his disability was $86.80. It was because of Judge Craik's belief that the jury's answers to these issues, considered with the stipulation, were in fatal conflict that he entered his order of mistrial.
We have regarded this case and Employers Reinsurance Corp. v. Holland, Tex., 347 S.W.2d 605, as companion cases and have considered them together. What is said in the opinion in the Holland case need not be repeated here. There is a material difference in the posture of the cases as they come to us. That difference lies in the definitions of "partial incapacity" as given in the Holland case and "partial disability" given in this case. The definition of "partial disability" given in connection with the submission of special issue No. 9 in this case reads as follows:
"By the term `partial disability' is meant disability less than total where an employee, by reason of injuries sustained in the course of his employment, is only able to perform part of the usual tasks of a workman, but, nevertheless, he is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or he is only able to perform labor of a less remunerative class than he performed prior to his injury whereby he suffers a depreciation or deduction in his earning capacity."
It is the duty of the court to reconcile apparent conflicts in jury findings if reasonably possible. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 562. The apparent conflict in the jury's answers to special issues Nos. 9 and 13 may reasonably be resolved by a precise interpretation of the definition of "partial disability" by which the jury had to be guided in answering special issue No. 9.
It will be observed that under the foregoing definition the jury could find that the plaintiff had suffered a partial disability without finding that he had suffered "a depreciation or deduction in his earning capacity". Under the definition, the jury was authorized to find partial disability if the *832 plaintiff was "able to procure and retain employment reasonably suitable to his physical condition and ability to work" even though he had suffered no depreciation in his earning capacity.
It follows that there is no fatal or irreconcilable conflict in the jury's answers to special issues Nos. 9 and 13, even when considered with the stipulation of the plaintiff's average weekly wages.
The definition used in this case was approved in Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991. We suggest, however, that the punctuation of the definition in the Holland case is more accurate in carrying out the intent of the Workmen's Compensation Act.
We assume that Judge Craik will set aside his order of mistrial and will enter judgment in favor of Indemnity Insurance Company of North America on the verdict of the jury. A writ of mandamus will issue only if he does not do so.
SMITH, CULVER, GREENHILL and STEAKLEY, JJ., concur in the result.
SMITH, Justice (concurring).
I respectfully file this concurring opinion. It is impossible for me to agree that the location of a comma in the trial Court's charge should be controlling. Regardless of the reason for some of the members of the Court suddenly deciding to go the comma route, I still believe that the law as declared in the Court's opinion of February 15, 1961, should be controlling. Therefore, the original opinion with additions now becomes the concurring opinion.
This Court is asked by Respondents to hold that "average weekly wages before the injury" is the equivalent of "average weekly wage earning capacity", as those terms are used in Sec. 11, Art. 8306, Rev. Civ.St.Tex.1925, Vernon's Ann.Civ.St. art. 8306, § 11. They request this holding notwithstanding that the statute itself defines "average weekly wage" as money actually earned, regardless of capacity to earn from a physical standpoint, availability of work or the numerous other factors affecting actual earnings. See Art. 8309, Sec. 1.
In order to afford Respondents relief, and hold as requested, this Court must:
(1) Rewrite Sec. 11, Art. 8306 and Sec. 1, Art. 8309; and
(2) Require that defendant's counsel argue plaintiff's case.
That this Court must rewrite the statute is clear, for under the provisions of the Workmen's Compensation Act above cited, the terms referred to are not equivalent. Respondents would have the Court substitute "average weekly wage earning capacity before the injury" for "average weekly wages before the injury".
Next, let us envision the sort of case presenting this controversy. Counsel have stipulated (or the jury may find) plaintiff's "average weekly wage" during the year immediately preceding the date of injury as $100 per week. There is proof, perhaps uncontroverted, that plaintiff has been regularly and continuously employed for the last several months at a wage of $110 per week. There is further evidence, hotly contested, that plaintiff has done his job well and on his own.
Plaintiff's counsel, in his opening argument to the jury, vigorously asserts that plaintiff was not actually able, i. e., hadn't the capacity, to earn $110 per week in a competitive labor market.
Defendant's counsel now argues to the jury. Must he argue that plaintiff's counsel is right, that plaintiff is in fact unable to earn $110 per week? Must he argue that his own witnesses are wrong? If this Court holds that a jury finding of $110 per week earning capacity during the last several months conflicts with the stipulation, defendant's attorney must so argue. He must argue that his witnesses are wrong, that plaintiff can't earn what he has in fact *833 earned, and request the finding of an amount less than the stipulated wage of $100 per week. Otherwise, a mistrial results. Defendant's attorney is in an intolerable position. He can lose or a mistrial can resulthe can't win!
And what of the trial court's position, bearing in mind respondents' continued cries for more speedy disposition of cases. Simply this, that the trial court will retire the jury for further deliberation in the event of inconsistent or conflicting findings in the usual case, thus avoiding a complete retrial of the cause. But if respondents' request is granted here, the trial court cannot do so. How can the trial court, without committing error, advise a jury that its finding of wage earning capacity during the period of partial incapacity is greater than some stipulation of average weekly wage of which the jury is not aware, and that they must therefore find some lesser amount? It cannot! The result the case must be tried again, with attendant expense to the courts and the litigants. And unless defendant's attorney argues plaintiff's case, the case must be tried again and again. Of course, plaintiff's counsel understandably desire such a ruling, but I submit that a ruling which produces this illogical result, and strikes to the heart of our adversary system of jurisprudence, would be insupportable.
A jury, in answering the special issues submitted to it on trial of a Workmen's Compensation case, finds among other things, the plaintiff's average weekly wages before the injury. This is defined for them in accordance with the definition of that term set forth in Section 1 of Article 8309, Revised Civil Statutes of Texas. Reference to that provision of the statute will show that by definition that term refers to money which the employee "shall have earned", or which another employee "shall have earned". Additionally, the jury determines the average weekly wage earning capacity during the period of partial incapacity. Conceivably, either or both of these two issues may be resolved by stipulation. But however they are resolved, the issue in the one instance deals with earnings and in the other instance with capacity. The two are not the same and could not possibly conflict.
For many years plaintiff's counsel in compensation cases have argued, and the Courts have uniformly sustained, the proposition that a man's earning capacity may be less than his actual earnings (Smith v. Consolidated Cas. Ins. Co., Tex.Civ.App., 290 S.W.2d 589); by the same token he may have the capacity to earn substantially more than his actual wages. In other words, plaintiff's counsel have for years argued that earning capacity and actual earnings are not the same, when arguing the question of disability. If earnings do not equal earning capacity, as this Court has held, then it follows that earning capacity does not equal earnings. The latter proposition is the entire premise upon which the alleged conflict rests. The employee's earning capacity while disabled must be less than his earning capacity prior to injury, but the jury does not pass on his earning capacity prior to injury. Instead, the jury finds "his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity". Article 8306, Sec. 11 (Emphasis added). The two are not always the same.
The earnings of an employee are influenced by many factors which do not affect his earning capacity. For example, the earnings of an employee engaged in the building trades may be influenced by the weather, labor disputes, and many other factors over which he personally has no control. In such an instance, the employee's wage earning capacity is not affected, while his actual earnings may well be.
The employee's average earning capacity before the injury is not equivalent to his average weekly wages prior to injury. Earning capacity corresponds to, but is not limited to, wages actually earned. Clearly then, the employee's average weekly wage earning capacity may be diminished *834 by injury, but remain greater than his average weekly wage earning.
The 1957 amendment to Art. 8306, Sec. 11 would be nullified by holding a conflict exists.
Prior to 1957, Article 8306, Sec. 11, of the Workmen's Compensation Law was as follows:
"Sec. 11. While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to sixty per cent (60%) of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity, but in no case more than Twenty-Five Dollars ($25) per week. The period covered by such compensation shall be in no case greater than three hundred (300) weeks; provided that in no case shall the period of compensation for total and partial incapacity exceed four hundred and one (401) weeks from the date of injury."
Despite this rather specific statutory language, the Court submitted the issue of partial incapacity in terms of percentage of physical incapacity. Under this interpretation, no issue was submitted concerning the employee's average weekly earning capacity during the period of disability, and the fact that the employee earned as much or more money while disabled than he had averaged for the past year was only some evidence on the issue of percentage of incapacity.
In 1957, the 55th Legislature amended Article 8306, Sec. 11, by adding the following sentence:
"Compensation for all partial incapacity resulting from a general injury shall be computed in the manner provided in this Section, and shall not be computed on a basis of a percentage of disability."
The Legislature's obvious intent in amending this Section was to reject the interpretation put on it by the Courts and to return to the method provided by the statute. In rejecting the percentage of disability method, the Legislature also rejected the Court's determination that "average weekly wages" was equivalent to average weekly wage earning capacity, under the Act. This is the only possible reason for rejecting the method of computing compensation by percentage of disability. If "average weekly wages" and average weekly wage earning capacity prior to injury were synonymous, the percentage of disability method of computing compensation and the statutory method would both give the same figure.
Respondents, who opposed this Amendment in the Legislature, now ask this Court to destroy the Amendment, having lost their legislative battle. They are more subtle, but the purpose is obvious!
Assuming that the present majority is essentially the same as the original dissent (Holland), the question recurs: In the actual application of Section 11, Article 8306, are "average weekly wages before the injury" and "his average weekly wage earning capacity during the existence of such partial incapacity" one and the same? The question is presented within the framework of a determination whether jury findings are in irreconcilable conflict and of course the question should be approached within this framework.
I repeat it is a basic principle that it is the duty of the court to reconcile allegedly conflicting findings if it is possible to do so. In the face of this basic principle, however, I find the majority in the Holland case taking the position that the legislature must have intended average weekly wages to equal average weekly wage earning capacity because, under subdivision 2 of Article 8309, the legislature said that A's average weekly wage earning capacity (even if he was a double amputee) was "what some other person had earned." In *835 other words, the majority says in support of its position that what Mr. Jones actually made in dollars and cents is the equivalent of Mr. Smith's physical earning capacity. I submit that this is not an attempt to reconcile supposedly conflicting jury findings and that the necessity for such a position to support another proposition is some indication of the weakness of the latter.
Whether there be a comma, semi-colon or a total absence of any mark of punctuation, in the definition of partial incapacity used by a particular trial court, it must be admitted that to sustain respondents' position in this cause will require the Court to add the word "incapacity" to the statute (Sec. 11, Article 8306) as written by the legislature, and that in so doing the Court is stepping beyond its province. The majority opinion does just thisin substance, the majority says that the purpose of the statute is to compensate for diminished earning capacity, referring to its decision in Clack, Texas Employers Ins. Ass'n v. Clack, 134 Tex. 151, 132 S.W.2d 399, and the legislature having done a poor job in writing the statute to effectuate the purpose of the statute as announced in the Clack decision, it must be revised or rewritten. There is no escape from the conclusion that if respondents' position is sustained, that Section 11 of Article 8306 will have been as effectively rewritten as if the legislature, by House Bill No. 1, had amended the Statute to insert the word "capacity" in the statute.
As the statute now reads, average weekly wage is not the same as average weekly wage earning capacity; they will be the same only if this Court is willing to in effect amend the statute to provide what it believes the legislature should have provided.
The relator, Indemnity Insurance Company of North America, seeks by way of writ of mandamus to require the Honorable Harold Craik, District Judge of the 153rd District of Tarrant County, to enter judgment on a verdict returned by the jury in the cause of Fred A. Mize v. Indemnity Insurance Company of North America, now pending in that court and to set aside his order therein of February 24, 1960, declaring a mistrial. That order is as follows:
"* * * After considering the briefs and argument of counsel, the Court finds that when the stipulation of the parties that the Plaintiff's average weekly wage was $86.80 is taken into consideration there is an irreconcilable conflict between the jury's answers to Special Issues Nos. 9 and 13, such issues and answers being as follows:
"`Special Issue No. 9:
"`Do you find from a preponderance of the evidence that the plaintiff has sustained or will sustain any partial disability as a result of the injury, if any, inquired about in Special Issue No. 1?
"`Answer "yes" or "no." Answer: Yes
"`If you have answered Special Issue No. 9 "no," you will not answer Special Issues Nos. 10, 11, 12 and 13; but if you have answered Special Issue No. 9 "Yes," then answer:
* * * * * *
"`Special Issue No. 13:
"`Find from a preponderance of the evidence the weekly wage earning capacity of the plaintiff during the period of such partial disability, if any, inquired about in Special Issue No. 9.
"`Answer in dollars and cents, if any.
"`Answer: $86.80;' and because of such irreconcilable conflict, and for no other reason, the Court is of the opinion that Defendant's First Amended Motion for Judgment on the Verdict should be overruled and *836 that plaintiff's Motion for Mistrial should be granted, * * *."
Thus, it is seen that the only reason given by the court for granting respondents' motion for mistrial was that the answer of the jury to Special Issue No. 9 that the plaintiff had sustained partial disability and the jury's answer to Special Issue No. 13 that the weekly wage earning capacity of the plaintiff during such period of partial disability was $86.80 were in irreconcilable conflict in view of the stipulation of the parties that the plaintiff's-respondent's average weekly wage was $86.80.
The controlling question to be decided here is: Do the jury findings on the record before us present an irreconcilable conflict such as to prevent the entry of a judgment?
Relator contends that no irreconcilable conflict exists. If that contention is correct, it follows that it was the ministerial duty of the trial judge to enter judgment on the verdict. Courts are vested with no discretionary power to set aside jury answers which are responsive to proper issues presented by the pleadings and submitted to the jury by the court. See Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296, and Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875.
Relator contends that the jury's finding of partial disability can be reconciled with the stipulation that respondent Mize's average weekly wages before the injury were $86.80 and the jury's finding that respondent Mize's average weekly wage earning capacity during the period of his partial disability was $86.80. We sustain this contention. We hold that the jury's finding of partial disability is not necessarily a finding of a reduction in earning capacity as contended by the respondents; "average weekly wages" is not and cannot be a measure of earning capacity; "average weekly wage earning capacity" is not the equivalent of "average weekly wages".
The argument of respondents that Article 8306, Sec. 11,[1] Vernon's Annotated Civil Statutes, under which the issues on partial disability were submitted affords support for the contention that the jury's finding of partial disability is necessarily a finding of a reduction in earning capacity is untenable. The jury answer and the stipulation when considered in the light of the statutes are not in irreconcilable conflict.
When it is claimed that there is a conflict in jury findings, "it is the duty of the trial court to reconcile apparent conflicts of the jury's findings if this can reasonably be done in the light of the pleadings and the evidence, the manner in which the issues were submitted, and in view of the other findings when considered as a whole." Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558, 562.
If there is a reasonable basis upon which jury answers may be reconciled, the courts should not strike down the answers on the ground of conflict. It is presumed that jurors intended to return an answer to each issue consistent with the pleadings and the evidence, and not in conflict with each other. See Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97.
Respondents urge that a finding of partial disability is equivalent to a finding *837 that the earning capacity has been diminished and squarely conflicts with the jury finding in effect that the earning capacity had not diminished or that it is the same as it was before the injury. The employee's earning capacity while disabled must be less than his earning capacity prior to injury, but the jury does not pass on his earning capacity prior to the injury. The jury in a properly submitted case finds "his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity". See Article 8306, supra. The two are not always the same. We reiterate that a finding of partial disability is not necessarily a finding of a reduction in earning capacity. Compensation is not awarded for an injury but only for a diminished earning capacity. See Texas Employers' Insurance Ass'n v. Swaim, Tex. Civ.App., 278 S.W.2d 600, wr. ref. n. r. e.; American Mutual Liability Insurance Co. v. Wedgeworth, Tex.Civ.App., 140 S.W.2d 213 wr. dism.; Texas Employers' Ins. Ass'n v. Hamilton, Tex.Civ.App., 95 S.W.2d 767, wr. dism.; Traders & General Insurance Co. v. O'Quinn, Tex.Civ.App., 111 S.W.2d 859, wr. ref.
While the jury found that the employee had suffered a partial disability, the extent of that disability is to be measured by the jury only in terms of the statutory formula. We cannot agree with respondents that the legislature "statutorily" assumed that the amount of wages paid an employee prior to his injury necessarily would represent his ability to earn that sum of money and that that sum represented his true "earning capacity" for purposes of applying the Compensation Act. To hold with the respondents would necessitate a rewriting of the pertinent statutes and a substitution of "average weekly wage earning capacity before the injury" for "average weekly wages before the injury." The legislature has used language in Section 11, Article 8306, supra, and Section 1 of Article 8309, Vernon's Annotated Civil Statutes, which unmistakably leads to the conclusion that "average weekly wages before the injury" is not the equivalent of "average weekly wage earning capacity." In this case, the parties stipulated as to Mize's average weekly wage rate at the time of the injury. The definition of "average weekly wage" before or at the time of the injury as contained in Section 1, Article 8309, supra, clearly refers to money which the employee "shall have earned", or which another employee "shall have earned". The question as to Mize's average weekly wage earning capacity during the period of partial incapacity was submitted to the jury. Whether these issues are determined by stipulation or by jury verdicts, the fact remains that "average weekly wage" deals with earnings and "average weekly wage earning capacity" deals with capacity. The word "capacity" does not appear in the definition of "average weekly wages."
In 1957, the legislature amended Section 11, Article 8306, supra, in two particulars. The amendment pertinent here is the addition of the sentence"Compensation for all partial incapacity resulting from a general injury shall be computed in the manner provided in this Section, and shall not be computed on a basis of a percentage of disability." This amendment manifests the clear intention of the legislature to reject the "percentage of disability" method of submission to juries, and to forestall any possibility of a holding by the courts that "average weekly wages" is equivalent to "average weekly wage earning capacity" under the Act.
Respondents rely upon the case of Maryland Casualty Company v. Drummond, Tex. Civ.App.1938, 114 S.W.2d 356, wr. ref. In that case Drummond, the claimant, was seeking weekly compensation. The court held that his weekly compensation must be fixed under Section 1, first subdivision *838 3[2] of Article 8309, Vernon's Annotated Civil Statutes. Subdivision 3 was applicable for the reason that the jury had found in response to proper issues that Drummond had not been employed for substantially the whole of the preceding year, and that there was not any other employee of the same class who had been working substantially the whole of the year in the same or similar employment in the vicinity in which Drummond had been employed. It was the duty of the trial court under the evidence to fix his compensation "in any manner which may seem just and fair to both parties." The insurer was contending that the trial court had unduly limited the scope of the inquiry, and had not taken into consideration evidence that while the injured employee was working at the time of the injury as an unskilled laborer, yet, if permitted, it could be shown that he was, in fact, a skilled electrician and mechanic, and that compensation should be fixed on the basis of earning capacity as a skilled laborer.
In the Drummond case there was involved a different question than the one presented here. However, we fail to find language which would even indicate that the court was of the opinion that "average weekly wages before the injury" was and is equivalent to "average weekly wage earning capacity". There is no holding in the opinion which directly or by implication tends to run contrary to the holding herein made that "average weekly wages before the injury" is not the equivalent of "average weekly wage earning capacity". This is equally true as to the case of Employers' Insurance Ass'n v. Clack, 134 Tex. 151, 132 S.W.2d 399, cited by the respondents in the case of Employers Reinsurance Corporation v. Holland, District Judge et al.
The amount of earnings and wages paid and received subsequent to the injury may be considered as evidentiary of earning capacity, but such evidence is not conclusive. See Consolidated Casualty Ins. Co. v. Smith, Tex.Civ.App., 309 S.W.2d 80, wr. ref. n. r. e. This is the only logical conclusion that can be reached in this case, especially in view of the definition of partial disability[3] given in the court's charge, and the provisions of Section 11, Article 8306, supra. This section provides that compensation for partial incapacity for work shall be computed on the basis of 60 per cent of the difference between the "average weekly wages" before the injury and the "average weekly wage earning capacity" during the existence of such partial incapacity and in no other manner.
It should be noted that the definition of "partial disability", supra, is stated clearly in the alternative. The definition as given in the court's charge finds approval in Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991. The first alternative is whether by reason of the injury the employee "is only able to perform part of the usual tasks of a workman, but, nevertheless, he is able to procure and retain employment reasonably suitable to his physical condition and ability to work." The second is "or he is only able to perform *839 labor of a less remunerative class than he performed prior to his injury, whereby he suffers a depreciation or deduction in his earning capacity." Under this definition, it was reasonable for the jury to think there was no conflict in its answers. It is not unreasonable to conclude that the jury in finding "partial incapacity" intended by that answer to find only that Mize was "* * * only able to perform part of the usual tasks of a workman, but, nevertheless, he is [was] able to procure and retain employment reasonably suitable to his physical condition and ability to work * * *." Such a finding would not and does not conflict with the finding by the jury that Mize had a weekly earning capacity of $86.80 after April 28, 1958, the date of the injury.
Under Section 1, Article 8309, Vernon's Annotated Civil Statutes, "average weekly wages" as defined in subparagraph 1, involves a computation based upon the earnings of the claimant in the employment in which he was engaged at the time he was injured. "Average weekly wage earning capacity", however, is not so confined by statute. The jury in making this determination may consider any essential fact which bears upon the claimant's earning capacity, including his actual earnings after the injury. To hold otherwise would in a sense place the court in a position of seeking obstacles between jury findings rather than following its duty to reconcile conflicts if at all reasonably possible to do so.
Under the terms of Section 11, Article 8306, supra, partial incapacity is compensable only if there is a difference between the "average weekly wages" before the injury and the "average weekly wage earning capacity" during the existence of partial incapacity. Since the jury in this case has found "no difference", the injury is noncompensable. See Texas Employers' Insurance Ass'n v. Upshaw, Tex.Civ.App., 329 S.W.2d 144, wr. ref. n. r. e.
Respondents rely upon the case of Fidelity & Casualty Co. of New York v. Stephenson, Tex.Civ.App., 325 S.W.2d 461, 463. The Court of Civil Appeals there held the jury's findings to be in conflict and denied the application for the writ of mandamus. This holding was made in the light of the definition of "partial incapacity" or "partially incapacitated"[4] as contained in the court's charge. It is to be noted that the definition is differently framed. Whether or not the court was correct in its holding is immaterial. It is sufficient to say that the decision is not sufficiently persuasive to induce us to reach the same result here.
For the reasons stated, the petition for writ of mandamus is granted, and the trial court is directed to set aside its order of mistrial, reinstate the jury verdict, and to proceed to a further trial and to the entry of a judgment in a manner not inconsistent with this opinion.
NOTES
[1] "While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to sixty per cent (60%) of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity, but in no case more than Thirty-five Dollars ($35) per week. The period covered by such compensation shall be in no case greater than three hundred (300) weeks; provided that in no case shall the period of compensation for total and partial incapacity exceed four hundred and one (401) weeks from the date of injury. Compensation for all partial incapacity resulting from a general injury shall be computed in the manner provided in this Section, and shall not be computed on a basis of a percentage of disability."
[2] "3. When by reason of the shortness of the time of the employment of the employee, or other employees engaged in the same class of work in the manner and for the length of time specified in the above Subsections 1 and 2, or other good and sufficient reasons it is impracticable to compute the average weekly wages as above defined, it shall be computed by the Board in any manner which may seem just and fair to both parties."
[3] "By the term `partial disability' is meant disability less than total where an employee, by reason of injuries sustained in the course of his employment, is only able to perform part of the usual tasks of a workman, but, nevertheless, he is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or he is only able to perform labor of a less remunerative class than he performed prior to his injury whereby he suffers a depreciation or deduction in his earning capacity." (Page 3, Exhibit 3 to Relator's Petition).
[4] "Where an employee by reason of any injury sustained in the course of his employment is only able to perform part of his regular labor, or a less remunerative class than he performed prior to his injury, whereby he suffers a depreciation or reduction in his ability to work and earn money." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858975/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-017-CV
JIMMY GEORGE HUGHES,
APPELLANT
vs.
SANDRA A. AUTRY, SUCCESSOR TO EUGENE A. BRODHEAD, RECEIVER
FOR NATIONAL COUNTY MUTUAL FIRE INSURANCE COMPANY,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. 91-2360, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
PER CURIAM
Appellant, Jimmy George Hughes, appeals from the trial court's summary judgment
granted in favor of appellee Sandra A. Autry, successor to Eugene A. Brodhead, receiver for
National County Mutual Fire Insurance Company. We will reverse the trial court's judgment.
I. BACKGROUND
Hughes suffered severe injuries when the vehicle in which he was riding was
involved in a head-on collision with a vehicle driven by Julie Collette Holveck. The Holveck
vehicle was insured under a general liability policy issued by National County Mutual Fire
Insurance Company (National). (1) In May 1989, National was placed in receivership and Stephen
S. Durish was appointed as receiver for National. (2) See Tex. Ins. Code Ann. art. 21.28, § 2 (West
Supp. 1994). (3) Hughes timely filed a proof of claim with the receiver in the amount of $30,000
against the assets of the receivership estate. See § 3(a). On November 13, 1990, Hughes received
notice that the receiver had rejected his claim in part. See § 3(h). On February 14, 1991, Hughes
filed suit for damages, alleging the receiver negligently evaluated his claim and failed and refused
to pay the claim in good faith. The receiver answered and subsequently filed a motion for
summary judgment. Hughes did not file a response. On October 13, 1992, the trial court heard
the motion. Hughes did not appear at the hearing. The trial court granted summary judgment in
favor of the receiver. Hughes filed motions for new trial on November 12 and November 16,
1992. The trial court, in a written order, denied Hughes' motions for new trial. By two points
of error, Hughes appeals from the summary judgment. (4)
II. DISCUSSION
In his first point of error, Hughes asserts that the trial court erred in granting
summary judgment because a genuine issue of material fact existed as to whether he timely filed
his petition against the receiver. The standard for reviewing a summary judgment is well
established. The movant for summary judgment has the burden of showing that no genuine issue
of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether
there is a disputed material fact issue precluding summary judgment, evidence favorable to the
nonmovant will be taken as true. This Court must indulge every reasonable inference in favor of
the nonmovant and resolve any doubts in its favor. Nixon v. Mr. Property Management Co., 690
S.W.2d 546, 548-49 (Tex. 1985).
Hughes did not file a response to the motion for summary judgment. Thus, the
only contention he may raise on appeal is that the grounds expressly presented to the trial court
by the movant's motion are insufficient as a matter of law to support summary judgment. City
of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
The receiver's motion for summary judgment is based on the sole ground that
Hughes' claim was barred by limitations under Texas Insurance Code article 21.28, section (3)(h).
The receiver must prove all essential elements of her affirmative defense as a matter of law. See
id. Thus, the receiver's summary-judgment proof must establish as a matter of law that Hughes
did not timely file his petition.
Section 3(h) provides, in pertinent part:
Upon the rejection of each claim either in whole or in part, the receiver shall notify
the claimant of such rejection by written notice. Action upon a claim so rejected
must be brought in the court in which the delinquency proceeding is pending within
three (3) months after service of notice; otherwise, the action of the receiver shall
be final and not subject to review.
Whether Hughes timely filed his petition turns on whether service of notice is complete when
mailed or when Hughes received the notice. Section 3(h) does not define "service of notice" or
when notice is effective. Id.; see also Khalaf v. Odiorne, 767 S.W.2d 856, 857 (Tex.
App.--Austin 1989, writ denied).
The receiver argues service of notice was completed and the limitations period
began to run when the rejection notice was mailed, citing Whitson v. Harris, 792 S.W.2d 206,
208 (Tex. App.--Austin 1990, writ denied) (notice requirements of section 3(h) are satisfied by
mailing notice via first-class mail without proof of receipt unless receivership court orders
otherwise). In Whitson, however, we did not hold that the limitations period of section 3(h)
begins to run when the rejection notice is mailed. Moreover, for the reasons set forth below, we
conclude that under the facts of this case, the limitations period should not be calculated from the
date the rejection notice was mailed.
This Court has twice discussed methods of service of notice under section 3(h).
In Khalaf, we said that the receiver's notice of rejection of claims should be in a manner
determined by the receivership court. See Khalaf, 767 S.W. 2d at 858 (receivership-court order
specified that mailing via first-class mail was sufficient proof of notice). Khalaf does not help
here, however, because the receivership-court did not specify the manner of service of notice.
In Whitson, this Court said that unless the receivership court orders a different manner of notice,
service of notice by first-class mail satisfies the statutory notice requirement of section 3(h); proof
of receipt of that notice is not required. (5) Whitson, 792 S.W.2d at 208 (emphasis added). This
conclusion governing the fact of notice does not preclude a party from presenting proof of when
the notice is actually received for the purpose of establishing the limitations period. (6)
We hold that if a party can prove the date notice was actually received, service of
notice is complete when received and limitations begins to run on that date. In summary, unless
the receivership court orders a different manner of service, service of notice by first-class mail
satisfies the statutory notice requirement of section 3(h) and proof of receipt of that notice is not
required; but if a party can prove the date notice was actually received, service of notice is
complete when received and limitations begins to run on that date.
The receiver's summary-judgment proof shows that the receiver's rejection notice
was sent certified mail, return receipt requested and establishes as a matter of law that Hughes
received notice on November 13, 1990, informing him that his claim had been rejected in part.
Accordingly, the limitations period of section 3(h) began to run when the rejection notice was
received. We must now determine whether Hughes filed his original petition within three months
of receipt of the receiver's rejection notice.
Section 3(h) provides that an action on a claim rejected by the receiver must be
brought in the court in which the delinquency proceeding is pending. The delinquency proceeding
against National was brought in a Travis County district court. Thus, the Texas Rules of Civil
Procedure govern the filing of Hughes' action on his rejected claim. See Tex. R. Civ. P. 2.
Accordingly, Texas Rule of Civil Procedure 4 applies in computing the limitations period for the
filing of Hughes' claim. (7)
Rule 4 provides, in pertinent part, "In computing any period of time prescribed or
allowed by these rules, by order of court, or by any applicable statute, the day of the act, event,
or default after which the designated period of time begins to run is not to be included." Tex. R.
Civ. P. 4 (emphasis added). Hughes received the receiver's rejection notice on November 13,
1990. Under Rule 4, the three-month limitations period ran from the day after Hughes received
notice, November 14. Thus, Hughes had until February 14, 1991, to file suit. See Tex. Govt.
Code Ann. § 312.011(7) (West 1988) ("month" means a calendar month).
Hughes original petition was filed on February 14, 1991, within three months after
he received the rejection notice. Thus, the receiver has not shown as a matter of law that Hughes
failed to file his petition timely. Accordingly, the receiver has not shown that she is entitled to
summary judgment as a matter of law based on the ground that limitations had run under section
3(h). We sustain point of error one. Because of our disposition of Hughes' first point of error,
we need not address his second point of error.
III. CONCLUSION
The trial court's judgment is reversed and the cause is remanded to the trial court.
Before Chief Justice Carroll, Justices Kidd and B. A. Smith
Reversed and Remanded
Filed: April 13, 1994
Publish
1. 1 These facts are drawn from appellant's brief. Tex. R. App. P. 74(f) (any statement by
appellant in original brief as to facts or record may be accepted by court as correct unless
challenged by opposing party).
2. 2 Eugene A. Brodhead succeeded Durish as receiver, and Autry succeeded Brodhead as
receiver.
3. 3 All subsequent references to article 21.28 of the Texas Insurance Code are to the applicable
section and subsection of the article only.
4. 4 Hughes' original petition named as defendants National, Durish, and Richard Holveck. On
November 24, 1993, we ordered this appeal abated as premature, because the order appealed from
did not dispose of National or Holveck and did not contain a "Mother Hubbard" clause. See
Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993) (if summary-judgment order appears to be
final, as evidenced by inclusion of language purporting to dispose of all claims or parties,
judgment should be treated as final for purposes of appeal); North E. Indep. Sch. Dist. v.
Aldridge, 400 S.W.2d 893, 895 (Tex. 1986); Tingley v. Northwestern Nat'l Co., 712 S.W.2d 649,
650 (Tex. App.--Austin 1986, no writ) (final judgment must dispose of all issues and parties in
case). Hughes subsequently filed with this Court a supplemental transcript containing his nonsuit
of National and Holveck. Accordingly, that portion of our November 24, 1993, order abating the
appeal terminated.
5. 5 Hughes argues the receiver did not carry her burden of proof to show that the receivership
court did not order a different manner of service by offering summary-judgment proof that "there
were no other Orders presented by the Court which required any other method of service on the
Plaintiffs." The receiver's summary-judgment proof includes the receivership court's final order,
which does not specify the manner of service of notice. If other orders exist requiring a method
of service, it was Hughes' burden to present proof creating a fact issue. The movant need not
negate all possible issues of law or fact that could be raised by the nonmovant in the trial court
but were not. Clear Creek, 589 S.W.2d 578-79.
6. 6 Texas Rule of Civil Procedure 21a, which provides that service by mail is complete on
deposit in a post office or official depository under the care and custody of the United States
Postal Service, also provides that a party is not precluded from offering proof that notice was not
received within three days from the date of deposit and that on so finding the court may extend
the time for taking the action required of such party. Rule 21a does not apply here, however,
because the mailing of the rejection notice is not a procedure in the justice, county, or district
court. Tex. R. Civ. P. 2. (rules govern procedure in justice, county, and district courts of State
of Texas in all actions of civil nature).
7. 7 The receiver cites Harper v. American Motors Corp., 672 S.W.2d 44 (Tex. App.--Houston
[14th Dist.] 1984, no writ), for the proposition that Rule 4 does not apply in computing the
limitations period. In Harper, Rule 4 and a statutory limitations provision provided conflicting
methods for computing the last day of a limitations period when the last day fell on a Saturday,
Sunday, or legal holiday. In that situation, the court said that when a rule of court conflicts with
a legislative enactment, the rule must yield. Harper, 672 S.W.2d at 45. We distinguish Harper
from the case at hand because Rule 4 does not conflict with section 3(h), which is silent regarding
computation of time. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1576718/ | 346 S.W.2d 30 (1961)
DIXIE OHIO EXPRESS COMPANY, Appellant,
v.
EAGLE EXPRESS COMPANY et al., Appellee.
Susie GOINS, Administratrix of the Estate of Bruce Goins, Appellant,
v.
EAGLE EXPRESS COMPANY et al., Appellee.
Court of Appeals of Kentucky.
April 21, 1961.
*31 Stoll, Keenon & Park, Lexington, Pat Rankin, Stanford, Viley Blackburn, Somerset, for appellant Dixie Ohio Express Co.
Pleas Jones, Williamsburg, Pat Rankin, Stanford, for appellant Susie Goins, Adm'x.
Denney & Landrum, Lexington, James F. Clay, Danville, Fritz Krueger, Somerset, T. J. Hill, Stanford, John C. Denny, Jr., Monticello, for appellee.
CULLEN, Commissioner.
In a collision involving three semitrailer trucks the trucks were extensively damaged and two of the drivers were killed. Dixie Ohio Express Company, owner of one of the trucks, and Susie Goins, administratrix of the estate of Bruce Goins, driver of the Dixie truck, sued Eagle Express Company and Dunnington Milling Company, owners of the other two trucks, and Victor Hall, driver of the Eagle truck. Eagle and Dunnington counterclaimed against Dixie for damages to their trucks, but did not cross-claim against each other. Hall was not injured and therefore did not assert any counterclaim.
The trial court directed a verdict in favor of Dunnington on the claims of the two plaintiffs, but submitted to the jury the issue on Dunnington's counterclaim. The court also submitted to the jury the issues on the plaintiffs' claims against Eagle and Hall and on Eagle's counterclaim against Dixie. The jury found against the plaintiffs on their claims against Eagle and Hall, and found for Eagle and Dunnington on their counterclaims, awarding each of them around $8,000 in damages. Judgment was entered accordingly. Dixie and Goins' administratrix have appealed. Eagle filed notice of a cross-appeal but did not perfect it, so the arguments in the briefs with reference to the merits of the cross-appeal will not require consideration. See Hall v. Hall, Ky., 328 S.W.2d 541.
The collision occurred in daylight in a rural area on a two-lane federal highway. The Eagle and Dunnington trucks were proceeding north, the Eagle truck being in front at the time of the collision. The Dixie truck was headed south. The Dixie and Eagle trucks collided first, and then the Dixie and Dunnington trucks collided.
The only evidence of negligence on the part of the driver of the Dunnington truck was that he may have been following within 250 feet of the Eagle truck in violation of KRS 189.340(7) (b). The appellants maintain that violation of a safety statute is negligence as a matter of law, and since there was evidence to have warranted the jury in finding that there was a violation of the above statute the trial court erred in directing a verdict for Dunnington on the plaintiffs' claims. This contention is not sustainable because it has been held as a matter of law that the violation of this statute has no causal connection with an accident involving a collision *32 of the violating vehicle with a vehicle approaching from the opposite direction. Tupts v. Judy, Ky., 272 S.W.2d 335; Greathouse v. Mitchell, Ky., 249 S.W.2d 738.
The appellants contend that the trial court erred in refusing to give offered instructions as to the duty of the driver of the Eagle truck in overtaking or attempting to overtake the Dunnington truck, and his duty to have his truck under control if his view was obstructed within a distance of 150 feet. We find no error here. The first of these instructions was neither necessary nor proper because there was no evidence that the Eagle truck was overtaking or attempting to overtake the Dunnington truck. The second was unnecessary because the court gave a general instruction on the duty of the driver to keep his truck under control.
Further contentions of the appellants are that the court should have given an instruction on the duty of the driver of the Eagle truck to sound his horn, and a last clear chance instruction. We will consider these two requested instructions together, because the argument with respect to last clear chance is that the driver of the Eagle truck could have averted the accident by sounding his horn to alert the driver of the Dixie truck to the fact that the latter was on the wrong side of the road. The argument is based on the testimony of the driver of the Eagle truck.
The testimony of the driver was that he first observed the Dixie truck approaching him when it was 175 yards away. At this point the Dixie truck was on its right side. When the two vehicles "had traveled half the distance we were apart before" (which would be around 90 yards) or when the Dixie truck "had covered 125 yards" (which would put the two vehicles within 50 yards of each other) the Dixie truck came across the center line on the wrong side of the road. At this point the trucks were each traveling around 45 miles per hour. The Eagle driver put on his brakes and turned onto the shoulder on his side of the road so that his truck was practically off the road (it is not clear from his testimony whether he did this immediately upon seeing the Dixie truck cross the center line or whether the two vehicles had approached closer together before he realized that the Dixie truck was not going to return to its side of the road). He did not sound his horn. The Dixie truck hit his truck when he had almost come to a stop with most of his truck on the shoulder.
Two vehicles approaching each other at 45 miles per hour will close the distance between them at the rate of some 130 feet per second. Under the Eagle driver's testimony the Dixie truck was at the most 90 yards (270 feet) away when it crossed the center line. So it appears that a little over two seconds elapsed between the time the Dixie truck crossed the line and the time the vehicles collided. The driver of the Eagle truck cannot be charged with immediate awareness of the fact that the crossing of the line by the Dixie truck was not merely a momentary swerving from its course but would continue as a result of its driver's inattentiveness. See Ratliff v. Mayo, Ky., 290 S.W.2d 479. He was entitled to some reaction time. He did react promptly and head for the shoulder. It is our opinion that no reasonable person could say that he had a "clear chance" to avoid the collision by sounding his horn. Even had he sounded his horn there was only a remote possibility that the Dixie driver could have reacted and recovered in time to so change the course of his truck as to avoid the collision. We conclude that the appellants were not entitled to a last clear chance instruction or an instruction on the duty of the Eagle driver to sound his horn.
The final contention of the appellants relates to alleged error by the trial court in overruling a motion by Dixie for leave to file an amended complaint, some six months after the action was begun, making the administratrix of the estate of the driver of the Dunnington truck a party defendant. *33 About the same time that the instant action was commenced the administratrix of the estate of the driver of the Dunnington truck filed an action in the federal court against Dixie. No counterclaim was filed by Dixie in the federal court action. It appears that the trial court in the instant action overruled the motion to make the administratrix a party on the theory that under Federal Rule 13(a) any claim Dixie had against the administratrix arising out of the accident in question was required to be asserted as a compulsory counterclaim in the federal court action, and not having been so asserted it could not be sued on in the state court.
The question presented is a difficult one. It would appear at first impression that since our Civil Rule 13.01 is identical with and expresses the same policy as the Federal Rule, as a matter of comity and policy our courts should refuse to entertain an action on a claim which under the Federal Rule should have been asserted as a counterclaim in a pending action in federal court. But comity is not accorded generally between the federal and state courts with respect to primary claims in actions in personam, the accepted rule being that a person may bring actions in both a federal and a state court on the same claim. See Kline v. Burke Construction Company, 260 U.S. 226, 43 S. Ct. 79, 67 L. Ed. 226. If a plaintiff may sue in both courts on his claim, why should a defendant be restricted on his claim to asserting it as a counterclaim in the action first brought against him? The Tennessee Supreme Court, in Hubbs v. Nichols, 201 Tenn. 304, 298 S.W.2d 801, held that a person who had been sued in a federal court for damages arising out of an automobile accident was not barred, by his failure to assert a counterclaim in the federal court action, from maintaining a suit in the state court for his own damages arising out of the accident.
We concur in the view of the Tennessee Court and it is our opinion that Dixie was not barred from suing the administratrix in the Kentucky courts by the mere fact that there was an action pending in the federal court in which, under the Federal Rules, Dixie's claim should have been asserted as a counterclaim.
This holding does not mean, however, that the judgment must be reversed. In the first place, the administratrix was not an indispensable party and the motion to join her as a party was not made until some six months after the action was commenced; accordingly, the court had discretion in the matter. In the second place, the appellant Dixie has not shown any prejudice, and we perceive no possible prejudice, resulting from the refusal to permit the administratrix to be made a party. No evidence was presented in the action to show causal negligence on the part of the Dunnington driver and the presence of the administratrix as a party would not have made any more proof available, so Dixie could not have recovered against the administratrix in any event.
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576739/ | 325 N.W.2d 285 (1982)
Howard R. YUSTEN and Viola S. Hooley, Plaintiffs and Appellees,
v.
Noelyn G. MONSON, Defendant and Appellant.
Civ. No. 10214.
Supreme Court of North Dakota.
October 25, 1982.
*286 Sproul, Lenaburg, Fitzner & Walker, Valley City, for plaintiffs and appellees; argued by Dean E. Lenaburg, Valley City.
Ployhar, Thorson & Weisenburger, Valley City, for defendant and appellant; argued by Roger R. Weisenburger, Valley City.
ERICKSTAD, Chief Justice.
Defendant/appellant, Noelyn G. Monson, is appealing from a judgment entered by the District Court of Barnes County, declaring a judgment against him in the amount of $12,187, together with costs and interest thereon. For the reasons hereinafter stated, we affirm the judgment of the district court.
On October 13, 1959, Howard R. Yusten, as administrator of the estate of Emma C. Yusten, recovered a judgment in the amount of $12,187, together with costs and interest thereon, against Monson in the Circuit Court, Clay County, South Dakota. This judgment was subsequently assigned to plaintiffs/appellees, Howard R. Yusten and Viola S. Hooley.
On October 2, 1979, the plaintiffs commenced an action in the Circuit Court, Clay County, South Dakota, against Monson on the October 13, 1959, judgment. A summary judgment was entered against Monson in that action on December 12, 1980.
In the case at bar, plaintiffs are attempting to enforce the 1980 South Dakota judgment in Barnes County, North Dakota, pursuant to Section 28-20.1-06[1] of the Uniform Enforcement of Foreign Judgments Act. Thus, the sole issue to be determined is whether or not the December 12, 1980, South Dakota judgment is entitled to full faith and credit in North Dakota.
On appeal, Monson argues that under South Dakota law the 1980 judgment is not a new judgment but rather a revival of the 1959 judgment. It is further contended that a revived judgment merely extends the statutory period in which to enforce the original judgment; hence, enforcement of the 1980 judgment is barred by North Dakota's ten-year statute of limitations.[2]See, Union National Bank of Witchita, Kansas v. Lamb, 337 U.S. 38, 69 S. Ct. 911, 93 L. Ed. 1190 (1949), reh. den. 337 U.S. 928, 69 S. Ct. 1492, 93 L. Ed. 1736 (1949).
However, we have been referred to no South Dakota statutes or cases which require us to classify the 1980 judgment as a revived judgment rather than a new judgment. In fact, the only South Dakota authority cited to us is to the contrary. The South Dakota Supreme Court in McMahon v. Brown, 66 S.D. 134, 279 N.W. 538 (1938) held that recovery on a judgment can be prolonged beyond South Dakota's twenty-year statute of limitations[3] by bringing an action on the judgment and securing a new judgment. Inasmuch as the 1980 judgment arose from an action brought on the 1959 *287 judgment, it unequivocably constitutes a new judgment in South Dakota. As it is a new judgment there, to give it full faith and credit[4] here, North Dakota's statute of limitations must begin to run from the date of the new judgment and not from the date of the original judgment. This is consistent with Section 28-20.1-06, N.D.C.C.
We therefore affirm the judgment of the district court.
SAND, VANDE WALLE and PEDERSON, JJ., and A.C. BAKKEN, District Judge, concur.
BAKKEN, District Judge, sitting in place of PAULSON, J., disqualified.
NOTES
[1] Section 28-20.1-06, N.D.C.C., reads as follows:
"28-20.1-06. Optional procedure.The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this chapter remains unimpaired."
[2] An action brought in North Dakota upon a judgment of a sister state is governed by our ten-year statute of limitations. § 28-20.1-02, N.D.C.C.; § 28-01-15, N.D.C.C.
[3] Section 15-2-6, South Dakota Compiled Laws Annotated (1967) reads in pertinent part:
"15-2-6. Actions to be brought within twenty years of accrual of cause.Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within twenty years after the cause of action shall have accrued:
(1) An action upon a judgment or decree of any court of this state;" § 15-2-6, SDCL 1967.
[4] Article IV, Section 1, of the United States Constitution provides:
"Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576758/ | 35 So. 3d 519 (2009)
GULF SOUTH PIPELINE COMPANY, LP, Appellant/Cross-Appellee,
v.
Blanche Marie Downey PITRE, Appellee/Cross-Appellant.
No. 2007-CA-01308-COA.
Court of Appeals of Mississippi.
March 10, 2009.
Rehearing Denied July 21, 2009.
*520 Trey Bourn, Jackson, Robert C. Galloway, Gulfport, Leann W. Nealey, Jackson, attorneys for appellant.
David M. Sessums, Vicksburg, attorney for appellee.
Before LEE, P.J., GRIFFIS and BARNES, JJ.
LEE, P.J., for the Court.
FACTS AND PROCEDURAL HISTORY
¶ 1. Gulf South Pipeline Company, LP (Gulf South) filed a complaint in the Special Court of Eminent Domain of Warren County against Blanche Marie Downey Pitre to acquire by eminent domain a right-of-way and easement through her property in Warren County, Mississippi, near the City of Vicksburg. The easement Gulf South sought to obtain was a permanent easement of approximately 5.59 acres of land for a forty-two inch gas pipeline.
¶ 2. A trial was held to determine the total amount of compensation due to Pitre. Gulf South presented the expert testimony of Brent Johnston, an appraiser, who testified that the value of the land taken for the easement was $38,250. Johnston opined that the value of the remainder of the property, including the house and workshop, would not decrease.
¶ 3. James Hamilton, the expert hired by Pitre, testified that the value of the land and damages to the remainder of the property was $175,000. Using the sales comparison approach, Hamilton determined that the fair market value of the property before the installation of the pipeline was $840,905, and the fair market value of the property after the installation of the pipeline would be $667,261. Hamilton also determined that the value for the temporary easement which would be needed during construction of the pipeline would be $3,751. The difference between the estimated before fair market value and after fair market value with the temporary easement included totaled $177,395, which Hamilton rounded to $175,000. Gulf South moved to limit or strike Hamilton's testimony as having no reliable foundation. The trial court denied Gulf South's motion.
¶ 4. After a two-day trial, nine of the twelve jurors returned a verdict in favor of Pitre for $175,000. Gulf South moved for a judgment notwithstanding the verdict (JNOV), which was denied. Gulf South now appeals, asserting the following issues: (1) the trial court erred in allowing the jury to consider Hamilton's testimony, and (2) the trial court erred in denying Gulf South's motion for a JNOV and not entering a judgment for $38,250.
¶ 5. Pitre cross-appeals, asserting the following issues: (1) the trial court erred *521 in holding that she waived her right to file a motion to dismiss; (2) the trial court erred in ruling that the only issue to be decided was the value of the property; (3) the trial court erred in granting Gulf South the right of entry; and (4) the trial court erred in excluding evidence relating to the devaluing of the property.
¶ 6. Finding no error, we affirm.
STANDARD OF REVIEW
¶ 7. The "standard of review for the trial court's admission or suppression of evidence, including expert testimony, is abuse of discretion." Tunica County v. Matthews, 926 So. 2d 209, 212(¶ 5) (Miss. 2006). "Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand." Id. at 212-13(¶ 5) (quoting Crane Co. v. Kitzinger, 860 So. 2d 1196, 1201(¶ 20) (Miss.2003)). "The party offering the expert's testimony must show that the expert has based his testimony on the methods and procedures of science, not merely his subjective beliefs or unsupported speculation." Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31, 36(¶ 11) (Miss.2003).
DISCUSSION
I. DID THE TRIAL COURT ERR IN ALLOWING PITRE'S EXPERT TO TESTIFY AS TO THE DECREASE IN VALUE OF THE PROPERTY CAUSED BY THE PIPELINE?
II. DID THE TRIAL COURT ERR IN DENYING GULF SOUTH'S MOTION FOR A JNOV AND MOTION TO ENTER A JUDGMENT OF $38,250?
¶ 8. Gulf South argues that Hamilton's testimony should have been limited or excluded because it was based on unsupported speculation.
¶ 9. Taking into consideration the property's highest and best use, Hamilton examined the property under the cost approach, the market data or sales comparison approach, and the income approach. Hamilton determined that the sales comparison approach was the best indicator of the fair market value of Pitre's property. Hamilton analyzed six land sales in Warren County between 2004 and 2007 and made the appropriate adjustments to determine the market value of the property without the pipeline. However, Hamilton was not able to find any land in the area that had sold with a pipeline on it to use as a comparison to determine the after fair market value of the property. Despite not having comparable land sales, the trial court allowed Hamilton to testify.
¶ 10. To determine the value of the property with the pipeline running through it, Hamilton used percentages that, in his opinion, reflected how much the property would decrease in value. Hamilton testified that once the pipeline was installed, the value of the remaining land not subject to the easement would decline by fifteen percent; the workshop would decline in value by thirty percent; and the house would decline in value by twenty percent. He determined that the workshop would lose the most value because it was closest to the pipeline, and that the house would not lose as much value as the workshop because it was further away from the pipeline. Gulf South argues that the percentages used by Hamilton were arbitrary and should have been excluded.
¶ 11. Gulf South's expert, Johnston, determined that the value of the property would decline zero percent after the installation of the pipeline. No indication was given as to how this percentage was reached, but Johnston's testimony was still deemed admissible by the trial court. *522 Like Hamilton, Johnston was not able to provide any comparable sales for property that had sold with an installed pipeline on it. Regardless, Gulf South argues that Johnston's testimony was properly admitted, but without any comparables, Hamilton's testimony should have been excluded because the burden of proof was different for Pitre than Gulf South.
¶ 12. In determining the admissibility of expert testimony, Mississippi uses the standard initially laid out by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and later modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 158, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). McLemore, 863 So.2d at 39 (¶ 22-24). That standard is a two-pronged test. Id. at 38(¶ 16). For expert testimony to be admissible, it must be both relevant and reliable. Id. The testimony is relevant if it will "assist the trier of fact to understand the evidence or to determine a fact in issue." M.R.E. 702. In determining whether the principles and methods used are reliable, Daubert provides "an illustrative, but not an exhaustive, list of factors" that trial courts may use in assessing the reliability of expert testimony. McLemore, 863 So.2d at 38(¶ 16) (quoting Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.2002)). The Daubert factors include:
whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique's operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community.
Id. at 37(¶ 13) (citing Daubert, 509 U.S. at 592-94, 113 S. Ct. 2786). "Depending on the circumstances of the particular case, many factors may be relevant in determining reliability, and the Daubert analysis is a flexible one." Id. at 38(¶ 16). The trial judge serves as a gatekeeper on questions of admissibility of expert testimony. Id. at 40(¶ 25).
¶ 13. Hamilton testified that he had been in the real estate business for fifty-one years, and he had been a certified appraiser for at least fifteen years. He testified that he was certified in three states and had testified as an expert in forty or fifty eminent domain cases. Hamilton testified that since it was impossible to use a formula to calculate the damage to the property, the appraisal was based on his opinion, which was formulated from his education and years of experience. Hamilton testified that his opinion was based on sufficient facts and data and was the product of reliable real estate appraisal principles and methods.
¶ 14. Hamilton testified that "[a]nytime you've got a gas line or something to that effect on a piece of property, people are going to have an diversion [sic] to buying it." Contributing to Hamilton's opinion that the property would decrease in value was the fact that Pitre would have to get permission from Gulf South if she ever desired to build an access road to the north portion of her property, which will be completely severed from the rest of the property by the pipeline. Also, Pitre had done extensive erosion control work on the property which would be partially destroyed by the installation of the pipeline. Pitre also lost the use of her land for growing timber over the pipeline.
¶ 15. This Court has explained the burden of proof for eminent domain cases as follows:
*523 The burden of proof in an eminent domain case is unique, because the government is depriving the citizen of his or her property. Sarphie v. Mississippi State Highway Comm'n, 275 So. 2d 381, 383 (Miss.1973). Therefore, the State has the "non-delegable" burden to establish a prima facie case of the value of the property taken. Id. If the condemnor fails to establish the prima facie case, a dismissal of the proceedings would be required. Mississippi State Highway Comm'n v. Fisher, 249 Miss. 198, 201-02, 161 So. 2d 780, 781 (1964). The supreme court explained that "[t]he reason for placing the burden on the condemnor is that if it offers no evidence of the value of the property taken there is no basis for awarding any damages and there could be no compliance with Section 17, Mississippi Constitution." Id. After a prima facie case has been established, if the party whose property is being condemned desires to receive greater compensation, then it must present evidence of a higher valuation. Ellis v. Mississippi State Highway Comm'n, 487 So. 2d 1339, 1342 (Miss.1986).
Martin v. Miss. Transp. Comm'n, 953 So. 2d 1163, 1166(¶ 10) (Miss.Ct.App.2007). Therefore, the only purpose of Hamilton's expert testimony was to present evidence of a higher valuation than was presented by Johnston.
¶ 16. We find that Hamilton's testimony was competent and relevant, and it was for the jury to pass upon the credibility and weight of his testimony. We cannot hold Hamilton's testimony to a strict Daubert analysis because he was unable to find comparable sales to compute an after fair market value. No argument was made that Hamilton was not a qualified expert. Gulf South only challenges his method of calculating the after fair market value of the property. We find that the trial judge, as the gatekeeper, did not err in allowing the jury to hear Hamilton's testimony. Since we also find that Hamilton's testimony was properly allowed, we find that Gulf South's motions for a JNOV and a judgment in the amount of $38,250 were properly denied.
Cross appeal
¶ 17. Pitre cross-appeals, making the following arguments: (1) she did not waive her right to file a motion to dismiss despite failing to do so within five days of trial in compliance with Mississippi Code Annotated section 11-27-15 (Rev.2004); (2) the trial court erred in holding that the only issue to be decided at trial was the value of the property; (3) the trial court erred in granting Gulf South the right of entry onto Pitre's property to start installation of the pipeline; and (4) the trial court erred in excluding evidence concerning the potential danger associated with the pipeline.
¶ 18. In making these arguments, Pitre cites many instances in which she believes the trial court erred, but Pitre never asks this Court for any specific relief regarding the errors the trial court may have committed. Mississippi Rule of Appellate Procedure 28(a)(7) states that "[t]here shall be a short conclusion stating the precise relief sought" after the argument section in the briefs filed with this Court. Since no specific argument is made stating what relief Pitre seeks, we find that her cross-appeal is procedurally barred. See Sorey v. Crosby, 989 So. 2d 485, 487(¶ 9) (Miss.Ct.App.2008) (holding that failure to comply with the requirements of M.R.A.P. 28 renders an argument procedurally barred).
¶ 19. THE JUDGMENT OF THE WARREN COUNTY SPECIAL COURT OF EMINENT DOMAIN IS AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL. ALL COSTS OF *524 THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND THE APPELLEE/CROSS-APPELLANT.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576767/ | 35 S.W.3d 737 (2000)
Leonard SUTTON, III, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-00-00508-CR.
Court of Appeals of Texas, Houston (1st Dist.).
November 30, 2000.
Hattie Sewell Mason, Bellaire, for Appellant.
*738 John B. Holmes, Melinda Diane Doell, Houston, for State.
Panel consists of Justices MIRABAL, TAFT, and DUGGAN.[*]
Published in Part Pursuant to Tex. R. App. P. 90.
OPINION
TAFT, Justice.
Appellant was charged by indictment with murder. A jury found appellant guilty of manslaughter. After appellant pled true to one enhancement paragraph, alleging a prior conviction of burglary of a habitation with intent to commit theft, the court assessed appellant's punishment at 40 years in prison. We address whether: (1) the trial court erred in denying appellant's motion for an instructed verdict; (2) the court erred in denying appellant's motion to testify free from impeachment; and (3) appellant preserved his claim that his punishment was cruel and unusual. We affirm.
Facts
On November 1, 1999, appellant was riding in a car with his friends, Eddie Lewis, Andrew Williams, and Patricia Thomas. While stopped outside Lewis' house, appellant pulled out a revolver. Appellant knew the revolver contained three bullets. Appellant aimed the gun at Thomas' head and fired a shot that killed her. At that point, Lewis and Williams fled the car, and appellant drove off with the dead body, which he placed in a dumpster. Appellant then hid his car behind some bushes and took a bus back home. After learning the police had been looking for him, appellant turned himself in and confessed in writing he had shot Thomas.
Procedural History
Appellant was charged by indictment with murder. The third paragraph of the indictment charged appellant with felony murder for causing Thomas' death while committing aggravated assault. The State filed its pretrial notice of intent to use appellant's extraneous offenses for impeachment purposes.[1] Appellant then filed a motion to be allowed to testify without being impeached with his prior convictions, which the court denied.
At trial, both Williams and Lewis testified the shooting was accidental. After the State rested, appellant moved for an instructed verdict, arguing that: (1) the State did not produce evidence he had intended to kill or assault Thomas; and (2) the third paragraph of the indictment was improper because a felony-murder charge could not be predicated on aggravated assault. The trial court denied appellant's motion. Appellant later took the stand and testified he did not intend to kill or frighten Thomas when he pointed the gun at her. On cross-examination, the State introduced appellant's prior conviction of burglary with intent to commit theft.
The jury found appellant guilty of the lesser included offense of manslaughter. After appellant pled true to the enhancement paragraph, the trial court assessed appellant's punishment at 40 years in prison.
Instructed Verdict
In his first point of error, appellant argues the trial court erred in denying his motion for an instructed verdict. Appellant challenges the trial court's ruling in two respects. First, appellant asserts he was entitled to an instructed verdict because the State offered no evidence he intended to kill, cause serious bodily injury to, or assault Thomas. See TEX.PENAL CODE ANN. § 19.02 (Vernon 1994). Appellant also asserts the trial court erred in not granting his motion for an instructed verdict on the felony murder charge because felony murder cannot be predicated *739 on a charge of aggravated assault. See Garrett v. State, 573 S.W.2d 543, 546 (Tex. Crim.App.1978).
A. No Evidence Appellant Intended to Kill or Cause Serious Bodily Injury
A complaint about the denial of an instructed verdict is reviewed as an attack on the sufficiency of the evidence. Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim.App.1993); Youens v. State, 988 S.W.2d 404, 407 (Tex.App.-Houston [1st Dist.] 1999, no pet.).[2] The standard for reviewing the legal sufficiency of evidence to support a conviction is whether, after reviewing the evidence in the light most favorable to the verdict, any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Youens, 988 S.W.2d at 407 (citing Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim.App.1996)).
Thus, we first address whether, after looking at the evidence most favorable to the prosecution, a rational fact finder would have found that appellant caused Thomas' death intentionally or knowingly, or by committing an act clearly dangerous to human life while intending to cause serious bodily injury.[3]See Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App. 1991). Appellant admitted he knew there were three bullets in the revolver. Appellant aimed the gun at the victim's head and shot her. Based on this evidence, a reasonable juror could have found that appellant acted intentionally when he aimed the gun at Thomas' head and pulled the trigger. Furthermore, a reasonable juror could have found that, when appellant aimed and fired a gun he knew contained three bullets, he acted with knowledge that his conduct was reasonably certain to cause Thomas's death. See Matson, 819 S.W.2d at 846.
Appellant's actions in disposing of the body were more consistent with having committed an intentional crime rather than an accidental shooting. Accordingly, the trial court did not err when it denied appellant's motion for an instructed verdict on the murder charge. See Studevant v. State, 833 S.W.2d 712, 714 (Tex.App.-Houston [1st Dist.] 1992, no pet.). Because the evidence was sufficient to support a finding of murder, we find appellant's first argument lacks merit. See Matson, 819 S.W.2d at 846.
B. Felony Murder
As to appellant's challenge of the court's denial of his motion for an instructed verdict on the felony murder charge, we agree with appellant that aggravated assault cannot be used as the underlying offense in a felony murder charge. Johnson v. State, 4 S.W.3d 254, 257 (Tex.Crim. App.1999); Garrett v. State, 573 S.W.2d 543, 546 (Tex.Crim.App.1978). The trial court's error was harmless, however, because we have held the jury was properly *740 instructed it could find appellant guilty of murder, and the jury declined to find appellant guilty of the charged offense, opting instead to find him guilty of the lesser included offense. See State v. Shelton, 869 S.W.2d 513, 517 (Tex.App.-Tyler 1993, no pet.). Accordingly, we reject appellant's argument.
We overrule appellant's first point of error.
The discussion of the remaining points of error does not meet the criteria for publication, and is thus ordered not published. TEX.R.APP.P. 47.4.
NOTES
[*] The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
[1] Appellant had two prior convictions: (1) burglary of a habitation with intent to commit theft; and (2) misdemeanor theft.
[2] Because Cook was decided when the only sufficiency review in criminal cases was legal sufficiency, i.e., before Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996), defined factual sufficiency review in criminal cases, Cook naturally referred to legal sufficiency of the evidence as the appropriate standard of review for denials of instructed verdicts. Moreover, it is appropriate that instructed verdicts determine legal sufficiency, in that the remedies for legal insufficiency of the evidence and a motion for instructed verdict are the same acquittal. Youens, 988 S.W.2d at 407.
[3] A person commits [murder] if he:
(1) Intentionally or knowingly causes the death of an individual;
(2) Intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual;....
TEX.PEN.CODE ANN. § 19.02(b) (Vernon 1994).
"[A] person acts intentionally ... with respect to ... a result of his conduct when it is his conscious objective or desire to ... cause the result." Id. § 6.03(a).
"[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." Id. § 6.02(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576778/ | 35 So. 3d 480 (2010)
Nickey WILLIAMS
v.
STATE of Mississippi.
No. 2008-KA-02129-SCT.
Supreme Court of Mississippi.
April 1, 2010.
Rehearing Denied June 10, 2010.
*483 Office of Indigent Appeals by George T. Holmes, Jackson, Leslie S. Lee, attorneys for appellant.
Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
EN BANC.
KITCHENS, Justice, for the Court:
¶ 1. Nickey Williams was convicted of two counts of sexual battery, the first against his daughter, Jane, and the second against his daughter, Ann.[1] At the time of the offenses, Jane was four years old and Ann was less than a year old. Williams was sentenced to thirty years' incarceration on the first count and twenty years' incarceration on the second count with ten years suspended. The trial court ordered that those sentences run consecutively.
¶ 2. Finding that there was insufficient evidence to support a guilty verdict for sexual battery of the younger daughter, we reverse the conviction on the second count and render judgment here in favor of the defendant, vacating the sentence on the second count. As for the conviction for sexual battery of the older daughter, we find no reversible error and affirm.
Facts
¶ 3. Nickey Williams and his wife Kimberly Williams are the biological parents of Jane, born May 22, 2001, and Ann, born April 20, 2005. The defendant initially was indicted for three counts of sexual battery and two counts of gratification of lust. Three of these charges were dismissed by means of nolle prosequi, and Williams was tried on two counts of sexual battery. The first count alleged that Williams inserted his finger into Jane's vagina, and the second count alleged that Williams inserted a part of his body or an object into Ann's anus. The jury convicted Williams of both counts.
¶ 4. In September of 2004, the Mississippi Department of Human Services (DHS) removed then-three-year-old Jane from the Williams home, based on reports and findings of neglect. The details surrounding her removal were not adduced at trial. Jane initially was placed with a cousin, but was moved six months later, on March 11, 2005, to a foster home with Kay and Michael Smith.
¶ 5. During the first night at the Smiths' home, Jane told Mrs. Smith that she did not like nighttime because her father would come in her room at night and spank her. According to Mrs. Smith, Jane "patted herself between her legs in the front and said that he would hurt her at night." Mrs. Smith testified that she did not report the statement to DHS because she assumed sexual abuse was the reason Jane had been placed in foster care. Mrs. Smith also testified that Jane had frequent nightmares and would scream and cry out in her sleep.
¶ 6. Kimberly and Nickey Williams initially were allowed only supervised visits with Jane twice a month, and the defendant was present at just two of those visits *484 from March 2005 to November 2005. The youth court eventually approved an unsupervised weekend visit, and from Friday, November 11, 2005, until Sunday afternoon, November 13, 2005, Jane stayed with her biological parents.
¶ 7. Mrs. Smith testified that on the Sunday evening after Jane returned to the Smiths' house, she witnessed Jane "being inappropriate" with a baby doll. When Mrs. Smith asked Jane what she was doing, Jane began crying and said that "her daddy had hurt her, he had poked her with his fingernail, he had hurt her on the bottom." When Mrs. Smith asked Jane to demonstrate with the doll, she "jabbed her finger up its bottom between its legs." Jane told her that the incident had occurred while she was in the bathtub and that her mother had witnessed it. Kimberly Williams testified at trial, but neither the State nor the defendant asked her whether she had witnessed the alleged abuse.
¶ 8. Mrs. Smith immediately contacted the foster care agency and Wanda Jones, the DHS social worker assigned to monitor Jane. Jones reported the incident to the Lee County Sheriff's Department and scheduled a forensic interview and a forensic medical examination for Jane. The forensic interview was not presented at trial, but Dr. William Marcy testified about the medical examination. Dr. Marcy had performed the medical examination on November 15, 2005, the Tuesday following the weekend visit. He previously had examined Jane in September 2004, based on an earlier report that she had been sexually abused. Dr. Marcy had found no evidence of sexual abuse during the September 2004 examination, but he did record the child's hymenal diameter at that time. Dr. Marcy testified at trial that on November 15, 2005, the diameter had increased significantly from the time of his previous examination and that Jane's vaginal area was abnormally inflamed. He found "to a reasonable degree of medical certainty" that these conditions were consistent with vaginal penetration and sexual abuse.
¶ 9. On December 8, 2005, Jane attended her regularly-scheduled counseling session with Tina Ballard, a counselor for the foster care agency. When Ballard asked Jane about her weekend visit with her parents, Jane told Ballard that her father had "hurt her down there" while she was in the bathtub, and the child pointed to her vaginal area.
¶ 10. Jane gave testimony at trial that was consistent with the statements she had given to Mrs. Smith and Ballard. She explained that the defendant had "stuck his finger up [her] front private" while she was in the bathtub. Jane testified that Williams used his middle finger and that his fingernail had hurt her. She also demonstrated this for the jury by jamming her index finger into the vagina of a doll.
¶ 11. Kimberly Williams testified that during Jane's weekend visit at her and the defendant's home, the defendant was alone in the bathroom with Jane on two different occasions, Friday night and Sunday morning. Kimberly also testified that no other adults were in her home that weekend and that she had never stuck anything in Jane's vagina.
¶ 12. On February 13, 2006, when Williams and his wife Kimberly were arrested for sexual battery against Jane, DHS took custody of Ann, Jane's ten-month-old sister who was still living with the Williamses.[2] Two days later, Dr. Marcy examined Ann for signs of sexual abuse and found that her anal area was inflamed and swollen and that the shape of her anus *485 was irregular. He testified that Ann's anus was torn, which he found to be "very consistent with sexual abuse."
¶ 13. At trial, Kimberly Williams testified that since Ann's birth, she had been cared for by only three people: the defendant, herself, and Kimberly's grandmother. The grandmother, Iris Culver, testified that there was a period of time when the Williamses took Ann to another woman to be cared for while they were working; but Culver could not remember the woman's name or the specific time period. Kimberly explained that, before Ann was taken into DHS custody, Nickey Williams often was left alone with their child, Ann, while she, the mother, was at work. Both Kimberly and her grandmother denied ever inserting anything into Ann's anus.
¶ 14. Nickey Williams testified in his own defense, denying that he had ever abused his daughters and suggesting that Ann's anal injuries might have been caused by severe constipation. He also testified that Kimberly often would run off for days and even a week at a time, leaving him as the primary caregiver for their children. He called five character witnesses who testified that he was a truthful person. Two of these witnesses also said that Williams appeared to be a normal, loving father.
Discussion
¶ 15. Williams raises several issues on appeal, arguing that (1) there was insufficient evidence to support a guilty verdict on the second sexual battery charge involving his younger daughter, (2) the two counts should have been severed, (3) the trial court erred in excluding testimony that the defendant was a good father, (4) the trial court erred in allowing the State to introduce certain hearsay testimony, (5) the jury was tainted by misconduct, (6) the verdict in the first count involving the older daughter was against the weight of the evidence, and (7) the trial court's refusal to grant the defendant's proposed jury instruction about child testimony entitles him to a new trial.
I. Sufficiency of the Evidence Supporting the Second Count
¶ 16. We first address whether the State presented sufficient evidence to support the jury's verdict that Williams had sexually abused his younger daughter, Ann. On appeal, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State, 895 So. 2d 836, 843 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). In addition,
Should the facts and inferences considered in a challenge to the sufficiency of the evidence "point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty," the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So. 2d 68, 70 (Miss.1985) (citing May v. State, 460 So. 2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So. 2d 140, 164 (Miss. 2004). However, if a review of the evidence reveals that it is of such quality and weight that, "having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense," the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70; see also Gibby v. State, 744 So. 2d 244, 245 (Miss.1999).
Id.
¶ 17. The only evidence that Ann had been sexually abused was Dr. Marcy's *486 testimony. During trial, Dr. Marcy was shown two photographs of Ann's anus, and he testified for several pages of the transcript that it was inflamed, swollen, misshapen, and torn. Part of Williams's defense was that the injury was caused by the child's having been constipated. When the State was examining him, Dr. Marcy testified as follows:
Q: So it wouldn't be consistent with a bowel movement. Would this be consistent with an object or even a finger from the outside coming in?
A: Yes, it would be more consistent with that than a bowel movement.
Q: Now, as far as your expert medical opinion looking at your report, what was your conclusion as to whether there had beenor whether [Ann's] symptoms were consistent with child sexual abuse?
A: I felt like it was very consistent with anal penetration. ItI came to the next to the highest level of suspicion of probable
Q: And that's withoutand I'myou had no background, I mean no witnesses, this was just based on the medical findings?
A: Yes. I believe we were seeing her because allegations had been made about her sister and they just wanted the baby checked. So, yeah, there were no allegations at all.
Q: And you found that her condition was very consistent with child sexual abuse?
A: Yes.
. . .
Q: So, again, in this case, going back to this case, with [Ann's] tear on her anus was it very consistentI'm going to put that at the top of your probable area, I'm going to ask was it very consistent with sexual abuse?
A: Yes. As I said, very consistent with anal penetration, very consistent with anal penetration.
(Emphasis added.)
¶ 18. Earlier, Dr. Marcy had explained that he considered "four levels of suspicion of child abuse," namely, "unlikely, possible, probable, and definite." He testified that "definite is very hard to come to," and that he would only categorize his findings of sexual abuse as "definite" "maybe five or six times out of a thousand." Dr. Marcy had found a "probable" level of suspicion from both Jane and Ann's examinations. However, Dr. Marcy testified that Jane's injuries were "definitely consistent" with someone who had been sexually abused "to a reasonable degree of medical certainty." As the above testimony demonstrates, Dr. Marcy did not recount his findings in such unequivocal terms when discussing Ann; the physician's testimony was that Ann's injuries were "very consistent with anal penetration."
¶ 19. "[B]efore a qualified expert's opinion may be received, it must rise above mere speculation." Goforth v. City of Ridgeland, 603 So. 2d 323, 329 (Miss. 1992) (citing Fowler v. State, 566 So. 2d 1194 (Miss.1990)). "[O]nly opinions formed by medical experts upon the basis of credible evidence in the case and which can be stated with reasonable medical certainty have probative value." Catchings v. State, 684 So. 2d 591, 596 (Miss.1996) (quoting Magnolia Hosp. v. Moore, 320 So. 2d 793, 799 (Miss.1975)). Although an expert need not use the exact phrase, "reasonable degree of medical certainty," this does not diminish the requirements for admissibility. Catchings, 684 So.2d at 597. This physician couched his opinion in terms of suspicion of probability, which, standing *487 alone, absent additional corroborating evidence, is insufficient in a criminal case.
¶ 20. Dr. Marcy did not express his medical opinion that Ann had been sexually abused "to a reasonable degree of medical certainty," even though he did so concerning Jane. Additionally, in Jane's case, her testimony and testimony from her foster mother and counselor provided substantial support for Dr. Marcy's findings. With Ann, there was no evidence to support the conviction for sexual battery other than Dr. Marcy's testimony. Reviewing the evidence in the light most favorable to the prosecution, we find that the evidence was insufficient to support a conviction for the sexual battery of Ann beyond a reasonable doubt. Moreover, the evidence, which was entirely circumstantial with regard to the charge concerning the younger child, Ann, fell far short of the applicable standard of proof of guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Therefore, we reverse and render the conviction of Williams on the sexual battery charge related to Ann.
II. Severance
¶ 21. Williams argues on appeal that the trial judge erred in overruling his motion to sever the two counts of the indictment. Williams was arraigned on August 2, 2006, but did not request a severance until two years later, on the first day of trial. The trial court heard arguments from both sides and denied the motion because it was untimely.
¶ 22. Williams argues that his motion was timely, relying on the language found in Uniform Rule of Circuit and County Court Practice 9.03:
The court may, on motion of the state or defendant, grant a severance of offenses whenever:
1. If before trial, it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense; or
2. If during trial, upon the consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant's guilt or innocence of each offense.
(Emphasis added.)
¶ 23. Although the rule permits a trial judge to sever offenses during trial, it is not reversible error for a trial judge to deny an untimely motion to sever, except under circumstances where the reasons supporting severance become apparent late in the process. Walker v. State, 729 So. 2d 197, 200 (Miss.1998). Although Walker addresses motions to sever the trials of codefendants, and not motions to sever multicount indictments, its logic nevertheless is applicable to the instant case. In Walker, the Court held that it was not error to deny a defendant's pretrial motion to sever his case from that of his codefendant when the motion was not filed until the morning of trial. Id. However, it was error for the trial judge not to reconsider the motion when it became apparent from the trial proceedings that one codefendant would be seriously prejudiced by the other's defense. Id. at 200-02.
¶ 24. In the present case, nothing in the record suggests new developments or revelations during the two-year period between the date of arraignment and the morning of trial that would have given the defendant additional cause for severance. Thus, it was not error for the trial judge to deny Williams's motion to sever the two offenses for trial.
III. Exclusion of Defense Evidence
¶ 25. Williams argues that the trial court erred in excluding testimony regarding his relationship with his daughters. *488 This Court reviews a trial court's decision to admit or exclude evidence for an abuse of discretion. Ford v. State, 975 So. 2d 859, 865 (Miss.2008) (citing Peterson v. State, 671 So. 2d 647, 655 (Miss.1996)). We will not reverse unless the trial court applied an improper legal standard resulting in prejudice to the accused. Id. (citing Peterson, 671 So.2d at 656).
¶ 26. Williams called five individuals as character witnesses. The first two testified that he had a reputation as a truthful person and that he appeared to be a good father. When the third witness was asked about Williams's relationship with his daughters, the State objected. The trial court refused to allow the remaining witnesses to testify that Williams was a good father, because the testimony was not provided to the State in pretrial discovery. The trial court also reasoned that the testimony was irrelevant, because none of the witnesses had observed the defendant with his children in the six months prior to the night of the incident involving Jane.
¶ 27. On appeal, Williams argues that the trial judge should have followed the procedures under Rule 9.04(I) of the Uniform Rules of Circuit and County Court Practice and granted a brief continuance to allow the State an opportunity to interview the witnesses. However, Williams does not address the trial court's second reason for excluding the evidence, that is, that the testimony was irrelevant because none of the witnesses could establish that they had observed the defendant with his daughters at any time close to the alleged abuse. We do not find that the trial judge abused his discretion in excluding the evidence as irrelevant.
IV. Hearsay
¶ 28. Williams argues that the trial court erred in allowing Smith and Ballard to testify about the statements Jane had made to them about her abuse. He also argues that Dr. Marcy should not have been allowed to testify about the contents of the forensic interview. As noted above, the admission or exclusion of evidence is reviewed under an abuse-of-discretion standard, and we will not reverse unless an erroneous legal standard was applied that resulted in prejudice to the accused. Ford, 975 So.2d at 865.
A. Tender-Years Exception
¶ 29. Before trial, the court held a hearing and determined that Smith and Ballard could testify about the statements Jane had made to them under the tender-years exception to the hearsay rule found in Mississippi Rule of Evidence 803(25).[3] Under this rule,
A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
M.R.E. 803(25). The comment to the rule contains a nonexhaustive list of twelve factors that the trial judge should consider when determining whether there are sufficient indicia of reliability:
(1) whether there is an apparent motive on declarant's part to lie; (2) the general *489 character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant's faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the statement; and (12) whether the declarant's age, knowledge, and experience make it unlikely that the declarant fabricated.
M.R.E. Rule 803 (citing Smith v. State, 925 So. 2d 825, 837 (Miss.2006); Hennington v. State, 702 So. 2d 403, 415 (Miss.1997)). "[T]he unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made." Bell v. State, 797 So. 2d 945, 948 (Miss. 2001) (quoting Idaho v. Wright, 497 U.S. 805, 822, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990)).
¶ 30. The trial judge made an on-the-record determination that each factor favored admissibility of the statements, noting that: Jane had no motive to lie, the witnesses testified that Jane was truthful, more than one person had heard the statements, the statements were spontaneous and were made shortly after the incident, Jane had made the statements with certainty, there was no evidence that suggestive techniques were used, and, although Jane was very young, it would be difficult for her to fabricate such a story.
¶ 31. Williams argues, as he did at trial, that the statements could not be considered reliable because Jane could not provide details about the incident when she testified at the hearing. Throughout her testimony, Jane repeatedly answered questions with "I don't know" or "I don't remember." Williams characterizes these statements as a recantation. The State counters that Jane was reluctant to testify at the hearing because she was face-to-face with her abuser. In rejecting Williams's argument that Jane's testimony was unreliable, the trial court acknowledged that Jane's actions on the stand appeared to be related to fear, noting that as her testimony progressed, Jane "sank lower and lower in her chair."
¶ 32. Williams also points to testimony that Jane was developmentally delayed and was often aggressive and defiant with adults. The State argues that, although she had a history of behavioral problems, there was testimony that she was generally well-mannered and communicated maturely for her age.
¶ 33. Reviewing the record, we cannot say that the trial court abused its discretion in allowing Smith and Ballard to testify about the statements Jane had made to them. The trial judge heard testimony from both witnesses, and the child herself, and determined that the statements were reliable, based on the factors listed in the comment to Mississippi Rule of Evidence 803(25). The defendant's argument on this point is not persuasive.
B. Forensic Interview
¶ 34. Williams also argues that Dr. Marcy should not have been allowed to testify about the statements Jane gave during her forensic interview, as these constitute double hearsay. However, Dr. Marcy never testified about the specific statements and simply acknowledged that a forensic interview had been performed. Accordingly, we find this issue to be without merit.
*490 V. Juror Misconduct
¶ 35. Williams argues that the jury was tainted because juror Melvyn Blackmon did not respond in voir dire examination to questions about his knowing one of the State's witnesses, Wanda Jones. The trial court held a post-trial hearing on the matter, receiving testimony from Jones and Juror Blackmon, and determined that Blackmon had not been dishonest during voir dire examination and that she was not influenced by her acquaintance with Jones.
¶ 36. A trial judge's decision that the jury was fair and impartial will not be disturbed on appeal unless it appears clearly that the decision is wrong. Fleming v. State, 687 So. 2d 146, 148 (Miss. 1997) (citing Odom v. State, 355 So. 2d 1381, 1383 (Miss.1978); Chase v. State, 645 So. 2d 829, 847 (Miss.1994); Bush v. State, 585 So. 2d 1262, 1265 (Miss.1991)). A juror's failure to respond to a question in voir dire does not warrant a new trial unless the trial court determines that the question propounded to the juror was (1) "relevant to the voir dire examination," (2) "unambiguous," and (3) such that "the juror had substantial knowledge of the information sought to be elicited." Odom, 355 So.2d at 1383. If all three questions are answered in the affirmative, the court then determines "if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror's failure to respond." Id.
¶ 37. During voir dire of the prospective jurors, the trial court read the list of potential witnesses and then asked, "any of you consider yourself close, personal friends with any of the witnesses I just named?" Later, Willliams's attorney asked, "anyone have any close family members with the Department of Human Services that works with these kinds of situations?" Blackmon did not respond to either question because, according to her post-trial testimony, she did not recognize the name Wanda Jones. Both Blackmon and Jones testified that they did not know each other personally, but that they had met briefly, years earlier, when Blackmon had come to Jones's workplace selling Avon products. Blackmon testified that she recognized Jones at trial and asked her whether she was "Brenda's friend." Jones nodded, but that was the extent of their interaction. At the sentencing hearing, the defendant noticed Jones and Blackmon sitting near each other; but both Jones and Blackmon testified that they were simply sitting with a group, and the two did not have a one-on-one conversation. Blackmon emphasized that her acquaintance with Jones had no bearing on her decision-making process.
¶ 38. Applying the Odom factors, we agree with the trial judge that Blackmon was justified in not responding to the questions asked during voir dire. The venire members were asked whether they were "close, personal friends" of the witnesses or "close family members" of DHS employees. These questions were unambiguous and relevant. However, given that Jones was simply an acquaintance and that Blackmon did not recognize her name, Blackmon did not have "substantial knowledge of the information sought to be elicited." Odom, 355 So.2d at 1383. The trial judge did not err in refusing to grant a new trial based on this issue.
VI. Jury Instruction Regarding Child Testimony
¶ 39. At trial, Williams requested that the jury be instructed to "view the testimony of [Jane] in light of [her] age and understanding" and to "give it such weight and credit as you deem it is entitled." The trial court refused the instruction, *491 and Williams argues on appeal that the refusal entitles him to a new trial.
¶ 40. Although this Court has held that a trial court may instruct the jury "to view the testimony in the light of the child's age and understanding," we also have held that the trial court's granting of such an instruction is not mandatory, and its refusal to do so is not grounds for reversal. Robinson v. State, 662 So. 2d 1100, 1106 (Miss.1995). See Bandy v. State, 495 So. 2d 486, 493 (Miss.1986) ("If the jury is to be instructed at all with respect to the testimony of a child, it should be told to view the testimony in the light of the child's age and understanding, not his veracity."). We also are mindful of the general rule that "the trial judge should not give undue prominence to particular portions of the evidence in the instructions." Sanders v. State, 586 So. 2d 792, 796 (Miss.1991). We find that the trial court did not err by refusing the proposed instruction.
VII. Weight of the Evidence
¶ 41. Williams's final argument is that his conviction of sexual battery of Jane is against the overwhelming weight of the evidence. When reviewing such a claim, the evidence is weighed in the light most favorable to the verdict. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005) (citing Herring v. State, 691 So. 2d 948, 957 (Miss.1997)). This Court will not order a new trial unless it finds that "the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice." Id. (citing Herring, 691 So.2d at 957).
¶ 42. Williams briefly argues that Jane was "unstable, she recanted, she was aggressive, and did not follow rules." In addition, he contends, "not knowing whether she was tainted in the forensic interview makes all of the evidence which might arguably support the verdict unreliable and tainted." We find these arguments unpersuasive. Although Jane claimed she did not know about the abuse or could not remember it at the pretrial hearing, she testified at trial about the incident without any apparent difficulty and was cross-examined by the defendant. Her foster mother and counselor also testified that Jane had told them about the abuse shortly after it happened. Finally, Dr. Marcy testified that, in his expert medical opinion, Jane had been sexually abused "to a reasonable degree of medical certainty." We find that the trial court did not err in refusing to grant a new trial.
Conclusion
¶ 43. Given that the State failed to present sufficient evidence to support the jury's verdict that Williams had sexually abused his daughter, Ann, that conviction is reversed and rendered. However, the conviction related to the alleged sexual abuse of Jane (Count I) is not against the overwhelming weight of the evidence, and no error related to that charge was committed at trial. Accordingly, the conviction of Williams for the sexual abuse of Jane and the sentence of thirty years in the custody of the Mississippi Department of Corrections are affirmed.
¶ 44. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: REVERSED AND RENDERED.
WALLER, C.J., CARLSON, P.J., DICKINSON AND LAMAR, JJ., CONCUR. GRAVES, P.J., CONCURS IN PART AND DISSENTS IN PART *492 WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, CHANDLER AND PIERCE, JJ.
GRAVES, Presiding Justice, Concurring in Part and Dissenting in Part:
¶ 45. I agree with the majority's findings regarding all issues except the first issue: whether the State presented sufficient evidence to support the jury's verdict that Williams had sexually battered his younger daughter, Ann. The record reveals that there was sufficient evidence to support such a finding. In addition to the medical evidence consistent with sexual abuse brought forth through Dr. Marcy's testimony, the jury had the opportunity to observe the testimony of the three individuals, including Williams, who had cared for Ann before she was placed in foster care. Based on the substance of the expert and lay witness testimony, as well as on observation of the witnesses' demeanors, it was reasonable for the jury to conclude that Williams had sexually battered Ann.
¶ 46. An inquiry into whether evidence is sufficient to sustain a conviction "does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Johnson v. State, 950 So. 2d 178, 182 (Miss. 2007). Rather, as the majority notes, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. See also Moore v. State, 996 So. 2d 756, 760 (Miss.2008). This Court must accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom. Moore, 996 So.2d at 760.
¶ 47. The jury determines the weight and credibility to give witness testimony and other evidence. Massey v. State, 992 So. 2d 1161, 1163 (Miss.2008). This Court may not "pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief." Id. (quoting Davis v. State, 568 So. 2d 277, 281 (Miss. 1990)).
¶ 48. A rational trier of fact could have found that the essential elements of the crime of sexual battery of Ann were established beyond a reasonable doubt. The jury instructions explained the elements of the crime:
The defendant, NICKEY WILLIAMS has been charged in Count II of the indictment with the felony crime of Sexual Battery of [Ann]. If you find from the evidence in this case beyond a reasonable doubt that:
(1) [Ann], at the time of the offense was a child under the age of fourteen (14) years, having a date of birth of April 20, 2005, and
(2) the defendant NICKEY WILLIAMS, at the time of the offense was twenty-four (24) or more months older than [Ann], having a date of birth of October 7, 1973, and
(3) between the dates of April 20, 2005 and February 14, 2006, the defendant, NICKEY WILLIAMS, did willfully, unlawfully and feloniously engage in sexual penetration with [Ann] by inserting a part of his body and/or an unknown object into the anus of [Ann].
then you shall find the defendant, NICKEY WILLIAMS, guilty of Sexual Battery in Count II of the indictment.. . .
The first two elementsAnn's and Williams' dates of birthare not in dispute, and a rational trier of fact could find the third elementthe sexual penetration of Ann's anusto be true beyond a reasonable doubt.
¶ 49. While there is no statement or testimony from Ann because she was only *493 ten months old at the time of the alleged abuse, Dr. Marcy's medical findings strongly support a finding of sexual battery. Dr. Marcy explained to the jury, using photographs of Ann's anus taken during his examination of her, that Ann's anus was inflamed and swollen. He explained that a baby should have linear folds around the anus, radiating out from the middle to the outside, but the swelling and inflammation had caused the folds around Ann's anus to disappear. Dr. Marcy also testified that a baby's anus should be round, but due to stretching or swelling, Ann's anus was an irregular shape. In addition, Ann had a Y-shaped fissure (which is a tear in the skin that reveals the raw tissue underneath) outside the anal opening. Dr. Marcy testified that a very large, hard bowel movement could cause a fissure, but that if it did, it would tend to tear the inside of the anal opening. He explained that the fissure on Ann's anus, which extended well outside the anal opening, was more likely caused by something being pushed into the anus. The fissure on Ann's anus would be more consistent with digital penetration than with a bowel movement, he elaborated. Based solely on his physical exam of Ann and not considering any other evidence, such as the evidence indicating that Jane was sexually abused, Dr. Marcy concluded that Ann's anal injuries were consistent with anal penetration and it was "probable"the next-to-highest level of suspicionthat Ann had been sexually abused.
¶ 50. While Dr. Marcy may not have testified that Ann's injuries were consistent with sexual abuse "to a reasonable degree of medical certainty," as he did regarding Jane's injuries, his testimony and findings suggest that Ann's injuries were even more indicative of sexual abuse than Jane's were. Dr. Marcy concluded that, based solely on the physical evidence, it was "possible" that Jane had been sexually abused, but consideration of other factors, including Jane's allegations against Williams, led him conclude that it was "probable" that Jane had been sexually abused. In contrast, Dr. Marcy was able to conclude that it was "probable" that Ann had been sexually abused based solely on the physical evidencei.e., without consideration of any other factors. Therefore, there is no reason to believe that, had Dr. Marcy been asked to phrase his findings regarding Ann in terms of "reasonable degree of medical certainty," Dr. Marcy would not have stated that Ann too was sexually abused "to a reasonable degree of medical certainty."
¶ 51. The majority states that Dr. Marcy "couched his opinion [regarding Ann] in terms of suspicion of probability, which, standing alone, absent additional corroborating evidence, is insufficient in a criminal case." First, the majority is taking the words "suspicion of probable," stated in Dr. Marcy's testimony, out of context. As can be seen in the quoted portion of Dr. Marcy's testimony discussing Ann included in the majority opinion, Dr. Marcy stated, "I came to the next to highest level of suspicion of probable." In other words, of the "four levels of suspicion of child abuse""unlikely, possible, probable, and definite"Dr. Marcy concluded that a suspicion-level classification of "probable" was most appropriate, given Ann's injuries. Second, the majority's conclusion that Dr. Marcy "couched his opinion [regarding Ann] in terms of suspicion of probability, which, standing alone, absent additional corroborating evidence, is insufficient in a criminal case" is unsound in that Dr. Marcy also couched his opinion regarding Jane in terms of "suspicion of probability." As noted above, Dr. Marcy found that it was "probable" (not "definite") that Jane had been sexually abused (yet the majority concludes that there was sufficiently weighty evidence to convict Williams for sexual battery of Jane).
*494 ¶ 52. In summary, the majority is misconstruing Dr. Marcy's testimony and also placing more significance than is justified on Dr. Marcy's stating that Jane's injuries were consistent with sexual abuse "to a reasonable degree of medical certainty." The majority itself notes that an expert need not use the phrase "to a reasonable degree of medical certainty" in describing his findings.
¶ 53. The majority states that "[t]he only evidence that Ann was sexually abused was Dr. Marcy's testimony." However, in addition to the medical evidence, there is the fact that, from Ann's birth until she was placed in foster care at ten months of age, Ann was cared for almost exclusively by only three individuals: Williams, Kimberly Williams, and Kimberly's grandmother, Iris Culver, all of whom testified at the trial and denied sexually abusing Ann. Both Kimberly and Kimberly's grandmother testified that they had never inserted any object into Ann's anus. Kimberly explained that, before Ann was placed in foster care, Williams was frequently left alone with Ann when Kimberly was working or out-of-town, which was often. The only explanation Williams offered regarding the condition of Ann's anus was that Ann's baby formula caused her to be constipated and then to have large, hard bowel movements. As mentioned, Dr. Marcy testified that the fissure on Ann's anus was more consistent with something being pushed into the anus than with a bowel movement.
¶ 54. In addition, while certainly not determinative of whether Ann was sexually abused, Ms. Smith, Ann and Jane's therapeutic foster mother, testified that when Ann was first placed with her, Ann "had no emotion" but now "she's wide open" and "has blossomed."
¶ 55. The jury heard the medical evidence and the testimony of the three individuals who had cared for Ann before she was placed in foster care. Based on the testimony presented and their observations of the witnesses, the jurors came not to believe Williams' denial of guilt nor his explanation for Ann's anal injuries. As stated above, it is not for this Court to "pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief." Massey, 992 So.2d at 1163. Thus, based solely on evidence presented at trial that was specific to Ann, and viewing it in the light most favorable to the prosecution, a rational trier of fact could have found that the elements of sexual battery of Ann were established beyond a reasonable doubt.
¶ 56. Therefore, I concur regarding issues "two" through "seven," but must dissent regarding issue "one" because I conclude that there was sufficient evidence to support the jury's verdict that Williams had sexually battered Ann. Accordingly, I would affirm the judgment of the trial court, convicting Williams on both counts of sexual battery.
RANDOLPH, CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.
NOTES
[1] Jane and Ann are pseudonyms.
[2] The record does not reveal the disposition of the charges against Kimberly Williams.
[3] The trial judge did not allow a third witness to testify, ruling that the statements made to this witness by Jane were too vague to be indicative of sexual abuse. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576800/ | 35 So. 3d 167 (2010)
David B. HOWELL and Dave B. Howell, LLC, Appellants,
v.
ED BEBB, INC., Appellee.
No. 2D09-3664.
District Court of Appeal of Florida, Second District.
May 28, 2010.
*168 Matthew J. Conigliaro, Annette Marie Lang, and Stephanie C. Zimmerman of Carlton Fields, P.A., St. Petersburg, for Appellants.
Thomas C. Saunders of Saunders Law Group, Bartow, for Appellee.
WHATLEY, Judge.
David B. Howell and Dave B. Howell, LLC (collectively referred to as Howell) filed this direct appeal of a final summary judgment to quiet title and for ejectment entered in favor of Ed Bebb, Inc. We conclude that Bebb did not establish that it was entitled to summary judgment at this stage in the pleadings and reverse.
Bebb filed an amended complaint against Howell asserting counts to quiet title, take possession of real property, require specific performance, foreclose on a mortgage, and for ejectment. Howell filed a motion to dismiss, and while the motion was pending, Bebb filed a motion for summary judgment. After a hearing on Bebb's motion, the circuit court entered final summary judgment in favor of Bebb.
Generally, "[a] movant is entitled to summary judgment `if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). But if "a plaintiff moves for summary judgment before the defendant has filed an answer, `the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.'" BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 937-38 (Fla. 2d DCA 2010) (quoting Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So. 2d 652, 654 (Fla. 2d DCA 1963)). Thus, *169 the standard to establish entitlement to summary judgment requires the plaintiff to establish that "the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint." Id. at 938.
The trial court in the present case appears to have used the wrong standard in ruling on Bebb's motion for summary judgment, as it asked Howell if he had filed any affidavits or anything that would create a material issue of fact. At the hearing on the motion for summary judgment, Howell noted issues of material fact that could be raised in an answer to the complaint. However, Bebb based its argument for summary judgment on the failure of Howell to file affidavits establishing genuine issues of material fact. On appeal, Bebb does not contend that it established to a certainty at the hearing that no answer which Howell might properly serve could present a genuine issue of fact. Accordingly, it was improper to enter summary judgment in favor of Bebb at this stage in the pleadings, and we reverse the judgment and remand for further proceedings.
Reversed and remanded.
NORTHCUTT and LaROSE, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576813/ | 151 S.W.3d 127 (2004)
Gene TIDWELL, Claimant-Appellant,
v.
WALKER CONSTRUCTION, Employer-Respondent and
Security Ins. Co. of Hartford, Insurer-Respondent.
No. 26159.
Missouri Court of Appeals, Southern District. Division two.
December 16, 2004.
Daniel H. Rau, Davis & Rau, P.C., Cape Girardeau, for Appellant.
Patricia L. Musick, McAnany, Van Cleave & Phillips, P.C., St. Louis, for respondent/employer.
*128 JOHN E. PARRISH, Presiding Judge.
Gene Tidwell (claimant) appeals a final award of the Labor and Industrial Relations Commission (the commission) denying compensation. This court affirms.
*129 Chronology
This appeal has followed a procedurally tortured path. The following is a chronology of relevant events occurring prior to reaching this court.
August 17, 2001 Claim for Compensation filed
October 10, 2002 Hearing before Administrative Law Judge (ALJ)
November 4, 2002 Final Award Denying Compensation entered by ALJ
November 25, 2002 Claimant filed his Application for Review by the commission
February 7, 2003 Claimant filed pleading denominated "Motion to Consider Additional Evidence and to Suspend Briefing Schedule"
March 10, 2003 Pleading opposing claimant's request of February 7 filed by C.A. Walker Construction Co. (employer) and Frank Gates U.S.A. (insurer)
March 14, 2003 The commission entered order stating claimant's request was granted and remanded case to ALJ "to hold a hearing to allow [claimant] to introduce additional evidence ... and for the employer to respond or object as appropriate"
April 8, 2003 Hearing before ALJ to receive evidence as directed commission's March 14, 2003 order
May 15, 2003 Parties file joint motion requesting the commission to remand case for ALJ to enter award upon consideration of all the evidence
May 30, 2003 Motion to remand to ALJ to render new award denied
February 10, 2004 Final Award Denying Compensation entered by the commission
Facts
Claimant filed a claim for workers' compensation based on injuries he alleged were suffered July 2, 2001. Claimant asserted he was injured while using a chain saw to remove a tree trunk while working for employer; that he felt a pull in his low back while working with the chain saw that worsened as he continued working. Following a hearing, the ALJ found claimant did not sustain an accident resulting in injuries arising out of and in the course of his employment on the date alleged. The ALJ entered an award denying compensation. Claimant sought review of the ALJ award by the commission.
The commission entered the final award denying compensation that is the subject of this appeal. The commission's order includes the findings:
Subsequent to the trial of this matter and after the award of the [ALJ] was issued, the employee filed a motion to present additional evidence. The Commission remanded the matter to the Division of Workers' Compensation (Division) for an evidentiary hearing to introduce this evidence for consideration by the Commission.
The transcript of that remand hearing was received by the Commission, and after careful review, the Commission finds that the evidence is not newly discovered and was available to the employee prior to the trial and further that even if admitted into evidence the proposed evidence lacks the probative value necessary to cause a change in the underlying decision to deny the employee benefits. Therefore the Commission denies the employee's motion to introduce new evidence.
The commission found the award of the ALJ was supported by competent and substantial evidence and was in accordance with The Workers' Compensation Law. *130 The commission affirmed the ALJ's award of no compensation and incorporated the award and decision of the ALJ in the commission's award by incorporation by reference.
The findings adopted by the commission include:
The claimant was adamant that he hurt his back while using the chain saw on Monday afternoon, July 2, and that he had to leave work at noon the next day because of back pain. According to the claimant, Mr. McMullin was present on Monday running the bucket [in which claimant asserted he was located for purposes of trimming a tree at United Methodist Church in Kennett at the time of his alleged injury]. Mr. Walker [owner and operator of employer] verified that the claimant returned to Dexter with the truck early on the afternoon of July 3. However, the testimony of Bob Coleman and Robert McMullin, along with business records, show that that [sic] claimant was not working at the church on July 2, but that he was working at the Kennett school site (there was no tree trimming at the school site). That evidence further shows that the claimant last worked at the church on Thursday and Friday, June 28 and 29. He then worked for ten hours on Saturday, June 30, in Dexter at the Chamber of Commerce site. The evidence shows that Robert McMullin only worked in Kennett on June 28 and 29. The records confirm that the claimant worked during the morning of July 3 at the Kennett School.
The claimant was adamant that he told Dr. Jalal on three separate visits about the chain saw incident. However, Dr. Jalal's notes do not record any such statement. Further, Dr. Jalal's notes indicate that he had radicular symptoms for a month prior to his first visit on July 5. There was only one off-work slip from Dr. Jalal. There was no mention of a work-related accident in the radiology report from the Dexter Hospital. The first mention of a chain saw is contained in the report from Dr. Ray dated July 23, 2001. That report mentions a four-foot long chain saw and that he worked until the next day. In an independent reported dated October 19, 2001, Dr. Petkovich wrote: "He [the claimant] specifically stated he was walking on a chair rail and he twisted his lower back." He did not record anything about a chain saw. Nowhere else is a chair rail mentioned.
In his deposition, the claimant denied that he had any hobbies. Robert McMullin testified that the claimant told him he thought he hurt himself water skiing. The claimant denied that he said that. He further denied that he had a boat or that he had ever water skied. However, a physical therapy note from August 6, 2001, stated: "I [the claimant] hurt really bad on Friday night. I took my ultra-light plane over to Kentucky lake [sic] and I could not stand to drive back."
The ALJ's findings, which the commission adopted, further state:
[T]o rule in the claimant's favor, I would first have to find that Dr. Jalal on three separate occasions failed to record how the accident happened. I would also have to find that Dr. Jalal incorrectly stated that he had had radicular symptoms for a month and that the doctor had incorrectly recorded that the claimant told him he had passed a kidney stone. I would have to find that the Dexter Hospital incorrectly recorded the claimant's history. I would also have to find that Dr. Petkovich mis-recorded the mechanism of injury. To paraphrase [another ALJ], it may be possible that *131 one doctor mistakenly failed to note a cause of injury, but it is [sic] strains credibility to assume that three doctors did. Mason v. Hudson Foods, Inj. No. 94-153082 (1/28/99). I would further have to find that not only was Robert McMullin not credible, I would have to find that the employer's business records were falsified. Further, not only were they falsified, but they were falsified in such a way as to verify part of his story but not others. I would also have to ignore that the claimant did not consider ultra-light flying to be a hobby. According to the evidence, [employer] has been in business for years. They have upwards to 50 people working for them. They have workers' compensation claims as part of their business. Indeed, claims are part of the construction business. In order to find for the claimant, I would have to assume that this employer conspired to deny the employee benefits. I have not been convinced. Even assuming that the claimant got his days mixed up, he could not have been injured on the preceding Thursday or Friday. If he was injured on either of those days, he could not have work [sic] at the school for a half day the next day, nor could he have driven the truck back to the employer's office in Dexter. Assuming that the job record for Monday July 2, 2001[,] was mistaken, he could not have been injured cutting trees, because Robert McMullin was working in Dexter on that date and was not operating the bucket lift.
The commission found that "claimant was not injured on the job on July 2, 2001. On that date he was working at the Kennett school and was not trimming trees at the Kennett Methodist Church. He could not have been injured trimming trees as he stated."
Scope of Review
This court's review is directed to questions of law. § 287.490.1.[1] "We accord the commission the same deference that is due to the court's judgment in a non-jury trial and are obliged to affirm if there is basis in the record for the decision." Parker v. Springfield Ry. Services, 897 S.W.2d 103, 108 (Mo.App.1995). The whole record is considered to determine if there is sufficient competent and substantial evidence to support the award. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003).
Issues on Appeal
Point I contends the commission erred in denying claimant's motion to consider additional evidence. Claimant argues the additional evidence he sought to have considered (and which is a part of the record before this court) was offered to cure defects and errors in the record on which the commission relied in entering its award of no compensation.
In declining to rule in claimant's favor, the commission, pursuant to the findings of the ALJ it adopted, relied on Dr. Jalal's records concerning claimant's medical history, information contained in the Dexter Hospital's records regarding claimant's medical history, and the pronouncement in Dr. Petkovich's records concerning "the mechanism of injury." The commission further relied on employer's business records. The evidence presented at the hearing before the ALJ on remand related to an error in the report from Dr. Petkovich on which the commission relied and evidence regarding claimant's personal property tax records evidence that those records *132 did not include an assessment for an ultra light airplane. Claimant further testified that he had never presented information that he had injured his back flying an airplane to the healthcare provider that related that as part of his medical history.
The part of the commission's findings to which Point I is directed is the determination that the evidence adduced at the hearing following the remand was not newly discovered evidence in that it was available to claimant before the initial hearing. Point I, however, does not question the commission's assessment "that even if admitted into evidence the proposed evidence lacks the probative value necessary to cause a change in the underlying decision to deny [claimant] benefits."
A party seeking a new trial on the ground of newly discovered evidence presented in the first incidence to the ALJ or the Commission must show the following: (1) the evidence came to the movant's knowledge since the trial; (2) due diligence would not have uncovered the evidence sooner; (3) the new evidence is so material it would probably have produced a different result had it been presented at trial; (4) the new evidence is not merely cumulative of evidence already presented; and (5) the evidence is not offered to impeach the character or credibility of a witness. [Emphasis added.]
Wilson v. ANR Freight Systems, Inc., 892 S.W.2d 658, 664 (Mo.App.1994) (citation omitted).
Because the commission found that the "new evidence," if presented at trial, would not have produced a different result, the issue claimant asserts in Point I is moot. Point I is denied.
Point II states:
[The commission] erred as a matter of law as there is a lack of sufficient competent evidence to warrant the award in that the same is based upon a defective record and the overwhelming amount of evidence demonstrated that [claimant] sustained and reported a work related injury to [employer].
Rule 84.04(d)(2) provides:
Where the appellate court reviews the decision of an administrative agency, rather than a trial court, each point shall:
(A) identify the administrative ruling or action the appellant challenges;
(B) state concisely the legal reasons for the appellant's claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
...
Point II fails to explain in what respect evidence that was adduced overwhelmingly demonstrated claimant sustained a compensable injury. It does not explain why, in the context of the case, the legal reasons claimant relies on in claiming reversible error support the claim of error made by Point II. A point relied on that fails to meet requirements of Rule 84.04(d) preserves nothing for appellate review. Daniel v. Indiana Mills & Mfg., Inc., 103 S.W.3d 302, 307 (Mo.App.2003). This court has, nevertheless, reviewed the evidence presented at trial to ascertain whether the commission's award is supported by the whole record.
This court is compelled to view evidence and all reasonable inferences therefrom in the light most favorable to the commission's award. Baird v. Ozarks Coca-Cola/Dr. Pepper Bottling Co., 119 S.W.3d 151, 152 (Mo.App.2003). "Deference is given to the commission on issues *133 of witness credibility, evidentiary conflicts, weight of evidence and factual inferences." Id."The commission is free to disregard the testimony of witnesses, even if no contradictory or impeaching evidence is introduced." Cahall v. Riddle Trucking, Inc., 956 S.W.2d 315, 317 (Mo.App.1997). There is competent and substantial evidence, considering the whole record, which supports the commission's award. Further opinion with respect to the issue asserted in Point II would have no precedential value. The commission's determination of that issue is affirmed in compliance with Rule 84.16(b)(4). Point II is denied.
Point III argues that the commission erred in denying a joint motion for remand to the ALJ for more complete findings of fact following the April 8, 2003, hearing at which claimant presented additional evidence for the commission's consideration. The parties filed a joint motion May 15, 2003, requesting further remand to the ALJ to permit him to enter award upon consideration of all the evidence. Claimant contends the motion was a stipulation; that "party stipulations are to be enforced." He argues, therefore, failure to remand the case for entry of a new award was error.
A stipulation relating to an interest of a party that is wholly under that party's control and does not affect the procedure of a case is binding and enforceable. State v. Jones, 539 S.W.2d 317, 318 (Mo.App.1975); Hanchett Bond Co. v. Glore, 208 Mo.App. 169, 232 S.W. 159, 160 (1921). However, a stipulation that affects the procedure of a case is not binding. State v. Jones, supra. Further, a stipulation in contravention of a statute is not permitted. See International Dehydrated Foods, Inc. v. Boatright Trucking, Inc., 824 S.W.2d 517, 520 (Mo.App.1992).
The procedure for reviewing and considering additional evidence in a workers' compensation case is governed by statute. An ALJ has authority only "to hear and determine claims upon original hearing" absent remand by the commission "for a more complete finding of facts." § 287.610.5. Remand for purposes of a more complete finding of facts is a procedural remedy, established by statute, that is discretionary with the commission. It is not something parties may require by stipulation.
The commission permitted claimant the opportunity to identify the evidence he sought to have added to the original record as newly discovered evidence. The evidence was presented before the ALJ on the basis of the commission's March 14, 2003, order. The hearing at which the evidence was offered was held April 8, 2003. The record of the hearing enabled the commission to determine whether to admit the evidence and include it as part of the trial record. The commission determined the evidence did not qualify for admission as newly discovered evidence. This court finds no error in the procedure the commission followed and, for the reasons stated for purposes of resolving Point I, no error in its determination not to admit the evidence as newly discovered evidence. Point III is denied. The award is affirmed.
SHRUM and BARNEY, JJ., concur.
NOTES
[1] References to statutes are to RSMo 2000. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576794/ | 325 N.W.2d 678 (1982)
Dwayne C. KASE, Administrator with the Will Annexed of the Estate of Olivia M. McWilliams, Deceased, Plaintiff and Appellant,
v.
Kenneth D. FRENCH and Betty M. French, Defendants and Appellees.
No. 13421.
Supreme Court of South Dakota.
Argued October 28, 1981.
Decided October 27, 1982.
Charles H. Whiting of Whiting, Hagg & Konenkamp, Rapid City, for plaintiff and appellant.
J. Crisman Palmer of Gunderson & Palmer, Rapid City, for defendants and appellees.
WOLLMAN, Justice.
This is an appeal from a judgment in an action brought by the administrator of the estate of Olivia M. McWilliams, deceased, (appellant) against Kenneth and Betty French to vacate a contract for deed and to recover various cash transfers allegedly obtained through undue influence. The trial court upheld the validity of the contract for deed and the cash transfers, holding that no confidential relationship existed at the time of the sale and that no undue influence resulted from the confidential relationship that subsequently did develop. We affirm.
A widow in her eighties, Mrs. McWilliams lived in a large, somewhat rundown two-story house in Rapid City. As she had a fourth-grade education and no business experience, her nephew, Charles Bruggeman, had been assisting her in the conduct of her business affairs. There was no dispute, however, that Mrs. McWilliams was mentally competent. Mr. and Mrs. Bruggeman *679 visited Mrs. McWilliams frequently and regularly ran errands for her even though they lived in Belle Fourche.
Charles Bruggeman was named as one of several beneficiaries in Mrs. McWilliams' original will. She gave him a general power of attorney in 1969 and added his name to her checking account and certificates of deposit. One year later she revoked this power of attorney. He continued to assist her with her business affairs, however, and their relationship continued on the same basis as before this revocation. Mrs. McWilliams also executed a new will in 1970 in which she left her entire estate to various branches of medical research.
Mr. and Mrs. French moved to Rapid City in 1971, where they purchased a small neighborhood grocery store. They delivered groceries as part of their service. In 1972 Mr. French delivered an order of groceries to Mrs. McWilliams. As he made her acquaintance he was struck by her resemblance to his grandmother. He commented upon this to Mrs. French and suggested to her that she also make Mrs. McWilliams' acquaintance. Once the two women met, a friendship quickly developed between them. Soon after their meeting, Mrs. French stopped by to see Mrs. McWilliams and found that she had injured herself in a fall. From that time on Mrs. French called on Mrs. McWilliams daily and started to help her with household work and other chores. About a month after meeting, Mrs. French told Mrs. McWilliams that she need never be lonely again because they, the Frenches, would take care of her for the rest of her life.
During the latter part of 1972 or early in 1973, the Frenches suggested to Mrs. McWilliams that she move to a dwelling that was less dilapidated. They testified that Mrs. McWilliams countered with the suggestion that they buy her home and fix an apartment in it for her. Within a few months, and after the Frenches had the property appraised (at $35,000), it was agreed that Mrs. McWilliams would sell her property, consisting of two lots, the home, a separate dwelling called the annex, and the personal property and fixtures in the home and the annex, to the Frenches for $40,000. There was to be no downpayment, and the purchase price was to be paid, with interest at the rate of one percent per year, in monthly payments over a period of twenty years ($184 per month) beginning two years after the date of sale. Mrs. McWilliams was to continue to occupy an apartment in the house, rent free, for two years.
Either Mrs. French or Mrs. McWilliams asked Mr. Eugene Christol, Mrs. McWilliams' attorney, to go to the McWilliams home to discuss the impending transaction. Both the Frenches and Mrs. McWilliams participated in this conversation and related the terms of the sale already agreed to. Mr. Christol attempted to dissuade Mrs. McWilliams from selling her property under terms so inadequate to provide for her support and expenses for the rest of her life. He explained to her that one of the shortcomings of the proposed transaction was that the interest rate was not proper. In addition, he reminded her that other parties had expressed interest in buying her property at a far higher price. Mr. Christol testified that this advice made no impression on Mrs. McWilliams and that it appeared to him that her mind was set to transact the sale under those terms in spite of his advice and warnings. He testified that he asked Mr. Bruggeman to also try to persuade Mrs. McWilliams to change the terms of the transaction. Mr. Bruggeman testified that he reminded his aunt of a previous offer for her property of $90,000. (Neither Mr. Christol nor Mr. Bruggeman, however, was able to document any offers at trial.) Mr. Bruggeman was also unable to convince Mrs. McWilliams to take a second look at the terms and was informed by Mrs. McWilliams that she no longer needed him to take care of her business because the Frenches would do that for her. Eventually, Mr. Christol prepared a contract for deed according to the terms specified by Mrs. McWilliams and the Frenches. Very shortly thereafter Mrs. McWilliams removed Mr. Bruggeman's name from all her bank, savings and loan accounts, and certificates of deposit, and opened a joint *680 account with the Frenches. Mr. Bruggeman continued to visit his aunt but no longer counseled her on her business affairs.
Mr. French testified that although Mrs. McWilliams did not want any interest, she thought that such an interest-free arrangement would not be legal. He further testified that Mrs. McWilliams suggested one percent interest because she was aware of one percent government loans available after the 1972 Rapid City flood and therefore thought that one percent would be legal. The Frenches' testimony reveals that they were aware that the going interest rate in Rapid City at the time of the sale ranged from six to eight percent. Neither Mr. nor Mrs. French informed Mrs. McWilliams of this fact.
The trial court found that a confidential relationship existed between Mrs. McWilliams and the Frenches only following the sale of her residence to the Frenches. Appellant contends that this finding was clearly erroneous. We agree.
"A confidential relationship `exists whenever trust and confidence is reposed by the testator in the integrity and fidelity of another.'" Matter of Heer's Estate, 316 N.W.2d 806, 810 (S.D.1982) (quoting In re Estate of Hobelsberger, 85 S.D. 282, 291, 181 N.W.2d 455, 460 (1970)). "[A] [c]onfidential relationship is not restricted to any particular association of persons. It exists whenever there is trust and confidence, regardless of its origin." Hyde v. Hyde, 78 S.D. 176, 186, 99 N.W.2d 788, 793 (1959). "Such a confidential relation exists between two persons when one has gained the confidence of the other and purports to act or advise with the other's interest in mind." Schwartzle v. Dale, 74 S.D. 467, 471, 54 N.W.2d 361, 363 (1952).
In the light of the contacts Mr. and Mrs. French had with Mrs. McWilliams and of the fact that the promise to take care of Mrs. McWilliams was made prior to the sale of her home, we conclude that a confidential relationship existed between Mrs. McWilliams and the Frenches at the time of the sale of the property.
The existence of a confidential relation requires the dominant party "to exercise the utmost good faith and to refrain from obtaining any advantage at the expense of the confiding party." Hyde v. Hyde,supra, 78 S.D. at 186, 99 N.W.2d at 793. In Davies v. Toms, 75 S.D. 273, 281, 63 N.W.2d 406, 410 (1954), an action to set aside a deed, this court stated:
While ... the "burden of proof" never shifts from the one who undertakes to set aside a deed on the ground of undue influence, there is a burden that does transfer over to the other side when evidence offered shows a relationship of trust and confidence.... The latter type burden this court has called the "burden of going forward with the evidence."... [T]he burden then rested on appellants to show that they took no unfair advantage of their dominant position....
The Frenches were therefore under a duty to go forward with the evidence and show that the transaction was free from undue influence. Hyde v. Hyde, supra. See also Niles v. Lee, 31 S.D. 234, 140 N.W. 259 (1913). During cross-examination as well as during the presentation of their witnesses, the Frenches, in fact, went forward with evidence as required by our decisions. Thus we are satisfied that the failure of the trial court to make the proper finding on the issue of the existence of a confidential relationship does not require reversal of the judgment.
The indicia of undue influence are: person susceptible to undue influence, opportunity to exert undue influence and effect wrongful purpose, disposition to do so for improper purpose, and result clearly showing effect of undue influence. Matter of Estate of Landeen, 264 N.W.2d 521 (S.D.1978); In re Rowlands' Estate, 70 S.D. 419, 18 N.W.2d 290 (1945). The trial court concluded that "at all times [Mrs. McWilliams] enjoyed good health, was able to care for herself, was mentally alert and competent to the time of her death, was a strong-willed person and independent in her thinking, *681 and was not weak willed or easily influenced." The record supports this finding. Even appellant in his brief describes Mrs. McWilliams as a "strong willed and stubborn old lady, [who] was not about to take advice."
We cannot say that the contract for deed clearly shows the effect of undue influence. The Frenches called as a witness the realtor who had appraised the property at $35,000. While the interest and downpayment terms were certainly favorable to the Frenches, Mrs. McWilliams received the favorable term of being able to live rent free in an apartment for two years. Although the promise to take care of Mrs. McWilliams for the rest of her life was not incorporated into the contract for deed, Mrs. McWilliams did, in fact, live with Mr. and Mrs. French rent free for one and a half years. Also, when Mrs. McWilliams was later placed in a nursing home, Mrs. French signed an agreement which made her the responsible party in the event of problems with payment.
This court has recognized the presence of independent legal advice as an important factor to be considered in determining whether undue influence exists. Davies v. Toms, supra; In re Daly's Estate, 59 S.D. 403, 240 N.W. 342 (1932). Appellant attempts to undermine the importance of the advice of Mrs. McWilliams' attorney, Mr. Christol, because his advice was neither accepted nor acted upon. Appellant characterizes Mr. Christol's role as one of a draftsman who simply reduced to writing what was already agreed upon. We cannot agree with this characterization. Mr. Christol had been the attorney for Mrs. McWilliams since 1965. He had also given legal advice to her deceased husband and sister. His advice to Mrs. McWilliams was anything other than perfunctory. Cf. Black v. Gardner, 320 N.W.2d 153 (S.D.1982). When Mr. and Mrs. French and Mrs. McWilliams informed Mr. Christol of the terms of their proposed contract, Mr. Christol explained to Mrs. McWilliams why he thought the contract would be a poor business agreement for her. He delayed in writing the contract and called Mr. Bruggeman to inform him of his opinion of the proposed contract. Merely because Mrs. McWilliams chose not to follow Mr. Christol's advice does not destroy the importance of her having received that advice.
The trial court found that the Frenches had neither taken unfair advantage of Mrs. McWilliams nor exerted undue influence upon her in any of their dealings. Given the trial court's opportunity to judge the credibility of the Frenches on the basis of their courtroom demeanor and testimony, we cannot say that this finding is clearly erroneous. SDCL 15-6-52(a); In re Estate of Hobelsberger, supra.
Appellant contends that he is entitled to judgment against the Frenches for all money received from Mrs. McWilliams after the contract for deed transaction. Our review of the record satisfies us that the trial court's treatment of this aspect of appellant's case also finds support in the evidence and thus should not be set aside.
The judgment is affirmed.
FOSHEIM, C.J., and DUNN, and MORGAN, JJ., concur.
HENDERSON, J., dissents.
HENDERSON, Justice (dissenting).
ACTION
This action to vacate a contract for deed and cash transfers, being equitable in nature, is on meritorious appeal to this Court. The majority opinion permits the Frenches to enrich themselves at the expense of an elderly lady, Mrs. McWilliams (her estate), thereby weakening the safeguards which courts of equity have historically employed to protect the weak. I dissent as the evidence does not disclose that the Frenches were the Good Samaritans they professed themselves to be unto Mrs. McWilliams nor to the South Dakota courts. Rather, the factual history reflects that the Frenches took advantage of Mrs. McWilliams by gaining her confidence, placing themselves in a fiduciary relationship, abusing that confidential and fiduciary relationship, *682 profiting exceedingly when they were in a dominant position as compared to the dependent position of Mrs. McWilliams, and by garnering most of her earthly possessions and home before she died. By this dissent, I sustain and defend her cause.
There are three principal issues to this appeal which are recited and treated below with supporting reasons and authorities. To avoid repetition, the facts are not separately set forth but are included in the discussion on the issues.
ISSUES
1) Did a confidential relationship exist as between Mrs. McWilliams and the Frenches at the time of the real estate transaction by which Mrs. McWilliams contracted to sell her home in Rapid City to the Frenches? Yes, and, in my opinion, this included a fiduciary relationship encompassed within that confidential relationship.[1] The majority opinion is actually reversing the trial court on the issue of confidential relationship although it does not expressly say so. The majority opinion must necessarily had to have found that the trial court's decision in this regard was clearly erroneous. With this aspect of the majority decision, I agree.
2) At the time of the real estate transaction, and conceding that a confidential relationship existed between the Frenches and Mrs. McWilliams, did the Frenches meet their burden of proof that (a) they took no unfair advantage of their dominant position and (b) that they did not unduly profit at the expense of Mrs. McWilliams? No, and as detailed below, the transaction was unfair, inequitable, and the Frenches unduly profited arising from the confidential relationship causing a significant loss to Mrs. McWilliams.
3) The trial court found that a confidential relationship existed subsequent to the sale of Mrs. McWilliams' home to the Frenches. Is the estate of Mrs. McWilliams entitled to a judgment for approximately $31,456.09 constituting money in the form of "gifts," money which the Frenches obtained from Mrs. McWilliams when this confidential relationship existed? Yes, as treated below, for the reason that not only did a confidential relationship exist, but a fiduciary relationship as well, and the gifts cannot be sustained for the Frenches were the dominant individuals and Mrs. McWilliams was dependent upon them. The gifts were presumptively fraudulent and voidable and the Frenches failed to overcome this presumption.
I.
Not once, but twice, Mrs. French testified that "I told her she would never have to be lonely again."
Counsel: When was it that you told her that for the first time.
Mrs. French: Oh, probably after I met her, a month or so.
During examination of Mrs. French, this question was further asked:
Counsel: And again, there was a time when you advised Mrs. McWilliams that you would take care of her for the rest of her life?
Mrs. French: Yes. I told there wasthat we would see that she was never lonely and that we would see that she had money. (Emphasis mine.)
Author's note: The Frenches had no money to give to Mrs. McWilliams; Mrs. McWilliams had sufficient money to comfortably care for herself throughout her short life expectancy.
A nephew, Charles Bruggeman, testified that he called on Mrs. McWilliams approximately one month prior to the sale of the home. He was told that he was, in effect, discharged from his duties which he had previously performed for his aunt in connection with her business affairs. And, henceforth, the Frenches would look after her business affairs for her. (Emphasis mine.) The record discloses that the Frenches, indeed, proceeded to attend to her business affairs (other than the contract for deed transaction). Example: Mrs. *683 McWilliams sold her Harding County land and received a check for $7,974.29 from the real estate agent who handled the sale and then turned the check over to the Frenches. This check was deposited in their bank account and they admitted using it for their own purposes. Until such time as they placed Mrs. McWilliams in a nursing home (she was crying as Mrs. French left), the Frenches received checks on Mrs. McWilliams' bank account, cashed certificates of deposit belonging to Mrs. McWilliams, and placed their names on her bank accounts. Many checks, signed by Mrs. McWilliams, were in Mrs. French's handwriting. There can be no doubt that, within the broad framework of the inceptual confidential relationship, there came into existence a fiduciary relationship. Lewis Rohrer, trust officer of the National Bank of South Dakota,[2] testified that Mrs. McWilliams related to him (after she had been left in a nursing home) that she placed full confidence in the Frenches and signed various documents for them and did not pay attention to what she was signing. After leaving Mrs. McWilliams in a nursing home, Mrs. French wrote to Mrs. McWilliams which writing, among other things, stated: "I will bring you a complete financial statement and a list of your furniture in a week. When I try to talk to you, you don't understand, we just talk in circles." (Yes, Mrs. McWilliams was quite elderly and perhaps could not understand all of the representations or actions of the Frenches. This is why equity should protect and shield her.) The financial statement was never furnished. One day prior to admitting Mrs. McWilliams to the nursing home, Mrs. French prepared a document, on file herein, which purported to be a will yet required the signatures of Mrs. McWilliams and the Frenches. Under this instrument, Mrs. McWilliams would leave all of her possessions and money unto the Frenches who in turn would provide for her care. Mrs. McWilliams refused to sign. By this time, and she so expressed, she realized that the Frenches had taken her money and that she had been dumped. In determining the existence of a confidential relationship as applied to this case, I also approve of the language contained in Hyde v. Hyde, 78 S.D. 176, 99 N.W.2d 788 (1959) and Davies v. Toms, 75 S.D. 273, 63 N.W.2d 406 (1954) (Davies), cited in the majority, as authority for determining that a confidential relationship existed in this case. Under the evidence herein, however, contrary to the admonition of Davies, the Frenches took an unfair advantage of their dominant position. Ending up with her home and most of her money was taking advantage of her. If their acts were for love and charity, why was that not the harvest? The harvest was property and money.
II.
At the time of the real estate transaction, Mrs. McWilliams was a widow of 83 years of age with a fourth-grade education and no business experience. Undeniably, she was lonely. She apparently had no close acquaintances or relatives in Rapid City and her two nephews lived in Belle Fourche, one of whom was close to her. The Frenches were in the prime of life, Kenneth French being 47 and Betty French 48 years of age. Mr. French was a businessman.
Concerning the sale of Mrs. McWilliams' home to the Frenches, the majority opinion notes: "Neither Mr. nor Mrs. French informed Mrs. McWilliams of this fact" (that the going interest rate in Rapid City at the time of the sale ranged from six to eight percent). Notwithstanding this observation, the majority opinion finds no wrongdoing on the house sale. The majority opinion fails to recognize that once it has been established that the Frenches were in a confidential or fiduciary relationship, they owed a duty to divulge a fair rate of interest to her. McClintock On Equity at 224 (1948), tells us: "An intentional, active *684 concealment of a fact of which the other party is known to be ignorant has the same effect as a false statement, but mere nondisclosure does not invalidate the transaction, unless some previous relationship or transaction between them has imposed some obligation to make disclosure." McClintock further states at 225: "The principle that a party can keep silent with respect to matters of which he knows the other is ignorant applies only when the parties are dealing at arm's length. Where there is such a relationship between them, or such relationship has recently existed, as to justify the mistaken party in relying upon the other for information with respect to the transaction, the latter must make full disclosure." The Frenches failed to make full disclosure. During the course of trial, witness Lewis Rohrer submitted a summary, duly received into evidence, reflecting that monthly payments on $40,000.00 amortized over 20 years at 8% interest would amount to $334.58 per month or $150.58 more than the monthly payments of $184.00 provided for by the contract. Such computation reflects a difference of $36,139.20, which the Frenches would pay under an 8% interest rate as compared to a 1% interest rate under the contract. This offends one's sense of good morals and fair dealings and should require a court of equity to act in response thereto. This unfair interest rate was known to the Frenches, they who said they would take care of her the rest of her life and who said she would never be lonely again. Yes, and they who "would see that she had money." As the record indicates, the Frenches, a few years earlier, had paid 6¾% interest on their loan to get into the grocery business. These facts, these figures, demonstrate that the Frenches took unfair advantage of Mrs. McWilliams and that they profited handsomely at her expense. For people who were going to do good (to her), they did very well. Mrs. French admitted, under oath, that neither she nor her husband ever suggested to Mrs. McWilliams that the 1% interest rate was not a fair rate or the going rate of interest.
Counsel: You just took the position that if she was satisfied with that (1%), why that is the way it would be; is that right?
Mrs. French: Yes.
It is obvious from reading the record that Mrs. McWilliams honestly believed that a 1% interest rate was legally alright because the SBA was making 1% interest loans to flood victims in Rapid City. She had heard it on the radio. Equity was born out of conscience. Does not equity owe a duty to impose conscience on the Frenches? No downpayment and no payments for two years is also unconscionable.
Mrs. McWilliams called upon her attorney, Mr. Christol, not with seeking advice on her mind to accept his counsel. Rather, she called upon her attorney to have the contract prepared (exactly as she and the Frenches had decided) then being under their total influence and dominion.
Seemingly, the majority opinion would instill the Frenches' position with a defense because Mr. Christol's advice was sought. But the majority opinion fails to recognize that this is only a defense when the advice is sought and acted upon, and not when the advice is given and then rejected by a closed mind. As in Davies, cited in the majority opinion, "[h]er mind was made up." 75 S.D. at 279, 63 N.W.2d at 409. This case supports my position that the advice given implies at least an apparent open-mindedness on the part of the recipient, and Mrs. McWilliams did not have an open mind. I further believe that language found in In Re Daly's Estate, 59 S.D. 403, 240 N.W. 342 (1932) (Daly), supports my position that the rejected advice of Mr. Christol does not obliterate or soften the overreaching of the Frenches. Daly quotes from Jones' Commentaries on Evidence, vol. 2, § 190:
One of the most important requisites of the validity of these transactions between persons acting under the influence of these confidential relations is, that the party presumably under the influence of the other should have had independent advice from a lawyer, who is devoted *685 entirely to the interest of the party he is called upon to advise, and in whom that party had entire confidence.
Daly, 59 S.D. at 408, 240 N.W. at 344. At no time did Mrs. McWilliams place any confidence in Mr. Christol's advice. She ignored it.
As indicated in Dibel v. Meredith, 233 Iowa 545, 10 N.W.2d 28, 30 (1943) (Dibel), a confidential relationship (in the instant case, it was fiduciary as well) was explained "[i]n law it has been defined or described as any relation existing between parties to a transaction wherein one of the parties is duty bound to act with the utmost good faith for the benefit of the other party." Here, the Frenches did not act in good faith for Mrs. McWilliams; they acted for themselves. In Matter of Estate of Herm, 284 N.W.2d 191, 200 (Iowa 1979), the Supreme Court of Iowa approved of its language in Dibel and further expressed: "Where such a confidential relationship exists, a transaction by which the one having the advantage profits at the expense of the other will be held presumptively fraudulent and voidable." I disagree with the conclusion of the majority opinion that the Frenches took no unfair advantage of their dominant position. The results of their efforts patently establish unfair advantage.
III.
Of the $31,456.09 that the Frenches obtained from Mrs. McWilliams, the Frenches maintain this accumulation was a series of gifts except for the first $4,000.00 they obtained from her.
When the Frenches put Mrs. McWilliams into the nursing home against her wishes and left her crying and confused, she was apparently given a check for $11,200.00. Ostensibly, this was in repayment of a $4,000.00 note and a refund of the proceeds of the sales of Harding County land, plus interest thereon. The trial court found a confidential relationship between Mrs. McWilliams and the Frenches, but confined this finding to all times subsequent to the sale of the home. Mrs. French took Mrs. McWilliams to various banks and savings and loan associations where Mrs. McWilliams had money on deposit, for the express purpose of having Mrs. McWilliams withdraw money from her accounts to turn the money over to the Frenches. In this, the confidential relationship was used and abused and the gifts are presumptively fraudulent and voidable and the Frenches have failed to overcome this presumption. Moreover, the Frenches were writing checks and conducting the business affairs for Mrs. McWilliams, and occupied a fiduciary relationship with her.[3] 36A C.J.S. Fiduciary § 389 (1961) provides:
It is a doctrine repeatedly announced that courts of equity will scrutinize with the most jealous vigilance transactions between parties occupying fiduciary relations toward each other, and particularly any transaction between the parties by which the dominant party secures any profit or advantage at the expense of the person under his influence.
Transactions between parties to a fiduciary relation are presumptively fraudulent and void, and will be stricken down unless their fairness is established by clear and convincing proof, and the burden of proof is on the party asserting validity with respect thereto.
Accord, Merritt v. Easterly, 226 Iowa 514, 284 N.W. 397 (1939). The Frenches have not met any burden of proof to establish fairness in securing these thousands of dollars of gifts in a short period of time from an absolute stranger who, one month after she met them, was told that she would never be lonely again and "we would see that she had money." Thus, the trial court's finding that the Frenches "did not *686 take unfair advantage of Olivia" is clearly erroneous. This reviewing Court should be left with a definite and firm conviction that a mistake has been committed. In Re Estate of Hobelsberger, 85 S.D. 282, 289, 181 N.W.2d 455, 459 (1970). The Frenches did not see that Mrs. McWilliams had money. Rather, they took her money.
Mrs. McWilliams obviously turned over these large sums of money to the Frenches for a reason. The only logical explanation is that she honestly believed that the Frenches would take care of her for the rest of her life. The trial court awarded the estate, and thus, Mrs. McWilliams, a sum equal to the amount which the trustee had expended for Mrs. McWilliams' care in the nursing home. The rationale of the trial court was founded in equity. The trial court expressed "I conclude that they [the Frenches] should be required to reimburse Olivia's [Mrs. McWilliams] estate for the expenses paid for her care and keep, including medical costs, if any, and incidentals. Since they have had the use of the money in the meantime, it should bear interest from the date of Olivia's [Mrs. McWilliams] death. If there is a credit left over on the computations concerning the $12,200 and the $4,000 loan and land sale proceeds, it will be credited on this item."[4]
As a fiduciary, the Frenches had no right to breach or abuse their relationship with Mrs. McWilliams. See Dobbs, Law of Remedies at 680 (1973). I would reverse and direct that the trial court enter a judgment voiding the unconscionable contract for sale and further direct the trial court to credit the Frenches for the money expended in the repair, remodeling, and improvement of the real property. Furthermore, I would reverse and direct the trial court to restore unto the estate all inter vivos gifts plus interest, believing that a court of equity will not suffer a wrong to be committed without fashioning a remedy. This well could include the appointment of a referee to take evidence to establish the necessary arithmetic calculations to put the court's judgment into effect. See McClintock on Equity at 76.
NOTES
[1] See In Re Rowlands' Estate, 70 S.D. 419, 18 N.W.2d 290 (1945), wherein Justice Roberts recognized the theoretical concept of a confidential and fiduciary relationship.
[2] In 1975, acting under the dominion of the Frenches, Mrs. McWilliams changed her will to include the Frenches as her sole beneficiaries. Believing that she had been mistreated and abused by the Frenches, on April 11, 1977, she executed a new will disinheriting the Frenches which named the National Bank of South Dakota as trustee and thereby willed her remaining earthly possessions to a sight foundation and medical research programs.
[3] The Frenches secured and kept Mrs. McWilliams' strong box in their home which contained her valuables. The trust officer obtained it and her bank statements. Investigating the transactions over a period of months, the trust officer compiled a list of transactions that unveiled the overreaching and said list is Exhibit "7" herein. The trust officer also obtained a list of furniture and personal belongings of Mrs. McWilliams from the Frenches shortly before she died. These were sold at public auction.
[4] I deduce that the trial court required the repayment of a $4,000 loan and a $11,200 check and $1,000 check the Frenches gave Mrs. McWilliams upon and after entry into the nursing home. Although not clear, the $12,200 must represent the return of a land sale proceeds in Harding County plus interest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455035/ | 429 S.W.2d 847 (1968)
E. S. PETERS, Appellant,
v.
June FREY, Appellee.
Court of Appeals of Kentucky.
June 28, 1968.
*848 George S. Wilson, III, Wilson & Wilson, Owensboro, for appellant.
Woodward, Bartlett & McCarroll, Larry K. Harrington, McKinley & Howard, Owensboro, for appellee.
W. MAJOR GARDNER, Special Commissioner.
A truck owned by Frey Brothers Trucking and Excavating Company, and driven by Edward Lee McKinney, was involved in an accident resulting in the injury of appellant, E. S. Peters, who was a pedestrian near the scene of the accident. The accident occurred when the Frey Brothers truck failed to stop at a stop sign and collided with a truck owned by Vanover Brothers. Shortly after the accident, appellant sued Frey Brothers Trucking and Excavating Company and its driver and Vanover Brothers and its driver. That suit is still pending. The present suit is by Peters against June Frey, appellee herein, individually.
June Frey is an officer of Frey Brothers Trucking and Excavating Company, a corporation. It was his specific duty to hire drivers. He did in fact hire Edward Lee McKinney, and he was the one who assigned McKinney the duty of driving the truck at that time. McKinney was 17 years of age at the time. June Frey had the additional duty of seeing to the maintenance of the vehicles. It is this additional duty he is accused of violating with respect to the truck involved.
In his complaint appellant alleeged the following grounds for recovery: (1) That June Frey was the "person" within the meaning of KRS 186.590(3) who gave and furnished a vehicle to Edward Lee McKinney, a minor seventeen years of age; (2) that June Frey, and not the corporation, employed Edward Lee McKinney in violation of KRS 339.230(2) (d) and KRS 339.240(2), and that the alleged violation of the statutes was the proximate cause of the appellant's injuries; and (3) that June Frey was personally responsible for the maintenance of the truck driven by McKinney, that he negligently failed to carry *849 out his duties, and that the appellant's injuries were the direct result of such negligence.
Appellee moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The motion was sustained. Judgment was entered dismissing the complaint. The motion is not well taken.
KRS 186.590(3) provides in part, "* * * any person who gives or furnishes a motor vehicle to the minor shall be jointly and severally liable with the minor for damage caused by the negligence of the minor in driving the vehicle." In Falender v. Hankins, 296 Ky. 396, 177 S.W.2d 382, it was held that this statute applies to all persons placing minors in charge of motor vehicles, regardless of ownership, with the exception of one who sells a motor vehicle to a minor. See also Asher v. Russell, Ky., 377 S.W.2d 803. By making the person liable who enables a minor to operate a motor vehicle, an additional source for the recovery of damages is provided. Sizemore v. Bailey's Adm'r, Ky., 293 S.W.2d 165. In view of the statute and these decisions, appellee is not excused from responsibility by reason of his capacity as an officer or employee of the corporation or of nonownership of the vehicle.
Appellant also insists that appellee, by employing a seventeen-year-old minor, became liable for damages. KRS 446.070 provides that a person injured by reason of the violation of any statute may recover such damages as he sustained by reason thereof. Appellant urges that the minor was employed in violation of KRS 339.230 (2) (d) and 339.240, which prohibit the employment of a minor of McKinney's age "in the operation of motor vehicles." Appellee argues that such violation of the statute was not the proximate cause of the injuries complained of. The question of proximate cause will arise later when testimony is presented. For the purpose of the motion to dismiss, the allegations are sufficient.
Appellant's third claim, however, enters into another field that of negligence. It is firmly established, and appellee admits, that an agent of a corporation is personally liable for a tort committed by him although he was acting for the corporation. Murray v. Cowherd, 148 Ky. 591, 147 S.W. 6, 40 L.R.A.,N.S., 617; Pirtle's Adm'x v. Hargis Bank and Trust Company, 241 Ky. 455, 44 S.W.2d 541. It is alleged in the complaint that June Frey was personally in charge of the trucks, that he negligently failed in seeing to it that the truck in question was in good working condition, and that as a proximate result the injury occurred. This is sufficient to charge appellee with negligence.
The allegations are sufficient to state causes upon which relief could be granted in each instance. The motion to dismiss should have been overruled.
Judgment reversed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576931/ | 346 S.W.2d 341 (1961)
Arthur CRISWELL, Jr., Appellant,
v.
STATE of Texas, Appellee.
No. 33342.
Court of Criminal Appeals of Texas.
April 26, 1961.
Kirchheimer & Kirchheimer by Theo. R. Kirchheimer, Houston, for appellant.
*342 Frank Briscoe, Dist. Atty., Carl E. F. Dally, Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
MORRISON, Judge.
The offense is the sale of a narcotic drug; the punishment, 5 years.
State narcotic agent Scholl testified that he became acquainted with appellant, who ran a drug store, through an informer sometime prior to the day in question; that on such day he called appellant on the telephone, asked him for some barbiturates; that during the conversation appellant suggested paregoric, and a price, quantity and meeting place were agreed upon. He testified that, in company with Houston narcotic officer Gentry, he went to the appointed place, and when appellant arrived he motioned them to follow him; that further up the street both automobiles came to a halt, and appellant, in exchange for $4 in money, handed him a package which contained two clear pint bottles containing a brown liquid with no labels. He stated that as he prepared to leave appellant called out to him to wait, stating that he had through mistake handed him two pints of paregoric which he planned to deliver to someone else; that he returned the two pint bottles to appellant and received in return an eight-ounce bottle containing a brown liquid similarly unlabeled, which he marked for identification and later delivered to the city chemist. Appellant was not arrested until sometime later; it was developed on cross examination that at the time of his arrest an inventory of appellant's drug store was made; that Scholl had received information that other illegal sales had been made from appellant's drug store; and that sometime during his investigation Scholl had asked to see appellant's pharmacist's license, and appellant failed to produce the same.
Officer Gentry corroborated Scholl's testimony concerning the sale.
Chemist Crawford testified that he received the unlabeled bottle from Scholl, found it to contain "right at eight ounces of paregoric," that he ran a test on the same and by a process of evaporation extracted from the contents of the bottle 900 milligrams of powdered opium, which would be sufficient for ten subcutaneous human injections of narcotics.
J. H. Arnette, Secretary of the Texas State Board of Pharmacy, testified that, according to the records of his Board, appellant had been a licensed pharmacist for some time prior and subsequent to the day charged in the indictment but he was not licensed to practice on such date because he had permitted his license to expire due to non-payment of his annual license renewal for the year of 1959 and that such license was in a state of suspension at such time.
Appellant denied the sale to Scholl, and he and his witnesses testified to an alibi.
The jury chose to accept the State's version of the case, and we find the evidence sufficient to support their verdict. We shall discuss the contentions advanced in the brief.
He first contends that the court committed fundamental error in his charge. For the first time on motion for new trial, it is urged that the court erred in referring to "a narcotic drug, to-wit, a preparation of opium commonly known as paregoric." The indictment was so worded, it tracked the terms of Section 1(12) and Section 1(14) of Article 725b, Vernon's Ann.P.C., and we perceive no error therein. He further complains of that portion of the charge in which the court instructed the jury that any person may purchase at any time one ounce of paregoric without a doctor's prescription. It was abundantly established that this charge was given at appellant's request, and he is therefore in no position to complain. Carriger v. State, 153 Tex. Crim. 390, 220 S.W.2d 169, and 4 Branch's Ann.P.C., 2nd Ed., Sec. 2125, p. 449.
*343 Venzor v. State, 162 Tex. Crim. 175, 283 S.W.2d 397, relied upon by appellant, can have no application here because in that case the accused requested certain definitions which the court refused to give.
Appellant next complains of certain cross examination of appellant. The basis of his objection was that the questions were not supported by a proper predicate and were asked in bad faith. No objections were made until after some of the questions had been answered. It was appellant's defense that he was a licensed practicing pharmacist plying a legitimate profession, that he had never sold paregoric in large quantities to anyone, that all his trouble with the law was the result of acts of a competitor across the street, and that the officers had fabricated the entire case against him. We have concluded that the questions concerning large purchases of paregoric by appellant plus his small use thereof in the preparation of prescriptions became proper inquiries in order to rebut appellant's special defense. See Torres v. State, Tex.Cr.App., 323 S.W.2d 952, and Washington v. State, 162 Tex. Crim. 479, 286 S.W.2d 629.
Day v. State, 117 Tex. Crim. 173, 34 S.W.2d 871, and Watson v. State, 128 Tex.Cr. R. 360, 59 S.W.2d 126, relied upon by appellant, are not here controlling because the questions propounded in such cases in nowise were calculated to rebut a special defense as in the case at bar and those cited above.
There is an absence of any showing of had faith on the part of the State in propounding the questions.
If there was any error in the admission of the certificate of J. H. Arnette, it was cured when he was called and testified without objection to the same facts.
Finding no reversible error, the judgment of the trial court is affirmed.
WOODLEY, P. J., absent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577005/ | 346 S.W.2d 636 (1961)
B. E. MOSELEY et al., Appellants,
v.
TEXAS AND NEW ORLEANS RAILROAD COMPANY et al., Appellees.
No. 3854.
Court of Civil Appeals of Texas, Waco.
May 11, 1961.
Rehearing Denied June 1, 1961.
*637 Bannon & Bannon, Joe S. Moss, Houston, for appellants.
Baker, Botts, Andrews & Shepherd, John F. Heard, Houston, for appellees.
WILSON, Justice.
Appellants as plaintiffs in a class action sought an injunction to restrain appellee railroad company from withholding a portion of their wages to pay dues or assessments to a hospital association. They also prayed that the association be enjoined "from requiring plaintiffs to be members", and for damages. In a non-jury trial the relief prayed for was denied. Appellants, *638 164 in number, do not purport to represent several thousand other employees of the company who are members of the hospital association.
Material findings of fact were that the non-profit hospital association had as its object furnishing medical and surgical treatment and services to employees of the railroad company who were admitted to membership in the association by the latter's board of managers. This governing board was composed of three voting members appointed by the railroad company and four voting members elected by employees. Since formation of the association the company has required plaintiffs and other employees, as conditions of employment, to become and remain members of the association, and to authorize the company to pay association dues after deducting the amount thereof from their wages. Plaintiffs agreed to and complied with these conditions under a written agreement until November, 1959, when they requested that the company cease to impose the conditions.
It was found that certain railroad Brotherhoods and Unions (not parties) are the exclusive representatives of plaintiffs in bargaining with the company concerning wages, hours and employment conditions, and have been such for many years. Prior to 1946 the majority of the board of managers of the association had been officers of the railroad company; but in that year, in response to demand by the brotherhoods and on recommendation of a presidential emergency board, agreements were entered into between the railroad company, the bargaining agents and the association whereby employees were to have majority voting representation on the association's board of managers, and the company was to make substantial monthly contributions to the association and assume other obligations. This agreement was consummated by execution of a formal contract by the hospital association and the railroad company, by which the company was to "deduct from the wages of the employee members of the association the dues which have been fixed by the association in accordance with its by-laws." The findings of fact thus summarized are not challenged.
Appellants first attack the judgment here on the grounds that the agreement by the company and association to furnish medical and surgical treatment and services is illegal and void as constituting practice of medicine in contravention of Arts. 739-745, Vernon's Ann.Tex.P.C., and Arts. 4495-4512, Vernon's Ann.Civ.Stat. They rely on Rockett v. Texas State Board of Medical Examiners, Tex.Civ.App., 287 S.W.2d 190, writ ref. n. r. e., which does not affect the present contention.
We are of the opinion that this theory, not pleaded or presented below, may not be raised for the first time on appeal. Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54, 59.
Aside from the fact the question was not raised in the trial court, and pretermitting decision of whether appellants have standing in equity to invoke injunctive relief on this ground, we think the contention is untenable. The railroad company against which injunction was prayed received no fee or compensation for the services, and did not agree to furnish the services. It only carries out the contractual obligations which appellants' bargaining representatives demanded. As to the hospital association, the relief prayed for is that it "be permanently enjoined from requiring plaintiffs to be members of said hospital and from interfering with their relationship with their employers, the company", or insurance companies. The association is not requiring plaintiffs to be members, and the point does not affect the judgment as to it.
It is contended appellants' written authorization to the company to deduct from their wages the amount of dues to the association is an invalid assignment of wages under Art. 6165a, Sec. 6, Vernon's Ann.Civ.Stat. This contention was not advanced below, and we do not think it may *639 be first raised in the reviewing court. Cook v. Hamer, supra; Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979, 980. The record does not show any of appellants are married men, but assuming some of them are such, the title of the bill, Acts 1927, 40th Leg., 1st C.S., p. 30, ch. 17, states it is one providing the wife shall join in an assignment of wages made by married men "to such loan broker." See Trawalter v. Schaefer, 142 Tex. 521, 179 S.W.2d 765, 767; 39 Tex.Jur., Sec. 46, p. 100. Appellee company is not a "loan broker" under that Act.
It is said here for the first time that the authorization for deduction from wages to pay association dues contravenes Article XVI, Section 28 of the Texas Constitution, Vernon's Ann.St. and Art. 3835 of the Civil Statutes, as being in effect, "an enforced execution or garnishment" of exempt current wages, or an invalid waiver of the exemption. No Texas authority which would support the position as a ground for equitable relief under this record is cited. The point is overruled.
Another argument for reversal is that appellants had requested termination of membership in the association and cancellation of the payroll deduction. Although the asserted basis claimed for reversal is not clear, this request was directed to the hospital association, and relates to injunctive relief sought against the latter. Appellants, in consideration of employment, had agreed to become and remain members of the association and authorized the deduction in payment of dues. Through demands of their accredited bargaining representatives, and as an outgrowth of a strike ballot and mediation, the association and the company were induced to contract that the company would deduct from their wages the amount of dues fixed in accordance with the by-laws of the associationa voting majority of whose board of managers is elected by appellants and other employees of the company. None of the brotherhoods or unions has requested a modification of the contracts, or sought to alter the provisions by collective bargaining. The evidence indicates, in fact, that brotherhoods which are the bargaining agents for some of appellants desire the present contract status maintained. The association (to the manager of which the requests were addressed) could not control or cancel the payroll deduction by the company; and injunction was not available under this record to terminate their membership in the association.
It is contended that regardless of whether "any railroad unions or brotherhoods are exclusive representatives of the employees in bargaining," each employee has the right to act for himself under Art. 5207a, Vernon's Ann.Civ.Stat. This attack also is first raised here. The basis of the contention is the assertion that the record is silent as to whether the unions and brotherhoods acting as bargaining agents represented appellants, or whether appellants were members thereof. The record is not silent: appellants alleged, "they belong to one of the Railroad Brotherhoods and that their wages, seniority, working conditions and hours are arrived at through collective bargaining," and although alleging they work under a written contract "between the company and their Unions" which gives no authority to make wage deductions, the only contracts in the record are those referred to. It appears from the record that all class plaintiffs are members of the Brotherhood of Locomotive Firemen and Enginemen of which the class representative also is a member; that "these people whose names are listed here are members of" his Brotherhood, whose chairman was a signatory party to the contract arrived at through its bargaining for appellants. In addition, there is nothing in the record to suggest any right vouchsafed by the statute (enacted in 1947 after the contracts referred to were executed) has been denied any appellant.
Finally, it is urged that operation or maintenance of a hospital by the railroad *640 company, through an association or otherwise, is ultra vires. The position was not presented in the trial court, and may not be first urged here. Pollock Paper & Box Co. v. East Texas Motor Freight Lines, 145 Tex. 634, 201 S.W.2d 228, 230. There is no showing appellants are shareholders, and they do not proceed as such. Although Art. 2.04, Texas Business Corporation Act, V.A. T.S., does not apply to railroad companies under Art. 9.14 thereof, "The general rule is that the question of whether or not a corporation has acted in excess of its lawful powers can only be raised by one interested in the corporation, or in a direct proceeding brought by the state." Staacke v. Routledge, 111 Tex. 489, 241 S.W. 994, 999; Russell v. Texas & P. Ry. Co., 68 Tex. 646, 5 S.W. 686, 688.
All points have been considered and are overruled.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577243/ | 790 S.W.2d 146 (1990)
302 Ark. 315
Dwayne HARBISON, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 89-236.
Supreme Court of Arkansas.
May 21, 1990.
*147 Harry L. Ponder, Walnut Ridge, for appellant.
Paul L. Cherry, Asst. Atty. Gen., Little Rock, for appellee.
NEWBERN, Justice.
Dwayne Harbison was convicted of being in possession of marijuana and cocaine. He was sentenced to six months in jail on the misdemeanor charge of possession of marijuana. On the cocaine possession charge, a felony, he was sentenced to three years imprisonment with two years suspended. He appeals only the cocaine conviction, contending that it was not the intent of the general assembly in criminalizing possession of a controlled substance to punish one found in possession of a bottle containing only cocaine dust or residue. We agree, thus the conviction is reversed and the case is dismissed.
In the record before us there is no testimony about the circumstances of Harbison's arrest. The record does contain a Hoxie police officer's affidavit, which apparently served as a basis for an arrest warrant in the case. That affidavit states that two officers stopped a car which had one headlight and one taillight out. They observed marijuana in the vehicle. They searched the vehicle and found marijuana and a brown glass bottle containing white powder.
A motion was made to dismiss the cocaine charge on the ground that the amount in the brown bottle was insufficient to give rise to a charge of possession. Testimony of two experts from the state crime laboratory was taken. Apparently two defendants' cases were being considered jointly because it was stipulated between Harbison's lawyer and the prosecution that the testimony being taken would be used for both cases.
A drug chemist testified that he identified a substance found inside two plastic drinking straws as being a "trace amount" of cocaine "residue" too small to weigh with state crime laboratory equipment which could weigh nothing smaller than one milligram. From colloquy among the court and counsel, it is apparent that the two straws were unrelated to the case against Harbison but had to do with the other defendant.
The laboratory's chief toxicologist then testified that the amount found in the two straws was not sufficient to have any effect on the "human system" and a drug user would not attempt to use it because it "would not be an amount that someone would be interested in trying to use."
We have no similar testimony with respect to the brown bottle, but the prosecution stipulated that the expert testimony would have been the same with respect to the amount of cocaine found there. The record contains state's exhibit "3" which is a laboratory report concerning examination of six items. The report lists Harbison as the suspect; otherwise, we have no information as to how the six items were obtained by the authorities except perhaps the brown bottle was the one found in the car stopped by the officers. Other than the brown bottle and 1.8 grams of marijuana, the list included a blue speckled tablet, three yellow tablets, a glass tube, and a mirror. On none of these latter items was any controlled substance detected.
The motion to dismiss was denied, and the case went to trial before the judge without a jury. The state introduced its exhibit "3" and the brown bottle. Conviction and sentencing followed.
1. Arkansas law
Harbison was convicted of violating Ark. Code Ann. § 5-64-401 (1987). The relevant operative part of that section appears in subsection (c): "It is unlawful for any person *148 to possess a controlled substance...." Harbison argues "all violations are based on weight of the controlled substance." While that is so with respect to subsections (a), (b), and (d) of the statute, subsection (c) says nothing about weight. The argument does not end there, however, but goes on to cite cases from other jurisdictions with statutes like ours where it has been held that possession of a trace or less than a useable amount of a controlled substance does not constitute an offense.
The state's brief dismisses the argument, contending we have already decided the issue. In Berry v. State, 263 Ark. 446, 565 S.W.2d 418 (1978), and Denton v. State, 290 Ark. 24, 716 S.W.2d 198 (1978), we reduced convictions of possession with intent to deliver to convictions of possession on the basis that the amounts of the controlled substances involved, a "trace amount of heroin" and a "powder residue" of amphetamine and methamphetamine, were insufficient to show intent to deliver. Nothing in either opinion indicated we had been presented with the question whether there was an amount sufficient to satisfy the possession requirement.
Also cited by the state is Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987), where we affirmed Holloway's conviction of possession of a controlled substance and referred to the drug paraphernalia and the "cocaine residue" found in his room. It was not, however, the "cocaine residue" which formed the basis of his conviction. Rather, it was the "bag filled with packets of ... cocaine" found in the dining room of the home he shared with others. Our reference to the paraphernalia and residue had to do with circumstantial evidence that he was in constructive possession of the apparently large quantity found in the home.
The only other case cited in the state's brief is Johnson v. State, 23 Ark.App. 200, 745 S.W.2d 651 (1988). Johnson argued that the small amount of cocaine found in the packets he was selling to police officers did not constitute a useable amount, and thus the evidence was insufficient for proof of possession with intent to deliver. The court of appeals distinguished Berry v. State, supra, on the ground that there was plenty of evidence that Johnson had the intent to deliver, and in the Berry case it was held only that the amount involved was insufficient to show an intent to deliver. The court was not presented with the question we have here.
The state apparently did not perceive in this case that we are squarely, and for the first time, asked whether possession of a controlled substance must be of a measurable or useable amount to constitute a violation of § 5-64-401.
2. Cases from other jurisdictions
Counsel for Harbison argues that common sense, justice, and fairness dictate that the law should not punish a person found to be in possession of a container which only a scientist can determine to contain a controlled substance. Cases from other states are cited in support of the argument. Although there is an abundance of them, the state's brief did not cite any case on point. Some other jurisdictions, although in some instances only upon proof of additional facts, would punish such conduct. We must decide whether to follow that view or side with those jurisdictions which would require either a useable amount of the substance or an amount sufficient to permit the person in possession to know of its presence.
The early cases dealt with possession of alcoholic beverages during the prohibition period. In Schraeder v. Sears, 192 Iowa 604, 185 N.W. 110 (1921), the question was whether the defendant was in violation of an injunction against possession of liquor, having been found to possess a concoction called "Lash's Bitters." The Iowa Supreme Court found the defendant to be purged of contempt because the bitters was a laxative and cathartic unsuitable for use as an alcoholic beverage, despite its alcohol content.
In Henson v. State, 25 Ala.App. 118, 141 So. 718 (1932), Henson was found in his room lying on a bed. A bottle on the floor contained a teaspoon of what the invading police identified as whisky. More whisky *149 was found in a nearby field, but there was no evidence connecting it with Henson. He was convicted of possession, and the conviction was affirmed only because he made no "request for an affirmative charge or a motion for new trial." In obiter dicta, the court pointed out that possession requires some evidence of knowledge. It was stated that the prohibition laws are "upheld as police regulations affecting the morals, health, and well-being of the citizen," and for that reason they are not in violation of constitutional provisions. Then the court noted, "[i]t would therefore seem to be inconceivable that the Legislature intended the prohibition laws to apply to the possession of a teaspoonful of whisky when that quantity could not in any manner affect the morals, health, or well-being of any person or persons."
In Isner v. United States, 8 F.2d 487 (4th Cir.1925), the defendant was indicted for being in possession of 70 gallons of grape wine described as "intoxicating liquor," and thus being in violation of the National Prohibition Act. The government conceded that the beverage was not "intoxicating" but contended that, because of its alcohol content, possession of it was nonetheless a violation of those parts of the act defining "liquor" by alcohol content. The court held that the Congress intended that such wine or vinegar be excepted from the act if not intoxicating.
The earliest notable case dealing with a drug other than alcohol on the question of possession of a miniscule amount is Greer v. State, 163 Tex. Crim. 377, 292 S.W.2d 122 (1956). Police found Greer in possession of a piece of wet cotton in a bottle cap. A chemist "extracted the contents of the bottle top with hot water and evaporated that to dryness and ran tests on the residue which indicated that the material extracted from the cotton was heroin." The court reversed the conviction in a very summary opinion, apparently issued upon rehearing, refusing to construe the Uniform Narcotic Act as "authorizing a conviction for possessing a small piece of wet cotton containing a trace of a narcotic such as may have been wiped from a needle following an injection."
The Greer case was followed by Pelham v. State, 164 Tex. Crim. 226, 298 S.W.2d 171 (1957), in which there was a somewhat more elaborate opinion. Police had observed a car being driven by Pelham while occupants were shaking newspapers out the window and then discarding the newspapers. A "dust of some type" was flying from the newspapers. Scrapings of dust taken from Pelham's right front pants pocket and examined under a microscope revealed traces of marijuana. The chemist could not say there was as much as a grain found. The court described the amount as "infinitesimal." The court acknowledged that the legislature had not prescribed the amount necessary to be possessed in order to constitute the offense. It was held that "unless the amount of marijuana possessed is such as is capable of being applied to the use commonly made thereof, it does not constitute marijuana within the meaning of the statute." The court added: "It would be a harsh rule, indeed, that would charge the appellant with knowingly possessing that which it required a microscope to identify." The Texas Court of Criminal Appeals declined invitations to overrule the Pelham case in later cases involving marijuana, Moore v. State, 562 S.W.2d 226 (Tex. Cr.App. 1977), and cocaine, Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App.1977).
The California Supreme Court interpreted its possession statute to require a "knowing" possession in the same sense that the accused must have knowledge of the presence of the object, although it is not necessary that he or she have knowledge of its "character." The court noted that the essence of "possession" is dominion and control, and those do not exist absent knowledge. People v. Gory, 28 Cal. 2d 450, 170 P.2d 433 (1946). That decision was followed by the leading case of People v. Leal, 64 Cal. 2d 504, 50 Cal. Rptr. 777, 413 P.2d 665 (1966), which reviewed the Gory case and other decisions of California courts of appeals, some of which were conflicting. In the Leal case, approximately one-half grain of heroin was found encrusted on a spoon in a bathroom medicine cabinet along with a wad of cotton, an *150 eyedropper, and a hypodermic needle. The court, in an opinion by Justice Tobriner, concluded that the California statute, which imposed penalties on "every person who possesses any narcotic other than marijuana" required an amount sufficient to permit a knowing possession. The court wrote, "[i]t is not scientific measurement and detection which is the ultimate test of the known possession of a narcotic, but rather the awareness of the defendant of the presence of the narcotic." The court noted that the presence of a residue or trace amount of a forbidden drug poses less danger of future harm and is less probative of the intent to use a narcotic in the future than the presence of drug paraphernalia which the legislature had made a misdemeanor. The intent of the legislature was to condemn "the commodity which could be used as such. It did not refer to useless traces or residue of such substance [emphasis in original]."
Without going into the question of whether the amount of controlled substance found was sufficient to permit knowledge of its presence the Arizona Supreme Court, in the other leading case, held that, to constitute the offense of possession, a "useable" amount must be found. State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962). The Arizona statute, like the one in California, prohibited possession of "any narcotic drug" with exceptions not relevant to the case. The court held that "in those cases where the amount is incapable of being put to any effective use" the evidence is insufficient to support a conviction.
Following primarily the Moreno case, the District of Columbia Court of Appeals reached a similar decision in Edelin v. United States, 227 A.2d 395 (D.C.1967), where microscopic traces of heroin were found on drug paraphernalia in the possession of the accused. It was argued that possession of an unuseable amount of a prohibited drug was not what Congress meant to criminalize because it can neither be used nor sold. The court agreed stating, "[i]f this substance cannot be sold, if it cannot be administered or dispensed, common sense dictates that it is not such a narcotic as contemplated by Congress to be a danger to society, the possession of which is proscribed."
The Moreno and Edelin cases have been followed recently by another case in the District of Columbia Court of Appeals, Singley v. United States, 533 A.2d 245 (D.C.1987), and in the United States Court of Appeals for the Fifth Circuit, United States v. One Gates Learjet, 861 F.2d 868 (5th Cir.1988).
In Note, 77 Col.L.Rev. 596 (1977), it was reported that the states adopting the "useable amount" were in the minority of jurisdictions having considered the issue. However, the cases cited from the states in the majority were either those, unlike Arizona and California, adopting a blind adherence to statutory language requiring a finding of "any" amount of a drug or an "identifiable" amount. Our statute does not contain either of those words in its operative phrase. If it did, we would nonetheless examine the legislative intent. The other cases cited as being from states in the majority are ones, according to the author, which require more than an identifiable trace to permit an inference of knowledge in the absence of other circumstantial evidence, although they reject the "useable amount" rationale.
We have not held that possession must be "knowing" possession. During oral argument of this case, the state's lawyer, in response to a hypothetical question, argued that knowledge is irrelevant to possession. He contended that a case where a citizen is found to be in possession of a controlled substance under circumstances indicating lack of knowledge on his part would probably not be prosecuted because the prosecutor would exercise his discretion not to prosecute. We find that to be a totally unsatisfactory response if we are to have, to the extent possible, a government of laws.
The cases we have discussed all drive toward the same logical point, whether the rationale is that the amount of a controlled substance is either (1) sufficient to permit knowledge of its presence without the need *151 for scientific identification or (2) sufficient to be useable in the manner in which such a substance is ordinarily used. The intent of the legislation prohibiting possession of a controlled substance is to prevent use of and trafficking in those substances. Possession of a trace amount or residue which cannot be used and which the accused may not even know is on his person or within his control contributes to neither evil.
We recognize the possibility that one may be in possession of an amount of a controlled substance sufficient to permit knowledge of its presence and yet still not be in possession of a useable amount. We agree, however, with the courts that have concluded that possession of less than a useable amount of a controlled substance is not what legislators have in mind when they criminalize possession because it cannot contribute to future conduct at which the legislation is aimed, that is, use of or trafficking in drugs.
It is clear in this case that Harbison was found to be in possession of a bottle which had less than a useable amount of cocaine. As a practical matter, it was a bottle which had had cocaine in it, and that is not a crime.
Reversed and remanded.
HAYS and GLAZE, JJ., dissenting.
HAYS, Justice.
The majority characterizes the case as one in which the defendant was found to be in possession of a bottle "which had had cocaine in it, and that is not a crime." But that assertion overtly understates the facts, against the myriad of cases holding that on appeal we give the facts their strongest probative force and consider them in the light most favorable to the appellee. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). The fact is the appellant was in possession of a bottle which contained cocaine. A small amount of cocaine, to be sureless than a milligram, and too small to be accurately measured by the instruments at the state crime lab, but nevertheless cocaine. Two chemists from the laboratory testified that they tested the contents of the bottle and found cocaine. Those are the undisputed facts to which this court is now asked to apply the law of Arkansas.
The majority goes to some length to arrive at the conclusion that unless the quantity of cocaine is in "a useable amount," there is no violation of the law. I respectfully disagree and submit that one need look no farther than the plain wording of our own Uniform Controlled Substance Act to refute the majority's position. Ark.Code Ann. § 5-64-401(c) (1987), states, "It is unlawful for any person to possess a controlled substance...." Thus the act prohibits the possession of cocaine (a controlled substance), irrespective of the amount. That should end the matter, as we often say we must give effect to the language of the statute as we find it. Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965).
By today's decision the majority effectively overrides the plain intent of the legislature and holds that the possession of cocaine (and necessarily all other controlled substances) is legal, provided it is "less than a useable amount," whatever that may prove to be. I venture that determination will prove difficult to apply and will needlessly complicate the enforcement of the Uniform Controlled Substance Act, for how much marijuana is necessary to constitute "a useable amount?" Or how much crack, or heroin? I have no idea and I doubt seriously if the majority does, but those are issues we will now be asked to address. I believe a more dependable standard would be whether the amount is sufficient to permit identification of the substance, in which case its possession is unlawful.
GLAZE, J., joins in dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577262/ | 151 S.W.3d 135 (2004)
Chris Charles FITZWATER, Appellant,
v.
Kathy Lynette FITZWATER, Respondent.
No. WD 63149.
Missouri Court of Appeals, Western District.
December 21, 2004.
*136 James Rahm, Carrollton, for Appellant.
Steven Petry, Kansas City, for Respondent.
RONALD R. HOLLIGER, Judge.
Chris Fitzwater ("Husband") appeals a judgment dissolving his marriage to Kathy Fitzwater ("Wife") complaining that the trial court erred in its property division by dividing a marital asset (proceeds from the sale of the parties' farm) that did not exist at the time of dissolution hearing and that had not been squandered by Husband. Reversed and remanded.
The decree of dissolution awarded wife a judgment against husband in the sum of $28,429.77. The majority of this amount, $18,696.27, was found by the trial court to be respondent's share of proceeds from the sale of a marital farm in Ray County. Husband contends that the majority of the sale proceeds from the farm were spent on reasonable living expenses, not part of the marital estate at the time of trial, and thus not subject to division.
The Fitzwaters were married on March 23, 1979, and eventually separated in July 2000. Husband filed for dissolution of marriage in November of 2002 and the judgment was issued on June 27, 2003.
The issue on appeal turns on the disposal of a Ray County farm purchased by the couple during the marriage. Prior to separation, the Ray County farm was sold and approximately $37,000 remained in proceeds after the mortgage was paid off. Husband used most of these proceeds to pay off various creditors. The record is clear as to the origins of some of the debts paid off with the sale proceeds: some were marital debts and others the husband incurred after separation. The record is unclear, however, as to many of the other debts paid off by the sale proceeds of the Ray County farm. Many of them could have been incurred prior to separation or after.
Wife argues that she was entitled to half of the proceeds from the sale of the Ray County farm. She alleges on appeal that Husband squandered the sale proceeds prior to the dissolution of the marriage.
Husband responds that the sale proceeds of the Ray County farm were not eligible for division as marital property because they were not in existence at the time of trial. He argues that the proceeds were spent on legitimate marital debts and that wife has not met her burden of producing evidence that he squandered the sale proceeds prior to dissolution.
STANDARD OF REVIEW
The trial court has broad discretion in the division of marital property and its distribution will only be disturbed on appeal if the distribution of marital property is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion. Conrad v. Conrad, 76 S.W.3d 305, 314 (Mo.App.2002). A reviewing court must defer to the trial court's marital *137 property division unless it is improper under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), or is an abuse of discretion. Ray v. Ray, 877 S.W.2d 648, 651 (Mo.App.1994).
DISCUSSION
Generally, the trial court cannot value and include in its division of marital property an asset that does not exist at the time of trial. This is because the appropriate date for valuing and determining marital assets is the date of trial. Conrad, 76 S.W.3d at 314. An exception to this general principle exists where a spouse is found to have secreted or squandered marital assets in anticipation of the marriage being dissolved. Id. In such a case the court may charge the offending spouse with the value of the secreted or squandered asset. Id.
An understanding of where the burden of proof and burden of production of evidence lies is essential to understanding the application of these principles at trial. The burden of injecting the issue of whether marital property has been secreted or squandered is on the spouse claiming such wrongful conduct. Id. at 315. Once raised, the burden of producing evidence shifts to the alleged wrongdoer spouse who must "account" for the asset by presenting evidence as to its whereabouts or disposition. Id. Matters of credibility and weight of the evidence are for the trial court. Love v. Love, 72 S.W.3d 167, 171 (Mo.App.2002). The burden of proof or persuasion, however, remains on the spouse who claims that the property has been secreted or squandered. Conrad, 76 S.W.3d at 315.
Applying these principles regarding the burden of production is difficult on this record because there is no stated claim or argument on the record below that Husband squandered or secreted the farm sale proceeds.[1] There was, likewise, no evidence or contention that the proceeds still existed in some form at the time of trial. Nor is there any such finding by the trial court, which in its judgment merely states that the proceeds should "be shared equally." We do not imply that the trial court was required to make an explicit finding absence a request because we can assume that the trial court made factual findings consistent with its judgment. McCarthy v. Dir. of Revenue, 120 S.W.3d 760, 761 (Mo.App.2003). But, there must be evidence to support such a finding. But the cross-examination by Wife and her testimony clearly indicated her disagreement with Husband incurring debts and spending these proceeds for living or farm expenses during the separation. We, therefore, consider whether the evidence would support a finding that Husband squandered the sale proceeds.
Whether in anticipation of such a claim or mere prudence, Husband, who was the petitioner below, presented evidence first about the farm sale, the net proceeds, and the debts that had been paid with those proceeds. Marital debt is debt incurred subsequent to commencement of the marriage and prior to legal separation unless an exception applies. Rawlings v. Rawlings, 36 S.W.3d 795, 798 (Mo.App.2001). Generally, marital debt is treated the same as living expenses for purposes of expenditures leading up to dissolution. See, Kester v. Kester, 108 S.W.3d 213, 223 (Mo.App.2003) (money spent on marital debt and living expenses could not be considered in the property division); Adams v. Adams, 108 S.W.3d 821, 831 (Mo.App. *138 2003) (wife met her burden when she introduced evidence of using proceeds to pay marital debts and living expenses).
On appeal, Wife incorrectly argues that it was Husband's burden of proof to convince the trial court that he had not squandered the proceeds and used the proceeds for legitimate purposes. As a result, her brief provides no assistance to support the trial court's judgment. She argues merely that the trial court could have disbelieved Husband's accounting and that, therefore, Husband has failed to satisfy his burden of proof. The record reflects that husband presented evidence to "account" for the use of the proceeds. Wife at all times had the burden of proof (persuasion) to show that Husband had squandered the sale proceeds. Conrad, 76 S.W.3d at 315. She presented no substantial evidence to satisfy that burden. For example, she complains that he paid personal property taxes out of the proceeds on assets he was awarded but that she paid her own personal property tax out of her income. That argument ignores the fact that income earned, to the extent that it still exists in some form, is also marital property. Comninellis v. Comninellis, 99 S.W.3d 502, 510 (Mo.App.2003). Wife's argument also ignores that tangible property Husband acquired after the separation but before trial was marital property and properly treated by the trial court as such.
Wife's most specific complaint is that Husband used some of the proceeds to pay for feed, supplies, and equipment in his farming operation, which he continued on other premises after the marital farm was sold to her parents. She admitted, however, that the cows and equipment for that farming operation were marital property and the trial court treated them as such. There is no authority that the post separation expenditure of marital funds for the maintenance of marital property is the squandering of marital property. She made no claim below that the farming operation had any other assets or value separate from the tangible property divided by the court. Ultimately, Wife's real complaint is not that the sale proceeds were expended but with the manner of their use. Her evidence does not support the conclusion, however, that the funds were improperly expended. The evidence only showed that Husband spent the money for marital debts or to maintain or acquire other marital property that was subject to division by the trial court.
In summary, Wife failed to provide substantial evidence to support a finding that the proceeds of the farm sale had been secreted or squandered. And on the evidence presented, the court would have erred in applying the law to hold that such expenditures amounted to squandering. Thus, the trial court erred in treating the proceeds as an existing asset that could be charged against Husband in the division of marital property. The judgment is, therefore, reversed and remanded to the trial court for reconsideration of its property division in light of this opinion.
THOMAS H. NEWTON, Presiding Judge, and HAROLD L. LOWENSTEIN, Judge, concur.
NOTES
[1] As far as we can tell, the first time squandering or the farm proceeds was mentioned was on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577242/ | 35 So. 3d 1162 (2010)
STATE of Louisiana
v.
Percy L. JONES.
No. 09-KA-788.
Court of Appeal of Louisiana, Fifth Circuit.
April 13, 2010.
Rehearing Denied May 17, 2010.
*1164 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Vince Paciera, Jr., Michael Morales, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
Mark O. Foster, Attorney at Law, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant.
Percy L. Jones, Angola, LA, Defendant/Appellant, In Proper Person.
Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
WALTER J. ROTHSCHILD, Judge.
STATEMENT OF THE CASE
Defendant, Percy Jones, was convicted by a jury of illegal possession of stolen things (a vehicle) valued at $500 or more, in violation of LSA-R.S. 14:69. The trial court sentenced him to ten years at hard labor. This Court affirmed defendant's conviction on appeal. State v. Jones, 08-306, p. 8 (La.App. 5 Cir. 10/28/08), 998 So. 2d 173, 178. The Louisiana Supreme Court subsequently denied writs. State v. Jones, 08-2895 (La.9/4/09), 17 So. 3d 947.
Following defendant's conviction, the State filed a habitual offender bill of information alleging defendant to be a fourth felony offender. Following a hearing, the trial judge found defendant to be a fourth felony offender, and imposed an enhanced sentence of life imprisonment without benefit of probation or suspension of sentence. Defendant appealed the habitual offender finding. On appeal, this Court found it was unclear from the record whether exhibits pertaining to one or more of the alleged predicate convictions were entered into evidence in the trial court. State v. Jones, 08-466, p. 8-9 (La.App. 5 Cir. 10/28/08), 998 So. 2d 178, 183-184. This Court vacated the habitual offender finding and sentence and remanded the matter for further proceedings. Id.
On remand, the trial court re-arraigned defendant on the habitual offender bill of information on April 17, 2009, and defendant denied the allegations in the bill. On May 1, 2009, defendant filed written objections to the habitual offender bill, moving the trial court to quash the bill because he was not advised of his constitutional right of confrontation when he pled guilty to the predicate felony offenses, and because two of the alleged predicate convictions were not in the proper sequential order and thus could not be used to enhance his sentence.
The trial court held habitual offender hearings on May 1, 2009, and June 12, 2009, and found defendant to be a fourth felony offender. On June 12, 2009, the trial court re-sentenced defendant to life imprisonment without benefit of probation or suspension of sentence. Defendant *1165 filed a motion to reconsider sentence, which was denied by the trial court on August 13, 2009.
LAW AND DISCUSSION
In his sole counseled assignment of error, defendant complains that the trial court erred in holding a habitual offender rehearing, since 1) the rehearing violated his constitutional right to a speedy trial, and 2) this Court did not authorize a rehearing in its October 28, 2008 opinion. Regarding the first issue, the State responds that defendant did not preserve his right to appellate review, since he did not make a timely objection below. As to defendant's second argument, the State responds that it is not precluded from relitigating a habitual offender bill, since double jeopardy principles do not apply to habitual offender proceedings.
On May 15, 2009, defendant filed a motion to quash the habitual offender bill of information in the trial court, but the motion did not raise the speedy trial issue. Accordingly, he failed to preserve this issue for appeal. LSA-C.Cr.P. art. 841. Nevertheless, even if we address defendant's speedy trial argument, we find that it is without merit.
LSA-C.Cr.P. art. 874 provides that a sentence shall be imposed without unreasonable delay. While LSA-R.S. 15:529.1 does not establish a time limit for habitual offender proceedings, the jurisprudence holds that a habitual offender bill must be filed within a reasonable time after the State learns the defendant has prior felony convictions. State v. Muhammad, 03-2991, p. 14 (La.5/25/04), 875 So. 2d 45, 55; State v. Torres, 05-260, p. 6 (La.App. 5 Cir. 11/29/05), 919 So. 2d 730, 734, writ denied, 06-0697 (La.10/6/06), 938 So. 2d 65. Speedy trial concerns also require that habitual offender proceedings be completed in a timely manner. State v. Muhammad, 03-2991 at 15, 875 So.2d at 55. The longer the State delays filing and is responsible for postponing completion of the habitual offender proceeding, the more likely it is that the delay will be charged against the State. Id.
In the present case, the delays in defendant's final habitual offender finding and sentencing have not been due to abusive behavior on the State's part. The delays can be attributed, in large part, to defendant's appeals. The record in this matter shows the State requested only one continuance after this Court's remand to the trial court, and that the State requested the continuance in order to obtain a writ to have defendant brought to court. Accordingly, the record does not show that defendant's speedy trial rights have been violated.
We also find no merit in defendant's argument that this Court's previous opinion did not authorize the trial court to hold a new habitual offender hearing. Defendant contends that the State failed to meet its burden of proof at the first habitual offender hearing, and that his due process rights were violated when the trial court allowed the State a second chance to provide sufficient evidence to support the allegations in the habitual offender bill of information.
In its earlier opinion, this Court vacated the trial court's habitual offender adjudication and sentence and remanded the case "for further proceedings." State v. Jones, 08-466 at 9, 998 So.2d at 184. Although this Court's opinion did not specifically state that defendant's habitual offender adjudication was vacated, the language of the opinion as a whole reveals that this Court intended to vacate both the habitual offender finding and sentence, and we construe the ruling in that opinion as such. Further, the trial court did not err in allowing the State a second opportunity to *1166 introduce its exhibits into evidence. Since a habitual offender hearing is not a trial, the principles of double jeopardy do not apply. State v. Dorthey, 623 So. 2d 1276, 1279 (La.1993).
In State v. Mazique, 06-708 (La.App. 5 Cir. 1/30/07), 951 So. 2d 1182, the defendant was found to be a third felony offender after a habitual offender hearing. At the hearing the trial court took judicial notice of the records pertaining to the predicate offenses, but the State neglected to introduce the records into evidence. Id., 06-708 at 6, 951 So.2d at 1185. On appeal, this Court found the State's failure to introduce those records was error, and it vacated the habitual offender finding and sentence. Id., 06-708 at 6, 951 So.2d at 1186. As it did in the instant case, this Court remanded the matter to the trial court. This Court noted that "in such cases the defendant can be retried on a multiple bill since double jeopardy does not attach to multiple offender hearings." Id.
Based on the foregoing, we find that the trial court did not err by holding a rehearing on the habitual offender bill of information and defendant's due process rights were not violated. Thus, this assignment of error is without merit.
In additional to his counseled brief, defendant filed a supplemental pro se brief asserting three assignments of error. In his first pro se assignment of error, defendant complains that his counsel rendered ineffective assistance by failing to ensure that he was advised of his constitutional right to remain silent before offering a stipulation at the habitual offender rehearing that he (defendant) was the same person who was convicted of the alleged predicate felonies.
A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. State v. Myers, 07-854, p. 19 (La. App. 5 Cir. 4/29/08), 981 So. 2d 214, 228, writ denied, 08-1325 (La.2/13/09), 999 So. 2d 1145. To establish a claim of ineffective assistance of counsel, a defendant must demonstrate: 1) that his attorney's performance fell below an objective standard of reasonableness under prevailing professional norms; and 2) that his counsel's errors or omissions resulted in prejudice so great as to deprive the defendant of a fair trial or a trial whose result is reliable. Id. (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Lacaze, 99-0584, p. 20 (La.1/25/02), 824 So. 2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S. Ct. 263, 154 L. Ed. 2d 110 (2002)).
Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Taylor, 04-346, p. 10 (La.App. 5 Cir. 10/26/04), 887 So. 2d 589, 595. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. In this instance, the record is sufficient to address the issue on appeal.
At the beginning of the habitual offender rehearing, defense counsel stated, "And to move this along, after discussing this with Mr. Jones, we will stipulate to identity that Mr. Jones is the sameDo I have your permission to do that, Mr. Jones?" The transcript indicates that defendant responded by nodding his head. Counsel then stated, "That he is the same Percy Jones so we won't need a fingerprint expert." The prosecutor replied, *1167 "I'll certainly accept the stipulation that the defendant isthat the defendant who is convicted in the trial in this court is the same person in the three predicates or links which are alleged in the multiple bill."
In order for a defendant to be found a habitual offender, the state is required to prove the existence of a prior felony conviction and that the defendant is the same person who was convicted of the prior felony. State v. Nguyen, 04-321, p. 19 (La.App. 5 Cir. 9/28/04), 888 So. 2d 900, 912, writ denied, 05-0220 (La.4/29/05), 901 So. 2d 1064. LSA-R.S. 15:529.1 D(1)(a) provides that the trial court shall inform a defendant of the allegations contained in the information and of his right to be tried as to the truth thereof according to law. Implicit in this directive is the additional requirement that the defendant be advised of his constitutional right to remain silent. State v. Morgan, 06-529, p. 22 (La.App. 5 Cir. 12/12/06), 948 So. 2d 199, 213. Generally, a trial court's failure to advise the defendant of his right to a habitual offender hearing or his right to remain silent is considered harmless error when the defendant's habitual offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. State v. Schnyder, 06-29, p. 10 (La.App. 5 Cir. 6/28/06), 937 So. 2d 396, 403.
In the instant case, the State did not prove defendant's identity through testimony at the habitual offender rehearing and there is nothing in the transcript of the habitual offender rehearing to show that defendant was advised of his habitual offender rights prior to the stipulation as to identity. Nevertheless, based on the circumstances of this case, we find that defense counsel's error in failing to ensure that defendant was advised of his right to remain silent was harmless, because the record does not show that he was prejudiced.
At the original habitual offender hearing, the State presented evidence to establish defendant's identity as the same person convicted of the three alleged prior felonies. The State produced a fingerprint expert, Technician Chad Pittfield, who reviewed the State's evidence and identified defendant as the same person who was convicted of the three predicate felonies. Although a State exhibit or exhibits were not properly entered into the record at the first habitual offender hearing, the State's fingerprint expert presumably would have made the same finding at the habitual offender rehearing based on the fingerprints contained in the State's evidence.
Based on the foregoing, we find that defendant has not shown that he received ineffective assistance of counsel. Thus, this assignment of error is without merit.
In his second pro se assignment of error, defendant argues that the State failed to prove his status as a fourth felony offender, because it failed to show that he was advised of his right of confrontation before entering guilty pleas to the predicate felonies alleged in the habitual offender bill of information.
As stated above, in a habitual offender proceeding, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. When the State seeks to use a prior guilty plea to enhance punishment under LSA-R.S. 15:529.1, the State must prove the fact of conviction and that the defendant was represented by counselor waived counselat the time he entered the plea. State v. Zachary, 01-3191, p. 3 (La.10/25/02), 829 So. 2d 405, 407 (per curiam), citing State v. Shelton, 621 So. 2d 769, 779-80 (La.1993); State v. Fleming, 04-1218, p. 4 (La.App. 5 Cir. *1168 4/26/05), 902 So. 2d 451, 455-56, writ denied, 05-1715 (La.2/10/06), 924 So. 2d 161. Thereafter, the defendant bears the burden of proving a procedural defect in the proceedings or an infringement of his constitutional rights. If the defendant meets his burden, the State must prove the constitutionality of the predicate plea. Id.
At the habitual offender rehearing on May 1, 2009, counsel stipulated that defendant was the same person who was convicted of the prior felonies. As proof of the prior guilty pleas, the State offered the following: State's Exhibit 2, which included certified copies of the indictment in district court case number 96-3413, a minute entry documenting defendant's guilty plea to manslaughter on February 19, 1997, and a waiver of rights form; State's Exhibit 5, which included certified copies of a bill of information in district court case number 95-2767, a minute entry documenting defendant's guilty plea to theft between $100 and $500 on March 29, 1996, and a waiver of rights form; and State's Exhibit 6, which included certified copies of a bill of information in district court case number 366-526, a docket master documenting defendant's guilty plea to attempted possession of a firearm by a convicted felon on September 28, 1995, a waiver of rights form, and a document that appears to be a commitment pertaining to case number 366-526.
Based on the documentation presented, the State met its initial burden of proving the existence of the prior guilty pleas, and that defendant was represented by counsel. The burden thus shifted to defendant to establish a defect in the proceedings or an infringement of his constitutional rights.
Defense counsel objected to the three predicate felony convictions on grounds that the State's documentation failed to show defendant was advised of his constitutional right of confrontation before he pled guilty to the predicate felonies. The State responded that each of the waiver of rights forms offered into evidence showed defendant was advised of all of his constitutional rightsincluding his right of confrontationwhen he entered the predicate guilty pleas. The trial judge admitted the State's exhibits into evidence over counsel's objections.
The waiver of rights/guilty plea forms included in State's Exhibits 2, 5, and 6 show that defendant was advised of all three of his Boykin[1] rights when he entered three predicate guilty pleas, including his right of confrontation. Those forms were initialed by defendant and were also signed by defendant, his attorney, and the judge. Additionally, State's Exhibits 2, 5, and 6 included commitments and/or minute entries that showed defendant was advised of his rights and that he waived them. Based on the evidence before us, we find that defendant failed to meet his burden of proving a procedural defect in the proceedings or an infringement of his constitutional rights.
In his third pro se assignment of error, defendant argues that his life sentence as a fourth felony offender is excessive, considering that the underlying felony and two of his three predicate felonies were non-violent offenses.
Defense counsel made a motion to reconsider sentence both orally and in writing in the trial court, but he did not state specific grounds for his motion. Rather, he simply objected to the "excessive and harsh nature" of the sentence imposed, and the trial court summarily denied the *1169 motion. The failure to state the specific grounds upon which a motion to reconsider sentence is based limits a defendant to a review of the sentence for constitutional excessiveness. LSA-C.Cr.P. art. 881.1; State v. Clark, 05-61, p. 16 (La.App. 5 Cir. 6/28/05), 909 So. 2d 1007, 1017, writ denied, 05-2119 (La.3/17/06), 925 So. 2d 538. Accordingly, we review defendant's sentence for constitutional excessiveness.
A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So. 2d 1, 4. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. Id. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. Id., 01-2574 at 6-7, 839 So.2d at 4. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and is, therefore, given broad discretion in sentencing. State v. Williams, 03-3514, p. 14 (La. 12/13/04), 893 So. 2d 7, 16; State v. Cook, 95-2784 (La.5/31/96), 674 So. 2d 957, 958, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996).
Based on defendant's underlying conviction and prior convictions, defendant's sentencing exposure was 20 years to life, pursuant to LSA-R.S. 15:529.1 A(1)(c)(i). In imposing a life sentence, the trial judge commented, "I remember this case, Mr. Jones. I remember this being that church van for those special needs children, and, that wasn't a nice thing that you did. Those kids were left without transportation to a church function. And based upon that, and all your other priors, the Court is going to sentence you to life without benefit of probation or suspension of sentence."
The habitual offender bill of information in the record indicates that defendant has a prior conviction for a crime of violence, manslaughter. The bill of information shows that he had been charged with second degree murder, which carries a mandatory life sentence, but he later pled guilty in 1997 to manslaughter. Defendant received a sentence of only five years at hard labor for the manslaughter conviction. He also has prior convictions for theft and attempted possession of a firearm by a convicted felon. The documents in State's Exhibit 6 show that the attempted possession of a firearm by a convicted felon conviction was based on a prior conviction for attempted burglary.
Defendant argues that a life sentence is disproportionate to the severity of his underlying offense, possession of a stolen vehicle. However, considering the record before us, we cannot say that the trial judge abused his broad discretion in imposing the maximum sentence of life imprisonment as a fourth felony offender. Accordingly, this assignment of error is without merit.
ERRORS PATENT
Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So. 2d 337 (La.1975); and State v. Weiland, 556 So. 2d 175 (La.App. 5 Cir.1990), regardless of whether defendant makes such a request. Since this appeal pertains only to defendant's habitual offender proceedings, the error patent review was limited to those proceedings. Our review did not reveal any errors that require corrective action.
*1170 DECREE
For the foregoing reasons, we affirm defendant's adjudication as a fourth felony offender and his sentence of life imprisonment.
AFFIRMED.
NOTES
[1] Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576752/ | 35 So. 3d 552 (2010)
Roderic C. CATCHINGS, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2009-CP-00286-COA.
Court of Appeals of Mississippi.
January 26, 2010.
Rehearing Denied May 25, 2010.
*553 Roderic C. Catchings (pro se), attorney for appellant.
Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
Before MYERS, P.J., GRIFFIS and CARLTON, JJ.
MYERS, P.J., for the Court.
¶ 1. Roderic C. Catchings appeals the Rankin County Circuit Court's dismissal of his motion for post-conviction relief. Finding that the circuit court erred in dismissing Catchings's motion as successive-writ barred, we reverse and remand the circuit court's judgment for the court to consider the motion on the merits.
FACTS
¶ 2. Catchings pleaded guilty to three counts of armed robbery and one count of aggravated assault on November 28, 2005. The circuit court sentenced Catchings to twenty years on the aggravated assault charge and thirty-five year terms on each armed robbery charge, with ten years suspended and all the sentences to run concurrently. An additional charge of conspiracy to commit armed robbery was retired to the file.
¶ 3. Catchings subsequently filed a motion for post-conviction relief, arguing that his guilty plea was involuntary because he had not been informed that his sentences on the armed robbery counts must be served day for day. The circuit court appointed counsel for Catchings, and on March 17, 2008, the court held a hearing on Catchings's motion.
*554 ¶ 4. The circuit court ultimately found that Catchings's guilty plea was involuntary. It then offered Catchings a choice: he could elect to be resentenced, or he could withdraw his guilty plea entirely and face trial. The circuit court's offer was that Catchings would be sentenced to thirty-five years on the each of the armed robbery charges with eighteen years to serve, day for day, with seventeen years suspended. The circuit court stated that this was its estimate of the actual time Catchings would have served if his mistaken understanding of the previous sentence had been accurate. The offer also provided that Catchings would receive the same twenty-year sentence for aggravated assault; the conspiracy count would be retired to the file; and all the sentences would run concurrently. Catchings accepted the court's offer, and the circuit court resentenced him as promised.
¶ 5. On November 25, 2008, Catchings filed a second motion for post-conviction relief alleging that he was misinformed regarding the effect of the sentence offered by the circuit court.[1] The trial court dismissed the second motion as successive-writ barred, and Catchings appeals from that judgment.
STANDARD OF REVIEW
¶ 6. This Court reviews the dismissal of a post-conviction relief motion for an abuse of discretion. Willis v. State, 904 So. 2d 200, 201(¶ 3) (Miss.Ct.App.2005). Questions of law, however, are reviewed de novo. Ruff v. State, 910 So. 2d 1160, 1161(¶ 7) (Miss.Ct.App.2005).
ANALYSIS
1. Jurisdiction; Timeliness of Catchings's Notice of Appeal
¶ 7. As a threshold issue, the State argues that we must dismiss this appeal for want of jurisdiction because Catchings failed to file a notice of appeal within thirty days of the entry of the trial court's order dismissing his motion for post-conviction relief, as required by Rule 4(a) of the Mississippi Rules of Appellate Procedure.
¶ 8. The record indicates that the circuit court filed an order on December 19, 2008, dismissing Catchings's motion. It then filed a second order to a slightly different effect on December 29, 2008.[2] Catchings's appeal was taken from the second order and was filed on February 5, 2009.
¶ 9. The State's argument on this issue is without merit. We enforce the "prison mailbox rule" with regard to notices of appeal filed by prisoners. See generally Jewell v. State, 946 So. 2d 810, 812-13 (¶¶ 7-9) (Miss.Ct.App.2006). In close cases such as this one, the burden is on the State to prove that a prisoner has failed to comply with Rule 4(a) in light of the extra time that may be allowed by the mailbox rule. Id. at 813(¶ 9). The State has wholly failed to meet its burden in this case, and we find jurisdiction over Catchings's appeal.
*555 2. Successive-writ Bar
¶ 10. The circuit court found Catchings's second motion barred as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp.2009), which provides that an order granting post-conviction relief operates as a bar to successive motions. Catchings argues that the bar does not apply because his second motion for post-conviction relief was taken from a separate and distinct conviction and sentence that followed the circuit court's granting of his first motion for post-conviction relief. We agree.
¶ 11. Catchings's first motion for post-conviction relief alleged that his prior guilty plea was involuntary. The circuit court found in his favor and granted the motion. While the circuit court purported only to resentence Catchings, the effect of finding a guilty plea involuntary is to vacate both the guilty plea and the sentence; the court could not set aside the sentence alone. Courtney v. State, 704 So. 2d 1352, 1358(¶ 20) (Miss.Ct.App.1997). Accordingly, we find that the circuit court erred in dismissing Catchings's motion for post-conviction relief as successive-writ barred. We therefore reverse the circuit court's judgment and remand the case for that court to consider the motion on the merits.
¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.
NOTES
[1] Among other things, Catchings argues that he was misinformed of the effect of having the sentences run concurrently. Catchings alleges that he was told by counsel that he would be released from custody upon completion of the longest sentencei.e., when he was paroled on the aggravated assault sentence when in reality he could not be released until he had completed the day-for-day armed robbery sentences.
[2] The first order contained additional findings not present in the second order; it would have found the motion barred by the three-year statute of limitations and without merit, but the second order only found it barred as a successive writ. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576819/ | 151 S.W.3d 284 (2004)
In the Interest of J.C., G.C., I.C., and T.C., Children.
No. 06-04-00060-CV.
Court of Appeals of Texas, Texarkana.
Submitted September 30, 2004.
Decided December 7, 2004.
*286 Kathryn B. Moon, Bennett Law Office, Longview, for appellant.
Joe Shumate, Law Office of Joe Shumate, Henderson, for appellee.
Carl H. Barber, Law Office of Carl H. Barber, Henderson, for the children.
Before MORRISS, C.J., ROSS and CARTER, JJ.
OPINION
Opinion by Chief Justice MORRISS.
"Criminally abusive behavior" describes, but mostly sanitizes, actions taken by Stephen Paul Clark against his wife, Kimberly Clark, as graphically detailed in the evidence at the heart of this case. Stephen's parental rights to his four children, J.C., *287 G.C., I.C., and T.C., were terminated by the trial court on Kimberly's petition, and Stephen, on appeal, challenges the factual sufficiency of the evidence to support the jury's findings. We affirm the termination of Stephen's parental rights because we find the evidence factually sufficient to support the findings (1) that at least one in fact, both of the grounds alleged for termination existed, including (a) Stephen's endangering conduct under Texas Family Code Section 161.001(1)(E) and (b) Stephen's knowing criminal conduct resulting in his conviction and confinement and resulting inability to care for the children for at least two years under Section 161.001(1)(Q); and (2) that termination of Stephen's parental rights was in the children's best interests.
Some factual background assists in understanding this matter. Stephen and Kimberly were married on or about August 11, 1996, and ceased to live together as husband and wife on or about March 28, 2001. Kimberly and Stephen had four children together: J.C., G.C., I.C., and T.C. At the time of the jury trial on the petition for involuntary termination, the children whose interests were at stake were as follows: son, J.C., age 9; son, G.C., age 7; son, I.C., age 6; and daughter, T.C., age 4.[1]
On March 27, 2002, Kimberly filed an original petition for divorce, termination of parental rights, request for permanent injunction, renewal of protective order, and request to consolidate cases. On August 21, 2002, after a bench trial, the trial court granted the divorce, terminated Stephen's parental rights as to J.C., G.C., I.C., and T.C., and granted a permanent injunction. That result was reversed by this Court because Stephen had been denied a jury trial. See In re J.C., 108 S.W.3d 914 (Tex.App.-Texarkana 2003, pet. ref'd). On remand, a jury trial was held beginning February 9, 2004, and as a result Stephen's parental rights to the four children were terminated by order signed March 11, 2004. In its order, the trial court found, based on the jury findings, that, by clear and convincing evidence, Stephen had (1) "engaged in conduct ... that endangers the physical or emotional well-being of the children"; and (2) "knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date the petition was filed." In addition, the trial court found that, by clear and convincing evidence, "termination of the parent-child relationship between STEPHEN CLARK and the children the subject of this suit is in the best interest of the children."
1. The Evidence Is Factually Sufficient To Support the Findings That at Least One of the Grounds Alleged for Termination Existed
Stephen challenges the factual sufficiency of the evidence to support the termination of his parental rights to the four children at issue. The trial court's termination of Stephen's parental rights set out its findings, based on the jury verdict, supporting two statutory grounds for termination, (a) his conduct endangering the children and (b) his criminal confinement causing his inability to care for the children for at least two years.
Any complaint that the evidence is legally or factually insufficient to support the findings necessary for termination is analyzed by a heightened standard of appellate review. See In re C.H., 89 S.W.3d 17, 25 (Tex.2002). The Texas Supreme Court has now held that the appellate *288 standard for reviewing the factual findings made to support termination proceedings is whether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the allegations made in support of the claimed termination. This is the language used by the court to explain the working of the "clear-and-convincing evidence" standard of review. The court also disapproved of cases holding that termination findings should be upheld if they are not against the great weight and preponderance of the evidence. Id. at 23.
If, in light of the entire record, the disputed evidence that a reasonable trier of fact could not have credited in favor of the finding is so significant that a trier of fact could not reasonably have formed a firm belief or conviction to support termination, then the evidence is factually insufficient. Id. at 25. Accordingly, Stephen must show that the evidence is so weak, or that the evidence to the contrary is so overwhelming, that the trier of fact could not have reasonably found it sufficient to support the termination. In re B.S.W., 87 S.W.3d 766, 772 (Tex.App.-Texarkana 2002, pet. denied). This he has failed to do.
a. The Evidence Is Factually Sufficient To Support the Finding That Stephen Engaged in Endangering Conduct Under Section 161.001(1)(E)
Section 161.001(1)(E) of the Texas Family Code focuses exclusively on the parent's conduct. Under this section, proof that the parent's course of conduct endangered the child's physical or emotional well-being is sufficient. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987); In re S.F., 141 S.W.3d 774, 776 (Tex.App.-Texarkana 2004, no pet.); see Tex. Fam.Code Ann. § 161.001(1)(E) (Vernon 2002). "Endanger" means to expose to loss or injury; to jeopardize. See Boyd, 727 S.W.2d at 533.
Here, there was evidence of direct physical abuse of at least one of the children by Stephen. In August 2001, Stephen pled guilty to injury to a child, for an offense committed March 4, 2000, when, according to Kimberly, he punched J.C. in the midsection while at a drive-in restaurant in Henderson and, in the process, broke J.C.'s hand. Kimberly also testified that, on or about November 27, 1998, Stephen beat the then three-year-old J.C. with a belt. That beating left bruises on J.C. from his head to his toes, including his buttocks. Child Protective Services investigated that incident and concluded J.C. had been abused by Stephen. Hence, in January 1999, Stephen was indicted for an injury to a child, but Kimberly filed an affidavit of nonprosecution on that charge.
It is not necessary that the conduct be directed at the child or that the child actually suffer injury. Id. The violent acts and behavior directed at one child and at the child's mother in the presence of the other children satisfy the requirement of Section 161.001(1)(E). Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674 (Tex.App.-Fort Worth 1984, writ ref'd n.r.e.). The child endangerment which would satisfy Section 161.001(1)(E) can be inferred from parental misconduct without a showing of any "actual and concrete threat of injury to the child's emotional and physical well-being." Boyd, 727 S.W.2d at 533. If the evidence shows a course of conduct which has the effect of endangering the child's physical or emotional well-being, then a finding under former Section 15.02(1)(E), now Section 161.001(1)(E), is supportable. Id. at 534.
Stephen previously pled guilty to two counts of sexually assaulting Kimberly and to one count of injury to J.C. The pattern of abuse which was first reported in 1998 *289 continued until 2001, the time of Stephen's final arrest. Stephen continued thereafter to verbally abuse Kimberly from his prison cell by way of letters and cards.
Additionally, the caselaw interpreting Section 161.001(1)(E) has allowed for termination of the parent-child relationship for violent or negligent conduct directed at the other parent or other children, even where the behavior was not committed in the child's presence. Dir. of Dallas County Child Protective Servs. Unit of Tex. Dep't of Human Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex.App.-Dallas 1992, no writ). Therefore, even though the sexual assaults on the mother may not have been in the direct presence of the children,[2] the caselaw allows for termination of the parent-child relationship. Moreover, the fact that G.C. and T.C. had not yet been born at the time of the 1998 assault on J.C. does not negate the fact that the pattern of abuse existed. The continuing course of abusive conduct by Stephen is evidence that the four children's emotional and physical well-being has been endangered.
b. The Evidence Is Factually Sufficient To Support the Finding That Stephen Engaged in Knowing Criminal Conduct Resulting in His Conviction and Confinement and His Resulting Inability To Care for the Children for at Least Two Years Under Section 161.001(1)(Q)
The evidence clearly shows Stephen is currently incarcerated on a ten-year sentence for two sexual assault convictions and one conviction for injury to a child. Stephen challenges the trial court's finding that there is factually sufficient evidence that he knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date of filing the petition. Tex. Fam.Code Ann. § 161.001(1)(Q) (Vernon 2002). Stephen contends that, even if the statute is applied prospectively, Kimberly failed to prove Stephen's inability to care for his children for at least two years from the date of the petition.
Subsection Q is to be read prospectively. In re A.V., 113 S.W.3d 355, 360 (Tex.2003). A prospective reading of subsection Q allows the State to act in anticipation of a sentenced parent's abandonment of the child and not just in response to it. Id. The purpose of subsection Q is to look to future imprisonment and inability to care for the child in order to protect the children whose parents will be incarcerated for periods exceeding two years after termination proceedings begin. Id. at 360-61.
The petition to terminate Stephen's parental rights was filed March 27, 2002, after the convictions became final August 9, 2001. Therefore, the State had to prove that Stephen would be incarcerated until March 27, 2004. The State submitted the final convictions, for which Stephen was sentenced to ten years. Moreover, there is nothing to show Stephen is not still incarcerated during this appeal, more than two years after the petition was filed. Therefore, reading subsection Q prospectively, Stephen's parental rights were properly terminated.
2. The Evidence Is Factually Sufficient To Support the Finding That Termination of Stephen's Parental Rights Was in the Children's Best Interests
Under Section 161.001, the trier of fact must find that termination is in *290 the best interest of the child. See Tex. Fam.Code Ann. § 161.001(2) (Vernon 2002). There is a strong presumption that the best interest of the child is served by keeping custody in the natural parent. See In re D.M., 58 S.W.3d 801, 814 (Tex.App.-Fort Worth 2001, no pet.). The parents' rights, however, are not absolute; protection of the child is paramount. A.V., 113 S.W.3d at 361.
In Holley v. Adams, the Texas Supreme Court set out a nonexclusive list of factors to help determine the best interest of the child: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the stability of the home or proposed placement; (7) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (8) any excuse for the acts or omissions of the parent. 544 S.W.2d 367, 371-72 (Tex.1976). Best interest, however, need not be proven by any unique set of factors, nor is proof limited to any specific factor. See In re H.R., 87 S.W.3d 691, 700 (Tex.App.-San Antonio 2002, no pet.). We briefly examine some of the factors.
a. Desires of the Children
Carl Barber, the children's attorney ad litem, testified that the children said Stephen was not a real father to them. The children indicated that, while Stephen was at home, the house was "just chaos with yelling, screaming, violence and was an unhappy place," but now that Stephen is not there, "home is a happy place."
Barber testified that, when he interviewed six-year-old G.C., regarding why G.C. purposely called Stephen "Father" and not "Dad," he responded that, "Dads are somebody that takes care of you and does things with you and Father is just your father." Moreover, the children responded "no" when questioned as to whether they miss their father. Barber testified that the children were not interested in continuing a relationship with Stephen.
b. Emotional and Physical Needs of the Children
Stephen stands convicted of an injury to a child. Also, the pictures of the beaten J.C. show dark and large bruises over much of his body, including his buttocks. Kimberly testified the children have learned Stephen's violent behavior and are violent toward one another. Even though the children did not testify during the termination proceeding, it is clear from Barber's testimony the children perceive the home to be happy without Stephen. A happy home is important to the emotional and physical needs of the children and for the well- being of the children in general.
Further, there is evidence in the record of medical neglect of a child when, on March 4, 2000, after breaking J.C.'s hand by punching him, Stephen failed to take him to the hospital as soon as possible. The family instead traveled in the family van to another city, Tyler, from Henderson, before taking J.C. for medical care, because Stephen was concerned that his history of abuse in Henderson would cause him trouble if they got medical care for J.C. there.
c. Stephen's Parental Ability and Programs Available
In 1995, Stephen entered anger management classes. In 1998, however, Stephen beat J.C. with a belt. Thereafter, Stephen again entered counseling and started medication for depression and bi-polar disorder *291 in 1999. Again in 2001, Stephen physically abused Kimberly and J.C., for which he pled guilty.
After being incarcerated, Stephen took mandatory abuse prevention treatment classes. He has not taken any parenting classes. Stephen offered the jury many excuses for his behavior, from accident to losing his temper. The blame-shifting illustrates Stephen's failure to own up to his actions and inactions. Ultimately, blame-shifting would inhibit improvement or growth within the family.
d. Stability of Proposed Placement
The four children will be living with their mother, Kimberly. The placement is stable, and the children will be residing with one parent. As Barber testified, the children are happy at home now that Stephen is absent. There is no evidence either Kimberly or the person she is dating has ever abused the children. "The rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." A.V., 113 S.W.3d at 361. Therefore, the jury findings supporting placement of the children with Kimberly and termination of Stephen's parental rights are supported by the evidence.
e. Emotional and Physical Danger to the Children
The evidence of Stephen's heedless and repeated sexual abuse of Kimberly with the children present in the house, at times within their hearing added to the evidence of his past actions of physical abuse of the children amply demonstrate the danger posed to the children by Stephen and support the jury findings.
Based on Stephen's actions, his inactions, his history of physical and mental abuse, and his failure to take responsibility or to remedy past problems, we conclude that the evidence was factually sufficient to support the jury's determination that termination was in the best interests of the children. Even though Stephen testified he has completed certain abuse treatment programs, we conclude that the evidence is factually sufficient to support the trial court's finding that termination was in the best interests of the children.
We overrule the factual insufficiency contentions and affirm the trial court's judgment.
NOTES
[1] Stephen has two other children from earlier relationships: two sons, K.M. and B.C.
[2] The evidence shows that, at least once, one of the children was in the same room where sexual assault occurred and that, at least once, the sounds accompanying Stephen's sexual assaults on Kimberly reached the children just down the hall, causing considerable emotional trauma. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544491/ | 133 F.2d 663 (1943)
PHILCO CORPORATION
v.
PHILLIPS MFG. CO.
No. 7997.
Circuit Court of Appeals, Seventh Circuit.
January 19, 1943.
*664 C. J. Hepburn, of Philadelphia, Pa., and Louis Goldman and Robert G. Dreffein, both of Chicago, Ill., for appellant.
Wilfred S. Stone and Louis A. Bisson, both of Chicago, Ill., Louis F. Gillespie, of Springfield, Ill., and Lionel V. Tefft, of Chicago, Ill., for appellee.
*665 Before EVANS, MAJOR, and KERNER, Circuit Judges.
KERNER, Circuit Judge.
This is a trade-mark infringement and unfair competition suit. Plaintiff filed its complaint to restrain the Phillips Manufacturing Company from using the word "Phill-Co" to identify its products. Plaintiff claimed that such use infringed its trade-mark "Philco" and constituted unfair competition through misappropriation of its trade-mark and trade-name "Philco". After a temporary restraining order was entered, the cause was referred to a Master in Chancery, who, after hearing the testimony and the stipulations of the parties, made certain findings and recommended that the restraining order be vacated. The District Court adopted the Master's findings of fact, confirmed his conclusions of law, and dissolved the temporary restraining order. To reverse the order, plaintiff appeals.
Plaintiff is a Pennsylvania corporation and defendant an Illinois corporation. Plaintiff's trade-mark "Philco" is registered in the United States Patent Office under the Trade-Mark Act of 1905, 33 Stat. 724, 15 U.S.C.A. § 81 et seq. Thus, jurisdiction of the District Court was based on three grounds diversity of citizenship, with the jurisdictional amount involved; § 17 of the Trade-Mark Act of 1905, 33 Stat. 728, 15 U.S.C.A. § 97; and § 24(7) of the Judicial Code, 36 Stat. 1092, 28 U.S.C.A. § 41(7). Armstrong Paint & Varnish Works v. Nu-Enamel Corporation, 305 U.S. 315, 59 S. Ct. 191, 83 L. Ed. 195.
There is no controversy as to the substantial identity in appearance and absolute identity in sound of the marks "Philco" and "Phill-Co," and there is no question as to plaintiff's having appropriated and used its mark before defendant did. The only question is whether the goods upon which plaintiff and defendant use their respective marks are so similar that under the applicable law defendant's use of the mark "Phill-Co" will be enjoined.
Plaintiff has emphasized its claims of common law trade-mark infringement and unfair competition, rather than statutory trade-mark infringement under the Act of 1905. It contends that the applicable law on these nonstatutory questions is the law of each of the States in which the alleged common law trade-mark infringement and unfair competition occurred; it has apparently abandoned the position that federal law governs, although it urged this alternatively in its original brief. Defendant contends that only the law of Illinois is applicable. This was also the conclusion of the Master and the court below.
Although we affirm the order of the District Court vacating the temporary restraining order, the court's view of the applicable law was not altogether correct.
The determination of the applicable law in this case involves three questions: (1) Does the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487, include suits in equity. (2) If so, should the doctrine include actions for trade-mark infringement and unfair competition. (3) If State law governs, which State is it whose law is to be applied.
First. In Erie R. Co. v. Tompkins, supra, the Supreme Court held that the Rules of Decision Act, § 34 of the Judiciary Act of 1789, 28 U.S.C.A. § 725, required a federal court whose jurisdiction was based on diversity of citizenship to apply the decisional as well as statutory law of the State in which the plaintiff's injuries were received. However, as was pointed out in Russell v. Todd, 309 U.S. 280, 287, 60 S. Ct. 527, 531, 84 L. Ed. 754, the Rules of Decision Act applies only to "trials at common law," not to suits in equity.
The decisions of the Supreme Court since the Erie case have established that the doctrine of that case applies at least to diversity cases involving equitable suits or remedies based upon underlying legal rights, or brought in aid or support of legal rights. Ruhlin v. New York Life Insurance Co., 304 U.S. 202, 58 S. Ct. 860, 82 L. Ed. 1290; New York Life Insurance Co. v. Jackson, 304 U.S. 261, 58 S. Ct. 871, 82 L. Ed. 1329; West v. American Telephone & Telegraph Co., 311 U.S. 223, 236, 61 S. Ct. 179, 85 L. Ed. 139, 132 A.L.R. 956. Trade-mark and unfair competition suits in equity are considered as brought in aid or support of legal rights. Menendez v. Holt, 128 U.S. 514, 523, 9 S. Ct. 143, 32 L. Ed. 526; Nims, Unfair Competition and Trade-Marks (3rd ed. 1929) 1019. Consequently, no objection may be raised to the application of the Erie doctrine here solely on the ground that this is a suit in equity.
Second. In the field of trade-mark infringement and unfair competition it has long been recognized that all rights originally existed by virtue of the common law *666 of the several States. United States v. Steffens (Trade-Mark Cases), 100 U.S. 82, 92, 25 L. Ed. 550. Thus, in one sense, there has not been thought to be a federal general common law in the field. But in another sense there has been a federal general common law and cases have been "governed by federal law" within the meaning of the Erie doctrine, for federal courts have exercised independent judgment as to what "the common law" was in all cases in the field. The instant case requires us to draw the line between those cases still "governed by federal law" (federal courts make an independent determination of the law) and those "governed by State law" (federal courts are bound by the views of a particular State court).
For our purposes, cases brought in the federal courts in the field of unfair competition (not including Federal Trade Commission cases) may be divided into six categories:[1]
Both trade-marks used in interstate commerce, and one or both registered in Patent Office.
(1) Infringement of a statutory trade-mark by use of a similar mark on goods of "substantially the same descriptive properties" within the meaning of the Trade-Mark Acts.
*667 (2) (a) Unfair competition against statutory trade-mark through use of a similar mark on goods which might naturally be supposed to come from plaintiff, although not of the "same class" or of "substantially the same descriptive properties." (Probable confusion as to source without direct competition.) (b) Unfair competition through use of a trade-mark similar to plaintiff's trade name.
(3) Unfair competition other than through use of a trade-mark: (a) Use of trade name similar to plaintiff's statutory trade-mark. (b) Use of trade name similar to plaintiff's trade name. (c) Other forms of "passing off" of defendant's goods as those of plaintiff, such as imitation of get-up, label, package, or general appearance; express statement of connection between plaintiff and defendant; etc. (d) Unfair competition other than "passing off," such as betrayal of trade secrets, disparagement of rivals and their goods, instigation to breach of contract, molestation and physical interference, etc.
One or both marks used in intrastate commerce; or both unregistered in Patent Office (or held invalid under the Trade-Mark Acts) although used in interstate commerce.
(4) (a) Infringement of common law trade-mark. (b) Unfair competition through use, on goods of same descriptive properties, of mark similar to plaintiff's "secondary meaning" mark.
(5) Unfair competition as described in (2), supra, against common law trade-mark or "secondary meaning" mark.
(6) Unfair competition as described in (3), supra, against common law trade-mark or "secondary meaning" mark.
Classification of the cases along these lines makes it clear immediately that there is no serious question as to the applicable law except in the first and second categories. The others are governed by State law. This court so held with respect to (c) of the third category in Rytex Co. v. Ryan, 7 Cir., 126 F.2d 952, and Time, Inc. v. Viobin Corporation, 7 Cir., 128 F.2d 860, and with respect to (d) of the third category in Addressograph-Multigraph Corporation v. American Expansion Bolt & Manufacturing Co., 7 Cir., 124 F.2d 706. The Supreme Court held State law applicable in (a) of the fourth category in Pecheur Lozenge Co. v. National Candy Co., 315 U.S. 666, 62 S. Ct. 853, 86 L. Ed. 1103. The Supreme Court indicated the same holding with respect to (a) and (b) of the fourth category, as well as (c) of the third category, in Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 113, 59 S. Ct. 109, 83 L. Ed. 73, although it considered only federal precedents in its opinion. State law was held applicable in (a) of the sixth category in Folmer Graflex Corporation v. Graphic Photo Service, D.C., 44 F. Supp. 429, 433-434, and in (c) of the sixth category in the Pecheur case, the Graflex case, and Socony-Vacuum Oil Co. v. Rosen, 6 Cir., 108 F.2d 632.
Questions arising in cases of the first category relate to the four topics dealt with in some detail in the Trade-Mark Acts registerability, infringement, defenses, and remedies and the topic of validity (i. e., what is a valid "trade-mark" and what constitutes "ownership"). We believe that all such questions arising under the Act of 1905 are governed by federal law, since they involve the interpretation and application of a federal statute. Chesapeake & Ohio Ry. v. Martin, 283 U.S. 209, 212, 213, 51 S. Ct. 453, 75 L. Ed. 983; Awotin v. Atlas Exchange Bank, 295 U.S. 209, 211, 212, 55 S. Ct. 674, 79 L. Ed. 1393; Yonkers v. Downey, 309 U.S. 590, 596, 60 S. Ct. 796, 84 L. Ed. 964. Although the contrary position has been taken by two courts with respect to questions of validity, Mishawaka Rubber & Woolen Manufacturing Co. v. S. S. Kresge Co., 6 Cir., 119 F.2d 316, 322; Folmer Graflex Corporation v. Graphic Photo Service, supra, 44 F. Supp. 429, 432, this court has held that federal law controls questions relating to infringement, Rytex Co. v. Ryan and Time, Inc. v. Viobin Corporation, supra. With respect to questions of remedies, the Supreme Court in Mishawaka Rubber & Woolen Manufacturing Co. v. S. S. Kresge Co., 316 U.S. 203, 62 S. Ct. 1022, 86 L. Ed. 1381, did not expressly hold, but appears to have assumed, that federal law controls.
In the Trade-Mark Cases, supra, 100 U. S., pages 95, 96, 25 L. Ed. 550, the Supreme Court expressly refrained from holding that Congress had no power to regulate the use of trade-marks in interstate commerce. Cf. South Carolina v. Seymour, 153 U.S. 353, 14 S. Ct. 871, 38 L. Ed. 742, Warner v. Searle & Hereth Co., 191 U.S. 195, 202, 24 S. Ct. 79, 48 L. Ed. 145; see Schechter, Fog and Fiction in Trade-Mark Protection (1936) 36 Col.L.Rev. 60, 67 et seq.; Derenberg, Trade-Mark Protection and Unfair Trading (1936) 12-13. This *668 regulation Congress effected in the Trade-Mark Act of 1905.
In that Act Congress in a sense merely codified the law, since by restatement (e. g., marks not registerable) and by reference (e. g., meaning of terms "owner" and "trade-mark" in §§ 1, 5, 7, 16, and 19 of the Act, 15 U.S.C.A. §§ 81, 85, 87, 96, 99) it incorporated in the Act the then generally accepted State common law rules concerning trade-marks. For this reason, there are statements in many cases that by enacting the statute Congress did not create "substantive rights," but only "procedural rights." Beckwith's Estate v. Commissioner of Patents, 252 U.S. 538, 543, 40 S. Ct. 414, 64 L. Ed. 705; American Steel Foundries v. Robertson, 269 U.S. 372, 381, 46 S. Ct. 160, 70 L. Ed. 317; American Trading Co. v. H. E. Heacock Co., 285 U.S. 247, 258, 52 S. Ct. 387, 76 L. Ed. 740; and numerous lower federal court cases. And, although it was not necessary to the decision in the case and was not supported by citation of authority, there is a statement in the American Steel Foundries case that Congress was given no power to legislate upon the substantive law of trade-marks.
Although the question has never been squarely decided by the Supreme Court, we believe it is clear that Congress has the power to legislate upon the substantive law of trade-marks. Thaddeus Davids Co. v. Davids, 233 U.S. 461, 468-471, 34 S. Ct. 648, 58 L. Ed. 1046 (by implication); Rossmann v. Garnier, 8 Cir., 211 F. 401, 405; cf. Trade-Mark Cases, supra, 100 U.S. page 95, 25 L. Ed. 550. Many things not themselves goods moving in interstate commerce are held to exert such a substantial influence upon the flow of commerce that they are "instrumentalities of interstate commerce," and as such subject to regulation by Congress to foster, protect, and control interstate commerce. United States v. Ferger, 250 U.S. 199, 204, 39 S. Ct. 445, 446, 63 L. Ed. 936 (bills of lading); McDermott v. Wisconsin, 228 U.S. 115, 128, 33 S. Ct. 431, 57 L. Ed. 754, 47 L.R.A.,N.S., 984, Ann.Cas.1915A, 39, and Weeks v. United States, 245 U.S. 618, 622, 38 S. Ct. 219, 62 L. Ed. 513 (labels on goods); Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1, 10, 24 L. Ed. 708 (telegraph system); Luxton v. North River Bridge Co., 153 U.S. 525, 529, 14 S. Ct. 891, 38 L. Ed. 808 (bridges); California v. Northern Pacific R. Co., 127 U.S. 1, 39, 8 S. Ct. 1073, 32 L. Ed. 150 (railroads); Second Employers' Liability Cases, 223 U.S. 1, 47, 32 S. Ct. 169, 56 L. Ed. 327, 38 L.R.A.,N.S., 44. To be sure, the degree to which each of these affects interstate commerce varies greatly, but we believe that the effect of trade-marks on interstate commerce is sufficient for them to be regarded as instrumentalities or agencies of such commerce. While trade-marks are not essential to all commerce in the absolute sense that nothing could be sold without them, interstate commerce would undoubtedly suffer by their absence, as purchasers, forced to rely solely on the seller's word, grew more wary of new or unknown goods. With producer and consumer so far separated by the distributive steps of today's industrial economy, it is doubly important that a seller's identifying mark be dependable. Secondly, although it can only be speculated what positive effect trade-marks have on the volume of interstate commerce, that effect must be considerable under modern conditions of nation-wide advertising. As the Supreme Court has said, "If it is true that we live by symbols, it is no less true that we purchase goods by them." Mishawaka case, supra, 316 U.S. page 205, 62 S.Ct. page 1024, 86 L. Ed. 1381.[2]
It is our opinion that Congress did create substantive rights in trade-marks by the passage of the Act of 1905. If it were held that Congress created no substantive rights but only procedural rights, the Erie doctrine would require that State law govern substantive questions of trade-mark law, just as that doctrine would have required if it had been applied before the Act was passed. Mishawaka (C.C.A.) case, supra; Graflex case, supra. Under such a holding, the Trade-Mark Act of 1905 *669 could have but three possible purposes: (1) to provide a forum for the application of State law to trade-mark controversies, (2) to provide for national registration of trade-marks used in interstate commerce, and (3) to shift the burden of going forward with the evidence in trade-mark litigation. But the first of these is meaningless, for prior to 1905 State law was already being applied in federal courts where there was diversity jurisdiction, and in State courts where there was not. National registration would also be virtually meaningless without national uniformity; what advantage would trade-mark users find in voluntary central registration if the United States remained a "legal checkerboard" with respect to trade-marks used in interstate commerce? See Zlinkoff, op. cit., 986. This leaves only the third as the purpose of the Act, if State law were held to govern substantive questions arising under the Act. We do not believe it can be said that this was Congress' sole objective in enacting this legislation. We believe it was also the intention of Congress to provide registered trade-marks with uniform protection in interstate commerce.
What, then, is the meaning of the statements in the cases that Congress "created no substantive rights" by the Act of 1905? In our opinion, such statements are rules of statutory construction, actually used by the courts to determine what substantive rights Congress did create. One meaning of these statements, when used in such cases as American Trading Co. v. H. E. Heacock Co., supra, and United States Printing & Lithograph Co. v. Griggs, Cooper & Co., 279 U.S. 156, 49 S. Ct. 267, 73 L. Ed. 650, is that the Act of 1905 does not apply if the alleged infringing mark is used only in intrastate commerce. A second meaning, when used in cases in which the Act does apply, is that in general[3] Congress did not intend to create statutory rights novel in scope, but only to create federal rights of the same scope as the State common law rights already widely recognized in 1905, and that therefore a federal court interpreting the language of the Act must seek the usual 1905 State common law rules by making reference to State decisions throughout the Union as sources of precedent. Thus, courts that have said they were applying "the common law" of trade-marks in cases arising under the Act of 1905 have in fact been interpreting the language of a federal statute by referring to the same sources they would have used in construing and applying any term in a federal statute or in the Constitution which had a common law significance.
Since Congress left the terms "owner" and "trade-mark" undefined in the Act, these are perhaps the best examples of how this second rule of statutory construction has been employed; the meaning of these terms as used in the statute is determined by reference to the State common law existing at the time of the passage of the Act.
The cases of Beckwith v. Commissioner and American Steel Foundries v. Robertson, supra, illustrate how this rule of statutory construction has been employed in the interpretation of the registerability section. In the former case the Supreme Court said, at page 544, of 252 U.S., at page 416 of 40 S.Ct., 64 L. Ed. 705, that the descriptive word proviso in § 5 is "simply an expression in statutory form of the prior general rule of law that words merely descriptive are not a proper subject for exclusive trade-mark appropriation." In the latter case the Court interpreted the name clause in § 5 by referring to State common law about the time of the passage of the Act, citing an 1895 New York case, an 1898 Rhode Island case, a 1913 New Jersey case, and an English case. Of course, the Beckwith and American Steel Foundries cases involved only the question *670 of whether certain marks should be registered. But if registration makes the substantive questions of ownership and validity of a trade-mark questions of federal law, as we believe it does, then what the Supreme Court did in those two cases was indirectly to determine the scope of the federal substantive rights created by the statute, by the process of determining what marks were to be given and what marks refused the protection of the federal law through registration. Federal substantive rights in trade-marks, in other words, are defined by specific exclusion under the terms of the registerability section, as well as by interpretation of the terms "owner" and "trade-mark" in the damages and injunction sections.
The conclusion that Congress created substantive rights in trade-marks is not barred by the fact that § 23 of the Act of 1905 provides that "Nothing in this subdivision of this chapter [subchapter] shall prevent, lessen, impeach, or avoid any remedy at law or in equity which any party aggrieved by any wrongful use of any trade mark might have had if the provisions of said subdivision [subchapter] had not been passed." 33 Stat. 730, 15 U.S. C.A. § 103. We understand this section to mean two things: (1) State common law is still controlling on the questions of trade-mark infringement and unfair competition if either party's mark is used only in intrastate commerce, or if both marks are unregistered or invalid under the Act. (2) State common law is still controlling even in interstate commerce on all questions of unfair competition not relating solely to the use of a trade-mark (third category). Since the goal of the Act is uniform treatment of trade-marks used in interstate commerce, § 23 may not be interpreted to destroy the Act. Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 446, 27 S. Ct. 350, 51 L. Ed. 553, 9 Ann.Cas. 1075; Adams Express Co. v. Croninger, 226 U.S. 491, 507, 33 S. Ct. 148, 57 L. Ed. 314, 44 L.R.A.,N.S., 257.
Congress has the constitutional power to legislate on the merits of trade-mark questions; it exercised that power in the Trade-Mark Act of 1905; and therefore the Erie doctrine is inapplicable to cases in the first category. Federal courts may continue to exercise their independent judgment in construing the Act, as they have always done.[4]
The Aunt Jemima case, supra, decided in 1917, first enunciated the "federal rule" or "modern rule" of unfair competition,[5]*671 which extended the protection given trade-marks and "secondary meaning" marks beyond that provided by the generally accepted State common law rules of 1905 and 1920, and so beyond the protection provided by the Trade-Mark Acts of 1905 and 1920. Under this rule, as developed in the Vogue, Yale, Waterman, and other cases in (a) of the second category, the use of a mark will be enjoined if it creates a likelihood of confusion as to source, despite the fact that it is used on goods of "different descriptive properties" which do not compete directly with plaintiff's goods. The basis of the rule is that fairness and equity demand that the owner of a trade-mark should be protected against gradual "whittling away" of the distinctiveness of the mark (and so of its advertising appeal), possibility of injury to his reputation through use of the mark on an inferior product, and forestalling of the "normal" expansion of his business into new fields. Cf. Landers, Frary & Clark v. Universal Cooler Corporation, 2 Cir., 85 F.2d 46, 48. The rule was, of course, developed on the assumption that there was a federal general common law. Therefore, the Erie doctrine requires that it no longer be applied as federal law.
It might be argued, in view of the fact that federal courts in 1905 were exercising independent judgment as to what "the common law" was, that § 23 of the Act was intended to preserve the resulting federal decisional law, which could develop two decades later to include the "federal rule." It is true that the phrase "at law or in equity" in that section is not expressly limited to State law, and so on its face might include federal law as well. But even if Congress had so intended, it could not have preserved in this way a federal general common law which never properly existed.
It might also be argued that Congress has "occupied the field" with respect to adequate protection of registered trade-marks used in interstate commerce, and so the Erie doctrine does not apply to the "federal rule" of unfair competition. But to say that Congress has "occupied the field," as in Postal Telegraph-Cable Co. v. Warren-Godwin Co., 251 U.S. 27, 31, 40 S. Ct. 69, 64 L. Ed. 118; Western Union Telegraph Co. v. Boegli, 251 U.S. 315, 316, 40 S. Ct. 167, 64 L. Ed. 281, and O'Brien v. Western Union Telegraph Co., 1 Cir., 113 F.2d 539, 541, is only another way of stating the rule that federal courts may go beyond mere interpretation of the express words used in an Act of Congress, to decide interstitial and cognate issues so as to effectuate the evident policy of the Act, either express or implied, as in Awotin v. Atlas Exchange Bank, 295 U.S. 209, 213, 214, 55 S. Ct. 674, 79 L. Ed. 1393; Board of Commissioners v. United States, 308 U.S. 343, 351-353, 354, 60 S. Ct. 285, 84 L. Ed. 313; Deitrick v. Greaney, 309 U.S. 190, 200, 60 S. Ct. 480, 84 L. Ed. 694; D'Oench, Duhme & Co. v. Federal Deposit Insurance Corporation, 315 U.S. 447, 459, 461, 62 S. Ct. 676, 86 L. Ed. 956; Prudence Corporation v. Geist, 316 U.S. 89, 95, 62 S. Ct. 978, 86 L. Ed. 1293; Sola Electric Co. v. Jefferson Electric Co., December 7, 1942, 63 S. Ct. 172, 87 L.Ed. ___. The policy of the Trade-Mark Acts is to provide certain limited protection to trade-marks registered under it and used in interstate commerce. § 16, 1905 Act, 15 U.S.C.A. § 96. The federal courts may not overrule this expression of Congressional intent by substituting their judgment as to what constitutes "adequate" protection of trade-marks.
It appears, however, that the "federal rule" has been taken over by many State courts as a rule of decision in their own courts. Calling our attention to this, plaintiff contends that under the Erie doctrine the question of whether an injunction should issue in cases in (a) of the second category is governed by the laws of the several States in which defendant has used its mark. As an example, plaintiff asserts that New York has adopted the "federal rule" (citing Philadelphia Storage Battery Co. v. Mindlin, 163 Misc. 52, 296 N.Y.S. 176) and contends that therefore defendant's use of the mark "Phill-Co" within the boundaries of that State, even though in interstate commerce, would be enjoined in the New York courts. Defendant contends, and the District Court held, that the Erie doctrine requires that cases in (a) of the second category be governed by the law of the State in which the District Court is sitting.
In our opinion, neither of these views is correct. The policy of a statute which Congress has enacted under its constitutional power to regulate interstate commerce may not be defeated or obstructed by State law, whether decisional, Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., supra, 204 U.S. page 440, 27 S. Ct. 350, 51 L. Ed. 553, 9 Ann.Cas. 1075; Second Employers' *672 Liability Cases, supra, 223 U.S. pages 53-55, 32 S. Ct. 169, 56 L. Ed. 327, 38 L.R.A.,N.S., 44; Postal Telegraph-Cable Co. v. Warren-Godwin Co., supra, 251 U.S. page 30, 40 S. Ct. 69, 64 L. Ed. 118, or statutory, Southern Ry. Co. v. Reid, 222 U.S. 424, 442, 32 S. Ct. 140, 56 L. Ed. 257; Savage v. Jones, 225 U.S. 501, 533, 32 S. Ct. 715, 56 L. Ed. 1182; Chicago, Rock Island & Pacific Ry. v. Hardwick Elevator Co., 226 U.S. 426, 435, 33 S. Ct. 174, 57 L. Ed. 284, 46 L.R. A.,N.S., 203; McDermott v. Wisconsin, 228 U.S. 115, 132, 33 S. Ct. 431, 57 L. Ed. 754, 47 L.R.A.,N.S., 984, Ann.Cas.1915A, 39; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 223, 59 S. Ct. 206, 83 L. Ed. 126. Through the Trade-Mark Acts of 1905 and 1920 Congress has occupied that part of the field of unfair competition in interstate commerce having to do with "passing off" effected solely by the use of a trade-mark. The intention of Congress was to achieve uniformity within the area occupied. In so far as State law conflicts with this policy of the Trade-Mark Acts, it must yield to the superior federal law. Clause 2, Article VI, Constitution of the United States.[6] Federal law still governs cases in (a) of the second category, but now requires that no injunction issue.
Similarly, we do not believe that plaintiff's charge of misappropriation of a part of its subsidiary's[7] trade name can be sustained. The only protection accorded trade names by the Act of 1905 is that provided in § 5 (relating to registerability); there is no federal general common law to provide any additional protection; and plaintiff may not invoke State law to defeat the uniform treatment of trade-marks which is the goal of the Trade-Mark Acts. In other words, federal law still governs cases in (b) of the second category, but now requires that no injunction issue.
It goes without saying that plaintiff has no action for common law trade-mark infringement under State law. Registration of plaintiff's trade-mark rendered all questions concerning its use and protection in interstate commerce questions of federal law, and federal law is supreme.
We recognize that a 1905 restatement of State common law rules governing the use of trade-marks may not furnish an adequate answer to the trade-mark problems in 1943. In the absence of Congressional action, the only remedy for this situation would be expansion of the traditional interpretation given the phrase "substantially the same descriptive properties," which appears in § 16 of the Act. It would be difficult to choose words more ambiguous than this phrase; original interpretation might produce almost any test of similarity. The most workable test may well be simply whether the public is likely to assume that the goods of plaintiff and defendant emanate from the same source considering all the circumstances of the case general nature of goods; number of persons using mark on other goods, i. e., is the mark "strong" and unusual (as "Kodak," "Aunt Jemima," etc.) or "weak" and common (as "Blue Ribbon," "Gold Medal," "Standard," "Champion," "Royal," etc.); does plaintiff sell a wide variety of products under its mark or only a limited number; the character of the market (see Pecheur Lozenge *673 Co. v. National Candy Co., 3 Cir., 122 F.2d 318, 320, 321); and so forth.[8] But the established rule of construction, followed for almost forty years, is that Congress intended federal courts to enjoin the use of a similar trade-mark only on goods which competed fairly directly with the plaintiff's goods. Even those courts which recognized the inadequacy of this protection were apparently unwilling to expand the interpretation of the phrase in question, and consequently developed the "federal rule" under the federal general common law of unfair competition. Although the meaning of the phrase has been restricted in cases involving "weak" marks, Pabst Brewing Co. v. Decatur Brewing Co., 7 Cir., 284 F. 110 ("Blue Ribbon"); France Milling Co. v. Washburn-Crosby Co., 2 Cir., 7 F.2d 304 ("Gold Medal"); Arrow Distilleries v. Globe Brewing Co., 4 Cir., 117 F.2d 347 ("Arrow"), the holding that men's hats and caps have the same descriptive properties as men's suits and overcoats seems to represent the farthest the courts have gone in extending the meaning of the phrase when a "strong" mark was involved, Rosenberg Bros. Co. v. Elliott, 3 Cir., 7 F.2d 962, 966 ("Fashion Park"). We do not think this court may say that Congress desired the phrase to have a broader interpretation than it has been given.[9]
Applying federal law, the Master and the District Court concluded that plaintiff has a valid trade-mark under the Trade-Mark Act of 1905, but that the mark has not been infringed by the defendant's use of the mark "Phill-Co" because defendant's goods are not of "substantially the same descriptive properties" as those sold by plaintiff.
Defendant, asserting that "Philco" is merely the "simple and natural" abbreviation of Philadelphia Storage Battery Company (plaintiff's corporate name at the time it adopted its trade-mark in 1918), apparently seeks to invoke the rule that a geographical term will be protected against infringement only if it has acquired a "secondary meaning." But "Philco" is neither a geographical term nor an abbreviation suggesting a geographical term; it is a coined word unquestionably subject to exclusive appropriation under the 1905 common law of the States, and therefore under the Act of 1905. However, the record discloses and the District Court found that the defendant uses its mark only upon portable machines (electrically operated) for the degreasing of metal objects, upon parts and accessories for such machines, and upon portable stills for distillation of the solvent after it has been used in the machines; that the "plaintiff does not manufacture or sell any equipment competing with, similar to, or designed for the uses for which defendant's apparatus is solely useful"; and that there is thus no competition between plaintiff and defendant. The products upon which plaintiff uses its mark "Philco" are very numerous; those which are most comparable to defendant's goods are lubricators, mechanical refrigerators, air conditioning apparatus, radio and television apparatus, phonographs, and batteries. These are not similar enough to defendant's goods to bring this case within the statute, as construed in the cases.
Plaintiff contends that if defendant applied for registration of its mark in the Patent Office, it would be refused. We express no opinion on the question, since *674 registration is only prima facie evidence of ownership. § 16, 1905 Act, 33 Stat. 728, 15 U.S.C.A. § 96.
Third. Since defendant's alleged wrong consisted only of using the mark "Phill-Co" upon its "Degreaser" and the other goods named above, this case presents only questions of the first and second categories. Questions in the third category, which would be governed by State law, are not involved here. It is thus not necessary to determine the particular States whose law would be applicable on such questions.
In so far as our opinions in the Viobin and Rytex cases are inconsistent with our opinion in this case, they are overruled.
For the reasons stated herein, the order of the District Court vacating the temporary restraining order is affirmed.
NOTES
[1] The following are examples:
(2) (a) Aunt Jemima Mills Co. v. Rigney & Co., 2 Cir., 247 F. 407, L.R.A. 1918C, 1039 (flour, pancake syrup); Peninsular Chemical Co. v. Levinson, 6 Cir., 247 F. 658 (medicine, cigars); Aluminum Cooking Utensil Co. v. Sargoy Bros. & Co., D.C., 276 F. 447 (aluminum cooking utensils, tin wash boilers); Wilcox & White Co. v. Leiser, D.C., 276 F. 445 (player pianos, phonographs); Anheuser-Busch v. Budweiser Malt Products Corporation, 2 Cir., 295 F. 306 (beer, malt syrup); Ward Baking Co. v. Potter-Wrightington, Inc., 1 Cir., 298 F. 398 (bread, flour); Vogue Co. v. Thompson-Hudson Co., 6 Cir., 300 F. 509 (magazine, hats); Hudson Motor Car Co. v. Hudson Tire Co., D.C., 21 F.2d 453 (automobiles, tires); Yale Electric Corporation v. Robertson, 2 Cir., 26 F.2d 972 (flashlights, locks); Duro Co. v. Duro Co., D.C., 27 F.2d 339 (spark plugs, internal combustion engines); Standard Oil Co. v. California Peach & Fig Growers, Inc., D.C., 28 F.2d 283 (mineral oil, figs); Del Monte Special Food Co. v. California Packing Corporation, 9 Cir., 34 F.2d 774 (oleomargarine, other food products); L. E. Waterman Co. v. Gordon, 2 Cir., 72 F.2d 272 (fountain pens, razor blades). (b) Hudson Motor Car Co. v. Hudson Tire Co., supra.
(3) (a) Peninsular Chemical Co. v. Levinson, supra; Anheuser-Busch v. Budweiser Malt Products Corporation, supra; Del Monte Special Food Co. v. California Packing Corporation, supra. (b) Akron-Overland Tire Co. v. Willys-Overland Co., 3 Cir., 273 F. 674 (tires, automobiles). (c) Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S. Ct. 109, 83 L. Ed. 73; Peninsular Chemical Co. v. Levinson, supra; Aluminum Cooking Utensil Co. v. Sargoy Bros. Co., supra; Rytex Co. v. Ryan, 7 Cir., 126 F.2d 952; Time, Inc. v. Viobin Corporation, 7 Cir., 128 F.2d 860. (d) Addressograph-Multigraph Corporation v. American Expansion Bolt & Manufacturing Co., 7 Cir., 124 F.2d 706.
(4) (a) Kellogg Co. v. National Biscuit Co., supra; Pecheur Lozenge Co. v. National Candy Co., 315 U.S. 666, 62 S. Ct. 853, 86 L. Ed. 1103. (b) Kellogg Co. v. National Biscuit Co., supra; Florence Manufacturing Co. v. Dowd & Co., 2 Cir., 178 F. 73.
(5) (a) Wisconsin Electric Co. v. Dumore Co., 6 Cir., 35 F.2d 555 (electric washing machines, other electrical household devices); (b) Wall v. Rolls-Royce of America, 3 Cir., 4 F.2d 333 (radio tubes, automobiles); Armour & Co. v. Master Tire & Rubber Co., D.C., 34 F.2d 201 (meat and allied products, tires); Finchley, Inc. v. Finchly Co., D.C., 40 F.2d 736 (men's clothing, women's coats).
(6) (a) Wisconsin Electric Co. v. Dumore Co., supra; Folmer Graflex Corporation v. Graphic Photo Service, D.C., 44 F. Supp. 429; (b) Finchley, Inc. v. Finchly Co., supra; American Products Co. v. American Products Co., D.C., 42 F.2d 488 (non-carbonated beverages, carbonated beverages); Horlick's Malted Milk Corporation v. Horluck's, Inc., 9 Cir., 59 F.2d 13 (malted milk powder, malted milk beverage); Western Auto Supply Co. v. Knox, 10 Cir., 93 F.2d 850 (new auto parts, second-hand auto parts); Alfred Dunhill of London, Inc. v. Dunhill Shirt Shop, Inc., D.C., 3 F. Supp. 487 (smokers' supplies, shirts); Great Atlantic & Pacific Tea Co. v. A. & P. Cleaners & Dyers, D.C., 10 F. Supp. 450 (grocery store, cleaning establishment); Great Atlantic & Pacific Tea Co. v. A. & P. Radio Stores, Inc., D.C., 20 F. Supp. 703 (groceries; radios, washing machines, and electric refrigerators). (c) Pecheur Lozenge Co. v. National Candy Co., supra; Socony-Vacuum Oil Co. v. Rosen, 6 Cir., 108 F.2d 632; Folmer Graflex Corporation v. Graphic Photo Service, supra.
[2] Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S. Ct. 357, 60 L. Ed. 713; and United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 39 S. Ct. 48, 63 L. Ed. 141, are sometimes cited to support the contrary position, that Congress has no power to create substantive rights in trade-marks. But these cases involved only State common law trade-marks, not trade-marks registered under the Act of 1905. And in fact the Supreme Court suggested in the Rectanus case that Congress did have the power. See Zlinkoff, Erie v. Tompkins: In Relation to the Law of Trade-Marks and Unfair Competition (1942) 42 Col.L.Rev. 955, 977, n. 90.
[3] It should be noted that the 10-year clause in § 5 permits registration of some marks not considered trade-marks at common law, since they were not subject in the first instance to exclusive appropriation. Under the States' common law of unfair competition, such marks descriptive words, geographical terms, and surnames came to be provided some protection, but only after proof that a "secondary meaning" had been acquired by many years' exclusive use. Nims, op. cit., 103 et seq.; Derenberg, op.cit., 325 et seq. Congress provided in the 1905 Act that after exclusive use of such a mark during the 10 years next preceding 1905 the mark could be registered; through registration the mark becomes a "statutory trade-mark" and the registrant is entitled to invoke the protection of the Act, just as though the mark could have been a valid trade-mark at common law. Thaddeus Davids Co. v. Davids, supra; Schechter, op.cit., 70, n. 28.
[4] Although our case does not involve the Trade-Mark Act of 1920, 41 Stat. 533, 15 U.S.C.A. § 121 et seq., it follows that federal law also governs questions of infringement, defenses, and remedies arising under that Act, since it incorporates by reference the sections of the Act of 1905 dealing with these three topics. Act of 1920, § 6, 41 Stat. 535, 15 U.S.C.A. § 126. It has been said that registration under the 1920 Act "does not create any substantive rights in the registrant," Armstrong Paint & Varnish Works v. Nu-Enamel Corporation, 305 U.S. 315, 322, 59 S. Ct. 191, 195, 83 L. Ed. 195, and leaves the plaintiff standing "entirely upon * * * common-law rights, as though there had been no registration at all," Sleight Metallic Ink Co. v. Marks, D.C., 52 F.2d 664, 665. However, in the Nu-Enamel case, 305 U.S. page 333, 59 S. Ct. 191, 83 L. Ed. 195, the Supreme Court expressly refrained from deciding whether State law governed questions under the 1920 Act, and employed the statement quoted as a rule of statutory construction, seeking the definition of "owner" by referring to "the common law," i. e., the generally accepted State common law as of 1920. It is therefore our opinion that, just as with the 1905 Act, federal law governs questions of validity under the 1920 Act because of the use of such terms as "right" and "owner" in the section on injunctions, 15 U.S.C.A. § 99, and "owner" in § 4 of the Act, 15 U.S.C.A. § 124. Questions of registerability arising under § 1 of the Act, 15 U.S.C.A. § 121, are of course also governed by federal law.
[5] Collins Co. v. Oliver Ames & Sons Corporation, C.C.1882, 18 F. 561, and Godillot v. American Grocery Co., C. C.1896, 71 F. 873, presaged the development of the "federal rule," but those cases involved additional elements of "passing off"; the mark in the Collins case was an origin and ownership trade-mark, not a word trade-mark (see Derenberg, op. cit., 28 et seq.), and the defendant in the Godillot case was carrying on his business in the exact location where plaintiff's goods had been sold previously under his mark. In Florence Manufacturing Co. v. Dowd & Co., supra (1910), although the court did not expressly state that the goods involved were in the same class (toilet brushes), it implied as much when it said that there would have been trade-mark infringement if the mark "Keep-clean" had not been descriptive.
[6] The reason this question was not raised prior to the Erie case was that under the "federal rule" the federal courts provided uniform protection for trade-marks which was more extensive than the protection usually allowed by State courts.
[7] The term "trade name" is not defined consistently in the cases, American Steel Foundries case, supra, 380; Nims, op. cit., 518. It has been used to indicate a mark not originally susceptible of exclusive appropriation which has acquired a "secondary meaning" and so will be protected as though it were a valid common law trade-mark. See Handler and Pickett, Trade-Marks and Trade Names An Analysis and Synthesis (1930) 30 Col. L.Rev. 168; Handler, Unfair Competition (1936) 21 Iowa L.Rev. 175, 182. This cannot be the sense in which plaintiff has used the term, since "Philco" would not be a "secondary meaning" mark at common law, but a valid trade-mark. The term is also used to indicate a part or all of a firm name or corporate name, American Steel Foundries case, supra, 380; Derenberg, op.cit., 227-232, or abbreviation thereof, Nims, op.cit., 246. This is the sense in which the term is used throughout this opinion, and we assume it is the sense in which the term is used by the plaintiff.
The corporate name of plaintiff's marketing subsidiary contained the word "Philco" for several years before defendant appropriated and first used its trade-mark "Phill-Co," but plaintiff's corporate name did not contain the word until a few months after defendant's first use of its mark.
[8] This is the test employed when the question is whether a mark should be registered. E-Z Waist Co. v. Reliance Manufacturing Co., 52 App.D.C. 291, 286 F. 461; Kassman & Kessner, Inc. v. Rosenberg Bros. Co., 56 App.D.C. 109, 10 F.2d 904; Yale Electric Corporation v. Robertson, supra; B. F. Goodrich Co. v. Hockmeyer, 40 F.2d 99, 101-103, 17 C.C.P.A.,Pat., 1068; California Packing Corporation v. Tillman & Bendel, 40 F.2d 108, 17 C.C.P.A.,Pat., 1048; In re Keller, Heumann & Thompson Co., 81 F.2d 399, 23 C.C.P.A.,Pat., 837. The difference in the language of § 5 and § 16 of the 1905 Act, 15 U.S.C.A. §§ 85, 96, may or may not be significant.
[9] Another phrase whose interpretation is a question of federal law is "unfair methods of competition" in § 5 of the Federal Trade Commission Act, 38 Stat. 719, 15 U.S.C.A. § 45. Federal Trade Commission v. R. F. Keppel & Bro., Inc., 291 U.S. 304, 309-312, 54 S. Ct. 423, 78 L. Ed. 814; National Candy Co. v. Federal Trade Commission, 7 Cir., 104 F.2d 999, 1005; Cf. Federal Trade Commission v. Bunte Bros., 312 U.S. 349, 353, 354, 61 S. Ct. 580, 85 L. Ed. 881. There is strong evidence, chiefly in the legislative history of the bill, that Congress intended this phrase to have the broad interpretation it has had. There is no comparable evidence in the history of trade-mark legislation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1007594/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PROJECT CONTROL SERVICES,
INCORPORATED,
Plaintiff-Appellant,
v. No. 01-1352
WESTINGHOUSE SAVANNAH RIVER
COMPANY, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Cameron McGowan Currie, District Judge.
(CA-98-3738-1-22)
Argued: February 27, 2002
Decided: May 21, 2002
Before WIDENER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Karl Frederick Dix, Jr., SMITH, CURRIE & HAN-
COCK, L.L.P., Atlanta, Georgia, for Appellant. Michael Anthony
Scardato, MCNAIR LAW FIRM, P.A., Charleston, South Carolina,
for Appellee. ON BRIEF: Robert L. Widener, MCNAIR LAW
FIRM, P.A., Charleston, South Carolina, for Appellee.
2 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The present diversity action stems from a dispute between two
companies that had a contractor/subcontractor relationship, which
relationship was based upon numerous subcontracts between them.
Westinghouse Savannah River Company (WSRC) was the contractor,
and Project Control Services, Inc. (PCS) was the subcontractor. Under
the subcontracts at issue, PCS performed employee scheduling and
cost-estimating services for WSRC in connection with WSRC’s man-
agement and operation of the United States Department of Energy’s
Savannah River Site (SRS).
The subcontracts at issue provided that PCS would be paid for its
services on an interim basis using provisional rates, but that the par-
ties would negotiate final rates after an audit, performed by WSRC,
of PCS’s accounting books and records. Depending upon the results
of the negotiations, the final amount due PCS under the subcontracts
at issue would be adjusted up or down. The final rates depended in
large part on numerous cost elements allegedly incurred by PCS in
performing the subcontracts at issue, for example, the cost to PCS to
rent office space and the cost to PCS to employ office personnel.
The primary basis of the dispute between WSRC and PCS was the
level of cooperation that each party exhibited when the time came for
WSRC to audit PCS’s accounting books and records. Each party
accuses the other of acting unreasonably during the audit process,
which process was eventually completed by the Defense Contract
Audit Agency (DCAA) due to the bad blood that had developed
between the parties. Relevant to the present appeal, the DCAA audit
did not resolve certain disputes between the parties regarding the
appropriateness of the amounts of certain cost elements claimed by
PCS. Moreover, PCS was not happy when WSRC refused to continue
its contractor/subcontractor relationship with PCS at the expiration of
the subcontracts at issue and hired some employees of PCS.
PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 3
PCS ultimately brought the present diversity action against WSRC
alleging numerous claims, including breach of subcontracts and inten-
tional interference with economic relations. The district court granted
summary judgment in favor of WSRC with respect to some of PCS’s
claims, granted WSRC’s motion for judgment as a matter of law with
respect to a portion of PCS’s breach of subcontracts claim,1 and
allowed the remaining claims to go to the jury. Following a three-
week trial, the jury returned a verdict fully in favor of WSRC.
Furthermore, in order to resolve still disputed cost elements that
needed to be resolved before the parties could agree upon the amounts
that WSRC still owed PCS under the subcontracts at issue, the parties
agreed to allow the jury to answer special interrogatories (the Special
Interrogatories) regarding these disputed cost elements in what
amounted to an accounting exercise. Based upon the jury’s answers
to the Special Interrogatories, the parties agreed that the final amount
due PCS under the subcontracts at issue was $252,840.29. Because
the jury had been instructed, with the consent of the parties, that it
could find that WSRC still owed PCS money under the subcontracts
at issue without finding that WSRC had breached the subcontracts at
issue and the jury found that WSRC had not breached the subcon-
tracts at issue, the district court did not make the $252,840.29 amount
part of the final judgment.
On appeal, PCS alleges numerous errors by the district court,
including, not making the $252,840.29 amount part of the final judg-
ment and not awarding PCS pre and postjudgment interest on that
amount. For reasons that follow, we affirm the final judgment of the
district court in toto.
I.
In 1989, WSRC and the United States Department of Energy
entered into a contract whereby WSRC agreed to manage and operate
SRS for the Department of Energy. WSRC and PCS in turn entered
1
In this regard, the district court granted WSRC’s motion for judgment
as a matter of law to the extent that PCS contended that WSRC breached
an alleged contractual duty under a particular subcontract to provide PCS
with WSRC personnel for training.
4 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
into several subcontracts whereby PCS agreed to perform employee
scheduling and cost-estimating services for WSRC in connection with
WSRC’s management and operation of SRS.
As previously explained, the subcontracts at issue in the present
appeal provided that the final amounts that WSRC owed PCS would
be determined through negotiations between the parties after a final
audit by WSRC of PCS’s accounting books and records. Also as pre-
viously explained, the DCAA ultimately completed the final audit of
PCS’s accounting books and records because of the bad blood that
had developed between the parties. The parties never engaged in final
negotiations to resolve the disputed cost elements. Moreover, as
stated previously, PCS was not happy when WSRC decided not to
continue its contractor/subcontractor relationship with PCS at the
expiration of the subcontracts at issue and hired some employees of
PCS.
The rancorous relationship between PCS and WSRC ultimately led
PCS to file the present diversity action against WSRC in the United
States District Court for the Southern District of Georgia. Before any
substantive proceedings occurred, the action was transferred to the
United States District Court for the District of South Carolina. PCS’s
complaint alleged the following claims under South Carolina law: (1)
breach of third-party beneficiary contract2; (2) libel; (3) slander; (4)
violations of the South Carolina Unfair Trade Practices Act
(SCUTPA), S.C. Code Ann. §§ 39-5-10 to 39-5-160 (Law. Co-op.
1985 & Supp. 2001); (5) breach of contract accompanied by a fraudu-
lent act; (6) breach of the implied duty of good faith and fair dealing;
(7) intentional interference with economic relations; (8) intentional
interference with prospective contractual relationships; and (9) breach
of subcontracts. WSRC filed a single counterclaim alleging breach of
subcontracts.
Following the conclusion of discovery, the district court granted
WSRC’s motion for summary judgment, Fed. R. Civ. P. 56, with
respect to PCS’s claims alleging breach of third-party beneficiary
2
This claim involved what the parties refer to as "the Prime Contract,"
which is the contract between WSRC and the United States Department
of Energy regarding WSRC’s management and operation of SRS.
PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 5
contract, libel, slander, violations of the SCUTPA, and breach of con-
tract accompanied by a fraudulent act. The district court denied
WSRC’s motion for summary judgment with respect to PCS’s
remaining claims. The district court then scheduled the remaining
claims for a jury trial.
At the close of PCS’s evidence at trial, the district court granted
WSRC’s motion for judgment as a matter of law to the extent that
PCS contended that WSRC breached an alleged contractual duty to
provide PCS with WSRC personnel for training. The jury found
against PCS with respect to its remaining claims alleging breach of
the implied duty of good faith and fair dealing, intentional interfer-
ence with economic relations, intentional interference with prospec-
tive contractual relationships, and breach of subcontracts.3
Furthermore, as previously stated, the parties agreed to allow the
jury to answer the Special Interrogatories regarding the disputed cost
elements. Based upon the jury’s answers to the Special Interrogato-
ries, the parties agreed that the final amount due PCS under the sub-
contracts at issue was $252,840.29. This amount was not made part
of the final judgment because the jury had been instructed, with the
consent of the parties, that: (1) its determinations of the disputed cost
elements on the Special Interrogatories does not suggest that it should
find for or against either party on any of the other claims that were
the subject of the verdict forms;4 and (2) the jury returned a verdict
finding that WSRC had not breached the subcontracts at issue.
3
On its own motion, the district court dismissed WSRC’s counterclaim
because WSRC had abandoned the claim at trial.
4
In this regard, the district court specifically instructed the jury as fol-
lows:
I want you to understand that your determination of these
amounts on the Special Interrogatories does not suggest that you
should find for or against either party on any of the other claims,
that [are] the subject of the verdict forms. In other words, we
have two things you are doing here today. One is you are resolv-
ing those unresolved audit issues and you are resolving that irre-
spective of fault on either side. Then once you have resolved that
then you go to the question of whether or not [PCS] has proved
6 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
The district court subsequently entered its final judgment dismiss-
ing all claims against WSRC with prejudice. The judgment also pro-
vided that WSRC "shall recover of the plaintiff its costs of action."
(J.A. 2167). The district court left the determination of WSRC’s
"costs of action" for a later time, and to this court’s knowledge has
not made such determination.5 Id.
Following the district court’s entry of final judgment in favor of
WSRC, PCS moved for a new trial with respect to all claims that were
before the jury (Rule 59(a) Motion). Fed. R. Civ. P. 59(a). PCS
argued that a new trial should be conducted because the weight of the
evidence and the jury’s answers to the Special Interrogatories demon-
strated liability on the part of WSRC. PCS also rested its Rule 59(a)
Motion on allegations that the district court committed various evi-
dentiary errors. The district court denied the motion in toto.
In another post-trial motion, PCS moved for modification of the
final judgment to reflect: (1) that it prevailed on WSRC’s counter-
claim; (2) an award of costs in favor of PCS rather than WSRC; and
(3) an award of $252,840.29 plus pre and postjudgment interest on
that amount. Fed. R. Civ. P. 59(e). The district court denied this
motion (the Rule 59(e) Motion) in toto as well.
PCS noted a timely appeal. On appeal, PCS challenges the district
court’s grant of summary judgment in favor of WSRC with respect
to its claims alleging breach of third-party beneficiary contract, viola-
tions of the South Carolina Unfair Trade Practices Act, and breach of
contract accompanied by a fraudulent act. PCS also challenges the
the claims that it has brought in the case for breach of contract,
breach of implied duty of good faith and fair dealing, and the tor-
tious interference claims. But just because you are determining
the amounts that are due and owing under the subcontracts does
not imply that you should find for or against either party on those
other claims. Those are separate issues.
(J.A. 2074-75).
5
The parties agree that WSRC has paid PCS $252,840.29 less $30,000
that WSRC is withholding pending the district court’s determination of
its petition for approval of costs.
PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 7
district court’s grant of judgment as a matter of law with respect to
the portion of its breach of subcontracts claim pertaining to WSRC’s
alleged duty to provide PCS with WSRC personnel for training.
Moreover, PCS challenges the district court’s denial of its Rule 59(a)
Motion and Rule 59(e) Motion.
II.
We first address PCS’s contention that the district court erred by
granting summary judgment in favor of WSRC with respect to its
claim alleging violations by WSRC of the SCUTPA. PCS’s conten-
tion is without merit.
Summary judgment is appropriate when "the pleadings, deposi-
tions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). "We review a grant of summary
judgment de novo, applying the same standard as the district court."
Baber v. Hospital Corp. of Am., 977 F.2d 872, 874 (4th Cir. 1992).
In so doing, we view all facts and reasonable inferences therefrom in
the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
The crux of PCS’s claim under the SCUTPA is that WSRC alleg-
edly violated the SCUTPA by hiring PCS employees away from PCS,
using audit information for improper purposes, and blacklisting PCS
from future subcontracting opportunities with WSRC. To maintain a
viable claim under the SCUTPA, a plaintiff must prove by a prepon-
derance of the evidence "(1) that the defendant engaged in an unlaw-
ful trade practice, (2) that the plaintiff suffered actual, ascertainable
damages as a result of the defendant’s use of the unlawful trade prac-
tice, and (3) that the unlawful trade practice engaged in by the defen-
dant had an adverse impact on the public interest." Havird Oil Co. v.
Marathon Oil Co., 149 F.3d 283, 291 (4th Cir. 1998). South Carolina
courts, in addressing the third element of a SCUTPA claim, have
examined whether the conduct complained of is capable of repetition.
Noack Enters, Inc. v. Country Corner Interiors, 351 S.E.2d 347, 350-
51 (S.C. Ct. App. 1986).
8 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
We agree with the district court that PCS’s SCUTPA claim fails for
lack of evidence of an adverse impact on any public interest. As the
district court aptly stated with regard to this element:
Plaintiff hangs its hat on the "potential for repetition." It
submits that WSRC has numerous subcontractors on site
and continues to illegally perform financial audits on small
and disadvantaged subcontractors. No evidence supports
this claim. This case presents a situation in which two cor-
porations found themselves involved in a business dispute
over a contract audit. There is no evidence in the record that
WSRC regularly has such disputes with other parties or that
what transpired in this case has any real potential for repeti-
tion. At best this is a standard contract dispute that falls well
outside the ambit of what constitutes an actionable SCUTPA
violation. Accordingly, summary judgment is proper as to
Count V.
(J.A. 607). Based upon this reasoning of the district court, we affirm
the district court’s grant of summary judgment in favor of WSRC
with respect to PCS’s SCUTPA claim.
III.
We next address PCS’s contention that the district court erred in
excluding evidence that WSRC’s auditors who were involved in the
initial audit of PCS’s accounting books and records were not licensed
certified public accountants. PCS sought to introduce this evidence to
show that WSRC did not attempt to perform audits of PCS’s account-
ing books and records in accordance with statements "in its audit
reports that they were prepared in accordance with Generally
Accepted Government Auditing Standards (‘GAGAS’)." (PCS’s Br.
at 14). In this regard, PCS relied upon the portion of GAGAS provid-
ing that "public accountants engaged to conduct audits should be . . .
licensed certified public accountants . . . ." (J.A. 1507).
WSRC had filed a pretrial motion in limine seeking to exclude all
evidence from trial that GAGAS required auditors to be licensed cer-
tified public accountants. The district court granted WSRC’s motion
in limine on the basis that the subcontracts at issue did not require
PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 9
WSRC’s auditors to be licensed certified public accountants. The dis-
trict court also rejected PCS’s reading of the auditor licensing provi-
sion in the GAGAS. Essentially, the district court’s reasoning in this
regard went as follows. WSRC’s auditors were not "public accoun-
tants engaged" to audit PCS. Id. Rather, they were WSRC employees
exercising WSRC’s contractual rights to inspect PCS’s accounting
books and records. Therefore, the licensing provision in GAGAS
upon which PCS relies was not applicable to WSRC’s auditors.
We review a district court’s evidentiary rulings for abuse of discre-
tion. Supermarket of Marlinton, Inc. v. Meadow Gold Dairies, Inc.,
71 F.3d 119, 126 (4th Cir. 1995). We can find no fault in the reason-
ing of the district court. Therefore, we hold the district court did not
abuse its discretion in excluding evidence that the auditors from
WSRC involved in the initial audits of PCS’s accounting books and
records were not licensed certified public accountants.
IV.
We next address the assignment of error that PCS pressed most
vigorously on appeal, namely, that the district court abused its discre-
tion by denying its Rule 59(e) Motion to modify the judgment in
order to reflect: (1) an award of $252,840.29 in its favor plus pre and
postjudgment interest on that amount; and (2) an award of costs in its
favor rather than WSRC. Fed. R. Civ. P. 59(e). PCS argues that such
a modification is in order because, in its complaint: (1) it alleged that
WSRC was using its failure to properly perform and complete the
audit of PCS’s accounting books and records as an excuse for not
paying it substantial sums of money owed under the subcontracts at
issue; (2) it generally requested an award of monetary damages; and
(3) it specifically requested an award of prejudgment interest for
amounts still owing under the subcontracts. According to PCS, it is
inconceivable that the jury could have answered the Special Interrog-
atories in its favor but found against it on every one of its substantive
claims. Thus, as PCS’s argument goes, the final judgment, as it now
stands, reflects an inconsistency in the jury’s verdict; an inconsistency
that can only be corrected by vacating the final judgment and remand-
ing the case to the district court with instructions that the district court
grant its Rule 59(e) Motion.
10 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
Although Rule 59(e) does not itself provide a standard under which
a district court may grant a motion to alter or amend a judgment, we
have previously recognized that there are three grounds for modifying
an earlier judgment: "(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not available at trial;
or (3) to correct a clear error of law or prevent manifest injustice."
EEOC v. Lockheed Martin Corp., 116 F.3d 110, 112 (4th Cir. 1997).
PCS’s Rule 59(e) Motion appears to rely upon this last ground.
Reviewing the district court’s denial of PCS’s Rule 59(e) Motion
for abuse of discretion, id., we find this assignment of error to be
without merit. First, the invited error doctrine prevents PCS from
relying upon any alleged inconsistency in the jury’s verdict in support
of its challenge to the district court’s denial of its Rule 59(e) Motion.
Under the "invited error" doctrine, a party is prevented from inducing
the court to take an erroneous step and later seeking redress for the
error. United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997)
("invited error doctrine recognizes that a court cannot be asked by
counsel to take a step in a case and later be convicted of error,
because it has complied with such request") (internal quotation marks
omitted). Here, PCS invited the jury’s allegedly inconsistent verdict.
As the district court reported in its Memorandum Opinion in which
it denied PCS’s Rule 59(a) Motion and its Rule 59(e) Motion, "both
parties agreed that even if there was no breach [of the subcontracts
at issue] by WSRC, outstanding negotiations were required . . . to
finalize any amounts due to or from" PCS under the subcontracts at
issue. (J.A. 2192). Therefore, with input from and approval of the par-
ties, the district court instructed the jury as follows:
[Y]our determination of these amounts on the Special Inter-
rogatories does not suggest that you should find for or
against either party on any of the other claims, that [are] the
subject of the verdict forms. In other words, we have two
things you are doing here today. One is you are resolving
those unresolved audit issues and you are resolving that irre-
spective of fault on either side. Then once you have resolved
that then you go to the question of whether or not [PCS] has
proved the claims that it has brought in the case for breach
of contract, breach of implied duty of good faith and fair
dealing, and the tortious interference claims. But just
PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER 11
because you are determining the amounts that are due and
owing under the subcontracts does not imply that you
should find for or against either party on those other claims.
Those are separate issues.
(J.A. 2074-75). These jury instructions clearly created the potential
for the verdict situation that resulted in this case.6 Thus, assuming
arguendo that the jury’s verdict is inconsistent, such inconsistency
was invited by PCS and cannot now be remedied on appeal. Second,
as the district court correctly explained, the verdict is not inherently
inconsistent. The jury apparently believed that although WSRC owed
PCS money under the subcontracts at issue, that fact did not constitute
breach of those subcontracts under the circumstances. This finding is
plausible given that the subcontracts at issue provided that outstand-
ing negotiations were required to finalize any amounts owed PCS.
PCS’s assignment of error in this regard strikes us as PCS wanting
to have its cake and eat it to. The district court accommodated PCS’s
desire to have the jury resolve the disputed cost elements by answer-
ing the Special Interrogatories. In order to effectuate this process,
PCS also agreed to the jury instruction which made clear that the
jury’s answers to the Special Interrogatories had no bearing upon its
deliberations regarding PCS’s substantive claims. PCS now com-
plains that the district court erred by not incorporating the
$252,840.29 amount as well as pre and postjudgment interest on that
amount as part of the final judgment (not to mention its request that
we award it rather than WSRC costs). We think not; PCS having
made its bed, it must now lie in it. In sum, we affirm the district
court’s denial of PCS’s Rule 59(e).7
6
Notably, even before this court, PCS expressly states that it "does not
attack the jury charges themselves." (PCS’s Reply Br. at 11). In fact,
PCS admits that the jury instruction quoted above "is not inaccurate."
(PCS’s Reply Br. at 9).
7
We have carefully reviewed PCS’s remaining assignments of error
and find them to be without merit.
12 PROJECT CONTROL v. WESTINGHOUSE SAVANNAH RIVER
V.
In conclusion, we affirm the district court’s final judgment in toto.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576890/ | 35 So. 3d 32 (2010)
LEATHERWOOD
v.
McNEIL.
No. SC09-2422.
Supreme Court of Florida.
April 12, 2010.
Decision Without Published Opinion Habeas Corpus dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2859016/ | Morgan
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-208-CV
JOHN W. MORGAN,
APPELLANT
vs.
EMPLOYEES' RETIREMENT SYSTEM OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. 91-15881, HONORABLE JERRY DELLANA, JUDGE PRESIDING
This is an appeal from a suit seeking judicial review of an order of appellee
Employees' Retirement System of Texas ("ERS") denying appellant John W. Morgan's application
for occupational disability retirement benefits. After a hearing, the district court granted the ERS'
plea to the jurisdiction and dismissed Morgan's cause with prejudice for lack of jurisdiction. By
its order, the district court found Morgan's motion for rehearing failed to preserve error because
it was not sufficiently specific. Morgan appeals the dismissal. We will reverse the district court's
order and remand the cause to the district court.
BACKGROUND
Appellant John W. Morgan was hired by the Texas Department of Corrections
("TDC") in August 1982. When he was hired by TDC, Morgan was forty-four years old and had
been employed previously as a roughneck on a drilling rig. On his application for employment
with TDC, Morgan answered "yes" to a question regarding the presence of "physical handicaps,
diseases, and disabilities," but failed to explain these conditions as instructed. Morgan testified
at an appellate hearing before the ERS that prior to his employment, he orally clarified the extent
of his disabilities to people at the TDC by informing them that he had sustained a back injury
while working for his former employer.
Beginning in January of 1987, almost four and one-half years after being hired by
TDC, Morgan claimed that he injured his back, in the course of his duties with TDC, while
unloading a box of screws from a pallet in a TDC warehouse. After this occurrence he was
unable to work for several weeks. In June of 1989, Morgan claimed he suffered another injury
to his back and a hernia when he slipped on the steps at the TDC office while delivering
paperwork regarding extension of his medical leave to the personnel department. On October 31,
1989, TDC terminated Morgan due to disability.
As a result of his termination, Morgan applied to ERS for disability retirement
benefits. ERS denied these benefits based on a finding that Morgan's condition resulted from
aggravation of a back injury that he had suffered before employment with TDC. Morgan
appealed this decision to the ERS Board of Trustees. After a hearing, the hearing examiner
upheld the original determination. The ERS Board of Trustees adopted the examiner's decision
on August 29, 1991. Morgan then filed a motion for rehearing (1)
which was overruled by operation
of law. Morgan sought judicial review within thirty days of that order. On February 24, 1992,
ERS filed its plea to the jurisdiction and special exception requesting that the cause be dismissed
with prejudice. ERS argued that Morgan's motion for rehearing lacked the requisite specificity.
The district court granted the agency's plea to the jurisdiction and dismissed the cause with
prejudice for lack of jurisdiction.
DISCUSSION AND HOLDING
Morgan's sole point of error attacks the trial court's holding that his motion for
rehearing before the ERS was insufficient to support the court's jurisdiction under sections
2001.145-.146 of the Administrative Procedure Act. (2) Morgan contends that his motion for
rehearing gave the agency sufficient notice of the errors alleged in the decision.
The procedural prerequisites for judicial review of ERS decisions are governed by
APA section 2001.145, which states that "a timely motion for rehearing is a prerequisite to an
appeal in a contested case." APA § 2001.145. The purpose of this requirement is to insure that
the aggrieved party has exhausted all administrative remedies before seeking judicial review of
the agency's decision. Lindsay v. Sterling, 690 S.W.2d 560, 563 (Tex. 1985). However, in
drafting section 2001.145, the legislature was silent as to what a motion for rehearing must
contain.
The purpose of a motion for rehearing is to put the agency on notice as to the errors
the party seeking judicial review alleges. Thus, motions for rehearing must be "sufficiently
definite" to apprise the agency of the errors claimed and allow the agency the opportunity to either
correct the error or prepare to defend it. Suburban Util. Corp. v. Public Util. Comm'n, 652
S.W.2d 358, 365 (Tex. 1983). Furthermore, this Court has stated that APA section 2001.145 sets
a standard of fair notice that requires the complaining party to set forth succinctly (1) the
particular finding of fact, conclusion of law, ruling, or other action by the agency that the
complaining party asserts was error; and (2) the legal basis upon which the claim of error rests.
Burke v. Central Educ. Agency, 725 S.W.2d 393, 397 (Tex. App.--Austin 1987, writ ref'd n.r.e).
These two elements may not be supplied solely in the form of generalities. Id.
ERS claims that Morgan's allegations in his motion for rehearing are too general
to identify the claimed error. We disagree. Unlike the complicated issues and vague motion for
rehearing filed by the appellant in Burke, the facts of this case are comparable to the motion for
rehearing reviewed in Palacios v. Texas Real Estate Comm'n, 797 S.W.2d 167, 169
(Tex.App.--Corpus Christi 1990, writ denied). In Palacios, the Corpus Christi Court of Appeals
held that objections to the Texas Real Estate Commission's interpretation of a single provision of
the Texas Real Estate License Act, made in a motion for rehearing, were sufficiently specific,
where the only issue in the agency hearing was the application of the provision to the facts of the
case. Palacios, 797 S.W.2d at 169. Likewise, the instant cause has but one point of contention:
whether Morgan should receive disability retirement benefits despite a pre-employment back
injury that may have contributed to his subsequent disabling injury. Morgan claims he suffered
a new injury while working for TDC which changed his medical condition and caused his
disability. ERS claims a pre-existing injury caused the disability. From this relatively simple
conflict, ERS based its decision on sixteen findings of fact, and three conclusions of law.
Findings of fact one through six generally outlined the administrative history of the
case through the conclusion of the agency hearing. Findings seven through nine discussed
appellant's employment at TDC and the two incidents which resulted in his back injury. Findings
ten through thirteen addressed Morgan's back problems and concluded that he had sustained a
back injury in 1982, before his employment with TDC. Additionally, these findings stated that
he had suffered from back and leg pain, as well as "degenerative disc disease, lumbar
radiculopathy, herniated nucleus pulposus, and osteoarthritis" prior to his employment at TDC.
Findings fourteen through sixteen concluded that Morgan's on-the-job accident merely aggravated
the aforementioned pre-existing back problems. The agency concluded that the conditions did not
result from inherent risks or hazards associated with his employment duties at TDC. Accordingly,
the agency's three conclusions of law stated that Morgan's request for disability retirement
benefits was denied because of its finding that Morgan's condition did not result from "a specific
act or occurrence determinable by a definite time and place" or "an inherent risk or hazard"
arising from his employment at TDC.
We hold that Morgan's motion for rehearing is sufficiently specific to apprise ERS
of the errors claimed and to enable the agency to correct or prepare to defend against these claims.
Morgan's motion specifically isolates and points out errors contained in the agency's findings of
fact ten through fourteen and sixteen, and challenges each finding as being either immaterial to
the agency's determination, unsupported by the evidence, or contradicted by numerous specific
items of evidence. (3)
Similarly, Morgan specifically excepts to the agency's conclusions of law. Though
Morgan formally makes the exceptions as a group, he does not supply the elements in the form
of generalities. Morgan's motion for rehearing specifically attacks the substance of the agency's
conclusions of law and gives a five-page analysis of why these conclusions are incorrect.
ERS also claims Morgan's motion for rehearing is insufficient because it disputes
factual findings but fails to present valid legal objections to the agency's order. ERS argues that
Morgan is required to state that the agency findings lack "substantial evidence" because that is the
standard of judicial review. See APA § 2001.174. We disagree. The analysis contained in
Morgan's motion for rehearing explaining the various ways in which the agency's findings are
unsupported by the evidence is an acceptable legal objection at the agency level. Technical
pleading requirements at the agency level in no way promote the policies behind the notice and
specificity requirements for a motion for rehearing.
It is true that Morgan's motion for rehearing is not a form-book example of such
a motion, but it achieves its purpose: it sufficiently informs the agency to which it is addressed
of the errors alleged. Where the overall purpose of a motion for rehearing is achieved, we will
not penalize a party for being unorthodox. This is especially true when the sanction results in the
trial court's loss of jurisdiction and a complete denial of judicial review.
CONCLUSION
For the aforementioned reasons, we sustain Morgan's point of error and on that
basis reverse the trial court's judgment and remand the cause to the district court for judicial
review of the agency order.
Mack Kidd, Justice
Before Justices Powers, Jones and Kidd
Reversed and Remanded
Filed: March 16, 1994
Publish
1. 1 In the motion for rehearing, Morgan incorporated a memorandum brief in support of the
motion. Originally, ERS objected to this incorporation claiming that documents incorporated
by reference into motions for rehearing preserve no error. We addressed this issue in Texas
Water Comm'n v. Customers of Combined Water Sys. Inc., 843 S.W.2d 678, 682 (Tex.
App.--Austin 1992, no writ) (holding that a motion for rehearing which referred to a proposal
for decision by a hearing examiner was sufficiently definite). However, ERS voluntarily
waived its objection to the incorporation of the brief in support and thus this issue is not before
us.
2. 2 All citations in this opinion are to the current Administrative Procedure Act rather than
the former Administrative Procedure and Texas Register Act, because the recent codification
did not substantively change the law. Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 47,
1993 Tex. Gen. Laws 583, 986 (Administrative Procedure Act, Tex. Gov't Code Ann. §
2001.001-.902) (West 1994) [hereinafter APA].
3. 3 ERS contends that Morgan did not preserve his objection to finding of fact 15 by failing
to include it specifically in his motion for rehearing. Finding of fact 15 states: "Appellant's
disability is the result of the conditions described in finding of fact 12." Since it is clear that
finding of fact 15 is derived directly from finding of fact 12, and finding of fact 12 is
specifically identified in Morgan's motion for rehearing, it logically follows that finding of
fact 15 is identified as well. Thus, we hold error was preserved as to finding of fact 15 by
Morgan's specific objection to finding of fact 12 in his motion for rehearing. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1576921/ | 151 S.W.3d 94 (2004)
Judy CRUMBAKER, Appellant,
v.
Albert ZADOW and The American Insurance Company, Respondents.
No. ED 84398.
Missouri Court of Appeals, Eastern District, Southern Division.
December 7, 2004.
*96 Susan K. Roach, Shaun M. Falvey (co-counsel), Clayton, MO, for appellant.
Richard S. Bender, David G. Bender (co-counsel), Clayton, MO, for respondents.
OPINION
GLENN A. NORTON, Judge.
Judy Crumbaker appeals the judgment dismissing her claims for suit on a notary bond and infliction of emotional distress and denying her motion for leave to amend the petition. We reverse and remand.
I. BACKGROUND
Crumbaker filed a petition against Albert Zadow, a notary public, and his surety, The American Insurance Company (collectively "Zadow"), alleging that Zadow falsely certified that several quitclaim deeds had been executed in person. The deeds transferred several pieces of real estate from Leslie Rees ("the grantor") to his former wife, Eleanor Finneran ("the grantee"). The grantor had since died, and Crumbaker was an heir to his estate. Crumbaker also alleged that Zadow's conduct caused her emotional distress.
Zadow moved to dismiss the petition, arguing that (1) Crumbaker lacked standing because she had no interest in the properties transferred by the deeds, some of which already had been awarded to the grantee in a decree dissolving her marriage to the grantor and (2) the suit could not proceed without the grantee because she was a necessary and indispensable party who could not be joined in the suit by virtue of a release agreement. At the trial court's request, the parties filed copies of the dissolution decree and the release. Crumbaker also sought leave to amend the petition to join the grantee as an additional defendant. Without explanation, the court granted Zadow's motion to dismiss and denied Crumbaker's motion to amend.
II. DISCUSSION
We will affirm this judgment if it can be sustained on any ground alleged in the motion to dismiss. Farm Bureau Town and Country Insurance Company of Missouri v. Angoff, 909 S.W.2d 348, 351 (Mo. banc 1995). The judgment cannot be sustained on the standing ground, and proper procedure was not followed for it to have been sustained on the necessary and indispensable party ground. Thus, we must reverse and remand.
A. Standing
"Reduced to its essence, standing roughly means that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote." Ste. Genevieve School District R II v. Board of Aldermen of City of Ste. Genevieve, 66 S.W.3d 6, 10 (Mo. banc 2002). This "personal stake" is shown by alleging a threatened or actual injury resulting from the challenged action. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 53 (Mo. banc 1999); City of St. Louis v. K & K Investments, Inc., 21 S.W.3d 891, 895 (Mo.App. E.D.2000). We determine standing as a *97 matter of law based on the petition and any other non-contested facts accepted as true by the parties at the time of the motion to dismiss. Home Builders Association of Greater St. Louis, Inc. v. City of Wildwood, 32 S.W.3d 612, 614 (Mo.App. E.D.2000).
According to the petition, Zadow falsely certified that the deeds had been executed in his presence. The deeds were attached to and incorporated into the petition; they quitclaimed two properties on Monroe street, one on Marvin street and another on Burns street from the grantor and grantee, as husband and wife, to the grantee solely. It appears to have been uncontested at the time of the motion that the grantor had died and that Crumbaker was an heir to his estate. Also before the trial court at time of motion were (1) the dissolution decree, in which the court awarded the Monroe properties to the grantor and the Marvin property to the grantee, and (2) an agreement between the grantee, the grantor's estate, Crumbaker and the estate's other personal representative, in which the grantee agreed to convey the Marvin property to the estate and which also contained the following release:
In consideration of the transfers set forth hereinabove, the parties hereto, for themselves, their representatives, their personal representatives, their heirs, officers, directors, employees, successors and assigns, their spouses, children and heirs as the case may be, do hereby, for themselves and all others, fully and forever remise, release and discharge the other of and from any and all causes of action of any type whatsoever, from the beginning of the world to the date of the execution of this Agreement, it being the intent and desire of the parties to fully and forever discharge each other of and from any and all causes of action of any type whatsoever.
Zadow argues that Crumbaker has no interest in the Monroe properties because title thereto had already transferred to the grantee by way of the dissolution decree and, therefore, those properties were not part of the grantor's estate regardless of the falsely notarized deed. Moreover, Zadow contends, Crumbaker has no standing to bring claims relating to any of these properties by virtue of the release. We disagree.
First, the dissolution decree did not automatically convey title. If the proceedings are conducted properly and the language of the decree is sufficient, then title to real property may be conveyed in a dissolution decree without further action by the parties. DeWitt v. American Family Insurance Co., 667 S.W.2d 700, 706 (Mo. banc 1984). But a decree that "merely orders the parties to do certain acts and does not automatically convey the property by its plain language" is insufficient to effectuate a conveyance without an affirmative act by the parties. Id. Here, the decree plainly and expressly required the parties to "execute the needed papers to affect such disposition" of property and to provide legal descriptions. Thus, the grantor's interest in the Monroe properties remained unchanged by the issuance of the dissolution decree. Crumbaker, as his heir, has a personal stake in the validity of the deeds transferring those properties out of the grantor's estate. Zadow does not dispute that the Marvin and Burns properties would have been part of the grantor's estate but for the deeds. Thus, Crumbaker has a similar personal stake in the validity of those deeds.
Second, the release does not nullify her interest in these properties or impede her ability to seek relief for injury to that interest. Interpretation of a release is governed by the same principles applicable to any other contractual agreement, *98 and the primary rule of construction is to give effect to the parties' intent, which is to be determined solely from the four corners of the contract itself. Andes v. Albano, 853 S.W.2d 936, 941 (Mo. banc 1993); Mid Rivers Mall, L.L.C. v. McManmon, 37 S.W.3d 253, 255 (Mo.App. E.D.2000). On its face, this release plainly and unambiguously does not apply to claims against Zadow and the surety, who were not parties to the agreement and have not been shown to be otherwise subject to its terms or intended to be included in the scope of the release. The release is simply irrelevant to Crumbaker's standing in this case.
Crumbaker has standing to bring these claims, and the motion to dismiss should not have been sustained on that ground.
B. Necessary and Indispensable Party
After eliminating the propriety of granting the motion to dismiss based on standing, the only other ground raised in the motion on which this judgment could be based is the failure to join a necessary and indispensable party under Rule 52.04. We will affirm a trial court's decision under this rule unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it misinterprets or misapplies the law. See Vahey v. Vahey, 120 S.W.3d 288, 291 (Mo.App. E.D.2003) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)).
Under Rule 52.04, if the court determines that a necessary party has not been joined in the action, then "the court shall order that the person be made a party." Rule 52.04(a) (emphasis added). If it is not feasible to join the necessary party, then "the court shall determine" whether the party is indispensable that is, whether in "equity and good conscience the action should proceed without the necessary party or be dismissed." Rule 52.04(b) (emphasis added). There is nothing in the record to indicate that the court followed this procedure or made these determinations in this case. The failure to follow this mandatory procedure and make the required determinations is reversible error. See Ward v. Bank Midwest, NA, 871 S.W.2d 649, 651 (Mo.App. W.D.1994); Claas v. Miller, 806 S.W.2d 141, 144 (Mo.App. W.D.1991). Likewise, it was an abuse of discretion to deny Crumbaker's motion for leave to amend her petition to add the grantee as a defendant in these circumstances. On remand, if the court determines that the grantee is not a necessary party, then the motion to dismiss must be denied. If the court agrees that the grantee's presence in the lawsuit is necessary, then she must be joined under Rule 52.04(a). If she cannot be joined, then the court must determine whether she is indispensable under the factors set forth in Rule 52.04(b). The case can only be dismissed under this rule if the grantee is found to be necessary, unable to be joined and indispensable.
III. CONCLUSION
The judgment is reversed, and the case is remanded for disposition consistent with this opinion.[1]
KATHIANNE KNAUP CRANE, P.J. and BOOKER T. SHAW, J. concurring.
NOTES
[1] Crumbaker's motion to strike the respondents' brief is denied. Although we have considered the brief, we find it wholly unpersuasive. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2455033/ | 429 S.W.2d 650 (1968)
George Melvin COLLINS, Appellant,
v.
The STATE of Texas, Appellee.
No. 128.
Court of Civil Appeals of Texas, Houston (14th Dist.).
June 5, 1968.
*651 Sigmund A. Horvitz, Houston, for appellant.
Carol S. Vance, Dist. Atty., Nick Barrera, D. L. McCairns, Joe S. Moss, Asst. Dist. Attys., Houston, for appellee.
TUNKS, Chief Justice.
On November 24, 1967, a petition was filed in case number 15,725 in the Juvenile Court of Harris County, Texas, alleging that the defendant, George Melvin Collins, was a delinquent child. The particular offense alleged to have been committed by the defendant, establishing his delinquency, was the theft of automobile tires which were "the personal property of Dena Kanuses."
On January 4, 1968, when the case was called for trial the record before us reveals that the following proceedings occurred:
"Mr. McCairns: Your Honor, the Petitioner would move to amend the petition to show the name of the complainant as Mr. Alphonse Knauses instead of, for that of his wife, Dena Kanuses.
"The Court: Any objections, Counsel?
"Mr. Horvitz: No, Your Honor, I have no objections.
"The Court: All right. Motion will be granted."
Thereupon, the attorney representing the State proceeded to interrogate Mr. Alphonse Kanuses. The witness, being sworn, testified that he was the owner of the car from which the tires had been taken, but that on the occasion of the taking, the car was being used by his daughter, Dianne Kanuses.
The State then made a motion for nonsuit and the following proceedings occurred:
"Mr. McCairns: Your Honor, may we approach the bench? At this time Petitioner will move for a non-suit without prejudice. At this time it is obvious that the person that was driving the car is not this witness.
"The Court: Motion for non-suit granted.
"Mr. Horvitz: The Respondent would move for a finding of not delinquency in this matter for the reason that the trial has begun and
"The Court: Counsel has the right to ask for a non-suit at any time prior to judgment and the Court has no other authority than to grant it.
"Mr. Horvitz: The rule as to non-suits, as I read it, is to the effect the other side has a claim for the affirmative relief, that in this case that plaintiff's rights to a non-suit is limited, and we are asking for a finding of not delinquent rather than a non-suit because this is a claim for affirmative relief.
"The Court: The objection will be overruled?"
No order of the Court terminating the case pursuant to the State's motion for non-suit appears in the transcript.
On January 12, 1968, another petition was filed in case number 15,725. Though this second petition was not so designated, we assume that it was an amended petition. In this pleading it was alleged that the defendant had stolen some automobile tires from Alphonse Kanuses. It is to be noted that, though the trial court at the beginning of the January 4th hearing, granted the State permission to amend this petition, no such written amendment was filed until after that hearing had ended in the Court's granting the State's motion for non-suit. There is no explanation in the record as to why the State failed to file the trial amendment at that time.
On February 8, 1968, a trial was had on the State's second petition. At the beginning *652 of that hearing the defendant presented to the Court a pleading designated "Defendant's First Amended Plea of Jeopardy." In this plea he alleged that he should not be further prosecuted because earlier, on January 4, 1968, he was tried on a "petition with the offense of felony theft of automobile tires from Alphonse Kanuses on or about the 13th day of November, 1967, and being the same petition under which defendant is now charged herein." In the hearing on this plea it was agreed that the court reporter's transcript of the proceedings of the January 4th trial should be received as evidence relating to the plea. The trial court overruled the defendant's plea of former jeopardy and proceeded to trial on the merits. The defendant was adjudicated a delinquent. No statement of facts was filed showing the evidence heard on the February 8th hearing. All of appellant's points of error relate to the trial court's overruling of the plea of former jeopardy.
A juvenile delinquency trial is a civil proceeding conducted in accordance with the Texas Rules of Civil Procedure except insofar as special statutes are applicable. Steed v. State, 143 Tex. 82, 183 S.W.2d 458; Gamble v. State, Tex.Civ. App., 405 S.W.2d 384; Art. 2338-18, Sec. 18, Vernon's Ann.Tex.Civ.St. However, since it is a proceeding which seeks to deprive the defendant of his liberty, the defendant is guaranteed all of the privileges and immunities which he would have if it were a criminal proceeding. In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527. Among those rights is the right to be tried in accordance with due process, including the immunity from twice being placed in jeopardy for the same offense. Sawyer v. Hauck, D.C., 245 F. Supp. 55; Garza v. State (Tex.Cr.App.), 369 S.W.2d 36; Art. 1, Sec. 14, Constitution of the State of Texas, Vernon's Ann.; Art. 1.10, Texas Code of Criminal Procedure, Vernon's Ann.
If, on January 4, 1968, this defendant was placed in jeopardy pursuant to a charge that he stole some tires from Alphonse Kanuses, then his subsequent trial on February 8, 1968, for the same offense, would obviously be in violation of that privilege of immunity. McLelland v. State (Tex.Cr.App.), 420 S.W.2d 417; Davis v. State, 144 Tex. Crim. 474, 164 S.W.2d 686.
We are of the opinion that the record before us indicates an intention on the part of both the State and the defendant that the January 4th trial be a trial on the charge of stealing tires from Alphonse Kanuses. It is not at all inconsistent with the applicable Texas Rules of Civil Procedures that issues be tried by consent without written pleadings being on file at the time the evidence is presented. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; Chambless v. J. J. Fritch, General Contractor, Tex.Civ.App., 336 S.W.2d 200, writ ref., n. r. e.; Rules 66 and 67, Texas Rules of Civil Procedure. In this case the State got the Court's permission to file a trial amendment and the defendant agreed thereto. While the State did not then and there file a written trial amendment, later, without any dismissal of the case, another pleading was filed in the same numbered case pleading the facts which, according to the oral representations made by the attorney for the State to the court and the defendant, were to be included in the trial amendment. Thus, we are of the opinion that the defendant was, on January 4, 1968, placed in jeopardy of a charge of stealing tires from Alphonse Kanuses. Therefore, his subsequent trial and conviction on February 8, on that same offense, was a violation of his constitutional protection from twice being placed in jeopardy for the same offense.
The judgment of the trial court is reversed and judgment is here rendered for the defendant that he be released from the custody of the Texas Youth Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2566689/ | 9 N.Y.3d 996 (2007)
GEIDY MAYORGA, Appellant,
v.
JOCARL & RON CO., Respondent.
Court of Appeals of the State of New York.
Submitted November 26, 2007.
Decided December 13, 2007.
Motion to dismiss the appeal herein granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (see CPLR 5601 [a]). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/536174/ | 895 F.2d 861
Fed. Sec. L. Rep. P 94,911Richard MEYER, as custodian for Pamela Meyer, Plaintiff-Appellant,v.OPPENHEIMER MANAGEMENT CORPORATION, Oppenheimer AssetManagement Corporation, Oppenheimer & Co., OppenheimerHoldings, Inc., A.G. Edwards & Sons, Inc., Thomson McKinnonSecurities, Inc., Bateman Eichler, Hill, Richards, Inc.,J.C. Bradford & Co., Centennial Capital Corp., and DailyCash Accumulation Fund, Inc., Defendants-Appellees.
No. 475, Docket 89-7685.
United States Court of Appeals,Second Circuit.
Argued Dec. 4, 1989.Decided Feb. 1, 1990.
Mordecai Rosenfeld, New York City, for Plaintiff-Appellant.
Daniel A. Pollack, Pollack & Kaminsky, New York City (Nancy E. Barton, Weil, Gotshal & Manges, New York, New York, of counsel for Oppenheimer & Co.; Rendle Myer and Allan B. Adams, Hamilton, Myer, Swanson & Faatz, Denver, Colo.; David M. Butowsky, Gordon Hurwitz Butowsky Weitzen Shalov & Wein, New York City, of counsel for Daily Cash Accumulation Fund, Inc.), for Defendants-Appellees.
Before NEWMAN and WINTER, Circuit Judges, and TENNEY,* District Judge.
WINTER, Circuit Judge:
1
This case involves a challenge to a money market mutual fund distribution plan on the grounds, inter alia, that it violates several provisions of the Investment Company Act of 1940, 15 U.S.C. Sec. 80a-1 et seq. (1988) ("the 1940 Act" or "the Act"). The plan was adopted under Rule 12b-1, 17 C.F.R. Sec. 270.12b-1 (1989), promulgated in 1980 by the Securities and Exchange Commission. Plaintiff-appellant Richard Meyer contends that the directors and shareholders should have been informed of preliminary negotiations concerning the sale by one of the owners of its interest in the investment adviser to the fund. Meyer also claims that the distribution plan constituted an unfair burden imposed by the sale of the investment adviser under Section 15(f) of the 1940 Act, that the advisory and distribution fees are unfair under Section 36(b) of the Act, and that the plan violates the stipulation of settlement in a previous lawsuit. We disagree and affirm.
BACKGROUND
2
Defendant Daily Cash Accumulation Fund, Inc. ("the Fund"), is a money market mutual fund regulated by the 1940 Act, and Pamela Meyer, for whom Richard Meyer brought suit as custodian (collectively "Meyer"), is a shareholder in the Fund. At all pertinent times, the Fund's investment adviser was defendant Centennial Capital Corporation ("Centennial"). The defendants Oppenheimer & Co. and its subsidiaries (collectively "Oppenheimer")1 owned over half of the voting shares and about 30 percent of the total equity of Centennial. The other 70 percent of Centennial's equity was owned by four stockbroker entities, A.G. Edwards & Sons, Inc., Thomson McKinnon Securities, Inc., Bateman Eichler, Hill, Richards, Inc., and J.C. Bradford & Co. (collectively "the Brokers").
3
Since beginning operations in 1978, the Fund has served primarily as a vehicle for the Brokers to offer safe, liquid investments to their customers. The Brokers and their customers thus own over 90 percent of the outstanding shares of the Fund. Centennial, in exchange for a fee based on the Fund's total net assets, has provided investment advisory services to the Fund, including general management and supervision of the Fund's investment portfolio. The Brokers have promoted the sale of Fund shares and have served as the distribution link between their customers and the Fund.
4
Promulgated in 1980, Rule 12b-1 permits an open-end investment company to use fund assets to cover sale and distribution expenses pursuant to a written plan approved by a majority of the fund's board of directors, including a majority of the disinterested directors, and a majority of the fund's outstanding voting shares. See 17 C.F.R. Sec. 270.12b-1(b). Prior to this Rule, brokers had to bear these expenses themselves.
5
In the fall of 1981, two of the Brokers, A.G. Edwards & Sons, Inc. ("Edwards") and Thomson McKinnon Securities, Inc. ("McKinnon"), informed Centennial that several other funds had offered them payments under the new Rule 12b-1 to reimburse the distribution costs resulting from ownership of money market fund shares by their customers. Edwards and McKinnon also indicated that they were considering withdrawing their customers from the Fund unless it adopted a similar Rule 12b-1 distribution plan. Shortly thereafter, Centennial recommended to the directors of the Fund that they consider adopting a 12b-1 plan.
6
In February 1982, the directors of the Fund decided to propose to the shareholders a 12b-1 plan providing for payments to the Brokers and others of distribution expenses up to 0.20 percent of the net assets of the Fund. On March 25, the directors of the Fund issued a proxy statement concerning the 12b-1 plan, and the shareholders approved the plan at the annual meeting on April 27. After issuance of the proxy statement but before the shareholders' meeting, Meyer instituted the present action.
7
Meanwhile, without the knowledge of either the Centennial directors or the Fund directors, Oppenheimer & Co. decided to sell several of Oppenheimer's interests, including its share in Centennial. On February 26, 1982, Oppenheimer & Co. retained Lazard Freres to assist in such a sale, and, shortly thereafter, Oppenheimer began negotiations with the British firm Mercantile House Holdings and its subsidiary Mercantile House (collectively "Mercantile"). On May 31, 1982, Oppenheimer and Mercantile entered into an agreement by which Mercantile paid $162 million in exchange for the Oppenheimer holdings, including its interest in Centennial. The agreement was publicly announced on June 1. The directors of the Fund first learned of the proposed sale of Oppenheimer's interest in Centennial to Mercantile around the time of the June 1 public announcement. None of the Fund's independent directors had knowledge of the proposed Oppenheimer sale, therefore, when they approved the 12b-1 plan in February 1982.
8
On June 7, 1982, pursuant to Section 15(f) of the 1940 Act, 15 U.S.C. Sec. 80a-15(f), the Fund's board of directors approved a new investment advisory agreement between the Fund and Centennial to reflect the change in ownership of Centennial. As required by Section 15(f), the board found that the sale to Mercantile would not impose an unfair burden on the Fund. On June 21, the board issued a proxy statement describing Oppenheimer's sale of its interest in Centennial and the new advisory agreement, and on July 2 Meyer amended his complaint to seek to enjoin the sale or to require in the alternative that the profits of the sale accrue to the Fund and not to Oppenheimer. On July 27, the board of the Fund considered Meyer's claims and concluded that they were baseless. The shareholders approved the new agreement on July 29, 1982.
9
The parties to the present appeal have been involved in litigation for many years. Meyer filed a shareholder derivative suit against most of the defendants in 1980, charging that the management fee was excessive and therefore violative of Section 36(b) of the 1940 Act. See Meyer v. Oppenheimer Management Corp., 609 F. Supp. 380 (D.C.N.Y.1984) ("Meyer I "). Meyer I was settled in 1981, and the parties agreed in a settlement stipulation to a reduction in the advisory fee with a promise not to raise it without court approval for five years.
10
The instant action is a shareholder derivative suit by Meyer alleging that the distribution plan proposed in the 12b-1 proxy statement violated the Meyer I stipulation of settlement and that the advisory and distribution fees were excessive. The district court dismissed the complaint but we reversed and remanded. See Meyer v. Oppenheimer Management Corp., 609 F. Supp. 380 (S.D.N.Y.1984) (Sofaer, J.), rev'd, 764 F.2d 76 (2d Cir.1985) ("Meyer II ").
11
After a trial on remand, the district court held that the proxy statements regarding the 12b-1 plan and the sale were not materially misleading, see Meyer v. Oppenheimer Management Corp., 707 F. Supp. 1394, 1406-09 (S.D.N.Y.1988) (corrected version; originally published at 691 F. Supp. 669), and that Oppenheimer had no affirmative obligation to inform the Fund's directors of their plans to sell its interest in Centennial, see 707 F. Supp. at 1408-09. The court further held that the sale did not impose an unfair burden on the Fund in violation of Section 15(f) of the Act, see id. at 1406, and that the 12b-1 plan did not violate the stipulation of settlement in Meyer I because that settlement dealt only with advisory fees and not with distribution or administrative fees, which were provided without charge by Centennial for the stipulated five years, see id. at 1402-05.
12
The district court also held that the fees did not violate Section 36(b) of the Act. See id. at 1405-06. Shortly thereafter, however, it was discovered that the parties had previously stipulated that the Section 36(b) issue would be reserved for later resolution. Consequently, the district court filed an amendment and memorandum opinion dated July 15, 1988, in which it stated that, "in light of the parties' stipulation that the issue of fairness under section 36(b) of the Investment Company Act be reserved for later resolution, the portion of the opinion relating to Sec. 36(b) is dicta." Id. at 1405 n. 1. An amended judgment, dated July 20, 1988, was entered on July 22, 1988. Then, in an opinion dated June 13, 1989, the district court held that the 12b-1 and advisory fee payments were not excessive in violation of Section 36(b) of the Act, Meyer v. Oppenheimer Management Corp., 715 F. Supp. 574 (S.D.N.Y.1989), and final judgment dismissing the complaint was entered on June 23, 1989. Meyer now appeals from both judgments. We affirm in an opinion that, if ever cited, is probably fated to be known as "Meyer III."
DISCUSSION
13
We turn first to Meyer's argument that the Fund directors and the shareholders should have been informed of the potential Oppenheimer sale of its interest in Centennial before they approved the 12b-1 plan. In particular, Meyer claims that failure of Oppenheimer to inform the Fund's directors of the sale and the omission of information about that sale from the proxy statement are material non-disclosures that invalidate the 12b-1 plan.
14
Rule 20a-1, promulgated under the 1940 Act, 17 C.F.R. Sec. 270.20a-1, makes Section 14(a) and related provisions of the Securities Exchange Act of 1934, 15 U.S.C. Secs. 78a-78ll (1988), applicable to proxy statements issued under the 1940 Act. Moreover, Rule 12b-1(d), also promulgated under the 1940 Act, states that
15
[T]he directors of [an investment advisory] company shall have a duty to request and evaluate, and any person who is a party to any agreement with such company relating to [a 12b-1 distribution plan] shall have a duty to furnish, such information as may reasonably be necessary to an informed determination of whether such plan should be implemented or continued; ... the directors should consider and give appropriate weight to all pertinent factors....
16
17 C.F.R. Sec. 270.12b-1(d) (emphasis added).
17
If the potential sale was material to consideration of the adoption of a 12b-1 plan, then Oppenheimer should have informed the Fund's directors about the sale, and the proxy statement should have included pertinent information. Cf. Basic Inc. v. Levinson, 485 U.S. 224, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988); Kronfeld v. Trans World Airlines, Inc., 832 F.2d 726 (2d Cir.1987), cert. denied, 485 U.S. 1007, 108 S. Ct. 1470, 99 L. Ed. 2d 700 (1988). However, the sale of Oppenheimer's interest in Centennial was irrelevant so far as approval of the 12b-1 plan was concerned. The district court found that the plan was "proposed to meet the competition and to counter the intention of the Brokers who accounted for 90% of the Fund's assets to leave the Fund." 707 F. Supp. at 1407. The record amply supports this finding. Approval of such a plan had become a matter of sheer economic necessity as a result of the promulgation of Rule 12b-1. A drastic and rapid reduction of the Fund's asset value by withdrawals would have forced the investment adviser to make financially damaging decisions and would have raised costs to the individual shareholders. Meyer may or may not be correct in his assertion that shareholders in a money market mutual fund are indifferent to asset size, but it cannot be denied that an enormous and rapid shrinkage in asset size is potentially very damaging. The Fund might, for example, be forced to dispose of assets prematurely or to make other decisions reducing the financial return in order to meet redemption calls. Lower total assets would also result in a higher effective advisory charge to remaining shareholders because of the economies of scale of fund management. In short, adoption of the 12b-1 plan was essential to the financial well-being of the Fund.
18
The potential sale of Oppenheimer's interest in Centennial was thus irrelevant to the shareholders' and directors' decisions to adopt the 12b-1 plan. It is true, as Meyer argues, that Oppenheimer's interest in Centennial would have been worth less if the 12b-1 plan were not adopted because the loss of virtually all of the Fund's assets would necessarily reduce the advisory fees. The fact that Oppenheimer might also have suffered from the Fund's loss of assets, however, would in no way affect the consideration of the merits of such a plan by the shareholders and directors because that plan was independently essential to the Fund's well-being whether or not the sale of Centennial facilitated its adoption.2
19
For similar reasons, we reject the contention that the sale of Centennial imposed an unfair burden on the Fund in violation of Section 15(f) of the 1940 Act. Congress enacted Section 15(f) in 1975 to limit the impact of our decision in Rosenfeld v. Black, 445 F.2d 1337 (2d Cir.1971), cert. dismissed, 409 U.S. 802, 93 S. Ct. 24, 34 L. Ed. 2d 62 (1972), which held that a fund could recover the profits realized by a former investment adviser from the transfer of its business to its successor. See S.Rep. No. 75, 94th Cong., 1st Sess. 71, reprinted in 1975 U.S.Code Cong. & Admin.News 179, 249. In Section 15(f), Congress provided a means by which investment advisers might earn a profit upon the sale of the fund to another adviser, subject to two safeguards.
20
The first safeguard, which is not pertinent to this appeal, is a requirement that 75 percent of the adviser's directors be independent for three years after the transaction. See 15 U.S.C. Sec. 80a-15(f)(1)(A). The second safeguard, which is very much at issue, requires that
21
there is not imposed an unfair burden on such company as a result of such transaction or any express or implied terms, conditions, or understandings applicable thereto.
22
15 U.S.C. Sec. 80a-15(f)(1)(B). Section 15(f) also provides that
23
an unfair burden ... includes any arrangement, during the two-year period after the date on which any such transaction occurs, whereby the investment adviser ... receives or is entitled to receive any compensation directly or indirectly ... for other than bona fide investment advisory or other services.
24
15 U.S.C. Sec. 80a-15(f)(2)(B). Meyer argues that the 12b-1 plan in this case constitutes just such an "arrangement" under Section 15(f).
25
Section 15(f) states that the alleged unfair burden must be "a result of" the sale. To succeed, therefore, Meyer must demonstrate that the 12b-1 plan was adopted "as a result of" the Oppenheimer-Mercantile transaction. As discussed above, that showing cannot be made in the instant case. Adoption of the 12b-1 plan by the Fund's directors and shareholders was a matter of economic necessity. The Fund directors approved the 12b-1 plan in February 1982 in ignorance of Oppenheimer's plans to sell its interest in Centennial and were reacting solely to the risk that the Brokers would withdraw from the Fund. This risk was, as stated, completely independent of the proposed sale of Oppenheimer's interest in Centennial. The plan was thus in no way "a result of" that sale.
26
We now turn to the question whether the advisory fees and the 12b-1 fees were excessive under Section 36(b) of the Act. We reiterate that the relevant judgment on appeal is the judgment entered on June 23, 1989, entered pursuant to the opinion dated June 13. In that opinion, the district court held that aggregation of the fees was not necessary and that the individual fees were not excessive. 715 F. Supp. at 577. We agree.
27
Section 36(b) of the Act imposes a fiduciary duty on investment advisers and "affiliated persons" regarding "the receipt of compensation for services, or of payments of a material nature." 15 U.S.C. Sec. 80a-35(b). An advisory fee violates Section 36(b) if it "is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm's-length bargaining." Gartenberg v. Merrill Lynch Asset Management, Inc., 694 F.2d 923, 928 (2d Cir.1982), cert. denied, 461 U.S. 906, 103 S. Ct. 1877, 76 L. Ed. 2d 808 (1983).
28
In Meyer II, we stated that "[a] claim that payments made under Rule 12b-1 are excessive when combined with advisory fees, where both payments are made to 'affiliated persons' of an investment adviser, is cognizable under section 36(b)." 764 F.2d at 83. This statement stands only for the proposition that the costs of 12b-1 plans involving such affiliates as well as advisory fees are subject to review under Section 36(b). Were such review not available, investment advisers might be able to extract additional compensation for advisory services by excessive distributions under a 12b-1 plan. The statement does not, however, stand for the additional proposition that 12b-1 payments to an adviser's affiliates are to be aggregated with advisory fees to determine the merits of a Section 36(b) claim. The two kinds of payments are for entirely different services, namely advice on the one hand and sales and distribution on the other. If the fee for each service viewed separately is not excessive in relation to the service rendered, then the sum of the two is also permissible.
29
In the instant case, the district court found that neither payment was excessive. In its June 15, 1989, opinion, it incorporated the factual findings of its earlier opinion that no evidence existed to show that the amounts paid to Centennial were "atypical or excessive," 707 F. Supp. at 1405. See 715 F. Supp. at 575 (adopting prior factual findings). It further found that the 12b-1 payments were "a matter of economic survival and fair in light of the objectives of the settlement." 707 F. Supp. at 1404. In its June 15, 1989, opinion, the district court amplified its findings with profit and cost figures drawn from testimony credited by the court. See 715 F. Supp. at 575-76. Although Meyer challenges the figures, the district court found them reliable, a finding that was not clearly erroneous.
30
Finally, we reject Meyer's claim that the 12b-1 plan violates the stipulation of settlement in Meyer I. Meyer argues that the settlement stipulation was contingent on Centennial's continued absorption of all administrative costs in connection with the Fund. The 12b-1 plan, his argument continues, shifted such costs from Centennial to the Fund and thereby impermissibly altered the terms of the stipulation. Although we noted in Meyer II that the 12b-1 plan would violate the settlement if "either (a) the Fund must now pay for services that Centennial had agreed to perform under the settlement, or (b) the settlement fee is no longer fair because it was predicated on the Fund's not having to pay for certain administrative services," 764 F.2d at 81, the findings of the district court on remand demonstrate that neither condition exists. The settlement stipulation involved only investment advisory fees, not administrative costs. Because the 12b-1 plan involves only distribution costs, it does not encompass payments for services Centennial had agreed to perform under the stipulation. It is true that the parties did refer to certain administrative expenses during the settlement negotiations. These were home-office administrative costs, however, and there is thus no overlap between the administrative costs on which the stipulation was arguably based and those reimbursed under the 12b-1 plan. Finally, the costs mentioned were in fact borne by Centennial during the five-year period stipulated by the settlement. See 707 F. Supp. at 1404. Consequently, the 12b-1 plan is consistent with the settlement in Meyer I.
31
Affirmed.
*
The Honorable Charles H. Tenney, District Judge, United States District Court for the Southern District of New York, sitting by designation
1
Oppenheimer & Co. (now named Odyssey Partners) owned almost all the outstanding shares of Oppenheimer Holdings, Inc., which owned almost all the shares of Oppenheimer Management Corporation, which in turn owned almost all of Oppenheimer Asset Management Corporation. All four entities, among others, were named as defendants and now appeal
2
In fact, although it is not pertinent given our disposition of this case, the record would support a finding that, given the size of the entire Oppenheimer/Mercantile transaction, Centennial's role in the transaction was inconsequential. An Oppenheimer partner testified that the sale by Oppenheimer of its 30 percent share of Centennial was of "minuscule" importance to the transaction. Moreover, Mercantile never sought, and Oppenheimer never gave, a guarantee of the Fund's asset level. Mercantile thus appears to have been indifferent to the risk of a sudden reduction of Fund assets | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/901042/ | 670 N.W.2d 516 (2003)
2003 SD 120
Diane Marilyn GUTHMILLER, Plaintiff and Appellee,
v.
Kevin Dean GUTHMILLER, Defendant and Appellant.
No. 22719.
Supreme Court of South Dakota.
Considered on Briefs August 25, 2003.
Decided October 1, 2003.
Wanda Howey-Fox of Harmelink & Fox, Yankton, SD, for plaintiff and appellee.
Michael D. Stevens of Blackburn & Stevens, Yankton, SD, for defendant and appellant.
MEIERHENRY, Justice.
[¶ 1.] At issue in this appeal is the failure of the trial court to determine a value of the husband's insurance business when dividing the marital estate in the divorce action. We reverse and remand.
[¶ 2.] Diane Guthmiller filed a divorce action against Kevin Guthmiller. The main issue for the trial court was valuation and distribution of the marital estate, which consisted of a comprehensive list of 286 marital assets and debts. The parties agreed that the divorce would be granted on grounds of irreconcilable differences. They also agreed to joint legal custody of the three children with Diane having physical custody. Neither party sought alimony. The trial court placed a value on each asset and debt except for one of the assets Kevin's insurance business known as "Guthmiller Insurance."
[¶ 3.] Guthmiller Insurance consists solely of Kevin as a self-employed insurance agent for American Family Insurance. As an agent for American Family, Kevin only owns his office furniture while American Family owns the insurance policies, the office equipment and supplies of the business. He also depreciates his personal vehicle as a business expense. His source of income from the business is based on the commissions he receives from the sale of insurance policies. He receives commissions on premiums for new policies he sells and commissions from premiums collected from renewals of insurance policies sold in prior years. During a previous eight-year period, the annual renewal premiums *517 ranged from $42,800 to $68,000.[1] His annual net earnings from the business from new and renewal premiums averaged $30,000 a year.
[¶ 4.] Neither party presented expert testimony of the value of the insurance business. Diane testified that she estimated the value of Guthmiller Insurance at $62,177.80. She based her estimate on the average annual renewal premiums for the past eight years. Kevin, on the other hand, valued the business at zero. The only other testimony concerning value was from a representative of American Family who testified that in the event the contractual relationship between American Family and Kevin ended, the company would pay Kevin $33, 873.01 for the renewal premiums over a five or ten-year period.
[¶ 5.] At the conclusion of the testimony, the trial court determined that the marital estate was to be divided equally between the parties. In its findings, the trial court methodically valued each item and awarded the item to one of the parties, except for the insurance business. The court noted that neither party had presented expert testimony as to the value of Kevin's insurance business. Nevertheless, without placing a value on the insurance business, the trial court distributed 40 percent of Kevin's gross renewal income from Guthmiller Insurance for the next ten years to Diane, 60 percent to Kevin. Kevin in appeals claiming that the trial court erred in its valuation and distribution of the business.
ISSUES
1. Whether the trial court erred in its valuation and distribution of the marital estate.
DECISION
[¶ 6.] This Court has previously held that failure to value a marital asset constitutes an abuse of discretion and is reversible error. As we stated in Guindon v. Guindon "[a] trial court must place a value upon all of the property held by the parties and make an equitable distribution of that property." 256 N.W.2d 894, 897 (S.D.1977). A trial court's failure to place a value on a marital asset is an abuse of discretion. Id. "Failure to place a value on the property of the parties for purposes of equitable distribution is reversible error." Endres v. Endres, 532 N.W.2d 65, 68 (S.D. 1995) (citations omitted). Here, the trial court should have made a specific finding regarding the value of Guthmiller Insurance before making an equitable distribution. The court merely surmised that the business was worth "something" and then proceeded to distribute 40 percent of the future renewal premiums for the next ten years to Diane.[2]
*518 [¶ 7.] In this case, by not placing a value on the business, the trial court has created inequity in the property division contrary to its stated intent of dividing the marital estate one half to each party. For example, the court's manner of distribution is likely to result in substantial cash payments from the business to Diane over the next 10 years. Assuming the business collects renewal premiums commensurate with those collected over the last eight years, Kevin's gross renewals would be $50,000 to $60,000 annually. Forty percent of that would result in an annual payment to Diane of over $20,000a substantial amount for a business, which only nets Kevin $30,000 a year.[3] Furthermore, the court still assumed that Kevin would continue to net $30,000 for purposes of child support calculation albeit he would be paying Diane 40 percent of his gross renewals. Kevin additionally claims that the trial court distributed the insurance business twiceonce when the court awarded Diane forty percent of the gross renewals and the second time when it awarded him $33,873.01 as a retirement account based on those same renewals.
[¶ 8.] The trial court abused its discretion by not assigning a value to the insurance business. We reverse and remand for the trial court to determine the value of Guthmiller Insurance and equitably divide the property with the supplemented value. The value should be based upon the evidence or within a reasonable range of values presented to it. DeVries v. DeVries, 519 N.W.2d 73, 76 (S.D.1994). The trial court may set the value based on the current record or has the discretion to allow the parties to present additional evidence.
[¶ 9.] We have reviewed the other issues presented and find them to be without merit.
[¶ 10.] The parties' request for appellate attorney fees is denied.
[¶ 11.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.
NOTES
[1] From 1994 to 2001, the renewal premiums he collected were as follows:
Year Amount of Renewal Income
1994 $ 42,800.00
1995 $ 45,600.00
1996 $ 49,000.00
1997 $ 54,900.00
1998 $ 58,000.00
1999 $ 61,000.00
2000 $ 68,000.00
2001 $ 68,000.00
___________
Eight year total $447,300.00
[2] In valuing the business, the trial court stated on the record:
The insurance business, there's a dispute exactly how that is valued. Obviously, if it's a business that brings in a lot of return every year, which this clearly does, it shows that the renewals bring in the vicinity between forty and fifty thousand dollars every year, that has a clear value of some kind going into the future. I have no expert testimony upon which I can value that insurance business. I'm going to require that in full payment of the interest in that insurance business, which is a marital asset to be divided here, that for a period of 10 years that Mr. Guthmiller will pay to the plaintiff 40 percent of those renewals each year. That gives him some compensation for the activity that will be used in keeping those renewals going.
[3] The renewals represented 59% of total receipts in 1999, 76% in 2000 and 85% in 2001. | 01-03-2023 | 06-13-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2566695/ | 9 N.Y.3d 947 (2007)
MYRNA WALKER, Respondent,
v.
ROBERT WALKER, Appellant.
Court of Appeals of the State of New York.
Submitted August 20, 2007.
Decided October 18, 2007.
*948 Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576880/ | 35 So. 3d 359 (2010)
Joshua REED
v.
John R. EVANS, Jr. (individual/employee) and St. Tammany Parish Government.
No. 2009 CA 1120.
Court of Appeal of Louisiana, First Circuit.
February 12, 2010.
*360 Carl A. Perkins, Covington, LA, for Plaintiff-Appellant, Joshua Reed.
Stan E. Branton, Charles M. Hughes, Jr., Gary L. Hanes, Ryan G. Davis, Mandeville, LA, for Defendants-Appellees, John R. Evans, Jr. (Individual/Employee) and St. Tammany Parish Sheriffs Office.
Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
PETTIGREW, J.
In this case, plaintiff seeks review of the trial court's judgment maintaining defendants' exceptions raising the objections of prescription and insufficiency of service and citation, granting defendants' motion to dismiss, and dismissing plaintiffs cause of action against defendants. For the reasons set forth below, we affirm.
FACTS AND PROCEDURAL HISTORY
On August 20, 2006, plaintiff, Joshua Reed was involved in an automobile accident with defendant, John R. Evans, a deputy with the St. Tammany Parish Sheriffs Office. Mr. Reed's original petition for damages was filed on August 20, 2007. In said petition, Mr. Reed erroneously alleged that Deputy Evans was an employee of the St. Tammany Parish Government ("Parish Government") and named both Deputy Evans and the Parish Government as defendants. Mr. Reed requested service on the Parish Government, but made no request for service on Deputy Evans.
In response to Mr. Reed's petition for damages, the Parish Government filed a general denial and then later a motion for summary judgment, asserting that Deputy Evans was not one of its employees.[1] On February 1, 2008, Mr. Reed filed a first amending petition, substituting the St. Tammany Parish Sheriffs Office ("STPSO") as a defendant in place of the Parish Government. The amending petition correctly asserted that at the time of the accident, Deputy Evans was an employee of the STPSO. Mr. Reed requested service of the amending petition on STPSO and, for the first time, sought service on Deputy Evans, more than seventeen months following the accident.[2]
*361 On March 10, 2008, Rodney J. "Jack" Strain, Jr., appearing in his official capacity as Sheriff of the Parish of St. Tammany, filed an exception raising the objection of prescription based on Mr. Reed's (1) failure to request service of the original petition on Deputy Evans within ninety (90) days of the filing of the petition in direct violation of La. R.S. 13:5107(D), and (2) failure to timely institute suit against Sheriff Strain/STPSO within one (1) year of the date of the accident.[3] On that same date, Deputy Evans filed an exception raising the objection of insufficiency of service and citation, as well as a motion to dismiss, both based on Mr. Reed's failure to request service on him within the statutorily prescribed time set forth in La. R.S. 13:5107(D).
On July 23, 2008, the trial court heard arguments concerning the exceptions and the motion to dismiss from the parties. After considering the record and the applicable law, the trial court maintained both exceptions and granted Deputy Evans' motion to dismiss. In a judgment signed September 19, 2008, the trial court dismissed, with prejudice, Mr. Reed's claims against Sheriff Strain in his official capacity as Sheriff of STPSO, and dismissed, without prejudice, Mr. Reed's claims against Deputy Evans. Mr. Reed filed a motion for new trial, which was denied by the trial court in a judgment rendered December 5, 2008. This appeal by Mr. Reed followed.[4] The sole issue presented on appeal for our review is as follows: "Whether or not prescription is *362 interrupted against an unnamed joint and solidary obligor who is later named and served while the original suit is pending and a proper party was originally sued in the proper venue in a timely fashion."
DISCUSSION
Ordinarily, the party pleading prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiffs claim has prescribed, the burden shifts to the plaintiff to demonstrate prescription was interrupted or suspended. Taylor v. Babin, 2008-2063, p. 13 (La.App. 1 Cir. 5/8/09), 13 So. 3d 633, 642, writ denied, XXXX-XXXX, (La.9/25/09), 18 So. 3d 76. Thus, in this case, Mr. Reed bore that burden of proof and failed to satisfy same.
On appeal, Mr. Reed relies heavily on the case of Cali v. Cory, XXXX-XXXX (La. App. 4 Cir. 11/3/04), 886 So. 2d 648, writ denied, XXXX-XXXX (La.2/25/05), 894 So. 2d 1153, in support of his argument that suit against one tortfeasor interrupts the prescriptive period against all jointly liable tortfeasors. In Cali, the plaintiff, who appeared in her individual capacity and as natural tutrix for her minor child, filed a survival and wrongful death suit. When the State of Louisiana, through the Department of Transportation and Development ("DOTD") was named as a defendant in a supplemental and amending petition, DOTD filed exceptions urging the objections of untimely service and prescription. The Cali court held that the prescriptive period was interrupted as to DOTD by the filing of the initial petition against a defendant automobile driver, the driver's insurer, and the decedent's uninsured/underinsured carrier and his excess umbrella carrier. The court reasoned that La. R.S. 13:5107(D) and La. Civ.Code art. 2324 must be read in pari materia, and concluded that "[a]s long as prescription is interrupted against one joint tortfeasor, it is interrupted against all." Cali, XXXX-XXXX at 4-5, 886 So.2d at 651. The court found that plaintiffs supplemental and amending petition asserted a claim of joint liability between DOTD and the other tortfeasors. Thus, the court determined that plaintiffs original petition interrupted prescription as to all joint tortfeasors. Further, the court concluded that plaintiffs supplemental and amending petition naming DOTD as a joint tortfeasor related back to the original filing date of the initial petition and was timely served within ninety days of its filing. Id.
This court has previously considered the reasoning of the Cali court, found it to be unpersuasive, and declined to follow it. Johnson v. Shafor, 2008-2145, pp. 8-9 (La. App. 1 Cir. 7/29/09), 22 So. 3d 935, 939-940. In Johnson, the plaintiffs' initial petition against Slidell Memorial Hospital ("SMH") for survival and wrongful death claims in a medical malpractice suit was dismissed, without prejudice, for failure to timely request service pursuant to La. R.S. 13:5107(D). Johnson, 2008-2145 at 7, 22 So.3d at 939. The plaintiffs filed a subsequent petition against SMH setting forth identical allegations as those contained in the initial petition. In response, SMH filed an exception raising the objection of prescription and peremption. The trial court ultimately granted SMH's exception raising the objection of prescription, dismissing plaintiffs' claims, with prejudice. Johnson, 2008-2145 at 4-5, 22 So.3d at 937-938.
On appeal, this court agreed with the trial court's ruling that the plaintiffs' medical malpractice claims against SMH had prescribed by the time the second suit was filed.
Where there is a conflict between two statutory provisions, the statute that is *363 more specifically directed to the matter at issue must prevail over the statute that is more general in character. City of Pineville v. American Federation of State, County, and Municipal Employees, 00-1983, p. 5 (La.6/29/01), 791 So. 2d 609, 613; Thomas v. Louisiana Dep't of Public Safety and Corrections, 02-0897, pp. 9-10 (La.App. 1st Cir.3/28/03), 848 So. 2d 635, 640-41, writ denied, 03-2397 (La.11/21/03), 860 So. 2d 552. Louisiana Civil Code article 2324 is a general rule addressing the interruption of prescription against joint tortfeasors. By contrast, La. R.S. 13:5107 is a more specific statute addressing the more narrow issue of the interruption of prescription when governmental defendants are involved in the litigation.
In Kimball v. Wausau Ins. Companies, 04-626 (La.App. 5th Cir.1/25/05), 892 So. 2d 690, writ denied, 05-0755 (La.5/6/05), 901 So. 2d 1104, the court applied this basic statutory interpretation rule when interpreting La. R.S. 13:5107 in a suit with analogous facts. Plaintiff, the father of a teenager killed in an automobile accident filed suit, naming as defendants the driver of the other vehicle involved in the accident, that driver's employer and insurer, the Parish of Jefferson, and the State of Louisiana. The plaintiff did not request service of process on the Parish of Jefferson, which filed a motion for involuntary dismissal based on the untimely service. Before the motion was decided, the plaintiff also filed a second suit against the Parish, seeking the same damages. The Parish filed an exception urging the objection of prescription in response to the second suit. The trial court ultimately granted the involuntary dismissal and maintained the exception. On appeal, the plaintiff urged that prescription was continuously interrupted because the second suit on the same subject matter was filed and timely served during the pendency of the first unserved suit. The Kimball court rejected the plaintiffs argument, concluding that prescription had never been interrupted as to the Parish:
We think the statute is clear, and that the language unambiguously carves out an exception to the general rules of prescription in favor of the state or its political subdivisions. La. R.S. 13:5107, a specific, special statute dealing with service of citation and process upon the state or a political subdivision, supersedes the general statutes (on service and prescription). Because the first suit in the present case was properly dismissed, prescription was never interrupted as to the Parish of Jefferson. [Footnote omitted.] Kimball, 04-626, p. 7, 892 So.2d at 693.
In the instant case, we likewise conclude that La. R.S. 13:5107 D(3) is controlling, and because plaintiffs failed to timely request service of their initial lawsuit against SMH, the filing of the first lawsuit did not interrupt or suspend the running of prescription as to SMH, a political subdivision. Thus, plaintiffs' claims against SMH had prescribed before the second lawsuit against SMH was filed.
Johnson, 2008-2145 at 9-11, 22 So.3d at 940-941. [Footnote omitted.]
Similarly, in the case before us now, La. R.S. 13:5107(D) is controlling. It is undisputed that Sheriff Strain, in his official capacity as Sheriff of STPSO, qualifies as a "political subdivision" as it is defined in La. R.S. 13:5102(B).[5] Thus, the *364 provisions of La. R.S. 13:5107(D) are applicable to both Sheriff Strain and to Deputy Evans as his employee.
It is clear from the record in this matter that the accident in question occurred on August 20, 2006, and the original petition for damages was filed on August 20, 2007. However, there was no request for service on Deputy Evans until the filing of the amending petition on February 1, 2008. Thus, pursuant to the provisions of La. R.S. 13:5107(D)(2), Deputy Evans' exception raising the objection of insufficiency of service and citation was appropriately maintained, and Mr. Reed's claims against Deputy Evans were properly dismissed.
With regard to the objection of prescription raised by Sheriff Strain, as correctly noted by Sheriff Strain and Deputy Evans in brief to this court, the "dismissal of Deputy Evans as a defendant by virtue of the sustaining of his exception and/or his motion to dismiss filed herein, negates any interruption of prescription which might otherwise have occurred by reason of the filing of the original petition." See La. R.S. 13:5107(D)(3). Sheriff Strain and Deputy Evans added further, "[i]n the absence of an interruption by filing suit against Deputy Evans and properly requesting service on him, prescription continued to toll and the time limitation for filing suit against Sheriff Strain expired long before the amending petition" was filed "on February 1, 2008, some seventeen months after the accident." Thus, because Mr. Reed failed to timely request service of his initial lawsuit against Deputy Evans, the filing of the first lawsuit did not interrupt or suspend the running of prescription as to Sheriff Strain. Accordingly, Mr. Reed's claims against Sheriff Strain had prescribed before the amending petition was filed.
CONCLUSION
For the above and foregoing reasons, we affirm the judgment of the trial court and assess all costs associated with this appeal to plaintiff/appellant, Joshua Reed.
AFFIRMED.
NOTES
[1] According to the record, Mr. Reed's claims against the Parish Government were dismissed pursuant to an order of dismissal signed by the trial court on March 10, 2008.
[2] Although there is nothing in the record before us to verify service, the following statement is found in a memorandum filed by Deputy Evans: "The record of this proceeding indicates that both [STPSO and Deputy Evans] were served on February 13, 2008."
[3] Louisiana Revised Statutes 13:5107(D) provides as follows:
D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.
[4] We note that Mr. Reed actually appealed from the trial court's denial of his motion for new trial. "[T]he established rule in this circuit is that the denial of a motion for new trial is an interlocutory and non appealable judgment." McKee v. Wal-Mart Stores, Inc., XXXX-XXXX, p. 8 (La.App. 1 Cir. 6/8/07), 964 So. 2d 1008, 1013. (By 2005 La. Acts No. 205, effective January 1, 2006, La.Code Civ. P. art. 2083 was amended to remove the longstanding provision that interlocutory judgments that "may cause irreparable harm" are appealable. An interlocutory judgment is now appealable only when expressly provided by law. Accordingly, the denial of a new trial is not generally appealable.) The Louisiana Supreme Court, however, has instructed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from appellant's brief that the appeal was intended to be on the merits. Carpenter v. Hannan, XXXX-XXXX, p. 4 (La.App. 1 Cir. 3/28/02), 818 So. 2d 226, 228-229, writ denied, XXXX-XXXX (La. 10/25/02), 827 So. 2d 1153. It is obvious from Mr. Reed's brief that he intended to appeal the judgment on the merits. Thus, we will treat the appeal accordingly.
[5] Pursuant to La. R.S. 13:5102(B), "political subdivision" is defined as: "Any parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1576995/ | 35 So. 3d 1023 (2010)
UTILITY WORKERS UNION OF AMERICA (UWUA), and its Local 604, Appellants,
v.
CITY OF LAKELAND, Appellee.
No. 2D09-3675.
District Court of Appeal of Florida, Second District.
June 2, 2010.
*1024 Thomas W. Brooks of Meyer, Brooks, Demma, Aspros and Blohm, P.A., Tallahassee; and David R. Radtke of Klimist, McKnight, Sale, McClow & Canzano, P.C., Southfield, Michigan, for Appellants.
Tony B. Griffin and Guilene F. Theodore of Ogletree, Deakins, Nash, Smoak & Stewart, P.A., Tampa, for Appellee.
SALCINES, E.J., Senior Judge.
Utility Workers Union of America and UWUA Local 604 (collectively, the Union) appeal an administrative order of the Lakeland Public Employee Relations Commission (Lakeland PERC) affirming the dismissal of their unfair labor practice charge against the City of Lakeland. This is the second time this court has been asked to review Lakeland PERC's dismissal of the Union's unfair labor practice charge. See Util. Workers Union of Am. v. City of Lakeland, 8 So. 3d 436 (Fla. 2d DCA 2009) (reversing Lakeland PERC's dismissal of unfair labor practice charge and remanding for application of status quo analysis). Because the Union has established that the City engaged in an unfair labor practice by altering the status *1025 quo pending collective bargaining, we reverse.
The parties agree there is no dispute as to the facts. For twenty years, the City has provided annual across-the-board wage adjustments to its employees. In June 2007, members of the City's electric department elected the Union as their collective bargaining representative. Three months later, in September 2007, the City approved a budget that included a 2.5% wage increase to all nonunionized City employees. As a result, the Union, in November 2007, filed an unfair labor practice charge against the City, alleging a violation of section 1.016(1)(a) and (c) of the Lakeland Public Employees Relations Ordinance, which is based on section 447.501, Florida Statutes (2007). The Union asserted the City's unilateral change in its past practice disrupted the status quo. Lakeland PERC's General Counsel dismissed the charge, and Lakeland PERC affirmed. We reversed the dismissal of the charge and remanded "for application of a status quo analysis." Util. Workers Union of Am., 8 So.3d at 438. On remand, Lakeland PERC again dismissed the unfair labor practice charge, finding no violation of the status quo. This appeal followed.
The standard of review in this case is such that this court must defer to the agency's interpretation of the law in its area of expertise (in this case, that is chapter 447, part II, on which the local ordinance is modeled), as long as the interpretation is consistent with legislative intent and is supported by competent, substantial record evidence. See Pub. Employees Relations Comm'n v. Dade Co. Police Benevolent Ass'n, 467 So. 2d 987, 989 (Fla.1985).
The only issues before this court are (1) whether the City of Lakeland engaged in an unfair labor practice by not maintaining the "status quo" in declining to approve a cost-of-living increase for those employees who had opted to join the Union and (2) whether the Union is entitled to attorney's fees and costs.
"[T]he `status quo period' refers to the gap between collective bargaining agreements, when one agreement has expired and another has not yet been executed." Util. Workers Union of Am., 8 So.3d at 437-38. During this period, an employer is prohibited from unilaterally altering wages, hours, and other employment terms and conditions. See Int'l Ass'n of Fire Fighters, Local 2416 v. City of Cocoa, 14 FPER ¶ 19311 at 695 (1988), affirmed, 575 So. 2d 657 (Fla. 1st DCA 1991). As stated in Nassau Teachers Ass'n. v. School Board of Nassau County, 8 FPER ¶ 13206 at 391 (1982), "[w]here a long practice of paying incremental or step wage increases based merely upon years of service has been continued in collective bargaining agreements, employees still reasonably expect their accrued step or experience wage increases even though negotiations for a new agreement are pending."
We agree with the Union that the City's twenty-year practice of administering annual, across-the-board wage adjustments to its employees was a part of the status quo. There is ample evidence to conclude the City's practice of providing this annual wage adjustment had become an established condition of the employment of the City's employees, including bargaining unit employees. By not providing newly unionized employees with this wage adjustment, the City failed to maintain the status quo. In doing so, the City committed an unfair labor practice, as defined in section 1.016(1)(a) and (c) of the Lakeland Public Employees Relations Ordinance and section 447.501(1).
*1026 In light of our determination, we remand for further proceedings consistent with this opinion, including the retroactive award of the wage adjustment to the affected employees. Further, because the Union is the prevailing party on its unfair labor practice charge, we grant the Union's motion for appellate attorney's fees pursuant to section 1.018(3) of the Lakeland Public Employee Relations Ordinance. On remand, the Commission shall determine the amount of a reasonable appellate attorney's fee to be awarded to the Union.
Reversed and remanded with directions.
DAVIS and SILBERMAN, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577040/ | 151 S.W.3d 825 (2004)
Vester W. HOLBROOK, Appellant,
v.
Gwendolyn M. HOLBROOK and Jeffrey L. Preston, Appellees.
No. 2003-CA-000136-MR.
Court of Appeals of Kentucky.
March 12, 2004.
Discretionary Review Denied by Supreme Court January 12, 2005.
*826 Patrick M. Hedrick, Ashland, KY, for appellant.
Jeffrey L. Preston, Catlettsburg, KY, for appellee.
Before COMBS, KNOPF, and McANULTY, Judges.
OPINION
COMBS, Judge.
Vester Holbrook appeals from a judgment of the Boyd Circuit Court of November 22, 2002, which adopted the recommendation of the Domestic Relations Commission (DRC) and ordered him to pay his former wife, Gwendolyn Holbrook, the appellee, the sum of $60,659.07 plus attorney's fees. Vester argues that this money represents Gwendolyn's portion of his pension benefits. However, he contends that it was a debt that was discharged by the United States Bankruptcy Court. We are compelled to agree and thus to conclude that the trial court erred as a matter of law in failing to give due effect to Vester's discharge in bankruptcy. Therefore, we reverse and remand.
The parties' twenty-year marriage was dissolved by a decree entered in the trial court on August 8, 1991. Incorporated into the final decree was their property settlement agreement, the terms of which awarded the parties an equal interest in the marital portion of Vester's two pension funds: the Plumbers and Pipefitters National Pension Fund and the Plumbers and Pipefitters, Local # 348, Pension Fund. Because Vester had not retired at the time of the dissolution, the parties agreed to postpone undertaking the calculations required in order to determine their respective interest in the two funds. The agreement required that the parties communicate with one another to accomplish the division of the pensions as follows:
The parties hereto agree to obtain a yearly listing of any amounts paid into [Vester's] pension plan. Upon obtaining said itemized yearly list, the parties agree that [Gwendolyn] shall be entitled to a percentage of that pension based upon the number of years married and the number of years paid into the plan. For example, if [Vester] has been employed twenty-five years and married, nine years during that period, then [Gwendolyn] shall be entitled to eighteen percent of [Vester's] pension. A Qualified Domestic Relations Order [QDRO] shall issue for the payment of same once the percentage is determined.
However, they did not communicate after the divorce. Vester retired in 1992, the year following the dissolution. He failed to notify Gwendolyn, and a QDRO was not entered. From his retirement date until some time in 1999, Vester received all of his monthly pension benefits. When Gwendolyn finally learned in 1999 that Vester had retired, she filed a motion in the Boyd Circuit Court seeking to hold him in contempt for failing to comply with their agreement. She also requested that the court order him to reimburse her for *827 her share of the retirement benefits that had already been disbursed to him.
Gwendolyn's share of the pensions was determined, and QDRO's were accordingly entered to enable her to receive her portion of the on-going monthly pension benefits. She has received $298.87 per month from the national pension fund since August of 1999; however, her monthly benefit of $385.80 from the local pension fund did not commence until January 2001.
Vester, by now a resident of Florida, sought protection from his creditors in bankruptcy court. His petition resulted in an automatic stay of Gwendolyn's legal efforts both to enforce the provisions of the dissolution decree and to collect the sums wrongfully withheld by him.
Gwendolyn and her attorney were named as creditors in the pending bankruptcy action and were provided notice of that proceeding. Nonetheless, they filed no claims to challenge Vester's effort to discharge his debt to Gwendolyn. Accordingly, Vester's debts, including the debt to Gwendolyn, were discharged by order of the United States Bankruptcy Court for the Southern District of Florida on September 9, 1999.
In February 2001, Gwendolyn renewed her motion for contempt and for reimbursement of her share of the pensions that had been paid to Vester between 1992 and 1999. Vester responded that Gwendolyn's loss of her share of the pension benefits was directly attributable to her own failure to have QDRO's entered at the time of the dissolution, arguing that it was not his duty to see that the QDRO's were entered. He further contended that his personal liability to Gwendolyn had been discharged in the 1999 bankruptcy proceeding. The circuit court remanded the matter to the DRC.
The DRC entered her report on February 28, 2002, recommending that Vester be ordered to pay Gwendolyn the pension arrearage of $60,659.07. The DRC concluded that because Gwendolyn had possessed a property interest in the pension plans at the time of dissolution, Vester "no longer had any interest in [Gwendolyn's] portion [of the plans]." However, the DRC did not address Vester's defense that his discharge in bankruptcy barred any further attempt to collect the arrearage.
Vester timely filed exceptions to the DRC's report, again contending that his debt to Gwendolyn had been discharged in bankruptcy. The circuit court approved the DRC's report without elaboration on November 22, 2002. Vester filed a motion to amend the judgment or to enter specific findings of fact asking the court once again to weigh and to properly consider the effect of his discharge in bankruptcy. That motion was denied on December 19, 2002. This appeal followed.
Vester argues that the court's order violates his discharge in bankruptcy by attempting to enforce an obligation that was previously discharged. He challenges the underlying jurisdiction of the court even to entertain the issue of dischargeability in bankruptcy of his obligations to Gwendolyn arising from the decree of dissolution. He contends that Gwendolyn was required to file an objection to the discharge in the bankruptcy proceeding in order to preserve her claim against him for the pensions benefits already paid. Gwendolyn argues that the Boyd Circuit Court "saw through" Vester's attempt to defraud her of her share of the pensions, urging that he "cannot hide behind the Bankruptcy code for this type of behavior."
Neither the DRC nor the trial judge addressed the critical issue of the legal effect of Vester's bankruptcy. Not all marital debts are dischargeable in *828 bankruptcy. The Bankruptcy Code separates debts arising from a marital relationship into two classes. Some debts (such as debts for child support or spousal support or maintenance) are non-dischargeable as a matter of law. 11 U.S.C. § 523(a)(5). Gwendolyn acknowledges that the debt at issue is not in the nature of support or maintenance and that it does not fall within the protected classification. However, other obligations incurred "in the course of a divorce or separation, or in connection with a separation agreement, [or] divorce decree" are dischargeable. 11 U.S.C. § 523(a)(15). Although state courts have concurrent jurisdiction to determine whether a debt is in the nature of support or maintenance, the bankruptcy court has exclusive jurisdiction to determine whether a nonsupport obligation is dischargeable. 11 U.S.C. § 523(c); In re Milburn, 218 B.R. 862, 865 (Bankr.W.D.Ky.1998).
The Bankruptcy Code further provides that a nonsupport marital debt, like the pension arrearage at issue, shall be discharged unless the creditor files a complaint "no later than 60 days after the date set for the meeting of creditors." FRBP[1] 4007; 11 U.S.C. § 523(c)(1). As stated earlier, Gwendolyn did not file such a complaint. Thus, although she may have arguably been successful in preventing the discharge of the debt if she had responded in that forum, neither the Boyd Circuit Court nor this Court has the jurisdiction to reverse the order of the bankruptcy court discharging Vester's debt.
In the course of defrauding Gwendolyn, Vester also managed to enjoy a wrongful windfall by invoking bankruptcy. Repugnant as were both his deceptive behavior and the legal result of the bankruptcy proceeding, we believe that the trial court had no choice but to recognize and to give full faith and credit to the order of discharge of the bankruptcy court including the Code's provision barring the commencement or continuation of any action to collect personal debts of the debtor pre-dating the filing of the petition. 11 U.S.C. § 524(a). Therefore, we conclude that the court erred in failing to give effect to the discharge of the bankruptcy court.
Without citing any authority, Gwendolyn argues that the Boyd Circuit Court somehow maintained jurisdiction to order Vester to pay the arrearage because he admittedly had fraudulently received his benefits over the seven-year period. However, despite his fraudulent and unsavory conduct, the dischargeability of his debt to Gwendolyn was a matter wholly entrusted to the exclusive purview of the bankruptcy court. In addition to debts relating to nonsupport marital dissolution obligations, Congress has conferred solely upon the bankruptcy court the jurisdiction to determine the dischargeability of debts incurred by fraud (§ 523(a)(2)) and debts arising from "fiduciary misconduct, embezzlement or larceny." § 523(a)(4).
Again without citing any authority, Gwendolyn seeks to distinguish away the pre-emptive impact of federal bankruptcy law by characterizing the arrearage as a "property right" rather than as a debt susceptible of being discharged. This argument is valid only as it relates to on-going pension benefits. That is, by filing bankruptcy, Vester cannot subject Gwendolyn's interest in the funds remaining in the pensions to the interests of his creditors; neither could he terminate her rights in his own favor.
We conclude that Gwendolyn has no claim against the pension funds for the accumulated past arrearage. Her claim for the arrearage can only be asserted *829 against Vester personally as his debt. 11 U.S.C. § 101(12) defines "debt" as a "liability on a claim." A "claim" is defined broadly as follows:
(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or
(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured;
11 U.S.C. § 101(5). Notwithstanding Gwendolyn's initial interest in the pension funds, Vester's breach of the property settlement agreement constituted a claim which he was legally (although not morally or equitably) entitled to discharge upon approval by the bankruptcy court. A new debt was created each month when Vester received a pension payment which he concealed and withheld from Gwendolyn. Federal bankruptcy law and the doctrine of res judicata preclude further consideration by the trial court of Vester's obligation to pay that debt.
Finally, it appears that Vester may have received some pension benefits following the filing of his bankruptcy petition and before one or both of the pension funds accepted Gwendolyn's QDRO's. In a voluntary Chapter 7 case, only those debts arising prior to the petition date are eligible for discharge. 11 U.S.C. § 727(b). Therefore, we remand this matter for a determination of the amount of benefits, if any, owed to Gwendolyn resulting from the payments of pension benefits accruing between the date of filing of Vester's bankruptcy petition and the effective date of Gwendolyn's QDRO's.
The judgment of the Boyd Circuit Court is reversed, and this matter is remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
NOTES
[1] Federal Rules of Bankruptcy Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577036/ | 629 F. Supp. 760 (1985)
Emory Worth BROWN, Jr., Plaintiff,
v.
Robert D. SHUPE, Defendant and Third Party Plaintiff,
v.
CBS, INC., a/k/a The Columbia Broadcasting System, a foreign corporation, Third Party Defendant.
Civ. A. 85-375-N.
United States District Court, E.D. Virginia, Norfolk Division.
July 17, 1985.
Emory Worth Brown, Jr. pro se.
James A. Metcalfe, Asst. U.S. Atty., Norfolk, Va., Thomas E. Albro, Smith, Taggart, Gibson & Albro, Charlottesville, Va., for defendants.
ORDER
CLARKE, District Judge.
This matter comes before the Court on the defendants' motion to dismiss or in the alternative for summary judgment. This matter has been briefed by both parties. Oral argument was scheduled on July 18, 1985; the plaintiff, however, failed to appear. Accordingly, the Court will rule on the motion based upon the arguments set forth in the briefs and pleadings.
The defendant has offered six separate grounds in support of his motions. The Court, after reviewing all the grounds, finds it unnecessary to comment on five of the grounds and bases its holding on the rule of law that truth is an absolute defense in an action for defamation. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, *761 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975); Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967); Pilkenton v. Kingsport Pub. Corp., 395 F.2d 989 (4th Cir.1968).
In his complaint, the plaintiff alleges that his reputation and credibility were severely damaged by the false statements of the defendant made on the nationally televised CBS 60 MINUTES show.
The statements alleged to have been made or credited to the defendant are as follows:
REASONER: Now retired, Commander Bob Shupe, the Navy budget officer on the project, says there had been a lot of concern about Brown and the movie.
SHUPE: There was a lot of concern on the staff from my boss, the training folks. They were concerned about what had been purchased in support of this movie. I didn't know what was supposed to be purchased and what wasn't supposed to be purchased.
REASONER: Did you at some point in this questioning and wondering ... did you come to the conclusion that Emory Brown was a crook?
SHUPE: Well, I ... I didn't ... Let me put it this way. I don't want to say that. I mean ... answer that directly because I think he was, uh, dishonest.
* * * * * *
REASONER: The allegations were made after Brown, in a routine change of command, turned over the squadron to his Executive Officer, Commander Edward Andrews. Andrews and Shupe were friends and shared the same suspicions about Brown. They went to Navy investigators to tell them what they suspected.
If Brown had intended to return the TV sets to the squadron, Shupe said, he would have signed the property inventory forms. Brown said that he had directed his Maintenance Officer to account for the materials, but that officer just never got around to it.
It was also alleged that a check for $5,563.48 that Brown received from the movie company, ostensibly for out of pocket expenses, was really a payoff for his extra flying hours in behalf of the movie.
* * * * * *
SHUPE: I ... I ... I can't. I can't deal with it and I can't answer that. You know the only way you'll ever get an answer to that is to ask those three Captains who sat on the Board of Inquiry.
REASONER: Well, those three Captains released their own report in December. It said Brown was innocent of criminal wrongdoing and that the matter should have been handled within the Navy. And they flatly stated that the evidence presented supported in every instance Brown's version of what took place. The Captains said there was no evidence that Brown profitted monitarily by his actions. In effect, what those Captains concluded about Brown's role in the movie was that this whole matter could have been straightened out without destroying an officer's career if Commander Andrews and some other senior officers had gone to Brown directly for an explanation, as Navy policy requires.
The Complaint also states, however, that "as a result of the Federal proceedings ... plaintiff was convicted of accepting a gratuity." The plaintiff's federal conviction establishes, to the extent required by the law of defamation, the substantial truth of Shupe's statements. Piracci v. Hearst Corp., 263 F. Supp. 511 (D.Md.1966), aff'd 371 F.2d 1016 (4th Cir. 1967).
Therefore, on the face of the pleadings, the plaintiff fails to state a claim upon which relief can be granted. Accordingly, the defendant's motion to dismiss is GRANTED and the Complaint is DISMISSED with prejudice. The Third Party Complaint is DISMISSED without prejudice.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577035/ | 346 S.W.2d 285 (1960)
Kenneth BAILEY, B.N.F.
v.
Michael WILLIAMS.
John S. BAILEY
v.
Michael WILLIAMS.
Court of Appeals of Tennessee, Eastern Section.
December 2, 1960.
Certiorari Denied March 10, 1961.
*286 Henry L. Barger and Joseph F. Wheless, Chattanooga, for plaintiffs in error.
Spears, Moore, Rebman & Williams, Chattanooga, for defendant in error.
McAMIS, Presiding Judge.
The plaintiff, Kenneth Bailey, eight years of age, lost the sight of one eye as the result of being struck by a piece of wire thrown by defendant, Michael Williams, seven years of age. The suit of Kenneth Bailey for personal injuries and that of his father for loss of services and medical expenses were dismissed by the jury and thereafter their motions for a new trial were overruled. Both plaintiffs have appealed but, for convenience, reference will be made only to the suit of Kenneth Bailey, the minor plaintiff.
At the time of the unfortunate injury to plaintiff's eye, the two boys were walking together in the yard of a neighbor when defendant's attention was attracted to a spider hanging from the top of a swing set constructed of iron supports and bars. After calling attention to the spider, defendant picked up a wire about 6 inches long and threw it at the spider. Defendant says he had last seen Kenneth standing near a tree on the side of the swing. Apparently, he had moved closer to the swing before defendant threw the wire. Defendant gave no warning he was about to throw and plaintiff who was looking up at the spider was unaware that he was about to throw at the spider. Defendant says the wire struck one of the bars or supports of the swing and was deflected to the point where plaintiff was standing. Plaintiff says he did not hear any sound like that of a piece of wire striking the swing. There were no other eye witnesses.
*287 We think the proof was such that the jury could fairly conclude that, although defendant had been told of the danger of throwing objects which might strike and injure his playmates, he had no more than the usual intelligence, training and experience of a boy of his age brought up in a normal home and school environment.
After stating the theories and contentions of the respective parties, including defendant's contention that, by reason of his tender age, he was incapable of negligence, the Court charged the jury:
"Now ladies and gentlemen, these plaintiffs are not automatically entitled to recover just because the boy was injured. They can only recover if this child was negligent. Now an adult person is charged with exercising an ordinary degree of care, that is, such a degree of care that a reasonably prudent person would exercise under a given state of facts. However, the rule is different in this case, in that we are dealing with children of tender years, and the defendant seven and one half years of age at the time of this accident, may or may not have been capable of appreciating or foreseeing danger and exercising proper care in reference to it. The rule in Tennessee is that a child seven and one half years of age is presumed to be incapable of negligence, and the burden is on these plaintiffs to overcome that presumption by showing that this child, the defendant, had the capacity to be negligent, depending upon his mental development, his experience, his ability to reason and think, and all other circumstances, and if they have overcome this presumption and you find the defendant was capable of negligence and was negligent and his negligence was a proximate cause of this accident, then the plaintiffs would be entitled to recover, provided, ladies and gentlemen, that plaintiff Kenneth Bailey himself was not guilty of contributory negligence that proximately contributed to bring about this accident. In determining whether or not this eight and one half year old plaintiff was capable of contributory negligence you will apply the same rule as just given you."
In a subsequent portion of the charge the Court said:
"Now ladies and gentlemen, after you have considered the proof, in this case, and the law as given you by the Court, if you find that this defendant was capable of negligence, that he was negligent, and that his negligence was the proximate cause of this plaintiff boy's injury and if you find that the plaintiff the boy himself, was guilty of no contributory negligence that proximately contributed to cause this accident then, of course it would be your duty to find for the plaintiff."
The rule with respect to a minor's capacity for negligence is that the question is to be judged in the light of his age, ability, intelligence, training and experience and the complexity of the danger with which he is confronted. Unless, under all these relevant circumstances, he has failed to exercise such care and prudence as may be expected of one of his years he is not guilty of negligence. Queen v. Dayton Coal & Iron Co., 95 Tenn. 458, 32 S.W. 460, 30 L.R.A. 82; Manning v. American Clothing Co., 147 Tenn. 274, 277, 247 S.W. 103; Marion County v. Cantrell, 166 Tenn. 358, 61 S.W.2d 477; Townsley v. Yellow Cab Co., 145 Tenn. 91, 237 S.W. 58.
Between the ages of seven and fourteen the presumption is that the child is incapable of negligence but this presumption is non-conclusive and may be rebutted by evidence of capacity. West v. Southern Ry. Co., 20 Tenn.App. 491, 100 S.W.2d 1004; Hadley v. Morris, 35 Tenn.App. 534, 249 S.W.2d 295; Gatlinburg Construction Co. v. McKinney, 37 Tenn.App. 343, 263 S.W.2d 765.
In the Hadley case this Court in an opinion by Judge Swepston, now Mr. Justice Swepston, said:
"We understand the cases to hold that where a child is 6 years old or under, Wells *288 v. McNutt, 136 Tenn. 274, 189 S.W. 365, and Taylor v. Robertson, 12 Tenn.App. 320, or where he is 7 to 14 years old, West v. Southern Ry. Co., 20 Tenn. App. 491, 100 S.W.2d 1004, there is a prima facie presumption he is not capable of negligence, but that the evidence may show him to be capable of negligence and if there be any material evidence of capacity, it is for the jury to decide; whereas if a child is over 14 years old there is a prima facie presumption that he is capable of negligence the same as a grown person, but if there be any material evidence he is incapable, it is a jury question."
In Manning v. American Clothing Company and Townsley v. Yellow Cab Company, supra, the cases were reversed and remanded for a jury finding as to the child's capacity for negligence and, as appears from the quoted portion of the opinion in the Hadley case, the question is generally for the jury. It is true in the cases cited the question was whether the child's alleged contributory negligence should have been submitted to the jury rather than the question of a minor defendant's negligence. The controlling principles however, are the same.
Under the cases cited the question whether the presumption of incapacity has been overcome by proof is generally one of fact for the jury. Where, however, the proof is undisputed and so clear that only one inference can reasonably be drawn therefrom, whether the child had capacity to exercise and exercised such care as might reasonably be expected of a child of his age, capacity and experience in the given situation becomes a question of law for the court. 38 Am. Jur. 1066, Negligence, Section 357.
We find nothing in the present case to take it out of the general rule and, therefore, hold that the case was for the jury.
In the plaintiff's assignments and brief it is insisted the Court's charge above quoted erroneously fixed an arbitrary age within which the presumption of incapacity is to be operative and that, under the proof in this case, the presumption had been met and overcome by undisputed proof of capacity and appreciation of the danger of throwing objects in the presence of other children. We think the Court's charge fully and correctly sets forth the law of this State as appears from the cases above cited and discussed.
In our opinion, the question of defendant's capacity and appreciation of danger is not to be considered solely on the basis of his admission on cross examination that he had been told not to "throw things" and knew generally that it involved danger to others. As we have seen, he testified that when he last saw plaintiff he was in another position at the side of the swing, and, further, that the wire was deflected by striking the swing. It is not negligence under any and all circumstances to throw objects into the air. In reality, defendant's negligence, if any, involved his failure to ascertain before throwing the wire that plaintiff was still in a place of safety. Certainly, that was a question for the jury under all the circumstances, especially in view of defendant's age.
Complaint is made that the Court erred in telling the jury before the introduction of proof that, because of the tender age of the two principal parties litigant, this case is unusual and erroneously declined to allow plaintiff to introduce in evidence a picture of the swing showing, according to plaintiff's theory and contention, where the two boys were standing at the time of the accident.
We think the Court merely stated an obvious fact known to the jury that it is unusual for two boys 7 and 8 years of age to be engaged in litigation. As to the other complaint, plaintiff was allowed to introduce other pictures of the swing and to show by oral testimony where the two boys were standing. We can not see that either of these complaints present substantial grounds of reversal.
*289 The other assignments are controlled in principle by what has been said. We find no error and it results that the judgment is affirmed at the cost of plaintiffs, plaintiffs in error here.
HALE and COOPER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1918374/ | 101 B.R. 120 (1989)
In re Kenneth Peter WILHELM, Debtor.
Bankruptcy No. 87-05470-C-11.
United States Bankruptcy Court, W.D. Missouri, C.D.
June 7, 1989.
*121 Norman W. Lampton, Columbia, Mo., for debtor.
Wally Bley, Sapp, Wood, Orr, Bley & Eng, Columbia, Mo., for Centerre Bank of Columbia.
MEMORANDUM OPINION
FRANK W. KOGER, Bankruptcy Judge.
FACTS
Kenneth P. Wilhelm, Debtor, filed a bankruptcy petition under Chapter 11 of the Bankruptcy Code on December 23, 1987. Debtor's business was commercial real estate brokerage. Before the Court are various objections raised by certain creditors of Debtor to his First Amended Combined Disclosure Statement and Plan of Reorganization filed on December 1, 1988. These creditors obtained a pre-petition judgment in Boone County Circuit Court (Case No. 85-418648) against debtor and a co-defendant. In its order dated August 4, 1988, this Court found the debt underlying said judgment to be nondischargeable. Debtor's Plan classifies the judgment as a Class 4 claim and proposes to satisfy the same by the paying the Class 4 creditors 50% of the judgment.
The primary focus of the instant dispute is a wage claim of creditor Michael Pattrin for $10,443.00. Said wages were earned within 90 days before the filing of Debtor's petition. Debtor's Plan treats this debt an unsecured priority wage claim which is to be reduced by $2,700.00 ($3,200.00 less a $500.00 exemption) through the transfer to Pattrin of a motor vehicle. The remainder of the claim is to be paid in cash from liquidation proceeds. Pattrin's claim is classified as a Class 2 claim under the Plan.
The Class 4 creditors' principal objections to confirmation of Debtor's Plan are twofold. The first objection challenges the Plan's treatment of Pattrin's priority wage claim. Because 11 U.S.C. § 507(a)(3) limits the priority of such claims to $2,000.00, the creditors argue that Pattrin's receipt of $2,700.00 of value in in-kind property causes him to wrongfully receive $700.00 *122 of value that would otherwise be available for distribution to unsecured creditors. The second objection asserts that Debtor's Plan is nonconfirmable under 11 U.S.C. § 1129(a)(11) because it is a "bare bones" plan which is likely to be followed by liquidation or the need for further reorganization. Debtor seeks confirmation of his Plan over the objections of the Class 4 creditors under the "cram down" provisions of 11 U.S.C. § 1129(b). Debtor argues that a cram down is appropriate in this case because an impaired creditor, Pattrin, has accepted the Plan, and because the Plan does not discriminate unfairly and is fair and equitable with respect to the impaired and nonaccepting Class 4 creditors.
QUESTIONS PRESENTED
1. Whether Debtor's Plan fails to meet the confirmation requirements of 11 U.S.C. § 1129 due to its treatment of Pattrin's wage claim.
2. Whether confirmation of Debtor's Plan is likely to be followed by liquidation or the need for further financial reorganization.
DISCUSSION
I. Confirmation Under § 1129
In an attempt to win confirmation of the Plan over the objections of the Class 4 creditors, Debtor seeks the Court's authorization of a cram down under § 1129(b). Section 1129(b) provides that if a plan meets all of the applicable requirements of § 1129(a), excluding subsection 8, the Court, upon the plan proponent's request, shall confirm the plan if it does not discriminate unfairly and is fair and equitable with respect to each class of claims or interests that is impaired under, and has not accepted the plan.
A preliminary matter that curiously is the subject of Debtor's counsel's brief, and which the Court is obliged to address, concerns Debtor's compliance with the cram down prerequisite of § 1129(a)(10). Section 1129(a)(10) provides that if a class of claims is impaired under the plan, at least one class impaired under the plan must have accepted the plan. Although Debtor's counsel does not correctly state the law (and Collier's treatise in the process) in his brief as to what constitutes an impaired claim, his ultimate assertion is correct that Pattrin's claim is impaired under the plan. To maximize creditor participation in the confirmation process, the Code broadly defines the term "impairment" under 11 U.S.C. § 1124. In re Elijah, 41 B.R. 348, 351 (Bankr.W.D.Mo.1984). The provisions of § 1124, in fact, carve out three narrow exceptions under which claims are considered un impaired, thereby deeming all others impaired and entitled to vote on the plan. Thus, even the slightest impairment will entitle a creditor to vote on confirmation. In re American Solar King Corp., 90 B.R. 808, 819 (Bankr.W.D.Tex. 1988). Relevant to this dispute is the first of these exceptions, stated in § 1124(1), under which a claim is considered unimpaired if the plan "leaves unaltered the legal, equitable, and contractual rights to which such claim or interest entitles the holder or such claim or interest." Under Pattrin's co-brokerage agreement with Debtor, Pattrin was to receive an agreed upon commission at the close of each real estate transaction. Unless specified or agreed to otherwise, the customary expectation with respect to wages and commissions earned for services rendered is that they will be paid in cash, i.e. by check or similar demand draft instrument. The proposal in Debtor's Plan to satisfy part of Pattrin's wage claim through the transfer of a motor vehicle alters, at a minimum, the contractual rights to which Pattrin is entitled under his claim. While Debtor's Plan accords priority to this claim, such status does not insulate the claim from being impaired within the meaning of § 1124. Debtor's Plan thus meets the requirement of § 1129(a)(10) since Pattrin's claim is impaired and the class to which it belongs has accepted the Plan.
The Class 4 creditors' primary objection to confirmation of Debtor's Plan is that Pattrin's receipt of the motor vehicle will cause him to unjustly receive $700.00 *123 of in-kind property, which sum would otherwise be available for distribution to the general unsecured creditors. As a result of such unfair discrimination, these creditors complain that they will not receive or retain property of a value that is not less than the amount that they would receive or retain if Debtor were liquidated under Chapter 7. Guidance for resolving the issue of unfair discrimination is found in the language of § 1129(b)(1). This section requires the Court to compare the treatment accorded the various classes of claims. Specifically, the Court looks to determine whether the Plan segregates two similar claims or groups of claims into separate classes and proposes disparate treatment for those classes. See e.g., Matter of Johns-Manville Corp., 68 B.R. 618, 636 (Bankr.S.D.N.Y.1986). The Court concludes from its inquiry under the facts of this case that Debtor's Plan does unfairly discriminate against the Class 4 creditors in violation of § 1129(b)(1).
Section 507(a)(3) of the Code grants a third priority to allowed unsecured claims for wages, salaries, or commissions earned by an individual within 90 days of the filing of a debtor's petition, not to exceed $2,000.00 for each individual. Pattrin clearly qualifies for such a priority claim, but only to the extent of $2,000.00. The balance of his claim is nonpriority unsecured. In re N & T Associates, Inc., 78 B.R. 285, 288 (Bankr.D.Nevada 1987). The Court finds that the Plan's treatment of Pattrin's claim thus unfairly discriminates against the Class 4 creditors for two reasons. First, because the balance of Pattrin's claim is rendered unsecured nonpriority by operation of § 507(a)(3), it is similarly situated with respect to the claims of the Class 4 creditors. The Court can discern no valid basis for maintaining the separate classification for these two forms of unsecured claims. In an analogous context, the Eighth Circuit noted that the distinction between unsecured claims and the undersecured portions of claims, which are deemed unsecured pursuant to § 506(a), does not warrant separate classification. In re Hanson v. First Bank of South Dakota, N.A., 828 F.2d 1310, 1313 (8th Cir.1987). The blanket priority accorded to Pattrin's claim under the Plan, therefore, creates a fortiori an unwarranted and unfair distinction between his nonpriority unsecured claim and those of the Class 4 creditors.
Second, the proposed treatment of Pattrin's claim is also unfairly discriminatory because, in essence, Debtor has obtained this impaired class' acceptance of the Plan by overpaying it, all at the expense of the general unsecured creditors. This aspect of the discriminatory treatment also translates into a violation of § 1129(a)(7) which requires that creditors receive as much under a Chapter 11 reorganization as they would receive under a Chapter 7 liquidation. If Debtor was liquidated, the sale of the vehicle, which the Plan proposes to transfer to Pattrin, would yield an additional $700.00 for distribution to the unsecured Class 4 creditors that the proposed Plan does not make available to them. Debtor's Plan is further violative of § 1129(a)(7) because it proposes to pay the Class 4 creditors only 50% of their claims. The Court finds nothing in the Circuit Court judgment underlying these claims to suggest that Debtor would be obligated to pay anything less than the full amount of this judgment. Consequently, since the Class 4 creditors would receive full payment of their allowed claims if this were a Chapter 7 liquidation, they are entitled to full payment under Debtor's Chapter 11 Plan. In re Boyer, 90 B.R. 200, 201 (Bankr.D.S.C.1988).
II. Feasibility of Debtor's Proposed Reorganization
The Class 4 creditors have further challenged Debtor's Plan stating that they are not satisfied that it is a Plan that will permit a successful reorganization. They ask that Debtor amend his Plan to "reflect a realistic approach to liquidation of his debts and a one hundred percent payout of the class 4 claims." These bare allegations and expressed wishes do not afford the Court with sufficient information upon which to make a determination as to the feasibility of Debtor's reorganization. In any event, Debtor's Plan is not confirmable and will require various amendments consistent with this Opinion. If the feasibility of Debtor's further amended Plan is still problematic for the creditors, they are free *124 to again challenge it but preferably with greater specificity.
CONCLUSION
The wage claim of Mr. Pattrin is an impaired claim under Debtor's Plan within the meaning of § 1124. Debtor's Plan unfairly discriminates against the Class 4 creditors given that it (1) improperly accords priority to the unsecured nonpriority portion of Pattrin's wage claim, thereby making an unwarranted distinction between this claim and the group of claims held by the Class 4 creditors; and (2) transfers to Pattrin $700.00 of value in in-kind property that would otherwise be available for distribution to the unsecured Class 4 creditors. This latter form of discrimination, together with the fact that the Plan proposes to pay the Class 4 creditors only 50% of their claims, also violates § 1129(a)(7). If Debtor were in a Chapter 7 liquidation rather than a Chapter 11 reorganization, $700.00 more in value would be available for distribution to the Class 4 creditors. Said creditors would also receive payment in full for their claims rather than 50% as proposed under Debtors Plan. For the foregoing reasons, the Court DENIES confirmation of Debtor's Plan.
This Memorandum Opinion shall constitute Findings of Fact and Conclusions of Law as required by Rule 7052, Rules of Bankruptcy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577109/ | 151 S.W.3d 246 (2004)
ALERT SYNTEKS, INC. and R & T Sales Company, Inc., Appellants,
v.
JERRY SPENCER, L.P. and Spencer Distributing, L.P., Appellees.
No. 12-02-00137-CV.
Court of Appeals of Texas, Tyler.
October 29, 2004.
*248 Frank L. Supercinski, Longview, for appellant.
Daniel F. Dean, Palestine, for appellee.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
OPINION
DIANE DeVASTO, Justice.
R & T Sales Company, Inc. ("R & T") appeals the trial court's order granting Jerry Spencer, L.P.'s ("Spencer") motion to appoint a receiver. R & T raises three issues on appeal. Alert Synteks, Inc. ("Alert") appeals the trial court's order granting injunctive relief against it and in favor of Spencer Distributing, L.P. ("Spencer Distributing"). Alert raises two issues on appeal. We dismiss for want of jurisdiction in part and reverse in part.
BACKGROUND
Spencer entered into two construction contracts with R & T, who agreed to build two commercial buildings for Spencer in Richland Hills, Texas and Watauga, Texas respectively. Alert was one of several subcontractors working for R & T on the projects.
During the course of the project, Spencer received claims of unpaid bills from subcontractors on each project totaling more than $640,000.00. Among such claims was Alert's claim for $75,346.70 for work it had performed on both buildings. Spencer had previously paid R & T $1,905,755.06 to be held in trust to pay subcontractors.
Spencer filed the instant suit seeking a declaratory judgment as to what amount it owed Alert and other subcontractors. Spencer further sought to have a receiver appointed for the assets of R & T. R & T and Alert, by separate pleadings, answered and each filed motions to transfer venue. Both motions to transfer venue were denied.
Subsequently, Alert made a demand to Spencer for $75,346.70 and related to Spencer that if the amount was not paid, Alert would sell certain fuel dispensers it had in its possession that were owned by a third party, Spencer Distributing.[1] Thereafter, Spencer Distributing intervened in the lawsuit by way of Plaintiff's First Supplemental Petition claiming conversion and requesting that the trial court enjoin Alert from selling the gas dispensers.
On April 19, 2002, Spencer filed its Third Amended Original Petition. Neither *249 Spencer Distributing nor its request for injunctive relief are referenced in this pleading. On April 30, 2002, the trial court conducted a hearing concerning Spencer Distributing's request for injunctive relief against Alert as well as Spencer's request to have a receiver appointed for the assets of R & T. At the hearing, Barry Thomas Swinney ("Swinney"), a representative for Spencer Distributing, testified as did Darren Mackey, a certified public accountant who worked for Spencer.
Following the hearing, the trial court granted both Spencer Distributing's motion for injunctive relief and Spencer's motion to appoint a receiver. This interlocutory appeal followed.[2]
MOTION TO TRANSFER VENUE
In its third issue, R & T argues that the trial court erred in refusing to grant its motion to transfer venue. In its brief, R & T contends that the instant case is controlled by Texas Civil Practice and Remedies Code chapter 64, which provides that any action governed by any other statute prescribing mandatory venue shall be brought in the county required by that statute. R & T further argues that the mandatory venue provision set forth in Section 64.071 of the Texas Civil Practice and Remedies Code requires that the instant case be transferred to the county of R & T's principal office. Likewise, in its second issue, Alert argues that mandatory venue provisions deprived the trial court of jurisdiction to enter the temporary injunction against it.
No interlocutory appeal may arise from a trial court's determination of proper venue. See TEX. CIV. PRAC. & REM.CODE § 15.064(a) (Vernon 2002); Bristol-Myers Squibb v. Barner, 964 S.W.2d 299, 301 (Tex.App.-Corpus Christi 1998, no pet.); Guardian Sav. & Loan Ass'n v. Williams, 731 S.W.2d 107, 108 (Tex.App.-Houston [1st Dist.] 1987, no writ); cf., Surgitek, Inc. v. Adams, 955 S.W.2d 884, 887 (Tex.App.-Corpus Christi 1997, pet. dism'd by agr.) (Section 15.003 of the Civil Practice and Remedies Code, which allows an interlocutory appeal to contest a trial court's decision regarding joinder, did not authorize an interlocutory appeal of a denial of motion to transfer venue, even where the appeal also claimed improper joinder of plaintiffs who were allegedly unable to independently establish their right to bring suit in the county).
Here, both R & T and Alert seek to challenge the trial court's ruling on their respective motions to transfer venue. Inasmuch as we lack jurisdiction concerning a trial court's interlocutory ruling on a motion to transfer venue, we decline to consider both R & T's third issue and Alert's second issue.
RECEIVERSHIP
In its first issue, R & T contends that the trial court erred in ordering that a receiver be appointed because the underlying grounds for the trial court's order were not properly supported by the evidence.
Section 7.04 or 7.05 Receivership
Initially, R & T contends that even though Spencer's motion to appoint a receiver sought a receivership pursuant to Section 7.04 of the Texas Business Corporation Act, the trial court's order, in fact, appointed a receiver in accordance with Section 7.05 of the Texas Business Corporation Act.
Under Section 7.04, a receiver may be appointed by any court having jurisdiction of the subject matter for specific corporate assets that are involved in litigation, whenever *250 it is deemed by the court that circumstances exist that require the appointment of a receiver to conserve such assets and to avoid damage to parties at interest. See TEX. BUS. CORP. ACT ANN. § 7.04(A) (Vernon 2003). However, a receiver may be appointed under Section 7.04 only if (1) all other requirements of law are followed and (2) other remedies available either at law or in equity are determined by the court to be inadequate. Id. Furthermore, a receiver may be appointed under Section 7.04 only in certain instances, which, in pertinent part, are as follows:
[B]etween partners or others ... interested in any property or fund, on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured.
....
In any other actions where receivers for specific assets have heretofore been appointed by the usages of the court of equity.
See TEX. BUS. CORP. ACT ANN. § 7.04(A)(1), (3) (Vernon 2003).
On the other hand, Section 7.05 provides that a receiver may be appointed for the assets and business of a corporation by the district court whenever circumstances exist deemed by the court to require the appointment of a receiver to conserve the assets and business of the corporation and to avoid damage to the parties at interest. See TEX. BUS. CORP. ACT ANN. § 7.05(A) (Vernon 2003) (emphasis added).
In support of its argument that the trial court appointed a receiver pursuant to Section 7.05, R & T cites Humble Exploration Co., Inc. v. Fairway Land Co., 641 S.W.2d 934 (Tex.App.-Dallas 1982, writ ref'd n.r.e.). In Humble, the trial court's order appointing a receiver directed the receiver to take possession of Humble, "including all its operations, business, affairs, properties, files, records, bank accounts, employees, facilities, real and personal property, interests, assets, liabilities, and any and all of its properties." Id. at 938 (emphasis in original). Emphasizing further that the trial court's order had appointed a receiver of Humble and its "assets and business[,]" the trial court concluded that the trial court's order was necessarily an appointment relying upon Section 7.05.
R & T seeks to draw a parallel between Humble and the case at hand. Here, the trial court's order appointing a receiver for R & T decreed, in pertinent part, as follows:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that WILLIS JARRELL, JR., ... is hereby appointed receiver of the assets, funds, actions, property, and records of R & T SALES COMPANY, INC., DEFENDANT ... [T]he receiver shall be authorized... to do any and all acts necessary to the proper and lawful conduct of the receivership, including the following:
1. Secure and conserve all property of DEFENDANT R & T SALES COMPANY, INC., including personal property, real property, intangible property, and tangible property.
2. Trace and vouch all construction trust funds in the amount of $1,904,755.06 PAID BY PLAINTIFF JERRY SPENCER, L.P. to DEFENDANT R & T SALES COMPANY, INC. for construction of the Richland Hills and Watauga convenience stores that form the basis of [this] suit ...
3. Preserve all assets and records of DEFENDANT R & T ... and such *251 other actions as may be necessary to protect all parties at interest and for the Court to make a determination of the rights of the parties to the assets, funds, and actions of DEFENDANT R & T ...
4. The receiver shall be empowered to do whatever is reasonably necessary to trace, find, and verify the full sum of approximately $1,905, 755.06 paid by PLAINTIFF JERRY SPENCER, L.P. to DEFENDANT R & T ...
5. The receiver shall have the authority to obtain monthly bank statements and monthly reconciliation statements for any and all financial institutions of DEFENDANT R & T ... for any period of time the receiver deems necessary. The receiver shall also have the authority to obtain all journal entries, monthly profit and loss statements, monthly balance sheets, monthly account receivables, data compilations, reviews, and/or audits for DEFENDANT R & T ... for any period of time the receiver deems necessary ... [T]he receiver shall have the power and authority to obtain any other records that the receiver may deem beneficial in accomplishing the goals of this Order.
6. The receiver shall have the right to employ legal counsel and expend reasonable attorneys [fees] from the $25,000.00 fund deposited in the registry of the court by the PLAINTIFF JERRY SPENCER, L.P. to file suit to pursue and effect the terms of this Order.
....
8. The receiver is authorized by the Court to employ accounting assistance in this matter, upon motion and order before the Court, to be paid by Plaintiff.
IT IS FURTHER ORDERED that money coming into the possession of the receiver shall be held in trust by the receiver subject to such orders as this Court may hereafter issue.
....
IT IS FURTHER ORDERED that the receiver shall, upon location of assets, funds, property, and/or records or no later than 120 days from qualification of the receiver, file in this action an inventory of all property of which the receiver shall have taken possession. If the receiver subsequently comes into possession of additional property, the receiver shall file a supplemental inventory as soon as practical.
Based on our review of the trial court's order, we conclude that the order in the instant case is distinguishable from the order in Humble. Here, the trial court's order does not direct that there be a receiver of the business of R & T. Rather, the trial court's order is restricted to R & T's assets. As such, we hold that the trial court's order appointing a receiver must conform to the requirements of Section 7.04.
Standard of Review
Since a receivership is an equitable remedy within the sound discretion of the court, an appointment will not be disturbed on appeal unless the record reveals an abuse of discretion. See Abella v. Knight Oil Tools, 945 S.W.2d 847, 849 (Tex.App.-Houston [1st Dist.] 1997, no writ); see also Balias v. Balias, Inc., 748 S.W.2d 253, 256 (Tex.App.-Houston [14th Dist.] 1988, writ denied). We will reverse for abuse of discretion only when we conclude that the trial court acted in an unreasonable or arbitrary manner. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, *252 242 (Tex.1985). Stated somewhat differently, abuse of discretion occurs when a court acts "without reference to any guiding rules and principles." Id. at 241-42. A corollary principle is that a court of appeals may not reverse for abuse of discretion merely because it disagrees with the trial court's decision, so long as such a decision was within the court's discretionary authority. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Downer, 701 S.W.2d at 242.
Propriety of Trial Court's Order Granting Receivership
To iterate, among the requirements that must be met before a trial court can appoint a receiver under Section 7.04 is that the trial court determine that other remedies available either at law or in equity are inadequate. See TEX. BUS. CORP. ACT § 7.04(A); see also Associated Bankers Credit Co. v. Meis, 456 S.W.2d 744, 750 (Tex.Civ.App.-Corpus Christi 1970, no writ) (under Section 7.04, a receiver will not be appointed if the status of the property can be maintained and the rights of the applicant protected pending a hearing by the issuance of a restraining order or temporary injunction, or by any remedy less drastic than a receivership).
In the case at hand, Spencer offered no evidence at the hearing on its motion to appoint a receiver to support the trial court's finding that other remedies available either at law or in equity were inadequate. No evidence of record supports that other methods which could potentially be employed to trace the missing funds, such as traditional discovery, had been attempted and failed or were otherwise unavailable. In fact, there is no indication in the record that any discovery had been attempted at the time the trial court granted Spencer's motion. Moreover, the record is silent as to reasons why injunctive relief could not be employed to preserve assets or why monetary damages would not provide an adequate remedy. We hold that by granting Spencer's motion to appoint a receiver where there was no evidence supporting its finding that other remedies available either at law or in equity were inadequate, the trial court abused its discretion. R & T's issues one and two are sustained.
INJUNCTION
In its first issue, Alert argues that the trial court abused its discretion by granting injunctive relief in favor of Spencer Distributing.
Amendment of Pleadings
Alert's argument in support of its first issue is multifarious. Initially, Alert contends that the trial court improperly granted the injunction because (1) Spencer Distributing had been dismissed as a party, (2) the injunctive action against Alert had been abandoned, and (3) the injunctive relief was not supported by the pleadings. More specifically, Alert argues that Spencer Distributing was made a party to the instant lawsuit by virtue of Plaintiff's First Supplemental Petition filed on April 4, 2002. When, on April 19, 2002, Spencer filed its Third Amended Petition, which made no reference to Spencer Distributing or its claim for injunctive relief against Alert, Plaintiff's First Supplemental Petition, Alert argues, was no longer regarded as the pleading of record. Thus, Alert contends, Spencer Distributing was no longer a party, and its claim for injunctive relief was thereby abandoned. We disagree.
When a party's name is omitted from an amended pleading, he is as effectively dismissed as where a formal order of dismissal is entered. Randolph v. Jackson Walker L.L.P., 29 S.W.3d 271, 274 (Tex. *253 App.-Houstonn [14th Dist.] 2000, pet. denied). However, Texas Rule of Civil Procedure 64 requires that the party amending point out the instrument amended, as "original petition," or "plaintiff's first supplemental petition," or as another instrument filed by the party and shall amend by filing a substitute therefor, entire and complete in itself, indorsed "amended original petition," or "amended first supplemental petition," accordingly as said instruments of pleading are designated. See TEX.R. CIV. P. 64.
In the case at hand, Alert, in essence, argues that Plaintiff's Third Amended Original Petition operated to supplant Plaintiff's First Supplemental Petition. Yet, in accordance with Rule 64, and the examples cited therein, Spencer has indorsed the pleading as the third amendment to its original petition. Any amendment to Plaintiff's First Supplemental Petition would, in accordance with the express example set forth in Rule 64, be indorsed as Plaintiff's First Amended First Supplemental Petition. Id. Nothing in the body of Plaintiff's Third Amended Original Petition, either express or implied, causes us to conclude that Spencer sought to amend Plaintiff's First Supplemental Original Petition. Moreover, none of the cases[3] cited by Alert support the proposition that a pleading designated as an amendment to a previously-filed original petition also served to amend a previously-filed supplemental petition. Thus, we conclude that (1) Spencer Distributing was not dismissed as a party at the time the trial court granted injunctive relief, (2) the injunctive action against Alert was not abandoned, and (3) the injunctive relief granted was supported by the pleadings.
Adequate Remedy at Law
Alert further contends that the trial court improperly granted Spencer Distributing injunctive relief because the record reflects that there existed an adequate remedy at law.
A trial court is clothed with broad discretion in determining whether to issue an injunction, and its order will be reversed only on a showing of a clear abuse of discretion. See Florence v. Florence, 388 S.W.2d 220, 224 (Tex.Civ.App.-Tyler 1965, writ dism'd). However, this general rule is not unlimited; it does not extend to the erroneous application of the law to the undisputed facts. Bank of the Southwest N.A. v. Harlingen Nat'l Bank, 662 S.W.2d 113, 115-16 (Tex.App.-Corpus Christi 1983, no writ). Furthermore, it is an abuse of discretion for a trial court to issue a temporary injunction where no evidence that would support a temporary injunction was presented to the trial court. See Rogers v. Howell, 592 S.W.2d 402, 403 (Tex.Civ.App.-Dallas 1980, writ ref'd n.r.e.). A judgment issuing a writ of temporary injunction may not be made by affidavit, and thus a sworn petition does not constitute evidence supporting the trial court's judgment. Id.; Millwrights Local Union No. 2484 v. Rust Engineering Co., 433 S.W.2d 683, 686 (Tex.1968).
An injunction will not be granted if there is an adequate and plain remedy at law. See McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex.1984); Bank of the Southwest, 662 S.W.2d at 116. For a legal remedy to be adequate, it must give the plaintiff complete, final, and equal relief. See Universal Health Servs., Inc. v. *254 Thompson, 24 S.W.3d 570, 577 (Tex.App.Austin 2000, no pet.);[4]Henderson v. KRTS, Inc., 822 S.W.2d 769, 773 (Tex.App.-Houston [1st Dist.] 1992, no writ); Bank of the Southwest, 662 S.W.2d at 116 ("The test for determining whether an existing remedy is adequate is whether such remedy is as complete and as practical and efficient to the ends of justice and its prompt administration as is equitable relief."). For the purposes of injunctive relief, if damages cannot be calculated, or if the defendant will be unable to pay damages, there is no adequate remedy at law. Texas Indus. Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529, 533 (Tex.App.-Houston [1st Dist.] 1992, no writ); see Thompson, 24 S.W.3d at 577; Surko Enters., Inc. v. Borg-Warner Acceptance Corp., 782 S.W.2d 223, 225 (Tex.App.-Houston [1st Dist.] 1989, no writ). Granting an injunction in the face of an adequate remedy at law is an erroneous abuse of the court's discretionary powers. See Hancock v. Bradshaw, 350 S.W.2d 955, 957 (Tex.Civ.App.-Amarillo 1961, no writ).
In the case at hand, Swinney testified that each of the gas dispensers had a fair market value of eleven thousand dollars and that the total value of all of the dispensers allegedly converted was ninety-nine thousand dollars. Although Spencer Distributing pleaded that it "daily suffers losses from the non-possession of the ... gas dispensers[,]" and that "the property and rights involved are unique and irreplaceable[,]" there is no evidence of record to support such allegations. The record is further silent concerning any inability on the part of Alert to pay Spencer Distributing monetary damages. Moreover, Spencer Distributing has not argued in its brief that it was without an adequate remedy at law or that Alert was insolvent. Inasmuch as the only evidence of record reflects that the gas dispensers allegedly converted had a fixed and discernible fair market value, and further, considering that (1) there is no evidence that Spencer Distributing had suffered or would suffer losses resulting from the non-possession of the gas dispensers, (2) there is no evidence that the gas dispensers were unique and irreplaceable, and (3) there is no evidence suggesting that Alert was insolvent, we cannot conclude that Spencer Distributing's remedy at law was inadequate. Thus, we hold that by granting an injunction in the face of an adequate remedy at law, the trial court abused its discretion. Appellant's first issue is overruled in part and sustained in part.
CONCLUSION
We dismiss R & T's third issue and Alert's second issue for want of jurisdiction. Having sustained R & T's issues one and two, we reverse and vacate the trial court's order appointing a receiver for the assets of R & T. Having sustained Alert's issue one in part, we reverse and dissolve the trial court's order granting a temporary injunction against Alert. Accordingly, we remand this cause to the trial court for further proceedings consistent with this opinion.
NOTES
[1] Alert had Spencer Distributing's fuel dispensers in its possession because Spencer Distributing had Alert transport the dispensers from R & T's warehouse.
[2] See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(1), (4) (Vernon 2004-2005).
[3] In support of its proposition, Alert cites to the following cases: Direkly v. Devcon, 866 S.W.2d 652 (Tex.App.Houston [1st Dist.] 1993, writ dism'd w.o.j.); Burton v. Bridges, 641 S.W.2d 635 (Tex.App.-El Paso 1982, writ ref'd n.r.e.); and Sparks v. Aetna Life and Casualty Co., 554 S.W.2d 228 (Tex.Civ.App.-1977, no writ).
[4] A subsequent appeal of Thompson was ultimately reversed on unrelated grounds. See Universal Health Servs., Inc. v. Renaissance Women's Group, P.A., 121 S.W.3d 742 (Tex.2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577111/ | 35 So.3d 305 (2010)
SURVEY AMERICA, INC.
v.
LOUISIANA PROFESSIONAL ENGINEERING and Land Surveying Board.
No. 2009 CA 0286.
Court of Appeal of Louisiana, First Circuit.
February 10, 2010.
*306 Myron A. Walker, Jr., William H. Burris, Seale, Smith, Zuber & Barnette, Baton Rouge, LA, for Plaintiff-Appellee Survey America, Inc.
Celia R. Cangelosi, Baton Rouge, LA, for Defendant-Appellant Louisiana Professional Engineering and Land Surveying Board.
Before: PARRO, KUHN, and McDONALD, JJ.
PARRO, J.
The defendant appeals a judgment rendered by the district court on judicial review in favor of the plaintiff, reversing and vacating an administrative decision by the defendant in an enforcement action against the plaintiff. For the following reasons, we affirm the judgment of the district court.
*307 Factual Background and Procedural History
In 2006, Survey America, Inc., a foreign corporation with its principal place of business in Evansville, Indiana, sent facsimile transmissions to four registered Louisiana surveying firms soliciting price quotes for land survey work needed to be performed in Louisiana. The firms that received the faxes were Louisiana businesses licensed to perform land surveying work in Louisiana. An employee of one of those firms submitted a complaint against Survey America with the Louisiana Professional Engineering and Land Surveying Board (the Board), of which he was a member. The complainant reported that Survey America was not a licensed land surveyor and that by using the symbol of the tripod on its letterhead and using the word "survey" in its business name, Survey America had violated LSA-R.S. 37:700(A)(1) through (7).
Survey America received notice that the Board was considering preferring charges against the corporation for the alleged violations, but at the request of Survey America, an informal conference by telephone was conducted. However, the parties were unable to resolve the matter. Subsequently, by a unanimous vote on September 17, 2007, the Board preferred charges against Survey America pursuant to LSA-R.S. 37:700(D)(1), involving alleged violations of LSA-R.S. 37:681 and 700(A)(1), (7), and (9).[1]
After a hearing on January 7, 2008, the Board found as a fact that Survey America had never been licensed with the Board as a professional land surveying firm and, therefore, was not authorized to practice and/or offer to practice land surveying in Louisiana. The Board also made the following findings of fact: in 2006, Survey America sent faxes to licensed firms in Louisiana soliciting price quotes for the performance of land surveying work in Louisiana; the faxes contained Survey America's company name, along with a survey tripod icon; and two of the firms responded to the faxes from Survey America, submitted price quotes, were retained by Survey America, performed the work requested, invoiced Survey America for the work, and were paid by Survey America.
Based on Survey America's actions, the Board concluded that it had jurisdiction, and, relying on LSA-R.S. 37:682(13), which defines the term "practice of land surveying," the Board concluded that Survey America had practiced and/or offered to practice land surveying in Louisiana. The Board found that Survey America had violated LSA-R.S. 37:681 and 700(A)(1) by practicing and/or offering to practice land surveying in Louisiana and using in connection with its name and otherwise assuming, using, and advertising a description tending to convey the impression that it was licensed in Louisiana and able to perform land surveying work in Louisiana. The Board found that by using a modification or derivative of the words "land surveyor" or "land surveying" in its name or form of business or activity in Louisiana, Survey America violated LSA-R.S. 37:700(A)(7). By using a derivative of the word "surveying" in its firm name in Louisiana, Survey America was considered by the Board to have offered to provide professional *308 services in Louisiana in violation of LSA-R.S. 37:700(A)(9), by virtue of LAC 46:LXI.2301(B)(1). Accordingly, the Board sustained the charges against Survey America and ordered it to pay a fine of $5,000, as well as $6,087.03 in costs.
From the Board's decision, Survey America filed a petition for judicial review with the district court.[2] After reviewing the administrative record, the district court found that Survey America was not attempting in any way to practice land surveying in Louisiana, or to advertise or to convey that it was a professional land surveying firm. It observed that the faxes clearly indicated that Survey America was seeking the submission of bids for the services of a licensed Louisiana surveyor to perform survey work that it needed to have performed in Louisiana. Louisiana surveyors were subsequently hired by Survey America to perform the work. Accordingly, the district court found that the Board clearly abused its discretion in finding that Survey America violated licensing laws, that the Board was without substantial justification in its findings, and that the Board's actions were arbitrary and capricious and clearly wrong. Judgment was entered in favor of Survey America, reversing and vacating the Board's decision.[3] The Board appeals,[4] contending that the district court erred in reversing the Board's decision in that the record supports that Survey America violated LSA-R.S. 37:681 and LSA-R.S. 37:700(A)(1), (7), and (9) (specifically LAC 46:LXI.2301(B)(1)).[5]
Discussion
In order to safeguard life, health, and property and to promote the public welfare, any individual in either a public or private capacity, or foreign or domestic firm, practicing or offering to practice professional land surveying, shall be required to submit evidence that he is qualified to so practice and shall be licensed as hereinafter provided. LSA-R.S. 37:681. It shall be unlawful for any person to practice or to offer to practice in this state land surveying, as defined in LSA-R.S. 37:682(13), or to use in connection with his name or otherwise assume, use, or advertise any title or description tending to convey the impression that he is a professional land surveyor, unless such person has been duly licensed under the provisions of LSA-R.S. 37:681 through 703. LSA-R.S. 37:681.
"Practice of land surveying" shall include the measuring of areas, land surfaces, streams, bodies of water, and swamps for correct determination and description, for the establishment, reestablishment, ascertainment, or description of land boundaries, corners, divisions, distances, and directions, the plotting and monumenting of lands and subdivisions thereof, and mapping and topographical *309 work. LSA-R.S. 37:682(13)(a). A person shall be construed to practice or offer to practice land surveying who engages in land surveying and who by verbal claim, sign, advertisement, letterhead, card, or in any other way represents himself to be a land surveyor, or who represents himself as able to perform or who does perform any land surveying service or work, or any other service designated by the practitioner which is recognized as land surveying. LSA-R.S. 37:682(13)(b).
The Board shall have the power to make, adopt, amend, and promulgate all bylaws, rules, and regulations not inconsistent with the constitution and laws of this state, which may be reasonably necessary for the proper performance of its duties,[6] and the regulation of the proceedings before it. LSA-R.S. 37:688(A). The Board shall adopt, promulgate, and enforce rules and regulations, which may be reasonably necessary for the protection of the public and proper administration of LSA-R.S. 37:681 through 703. LSA-R.S. 37:688(C)(1). These rules and regulations shall be binding on all applicants, land surveyor interns, and professional land surveyors, including all firms which must hold a license. Id. The Board may establish, adopt, promulgate, and publish rules and regulations concerning the procurement of land surveying services. LSA-R.S. 37:688(C)(2).
Concerning enforcement action against a non-licensee or non-certificate holder, LSA-R.S. 37:700 provides, in pertinent part:
A. The board shall have the power to take enforcement action against any non-licensee or non-certificate holder found by the board to be guilty of any of the following acts or offenses:
(1) Practicing or offering to practice engineering or land surveying in the state of Louisiana without being licensed in accordance with the provisions of this Chapter.
* * *
(7) The use by any person of the words "engineer" or "engineering" or "land surveyor" or "land surveying" or any modification or derivative thereof in its name or form of business or activity except as licensed under this Chapter or in the pursuit of activities exempted by this Chapter.
* * *
(9) Violation of any provisions of this Chapter or any rules or regulations adopted and promulgated by the board.
* * *
B. For purposes of this Chapter, the term "enforcement action" shall include but not be limited to a fine in an amount not to exceed five thousand dollars per violation.
C. The board shall have the power to take enforcement action against a firm if one or more of its officers, directors, managers, employees, agents, or representatives is found by the board to be guilty of any of the acts or offenses listed in Subsection A of this Section.
* * *
J. In addition to any other action, the board may assess all reasonable costs incurred in connection with an enforcement proceeding, including investigators', stenographers', and attorneys' *310 fees in conjunction with any other enforcement action taken. The assessment of costs may be considered enforcement action.
Pursuant to its authority under LSA-R.S. 37:688, the Board promulgated LAC 46:LXI.2301(B), which in pertinent part provides:
A firm must be licensed with the board before it may provide or offer to provide professional services in the state of Louisiana.
1. A firm which has in its title the word engineering or surveying or any derivative thereof shall be construed to be offering to provide professional services and therefore must be licensed with the board before doing business in the state of Louisiana, unless it has in its title modifying or explanatory words which would, in their ordinary meaning, negate the inference of the professional practice of engineering or land surveying.
Based on the actions of Survey America, it seems to be undisputed, and the district court found, that Survey America was not practicing or offering to practice professional land surveying in Louisiana as contemplated by the applicable statutes. Instead, through its requests for a price quote, which the Board sought to punish, Survey America sought to procure the services of a licensed land surveyor to perform land surveying work in Louisiana. By so doing, it was attempting to comply with the requirements of LSA-R.S. 37:681. Therefore, we agree with the district court and find no violation of LSA-R.S. 37:681 or 700(A)(1).
What is disputed by the Board is whether Survey America was trying "to use in connection with [its] name or otherwise assume, use, or advertise any title or description tending to convey the impression that [it was] ... a professional land surveyor." (Emphasis added); see LSA-R.S. 37:681. Even though the word "survey" is used in the name of the business and a survey tripod is used to form the letter "A" in "America," such use does not tend to convey the impression that Survey America was a professional "land surveyor" or a "land surveying" firm practicing or offering to practice professional land surveying in Louisiana. Therefore, we also agree with the district court that Survey America did not use in connection with its name or otherwise assume, use, or advertise any title or description tending to convey the impression that it was a professional land surveying firm for purposes of obtaining for itself land surveying work in Louisiana. These findings are clearly supported by the record in this case. Accordingly, we find no violation of LSA-R.S. 37:700(A)(7).
With respect to a violation of LSA-R.S. 37:700(A)(9), the Board urges that Survey America's use of the term "survey" in its title is in violation of LAC 46:LXI.2301(B)(1). However, we read this regulation as prohibiting a land surveyor from doing business as a professional land surveyor in Louisiana until a license has been obtained from the Board. To the extent that LAC 46:LXI.2301(B)(1) may be construed to prohibit a land surveyor, who uses the term "surveying or any derivative thereof," from conducting any kind of business in Louisiana without a land surveyor license, we find that this regulation is inconsistent with the laws of this state. It would be absurd to think that an out-of-state land surveyor or land surveying firm would have to obtain a Louisiana license merely to procure the services of a land surveyor licensed in Louisiana.[7] Furthermore, *311 although the Board is authorized by LSA-R.S. 37:688(C)(2) to adopt regulations concerning the procurement of land surveying services, we are unable to find any such regulation that would prohibit Survey America, based on its name, from procuring the services of a Louisiana licensed professional land surveyor to perform work for itself or one of its clients. Accordingly, we find no violation of LSA-R.S. 37:700(A)(9).
Finding no violation of the laws and regulation in question, we find that the district court was acting within its appellate authority in reversing the final decision of the Board.[8]See LSA-R.S. 49:964(G).[9]
Decree
For the foregoing reasons, we affirm the judgment of the district court on judicial review. Costs of this appeal in the amount of $1,962.06 are assessed to the Louisiana Professional Engineering and Land Surveying Board.
AFFIRMED.
NOTES
[1] Louisiana Revised Statute 37:700(A)(9) provides that the violation of any rules or regulations adopted and promulgated by the Board are considered acts or offenses. The specific rule or regulation alleged to have been violated was LAC 46:LXI.2301(B)(1), which prohibits the practicing and/or offering to practice land surveying and the use of the word "surveying" or any derivative thereof in a firm's name or form of business or activity in Louisiana without proper licensure.
[2] See LSA-R.S. 37:700(1); LSA-R.S. 49:964.
[3] Survey America's request for attorney fees, costs, and publication of correction in the Board's official journal was deferred.
[4] See LSA-R.S. 49:965.
[5] When reviewing a final decision or order of an agency in an adjudication proceeding, the district court functions as an appellate court. Once a final judgment is rendered by the district court, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the district court's judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Blanchard v. Allstate Ins. Co., 99-2460 (La.App. 1st Cir. 10/18/00), 774 So.2d 1002, 1004, writ denied, 01-0285 (La.3/23/01), 787 So.2d 997; see LSA-R.S. 49:964(G).
[6] The duty of the Board shall be to administer the provisions of LSA-R.S. 37:681 through 703. See LSA-R.S. 37:683(A)(1).
[7] We further note that the Board's duty is to enforce rules and regulations, which may be reasonably necessary for the protection of the public and for proper administration of LSA-R.S. 37:681 et seq. See LSA-R.S. 37:688(A). We fail to see how the enforcement of LSA-R.S. 37:700(A)(9) under the facts of this case serves either of these functions.
[8] In so ruling, we do not address the issue of jurisdiction over the person of Survey America.
[9] This court must review the district court's judgment in light of the standards set forth in LSA-R.S. 49:964(G). The district court may reverse or modify the agency decision if substantial rights of the appellant are prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency's statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion; or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. LSA-R.S. 49:964(G); Pacificorp Capital, Inc. v. State, Through Div. of Admin., 92-1729 (La.App. 1st Cir.8/11/94), 647 So.2d 1122, 1125, writ denied, 94-2315 (La. 11/18/94), 646 So.2d 387. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577115/ | 151 S.W.3d 315 (2004)
85 Ark. App. 174
Frank TODD and Debra Nelson
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES.
No. CA 03-493.
Court of Appeals of Arkansas, Division III, IV.
February 18, 2004.
*317 Lora Noschese, Bentonville, for appellant Frank Todd.
DeeNita D. Moak, Bentonville, for appellant Debra Nelson.
Janet L. Bledsoe, Rogers, attorney ad litem.
Gray Allen Turner, Little Rock, for appellee.
KAREN R. BAKER, Judge.
The circuit court of Benton County terminated the parental rights of appellants. The court included in its findings that each parent, either as the offender or as an accomplice, committed a felony battery against another child which resulted in the subsequent death of that child. Each parent challenges the respective termination. We have consolidated their arguments for appeal. The father, Frank Todd, challenges the sufficiency of the evidence. The mother, Debra Nelson, challenges the sufficiency of the evidence and argues that the Department of Human Services (DHS) failed to prove its grounds for terminating parental rights. She also argues that the trial court erred in denying her one year from the time her child was removed from her home to remedy the situation that caused the removal. We find no error and affirm.
On January 13, 2002, the then two-year-old son of Frank Todd and Debra Nelson, was taken into protective custody by the Arkansas Department of Human Services for a seventy-two-hour hold as a result of massive head trauma inflicted upon an infant grandson of Debra Nelson, Noah Caldwell. Four-month-old Noah was pronounced dead on January 14, 2002, a result of these severe injuries. Although the petition for emergency custody cited two conditions for J.T.'s removal, the medical condition of Noah caused by a caretaker in the home and the environment of the residence, it is clear that the primary reason for removal was the injury suffered by Noah while in appellants' care.
Frank Todd was arrested and charged with the capital murder of Noah Caldwell. At the time of the termination hearing, he was being held without bond in the Benton County jail while awaiting trial. A probable cause hearing was held on January 23, 2002, and an adjudication date was set in accordance with Arkansas law. Shortly thereafter, the Department of Human Services filed notice of intention to recommend that a finding of no reunification services be entered against the father, Frank Todd, based on his having allegedly committed murder of a child, having committed a felony battery or assault that results in serious bodily injury to any child, and/or subjecting J.T. to aggravated circumstances.
An adjudication hearing was held on March 8, 2002. Mr. Todd did not testify. Debra Nelson testified that she had met Frank Todd in a psychiatric facility, Charter Hospital, in San Antonio, Texas, while both were patients at the facility. Mr. Todd was being treated for depression and for fighting with his son. Ms. Nelson was being treated for depression and to address issues concerning her being abused by her father and later by the husband to whom she was married during the hospitalization. Mr. Todd and Ms. Nelson never married, but some months after their meeting, Mr. Todd moved in with Ms. Nelson. At the time Jacob was taken into *318 custody, the two had been live-in companions for three to four years. Ms. Nelson had been on medication after her release from the hospital. When she decided she wanted to have another child, she spoke with her psychiatrist who said she would need to discontinue her medication before becoming pregnant. Although she could not remember exactly when she stopped taking her prescriptions, she knew it was sometime before she became pregnant with J.T. There was no evidence that she ever resumed her medication. Ms. Nelson also testified that Mr. Todd had continued to take medication throughout the time she had known him; however, he would periodically neglect taking his medication. Ms. Nelson stated that she would "get on to him, and make sure that he was taking" his medications. She further stated that these lapses were never extensive and that she believed that at the time of Noah's death that Mr. Todd was taking his medication.
Ms. Nelson described Mr. Todd as verbally abusive and recounted two instances of physical abuse within the year preceding Noah's death. The first incident was against Ms. Nelson. She explained that during an argument that he "had taken his belly" and shoved her. The second was against her seventeen-year-old daughter. Ms. Nelson told how her daughter and Mr. Todd were verbally arguing and that when her daughter refused to go to her room, that Mr. Todd held his knuckles up to her throat, "shoved his belly at her," and told her to go to her room. Ms. Nelson said she called the police after each incident. After the second incident, Mr. Todd admitted himself to a psychiatric ward. Mr. Todd returned to the home about a month later.
When questioned about how J.T.s leg was broken when he was seven months old, Ms. Nelson explained that he was standing right in front of her when it happened. She had her feet on the walker in front of her, and J.T. was climbing on the edge of the walker. She took him down from the walker several times, but he eventually slipped, and his foot was caught breaking his leg.
Regarding the events that led to Noah being in her care at the time of his death, Ms. Nelson explained that a Texas court granted her daughter temporary custody of Noah and her granddaughter, Zoe, who was about twenty-one months old at the time. Ms. Nelson had attempted to intervene to obtain temporary custody, but the Texas court refused and ordered that the children not be removed from the State of Texas. She explained that she understood that restriction to mean that the children could not be moved permanently out of the State of Texas, and that she left the next day with the children for them to visit her in Arkansas. This occurred sometime in December 2001.
In response to questions regarding injuries on her grandchildren when they came into her care, Ms. Nelson stated that Zoe had normal bumps and bruises from being an active child and that Noah had none. She explained that when she brought the two children to Arkansas, Mr. Todd became the primary caretaker for all three of the young children in the household. Ms. Nelson's teenage daughter was not at home much. She described her work-week as five to six days a week with eight to fifteen hours a day. She explained that Mr. Todd's previous hospitalizations and incidents of physical aggression caused her no concerns regarding Mr. Todd's caring for three young children. She said that his problems were with teenagers, not young children. She further testified as to his commendable care of J.T., including walking the floors with the colicky child at night.
*319 Ms. Nelson also related one incident of Noah having trouble breathing prior to the infliction of head trauma on January 13, 2002. She said she was at work when Mr. Todd called to say that Noah was having difficulty breathing and his lips were turning blue. She left work immediately and upon her arrival home found the baby "breathing hard, his heart racing, fussy, but still smiling".
On the night of the fatal injuries, she testified that she left the home around twenty minutes before 8:00 p.m. to go to the hospital to visit her sister-in-law and her new baby. She had planned to leave earlier because visitation ended at 8:00, but had been delayed. Immediately prior to leaving she was holding and playing with Noah who was laughing and smiling at her while she bounced him. She placed him in his swing where he was starting to go to sleep as she and her teenage daughter were leaving. Mr. Todd was in a good mood, on the couch watching television. Ms. Nelson did, however, offer that they had a rough day grocery shopping with all three kids while her older daughter slept, "doing all the grocery shopping, bringing everything back" after shopping at Wal-Mart.
Within three minutes of her arrival at the hospital, Mr. Todd called to say the baby was breathing funny, turning blue, and not responding. Ms. Nelson explained that it reminded her of when the baby had pneumonia, and she directed Mr. Todd to run hot water in the shower to see if the steam would help the baby breathe. She said she told him to call 911 if it didn't help, and she left for home. When she arrived, the emergency personnel were transferring Noah from the house to an ambulance. At the hospital, she described Mr. Todd as behaving angrily, complaining that law enforcement officers were watching him, like they thought that he had done something. She explained that she was concerned for her grandson and that she didn't have time to address Mr. Todd's complaints.
Deputy Randy Clark with the Benton County Sheriff's Office testified that he was at the hospital, investigating the injuries to Noah, when Mr. Todd arrived. Deputy Clark explained to Mr. Todd his Miranda rights, and Mr. Todd agreed to speak with him. Mr. Todd explained that he was watching television when he noticed the baby slumped over in the child's swing. Ms. Nelson was getting ready to leave for the hospital, and he asked her to take at look at the baby. Ms. Nelson just laughed and said the baby was playing. Shortly after Ms. Nelson left, Mr. Todd looked back at the swing, and the baby was in the same position. So he picked the baby up. When he could not elicit a response from the child, he called Ms. Nelson. Mr. Todd said that Noah had done this before and that Ms. Nelson had got the baby breathing again. He couldn't, and he called 911.
Rich Connor, an investigator with the Sheriff's office, also investigated the events surrounding Noah's death. He described bruises and an indentation on Noah's face and head. He said that Mr. Todd had explained the bruise saying that Noah had fallen off the sofa. When Investigator Connor discovered that there were two other young children at the home with a teenage girl, the officers went to check on them. This was around midnight. They woke everyone up. They described the place as a "filthy mess." There were clothes, trash, dirty dishes, and dirty cat boxes. Fresh meat, still in the Wal-Mart sacks, was in the floor and the cats were trying to get into it. They found a bottle with rotten milk in J.T.'s bed. J.T's bed was dirty with what appeared to be blood stains on the pillow. Every bed in the *320 house, every sheet, and every pillow, had a stain on it that he believed to be blood, including baby Noah's bassinet. Investigator Connor stated that some of the apparent blood stains were brown, and some were red. The baby's swing where Noah had been slumped was so stained that he could not determine whether any of the stains were blood stains from his initial observations.
Dr. George Schaefer was the pediatrician who treated Noah on the night of January 13. He testified that Ms. Nelson had told him that the baby had been a little fussy that day and didn't eat well, but had no current illness. She did not offer information as to why Noah had been brought to the emergency room. Dr. Schaefer described the swelling of the baby's head and that he was not breathing on his own. His examination revealed bruises of varying ages from several days old to within a day or two. He testified that because of the baby's developmental stage, it would be unusual to have bruises in those areas resulting from the baby's own activities.
Dr. Schaefer also explained that Noah had bilateral retinal hemorrhages. He testified that this condition is expected whenever you have a severe or significant trauma to the head, and is especially common in child abuse cases. He commented that Noah's hemorrhages were very obvious. He explained that this medical condition does not happen spontaneously and severe force would have had to have been used to sustain the damage. He was asked to estimate the time of injury. He stated that he believed 911 was called about 8:15 p.m., and that when he first examined Noah around 9:30 p.m. that the body was already cold. He explained that it takes a body temperature time to fall. He estimated that the injuries could have occurred anywhere from two to four hours before he arrived and first saw the child. When questioned as to whether the body could have lost that much warmth between 8:00 p.m. to 9:30 p.m., the doctor explained that if Noah had been in a warm home and a warm ambulance during the time after he sustained the injury, that he would not expect such a low body temperature to develop within that time frame. In spite of his testimony regarding Noah's body temperature, Dr. Schaefer could not testify for certain when the injuries occurred and allowed that it was possible they had occurred around 8:00 p.m. Noah remained on life support in the care of Dr. Schaefer until he was transferred to Arkansas Children's Hospital.
The deposition of Dr. Jerril Green was incorporated into evidence. He testified that Noah died of traumatic brain injury. In addition to several skull fractures, Noah also had rib fractures. Dr. Green stated these were at least two weeks old, but could possibly have been as old as two months. He also testified that rib fractures in a baby Noah's age are a common finding in physical abuse cases. He explained that the rib fractures found in Noah would have taken considerable force, and were non-accidental.
After the hearing, the court found that J.T. was dependent-neglected. In the order terminating parental rights, the court found that each parent either, as the offender or as an accomplice, had committed a felony battery against the child, Noah Caldwell, resulting in his subsequent death. Although other factors and findings are also cited, it is this factor which was critical to the termination.
The burden on the party seeking to terminate the parental relationship is a heavy one under Arkansas law. Malone v. Arkansas Dep't of Human Servs., 71 Ark.App. 441, 30 S.W.3d 758 (2000). Arkansas Code Annotated section 9-27-341(b)(3) *321 (Repl.2002 & Supp.2003) requires that an order terminating parental rights must be based on clear and convincing evidence. When the burden of proving a disputed fact in a termination proceeding is by clear and convincing evidence, the inquiry on appeal is whether the trial court's finding that the disputed fact was proven by clear and convincing evidence is clearly erroneous. Minton v. Arkansas Dep't of Human Servs., 72 Ark.App. 290, 34 S.W.3d 776 (2000). A finding is clearly erroneous when, although there is evidence to support the finding, after reviewing all of the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been made. Nichols v. Wray, 325 Ark. 326, 925 S.W.2d 785 (1996). In resolving the clearly erroneous question, we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Dinkins v. Arkansas Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001).
Arkansas Code Annotated section 9-27-341 provides as grounds for terminating parental rights, that:
ix(a) The parent is found by a court of competent jurisdiction to:
(1) Have committed murder or voluntary manslaughter of any child or to have aided or abetted, attempted, conspired, or solicited to commit such murder or voluntary manslaughter;
(2) Have committed a felony assault that results in serious bodily injury to any child;
Ark.Code Ann. § 9-27-341(b)(1)(A)(3)(B)(xi)(a)(1 & 2).
Under Ark.Code Ann. section 5-2-403 (Rep.1997), an accomplice is defined as follows:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
A defendant can be an accomplice to murder even though the defendant's participation in the murder is, compared to that of the principal, relatively passive. See Henry v. State, 278 Ark. 478, 486-87, 647 S.W.2d 419, 424, cert. denied, 464 U.S. 835, 104 S.Ct. 121, 78 L.Ed.2d 119 (1983); see also Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). The following factors are relevant in determining the connection of an accomplice with the crime: presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). Accomplice liability may be shown by circumstantial evidence, without direct proof of a conspiracy agreement. Purifoy v. State, 307 Ark. 482, 487, 822 S.W.2d 374, 377 (1991); King v. State, 271 Ark. 417, 609 S.W.2d 32 (1980). Under the accomplice liability statute, a defendant may properly be found guilty not only of his own conduct, but also by the conduct of his accomplice. Id.; King, supra. When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Id.; Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id.; Parker, supra.
*322 We cannot say that the trial court clearly erred in finding that either Ms. Nelson or Mr. Todd inflicted the injuries on Noah and that the other was an accomplice. The doctor's testimony concerning the time and extent of injuries support the court's conclusion that Ms. Nelson was in the home when the injuries were inflicted upon Noah. Ms. Nelson testified that she was running late for visitation that ended at 8:00, but she was playing with a laughing and happy baby immediately before leaving. Yet she told the attending physician at the hospital that the baby had been fussy and not eaten well, and that they had a rough day grocery shopping with the children at Wal-Mart. The officers, upon arriving at the home, found fresh meat in the floor, still in the Wal-Mart sack, where the cats were trying to get into it, rather than having been put away.
The judge specifically discredited Ms. Nelson's testimony regarding her whereabouts at the time Noah suffered the injuries. The implausibility of Ms. Nelson's story is one criteria by which to judge her credibility and may be an indication of culpability. See Dopp v. Sugarloaf Min. Co., 288 Ark. 18, 702 S.W.2d 393 (1986) (describing implausible explanation as criteria as equally reliable as witness demeanor in determining credibility); Whitmore v. State, 263 Ark. 419, 565 S.W.2d 133 (1978) (affirming where appellant provided a rather implausible explanation given appellant's education and faced with the serious charges of which he was told).
Additionally, circumstantial evidence can be sufficient to support the conviction of battery of a child. Reams v. State, 45 Ark.App. 7, 870 S.W.2d 404 (1994); Payne v. State, 21 Ark.App. 243, 731 S.W.2d 235 (1987). In Reams, the court affirmed the conviction of a mother for first-degree battery of her child, rejecting her argument that her live-in companion, and not she, had severely abused her child. This court found that the appellant's improbable statements explaining the injury, the nature of the injuries to the child, the medical evidence, and the appellant's admission that she had the opportunity to abuse the child constituted substantial circumstantial evidence of guilt.
However, before parental rights may be terminated, there must also be clear and convincing evidence that it is in the best interest of the juvenile pursuant to section 9-27-341 subsections (b)(3)(A)(i) and (ii). Conn v. Arkansas Dep't of Human Servs., 79 Ark.App. 195, 85 S.W.3d 558 (2002) (holding that even when subsection (b)(3)(B)(ix)(a)(4) is satisfied with clear and convincing evidence that parental rights have been involuntarily terminated as to a sibling, parental rights cannot be terminated unless there is also clear and convincing evidence pursuant to subsections (b)(3)(A)(i) and (ii) that it is in the best interest of the juvenile).
A dependent-neglected juvenile is defined as "any juvenile who as a result of abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness is at substantial risk of serious harm." Ark.Code Ann. § 9-27-303(15)(A) (Repl.2002). Arkansas Code Annotated section 9-27-302(2)(B) provides that one purpose of the Juvenile Code is "[t]o protect a juvenile by considering the juvenile's health and safety as the paramount concerns in determining whether or not to remove the juvenile from the custody of his parents or custodians...."
In Brewer v. Arkansas Department of Human Services., 71 Ark.App. 364, 43 S.W.3d 196 (2001), we explained:
Parental unfitness is not necessarily predicated upon the parent's causing some direct injury to the child in question. Such a construction of the law *323 would fly in the face of the General Assembly's expressed purpose of protecting dependent-neglected children and making those children's health and safety the juvenile code's paramount concern. To require [another child] to suffer the same fate as [a sibling] before obtaining the protection of the state would be tragic and cruel.
71 Ark.App. at 368, 43 S.W.3d at 199; see also Arkansas Dep't of Human Servs. v. McDonald, 80 Ark.App. 104, 91 S.W.3d 536 (2002).
Similarly, to require J.T. to suffer the same fate as Noah before obtaining the protection of the law would be tragic and cruel. Therefore, we hold that the trial court did not err in finding that it was in the child's best interest to terminate parental rights.
Ms. Nelson also argues that the trial court erred in denying her one year from the time her child was removed from her home to remedy the situation that caused removal. However, the grounds for removal based upon the commission of a felony battery provide for immediate termination of parental rights. She fails to cite any relevant case law supporting her argument. When a party cites no authority or convincing argument on an issue, and the result is not apparent without further research, the appellate court will not address the issue. See Webber v. Arkansas Dep't of Human Servs., 334 Ark. 527, 975 S.W.2d 829 (1998); Country Corner Food & Drug, Inc. v. First State Bank, 332 Ark. 645, 966 S.W.2d 894 (1998).
Accordingly, we affirm.
GLADWIN, ROBBINS and VAUGHT, JJ., agree.
HART and NEAL, JJ., agree in part and dissent in part.
JOSEPHINE LINKER HART, Judge, dissenting.
Because there was no evidence that appellant, Debra Nelson, committed a felony battery upon her grandson, Noah Caldwell, I conclude that the circuit court's decision to terminate Nelson's parental rights with respect to her son, J.T., was clearly erroneous. Hence, I respectfully dissent.
In addition to showing by clear and convincing evidence that it is in the best interest of the child, an order terminating parental rights must be based on clear and convincing evidence of one or more grounds, including that the parent is found by a court of competent jurisdiction to "[h]ave committed a felony battery or assault that results in serious bodily injury to any child...." Ark.Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(2) (Supp.2003). In its order terminating Nelson's parental rights, the circuit court found that she "committed a felony battery or assault that result[ed] in serious bodily injury to any child...." The majority affirms, concluding that Nelson committed, as a principal or an accomplice, a felony battery upon Noah.
First, I must note that being an accomplice to a felony battery of any child does not warrant termination of parental rights. In comparison, accomplice liability suffices to support termination of parental rights under Ark.Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(1) (Supp.2003), which provides that an order terminating parental rights may be based on a finding that the parent "committed murder or voluntary manslaughter of any child or ... aided or abetted, attempted, conspired, or solicited to commit the murder or voluntary manslaughter...." The subsection on felony battery, however, makes no provision for accomplice liability, and given that the murder and manslaughter subsection *324 specifically provides for accomplice liability, we should not infer that being an accomplice to a felony battery suffices to support termination of parental rights.
Second, even if accomplice liability sufficed, the majority fails to refer to any evidence that Nelson committed the crime as either a principal or an accomplice. In support of its conclusion to the contrary, the majority cites Reams v. State, 45 Ark.App. 7, 870 S.W.2d 404 (1994), where this court concluded that Reams's improbable statements, along with the nature of the injuries to the child, the medical evidence, the opinions of the physicians, and her opportunity to commit the crime, were substantial evidence that she committed a battery upon a child.
Here, while the court found that Nelson's testimony was not credible, there was nothing about her testimony regarding Noah's injury that could be considered "improbable." There was no testimony that Nelson, as did Reams, admitted that she was lying or told anyone they "got [their] story straight." Further, there was no testimony that Nelson was present when the injury occurred. Reams, on the other hand, had exclusive control of the child. Here, it was an undisputed fact, and the court so found, that Frank Todd kept Noah in his sole care for long periods of time. Moreover, neither of the two testifying physicians could even pinpoint when the injury occurred. Dr. George Schaefer, a pediatrician, testified that he could not with certainty state when the injury occurred. Dr. Jerril Green, a pediatric intensive-care physician, also testified that he could not determine when the injury occurred. He could only say that the injury likely occurred "within hours" of Noah arriving at the hospital, but he could not say how many hours. Even more troubling, though Frank Todd was in jail awaiting trial for capital murder for Noah's death, there was no testimony from a forensic pathologist. Furthermore, unlike the child in Reams, Noah had not suffered multiple injuries while in the sole care of appellants. While Noah had suffered rib fractures, there was testimony that the rib fractures could have been as old as two months. Appellants had custody of Noah only for one month, and there was no evidence that the rib fractures would have been visible to any person caring for the child.
Thus, while it was apparent that Nelson was with Noah on the day of the injury, there was no evidence, circumstantial or otherwise, that she battered Noah or acted as an accomplice in the commission of the battery. Without more, I simply cannot conclude that the circuit court's decision to terminate Nelson's parental rights on this basis was proper.
NEAL, J., joins. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1577119/ | 151 S.W.3d 676 (2004)
Lynnwood Anthony VRBA, Appellant,
v.
The STATE of Texas, Appellee.
No. 10-03-00070-CR.
Court of Appeals of Texas, Waco.
October 27, 2004.
Rehearing Overruled January 4, 2005.
*677 Stan Schwieger, Waco, for appellant.
John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
OPINION
FELIPE REYNA, Justice.
A jury convicted Lynwood Anthony Vrba of felony driving while intoxicated. Vrba pleaded "true" to enhancement allegations increasing his punishment to that *678 for an habitual offender, and the jury assessed his punishment at sixty years' imprisonment. Vrba contends in three issues that the court abused its discretion by: (1) admitting into evidence his stipulation to two prior DWI convictions; (2) permitting the State to mention this stipulation in closing argument; and (3) permitting the State to ask improper commitment questions during voir dire. Because the stipulation was admissible and because the voir dire questions were not improper, we will affirm.
Vrba contends in his first issue that the court abused its discretion by admitting in evidence his stipulation that he had been previously convicted twice of DWI. He contends in his second issue that the court abused its discretion by permitting the State to mention this stipulation in closing argument.
The Court of Criminal Appeals has held that such a stipulation may be admitted in evidence. Hollen v. State, 117 S.W.3d 798, 802 (Tex.Crim.App.2003). It is appropriate for a prosecutor to provide a "summation of the evidence" in closing argument. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000). Thus, the reference to the stipulation in closing argument was not objectionable.
Accordingly, we overrule Vrba's first and second issues.
Vrba contends in his third issue that the court abused its discretion by permitting the State to ask improper commitment questions during voir dire. Vrba specifically complains of the following questions:
"What are some signs that somebody is intoxicated?"
"Who thinks that the process of being arrested would be something that might sober you up a little bit?"
"Why do you think someone should be punished?"
"[W]hich one of these [four theories[1] of punishment] is most important to you in trying to determine how someone should be punished and how much punishment they should receive?"
A voir dire question is a "commitment question" "if it attempts to commit the juror to a particular verdict based on particular facts." Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002) (citing Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App.2001)). A commitment question is improper if it does not "include only those facts that lead to a valid challenge for cause." Lydia v. State, 109 S.W.3d 495, 497-98 (Tex.Crim.App.2003) (citing Standefer, 59 S.W.3d at 182).
Notwithstanding these principles however, litigants are given "broader latitude" to "inquire into a prospective juror's personal background for the purpose of determining whether that background will adversely affect the juror's ability to decide the case in an impartial manner" and to inquire "into a prospective juror's general philosophical outlook on the justice system." Sells v. State, 121 S.W.3d 748, 756 n. 22 (Tex.Crim.App.2003).
Vrba first challenges the question, "What are some signs that somebody is intoxicated?" The prosecutor did not ask, "What signs of intoxication in your opinion warrant a conviction for driving while intoxicated?" The latter would be a commitment question. See Standefer, 59 S.W.3d at 180 ("What circumstances in your opinion warrant the imposition of the death penalty?" is a commitment question.). The question at issue is not a commitment question because it seeks only the jurors' *679 general views on signs of intoxication. Cf. id. at 180 n. 7 ("Do you think there might be circumstances that would mitigate against the death penalty?" is not a commitment question.).
Vrba next challenges the question, "Who thinks that the process of being arrested would be something that might sober you up a little bit?" This question is closer to the question at issue in Standefer,"Would you presume someone guilty if he or she refused a breath test on their refusal alone?" The question is closer to the question in Standefer because it focuses on a particular piece of evidence. However, the question did not ask the jurors to resolve (or "refrain from resolving") the issue of intoxication on the basis of this evidence. Nor did it ask the jurors "to set the hypothetical parameters for [their] decision-making" on the issue of intoxication. See id. at 179-80. Thus, the second question at issue is not a commitment question.
Finally, Vrba challenges the questions, "Why do you think someone should be punished?", and "[W]hich one of these [four theories of punishment] is most important to you in trying to determine how someone should be punished and how much punishment they should receive?" These questions inquired into the jurors' "general philosophical outlook on the justice system." See Sells, 121 S.W.3d at 756 n. 22. The parties are given "broader latitude" to ask questions of this sort. Id. Thus, we conclude that the court did not abuse its discretion by overruling Vrba's objections to these questions.
Accordingly, we overrule Vrba's third issue.
We affirm the judgment.
NOTES
[1] The four theories of punishment referred to by the prosecutor were general deterrence, specific deterrence, rehabilitation, and retribution. | 01-03-2023 | 10-30-2013 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.